Health Care Complaints Commission v Prowse

History of Proceedings

1. The Applicant had legal representation from the initiation of the proceedings until March 2023, and the Tribunal understands that the Respondent no longer has legal representation. Further, it has become apparent that the Respondent cannot be contacted by email nor by telephone. Attempts by the Applicant to obtain such contact details from her former legal advisers has proved unsuccessful. On 11 April 2023, the Tribunal held a Directions Hearing in this application. The Applicant attended, but there was no attendance by the Respondent. An email which was sent to the Respondent by the Tribunal was returned undelivered. Accordingly, the Tribunal is unaware whether the Respondent had knowledge of such Directions Hearing.
2. There has been a long history of Directions hearings in these proceedings as follows: 1. On 18 February 2022, the Respondent was ordered to provide any material upon which she relied on before 13 May 2022. 2. On 10 June 2022, further orders were made requiring the Respondent to provide the Applicant with a reply to the amended complaint on before 1 July 2022. 3. On 2 September 2022, directions were made requiring the Applicant to provide any amended application by 14 October 2022. 4. On 28 October 2022, more orders were made. Significantly, the Respondent was directed to provide the Applicant any material upon which she relied on by 16 December 2022. Further, order 9 provided: "The proceeding is listed for hearing commencing on 17 October 2022 at 10 AM at John Maddison Tower, Level 10, 86 - 90 Goulburn Street Sydney for 4 days." Such orders were revised by amendment made on 2 November 2022 to correct the date of the hearing. The words "October 2022" were deleted and substituted by the words "April 2023". 1. On 3 March 2023, orders were made which required the parties to serve their evidence. Significantly, with respect to the Respondent the following order was made: "The time within which the Respondent may serve the material upon which she intends to rely is extended to 20 March 2023."
3. The Tribunal notes that an affidavit of Ms Alexandra Elizabeth Bartlett (Ms Bartlett) sworn 2 March 2023 was filed. Ms Bartlett is a partner of the firm of Kennedy's (Australasia) Partnership ("Kennedys"), which formerly acted for the Respondent.
4. On 14 December 2022, Ms Bartlett sought instructions from the Respondent via an email address provided by the Respondent to Kennedys in relation to supplementary material which was served by the Applicant on that day. On 16 December 2022, the Respondent telephoned Ms Bartlett but did not provide instructions. Further instructions were sought on 19 December 2022; 22 December 2022; 12 January 2023 and 18 January 2023. On 26 January 2023, Ms Bartlett received a communication from the Respondent. Further instructions were sought from the Respondent by Ms Bartlett on eight occasions during February 2023 and again on 1 March 2023. No further instructions have been forthcoming from the Respondent.
5. Further, a Notice of Listing was issued by the Tribunal on 17 November 2022 confirming the hearing dates. On this date, the Respondent was still represented by Kennedys. Their retainer continued until a notice was filed in the Tribunal on 20 March 2023 informing the Tribunal that Kennedys no longer acted for the Respondent. Accordingly, it may be assumed that the Applicant, by virtue of her agreement to such dates through her solicitors, was placed on notice of the hearing to commence on 17 April 2023.
6. Pursuant to section 165J(3) of the National Law, the Tribunal may proceed in the absence of the registered health practitioner provided the practitioner has been given notice of the enquiry or appeal. When the proceedings were fixed for hearing on 28 October 2022, the Applicant was represented by her solicitors, Kennedys. At the directions hearing, the parties agreed to the hearing dates of 17 - 20 April 2023.
7. Accordingly, the Tribunal is satisfied that the Respondent is on notice of the hearing and the Tribunal will proceed to determine the application before it, as it is empowered to do: Ghosh v Health Care Complaints Commission [2020] NSWCA 353. The Tribunal is satisfied that the Respondent has elected not to avail herself of several opportunities to place any material before the Tribunal in response to the allegations made against her.

Summary of Proceedings

1. The Applicant alleges that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law; suffers from "an impairment" as that term is defined in the National Law; and is guilty of professional misconduct. Due to the complex nature of the factual circumstances, the Tribunal sets out hereunder a summary. Expert evidence has been provided by Ms Amanda Gordon, psychologist, who provided four reports: 1. Report dated 29 April 2021 (First Gordon Report); 2. Report dated 14 May 2021 (Second Gordon Report) 3. Report dated 21 May 2021 (Clarification Report of Ms Gordon); and 4. Report dated 4 October 2022 (Supplementary Report of Gordon). Dr Gordon Samuels, psychiatrist, provided a report dated 10 March 2021.

Client A

1. The allegations are essentially of boundary violations by a health practitioner. The Respondent, a psychologist, was consulted by Client A for grief counselling consequent upon the death of Client A's parent, and for sexuality issues. The Respondent provided treatment. In the course of doing so, it is alleged that the Respondent told Client A a concoction of false statements, including the following: 1. that her first husband, Jeremy, was a drug user and had committed suicide and that she had two daughters from such marriage; 2. that her close friend Lucinda was diagnosed with melanoma and had undergone euthanasia; 3. that she lost her second husband, David and two children, Saskia and Bella, in a car accident near Hay on 11 September 2001 and that she was a widow; that David had been a stockbroker and their family had resided at Watsons Bay, New South Wales; that David's sister was the driver of the vehicle at the date of the collision; 4. that her close friend, Jasmin, whom she had modelled with in the 1980s and who lived in New York, lost her husband and two children in the World Trade Centre terrorist attack; 5. that her father and mother, both of European heritage, had close links with wealthy European families such as Aristotle Onassis, and were close friends of Jacqueline Kennedy Onassis; 6. that she obtained a PhD at Harvard University; 7. from approximately 1997, the Respondent deceived not only Client A but also Client A's family with regard to her alleged personal history; 8. misused the personal information of a former client, Client C, by falsely representing to Client A that a photographic image of Client C was that of her late husband.
2. The Applicant alleges that every statement above was false.
3. Other conduct of the Respondent is alleged by the Applicant to constitute false misrepresentations. For example: 1. The Respondent posted on her Facebook page images which she claimed were of herself, when in fact they were of famous persons, including Elle MacPherson and Yasmin Le Bon; 2. The Respondent's Facebook page contained an image of a person who the Respondent claimed to be her mother, when it was in fact a photograph of a film actress, Brigitte Bardot.
4. The falsehoods, of themselves, do not constitute misconduct. However, the expert evidence of Amanda Gordon, Clinical and Health Psychologist (Ms Gordon), asserts that the significance of such false statements made by the Respondent to her vulnerable client, Client A, was intended to groom Client A. Following the period of treatment, the Respondent and Client A formed a relationship which became intimate and sexual. Client A was married to her then-husband, and she had two children of a former marriage. Client A had been married for almost 15 years and resided with her then-husband until the commencement of 2003, when Client A entered into a relationship with the Respondent. On 16 October 2018, the Respondent signed a Notice of Intended Marriage and Client A and the Respondent were married on that day. They lived together from 2005 until Client A took her own life on 22 February 2020.
5. The Applicant asserts that the Respondent engaged in improper or unethical conduct in the creation of such relationship and that such conduct breached the Australian Psychological Society's Code of Ethics 1997-2007 ("the Code"). The evidence in support comprises: 1. submissions of Client A's ex-husband dated 15 March 2020 provided to the Coroner's inquest in relation to the suicide of Client A; 2. submissions of Client A's daughter dated 15 March 2020 provided to the Coroner's inquest into the death of her mother; 3. submission of Client C dated 15 March 2020 provided to the Coroner's inquest into the death of Client A; 4. expert reports of Amanda Gordon dated 29 April 2021; 14 May 2021, and 4 October 2022; 5. expert report of Dr Anthony Samuels, psychiatrist dated 10 March 2021.

Client B

1. The Applicant alleges that Client B attended to seek counselling from the Respondent between 24 June 2016 and 9 February 2018. Client B, during the period of treatment by the Respondent, had been the victim of a sexual assault and was suffering from depression. In early 2018, the Respondent commenced a personal friendship with Client B following the conclusion of the period of treatment and commenced to reside with Client B from March 2020. However, from early 2018, the Respondent commenced a personal relationship including regular telephone calls of a personal nature with Client B in breach of clause 3.1 of the Code.
2. At the time of the personal friendship, Client B had a history of mental health issues requiring treatment and the relationship with Client B, which continued until 13 November 2020, was conducted in the absence of appropriate professional supervision. In her Reply, the Respondent claims that she obtained such supervision from a social worker, Ms Anne Fletcher. Ms Fletcher denies that any such supervision was sought or ever occurred.

Summary of Respondent's Reply

1. The Respondent does not dispute that she provided short-term grief counselling to Client A; does not admit that she informed Client A that she had lost her husband and two children in a car accident; admits their marriage on 16 October 2018, but denies that she failed to observe the proper professional boundaries.
2. With respect to Client B, the Applicant alleges that Client B had been the victim of a sexual assault and was suffering from depression; that the Respondent commenced a personal friendship with Client B and later began residing with Client B in March 2020 and maintained such relationship until 13 November 2020.
3. The Respondent denies that Client B had been the victim of a sexual assault at the time of her referral, but otherwise admits the factual allegations.
4. Further, the Respondent denies that she is suffering from an alleged impairment that detrimentally affects her capacity to practise, but acknowledges that she is suffering from Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder.
5. The Respondent acknowledges that she is not presently competent within the meaning of section 139(a) of the National Law in that she presently lacks mental or physical capacity to practise as a psychologist. She does not oppose a suspension of her registration as a psychologist for a period of two years.

Schedule of Complaints and Evidence

1. In accordance with the directions of the Tribunal made on 5 April 2023, the Applicant provided on 13 April 2023 a Schedule of the complaints in its Amended Complaint dated 24 March 2022, and the evidence it relies upon in support of each of the particulars of its complaints (the Schedule). The contents of the Schedule are set out as follows.

Complaint One

1. In Complaint One, the Applicant alleges: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. BACKGROUND TO COMPLAINT ONE Client A first met the practitioner in 1996 when she attended for counselling at Mona Vale Community Health Centre. The practitioner was working as a clinical psychologist at the time and provided counselling to Client A from approximately late 1996 to early or mid 1999. At the time of this counselling, Client A was married to her second husband, and had two daughters from a prior marriage. Client A and the practitioner were married on 16 October 2018."

Particular 1a

1. Particular 1a of Complaint One alleges: "In 1999, before the conclusion of the therapeutic relationship in early to mid 1999, the practitioner failed to observe proper professional boundaries with Client A in that the practitioner … [h]eld regular telephone conversations with Client A outside the regular counselling sessions; …"
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which states: "During the last 6 months of [Client A's] counselling, she and Karen spoke to each other on the phone about once a week. This was in addition to [Client A's] regular counselling sessions with Karen. I am not sure what they spoke about over the phone; I think it was about how much they had in common and how they wanted to be friends. I remember this being the point Karen started to become background noise in my marriage."
3. The Applicant also relies on the Clarification Report of Ms Amanda Gordon dated 21 May 2021. Ms Gordon stated: "This should be seen as a contravention of clause 8 of Section B of the APS Code of Ethics operational at that time. In addition, it seems from [Client A's ex-husband's]evidence that Ms Prowse was involved in a "dual relationship" with [Client A], clause 7 of Section B - Members must avoid dual relationships that could impair their professional judgement or increase the risk of exploitation. Whomever initiated the telephone conversations, they clearly were not therapy and were moving [Client A] to a different "friend" relationship with Ms Prowse. This is not at all acceptable behaviour on the above grounds, and would be seen as falling significantly below the standard of behaviour expected of a psychologist of Ms Prowse's experience."

Particular 1b

1. Particular 1b of Complaint One alleges: "In 1999, before the conclusion of the therapeutic relationship in early to mid 1999, the practitioner failed to observe proper professional boundaries with Client A in that the practitioner … [d]uring regular counselling sessions, the practitioner improperly disclosed personal information about herself to Client A."
2. The Applicant relies on Client A's ex-husband's statement of 3 May 2021, which states: "[Client A] also told me that she and Karen spoke a lot about Karen herself during their sessions. [Client A] told me that Karen was married to a man called David and they lived in Watsons Bay with their two children, Saskia and Bella. [Client A] told me that she went with Karen to her house one day, however just sat outside because Karen was too busy to go inside that day. I was also told that Karen had given birth naturally to Saskia and Bella and that they were not David's biological children, they were from Karen's previous marriage to a man called Jeremy. [Client A] told me that Karen and her children had previously lived in New York, that Karen was French/Italian and that her father was a famous French photographer. I was also told that Jeremy was a model maker and had worked on the movie, 'The Matrix'."
3. The Applicant relies on Client A's ex-husband's second statement dated 12 October 2022, which states: "8. During the period in which [Client A] was seeing Karen for counselling, I remember [Client A] telling me things about Karen which [Client A] said Karen told her. Some of these things I have already described in my first statement, but there are some other things and further detail that I wish to add. 9. [Client A] said to me that Karen told her that Karen's mother and [Client A's] father had known each other, and that [Client A's] father had confided in Karen's mother about his homosexuality and his deep distress about not being able to have any contact with [Client A]. Karen told [Client A] that this meeting had taken place when Karen's mother was in Australia on a modelling assignment and had met John. 10. [Client A] said that Karen told her she had gained a Ph.D at Harvard University, and had lived in Boston whilst she was at Harvard. 11. [Client A] said that Karen told her she had played cello in an orchestra and studied at the Sydney Conservatorium of Music and had also played for an orchestra in Boston. 12. [Client A] said that Karen told her she had previously been the 'Head of Psychology at St Vincent's Hospital'. 13. [Client A] also said that Karen told her she had a memory of [Client A] from when she was very young, meeting her at John Singleton's house when Karen's mother took her there. [Client A's] father … was best friends with John Singleton. [Client A] said that Karen told her that she remembers [Client A] was at John Singleton's place on a rare access visit, which included swimming together in his swimming pool. 14. [Client A] said Karen told her she had been in a relationship with Michael Hutchence and that Michael used to stay at Karen's house and go through her wardrobe and try on her dresses which Karen's husband, 'David', found amusing. I understand Michael Hutchence died in 1997 and [Client A] said Karen told her that she had attended Michael's funeral and 'slapped Kym Wilson across the face'. I understand Kym Wilson was held partly responsible by many for leaving Michael alone on the night he suicided. I also understand Kym Wilson had been banned from Michael's funeral by Paula Yates and apparently 'barged in' on the funeral. 15. [Client A] said Karen had told her she had been a catwalk model when she was younger, that Karen's mother was Italian and also a former model, and Karen's father had been a French photographer. [Client A] also said Karen told her that Karen's parents had been mildly famous in Europe and had partied with Jacqueline Onassis. [Client A's] father … was a well-known and wealthy advertising executive in the 1960s and had actually partied with Jacqueline Onassis. 16. [Client A] said that Karen had told her that Karen's mother lived in the same building as Jacqueline Onassis in New York, on the same floor, and that they got on well and had lunch together periodically. 17. [Client A] told me Karen said she had an 'instant recognition' when she met [Client A]. [Client A] said Karen went on a trip to Beijing where she visited a psychic who said to Karen that [Client A] would be very important 'afterwards'. [Client A] told me that Karen said that she never really knew what this meant until after her husband David, and children Saskia and Bella, died."
4. The Applicant relies on Ms Gordon's Clarification Report, which states: "However, it is never alright to discuss personal details in a way that leads to a shift from the psychologist being there solely for the purpose of therapy to a mutually beneficial relationship. Based on the evidence of [Client A's ex-husband], Ms Prowse constructed a narrative of her own experiences which she shared with the client. This could lead the client to see the relationship as one of friendship, not therapy. This is counter to clause 8 of section B of the APS Code of Ethics operational at the time of the alleged conduct, which states that Members must not exploit their professional relationships with clients sexually or otherwise. This conduct falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience."
5. The Applicant also refers to Section B (entitled 'Relationships with Clients'), clause 8 of the Australian Psychological Society's (APS) Code of Ethics, 1997 - 2007, which relevantly provides: "Members must not exploit their professional relationships with clients sexually or otherwise."

Particular 2, generally

1. Particular 2 of Complaint One alleges: "During the therapeutic relationship the practitioner disclosed purported personal information about herself to Client A which was fabricated …"
2. The Applicant relies on Section B, clause 8 of the APS Code of Ethics (set out above), and Ms Gordon's Clarification Report which states: "There is no explanation available to me. It is certainly not the professional conduct of a psychologist. It could be seen as exploitative of her client, Clause 8 of Section B of the Code of Ethics operational at that time. This conduct falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience."

Particular 2a

1. Particular 2a of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner had been a fashion model when she was younger; …"
2. The Applicant relies on Client A's ex-husband's second statement of 12 October 2022, which states: "[Patient A] said Karen had told her she had been a catwalk model when she was younger …"
3. The Applicant relies on a timeline of events titled 'Complaint re: Karen Lynne Prowse, Clinical Psychologist' prepared by Client A's daughter ("the timeline", Tab 8), which included: "[On 28 December 2019] I checked Karen's Facebook, to see if there was any indication as to what was going on with her. Karen had deleted a couple of Facebook posts she had recently done; I had taken a screenshot of them out of interest: i. 15th December at 4:01am, Karen posted a photo of two woman [sic] modelling in swimsuits and had said that it was a shoot from Vogue summer issue in 1984, of her and her friend Yasmin … … I discussed Karen's unusual Facebook activity with a friend of mine, Elenore Quintal, and Elenore said she remembered the modelling photo and had doubts it was Karen. We uploaded the image into 'Google reverse image search' and it revealed the following: i. The model in the photo was not Karen, it was Elle McPherson. … Karen confirmed via text that she was portraying the woman in the photoshoot, to be herself …."
4. The Applicant's Schedule attaches several images constituting Annexures 6 and 8 to the timeline.
5. The Applicant also filed the affidavit of Samuel Luke Fair (Mr Fair) dated 12 April 2023. Mr Fair is a legal officer employed by the Applicant. The affidavit was tendered for the purposing of showing that the images which the Respondent claimed to be that of her mother and herself were in fact of Jasmin Le Bon and Brigitte Bardot.

Particular 2b

1. Particular 2b of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner's father was a French photographer; …"
2. The Applicant again relies on Client A's ex-husband's second statement of 12 October 2022, which states: "[Client A] said Karen had told her she had been a catwalk model when she was younger, that Karen's mother was Italian and also a former model, and Karen's father had been a French photographer…"
3. The Applicant relies on the Notice of Intended Marriage between the Respondent and Client A dated 16 October 2018 ("the Notice of Intended Marriage"), which records the name of the Respondent's father as "Graham Sydney Prowse (deceased)", in conjunction with the marriage certificate of the Respondent's parents dated 22 November 1963 ("Respondent's parents' marriage certificate") which states the "occupation" of Graham Sydney Prowse as "locksmith".
4. The Applicant also relies on Client A's daughter's statement dated 12 July 2021, which referred to Facebook text messages between her and the Respondent's cousin, Mr Gary Prowse. A photograph of those messages was provided and relied upon by the Applicant.

Particular 2c

1. Particular 2c of Complaint One alleges the Respondent falsely represented to Client A: "…that the practitioner's mother was an Italian model; …"
2. The Applicant again relies on Client A's ex-husband's second statement of 12 October 2022.
3. The Applicant again relies on the Notice of Intended Marriage, which stated the Respondent's mother's name as "Lynette Kay Brook (deceased)", in conjunction with the Respondent's parents' marriage certificate, which recorded the "occupation" of Lynette Kay Brook" as "Accounting machinist".
4. The Applicant relies on photographs of Facebook posts made by the Respondent and by Client A on 28 July 2016.
5. The Applicant also relies on the affidavit of Mr Fair dated 12 April 2023.

Particular 2d

1. Particular 2d of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner had been married to [a] man named Jeremy; …"
2. The Applicant relies on the Notice of Intended Marriage, which recorded the Respondent's number of previous marriages as "0", and the number of the Respondent's children of any previous marriages born alive was left blank.
3. The Applicant relies on the Declaration of No Legal Impediment to Marriage signed by the Respondent and Client A on 16 October 2018 ("the Declaration"), wherein the Respondent made the declaration: "I have never been validly married."
4. The Applicant relies on the timeline prepared by Client A's daughter, which states: "We continued our own investigation into Karen Lynne Prowse, and discovered that the man Karen claimed to be Jeremy Courvoisier, her first husband and biological father of her children, was in fact a man named [Client C]. We made this discovery via a Facebook post Karen did on 19th January 2020, dedicated to Jeremy and the girls. The image Karen used in the post, to portray 'Jeremy,' was a headshot of a former patient of Karen's from the mental health unit at Mona Vale Hospital in the early 1990's. REFER TO ANNEX 21."
5. Annexure 21 consists of a Facebook post made by the Respondent, which included a photograph of Client C, whom the Respondent held out to be her deceased husband.
6. The Applicant also relies on Client C's statement dated 3 February 2021, which states: "14. [Client A's daughter] provided me with a copy of Ms Prowse's Facebook post, which contained a photograph of myself. A copy of this post has been attached to this statement and marked 'Annexure A'. I confirm that the photograph in the post is of myself. [Client A's daughter] told me that in the past Ms Prowse had also put up on her Facebook page other photos of me, however [Client A's daughter] said Ms Prowse had since removed these. … 16. Ms Prowse never contacted me or obtained my consent for posting my image to her social media account. The story is also completely fictional. Ms Prowse and I never had any sort of relationship outside of the therapeutic one and I am definitely not dead."

Particular 2e

1. Particular 2e of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner had had two daughters with Jeremy; …"
2. The Applicant relies on the Notice of Intended Marriage, Client C's statement dated 3 February 2021, and the Respondent's declaration that she had never been validly married (in the Declaration).
3. The Applicant also refers to a photograph of text messages the Respondent sent to Client A's daughter on 19 July 2018, in which the Respondent stated that she told the marriage celebrant that she did not have children "as [the Respondent] couldn't handle it …".

Particular 2f

1. Particular 2f of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner was at that time married to her second husband named David; …"
2. The Applicant relies on the Notice of Intended Marriage, the Respondent's declaration in the Declaration, and the text messages the Respondent sent to Client A's daughter on 19 July 2018.

Particular 2g

1. Particular 2g of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner at that time lived in a house in Watsons Bay with her second husband and two daughters; …"
2. The Applicant relies on the Notice of Intended Marriage and the Respondent's text messages to Client A's daughter on 19 July 2018.

Particular 2h

1. Particular 2h of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner and her daughters had previously lived in New York."
2. As discussed later in this decision at [160], that there is no Commonwealth record produced to the Tribunal establishing that the Respondent has ever visited the United States of America.

Particular 3, generally

1. Particular 3 of Complaint One alleges: "In early or mid 2001, the practitioner entered into a close personal relationship with Client A …"
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which states: "16. Karen disappeared after this for about a year and a half, however she did have some contact with [Client A] by phone. I clearly remember there were at least three phone calls from Karen and it was always along the lines of Karen letting [Client A] know that she had not finished her supervision and still had a few more things to do before they could start the friendship. 17. Karen re-emerged in around 2000 / 2001 and contacted [Client A] again, telling her she had finished the supervision. The relationship between [Client A] and Karen became quite intense, with almost daily phone calls to one another. We had a landline phone at the time and as I have set out in my Coronial submissions, this caused quite a stir with our daughters because they were not allowed to use the phone during dinner time. [Client A] and Karen's calls usually lasted around 30 - 45 minutes."
3. The Applicant also relies on Ms Gordon's Clarification Report dated 21 May 2021, which states: "… I believe that the majority of our peers would find that Ms Prowse's behaviour in entering into a friendship with [Client A], without ensuring she had psychological care, was not in the best interests of the client and falls significantly below the standard expected of her. … By late 2002, Ms Prowse and [Client A] had allegedly been friends for some two years. Their friendship had allegedly been condoned by Dr Roger Bartrop. I would suggest that, if damage was going to occur to [Client A] through a relationship with Ms Prowse, it had already occurred by the time they entered into a sexual relationship. During the course of time that they had already been friends, they would have moved into an intimate relationship, precursing a sexual relationship. It is my opinion, and I believe it would be shared by my peers, that the contravention of the Code [the Australian Psychological Society (APS) Code of Ethics] occurred with the commencement of the friendship, and that a move towards a more intimate relationship was probably inevitable by then - it was arguably a development of the friendship, rather than part of the Psychologist/Client relationship."

Particular 3a

1. Particular 3a of Complaint One alleges the Respondent entered into a close personal relationship with Client A in circumstances where: "… the practitioner had previously failed to maintain proper professional boundaries with Client A and had disclosed purported personal information about herself which was fabricated during the therapeutic relationship as alleged in particulars 1 and 2 …"
2. The Applicant relies on Client A's ex-husband's statement of 3 May 2021, which states: "11. [Client A] also told me that she and Karen spoke a lot about Karen herself during their sessions. [Client A] told me that Karen was married to a man called David and they lived in Watsons Bay with their two children, Saskia and Bella. [Client A] told me that she went with Karen to her house one day, however just sat outside because Karen was too busy to go inside that day. I was also told that Karen had given birth naturally to Saskia and Bella and that they were not David's biological children, they were from Karen's previous marriage to a man called Jeremy. [Client A] told me that Karen and her children had previously lived in New York, that Karen was French/Italian and that her father was a famous French photographer. I was also told that Jeremy was a model maker and had worked on the movie, 'The Matrix'. … 14. When the counselling ended in around mid-late 1998/1999, [Client A] told me that she and Karen wanted to be friends. My understanding was that this was just a social relationship, as opposed to an intimate relationship, because both [Client A] and I thought Karen was married to David. I remember my response to [Client A] was that it felt very inappropriate and possibly illegal, as Karen had been her counsellor. [Client A] told me that it would be okay, because Karen had told her she was going to do supervision and that they would be able to restart the friendship when Karen's supervisor was satisfied it was okay."
3. The Applicant relies on the second statement of Client A's ex-husband dated 12 October 2022, which is extracted above at [30].
4. The Applicant again relies on Section B, clause 8 of the APS Code of Ethics, 1997-2007 extracted above at [32].
5. The Applicant also relies on Ms Gordon's Clarification Report, which states: "[Client A's ex-husband's] evidence suggests that Ms Prowse knowingly developed a "dual relationship" with her client throughout therapy, such that more than two years later, [Client A] was the person to whom she turned for support when she was allegedly suicidal. It was her behaviour earlier, which fell significantly below the standard expected of a psychologist of her experience, which set up the potential for her to call on [Client A] for support, some two years after the termination of therapy."

Particular 3b

1. Particular 3b of Complaint One alleges the Respondent entered into a close personal relationship with Client A in circumstances where: "… the practitioner failed to ensure Client A sought and received psychological support with respect to a personal, non-therapeutic relationship with the practitioner; …"
2. The Applicant relies on Ms Gordon's Clarification Report, which states: "… I believe that her conduct of beginning a friendship with [Client A], without suggesting [Client A] receive psychological support, either from herself or another psychologist, betrayed a lack of proper care for the client and awareness of [Client A's] potential vulnerability. This is the sort of event that should properly have been discussed in supervision, and in her role, Ms Prowse would have had that ability to do so. The APS Code of Ethics operational at that time was less specific about whom Ms Prowse should have consulted prior to beginning a sexual relationship with a former client, compared to the current version. However, Section B, dealing with Relationships with Clients, has clauses 10, 11 and 12, dealing explicitly with the importance of psychologists taking responsibility for the relationship and ensuring that the psychological wellbeing of the former client was paramount in the decision-making. I believe that the majority of our peers would find that Ms Prowse's behaviour in entering into a friendship with [Client A], without ensuring she had psychological care, was not in the best interests of the client and falls significantly below the standard expected of her. They would be less condemnatory of her seeking supervision from a psychiatrist, rather than specifically a Senior Psychologist. However, the supervision should have led to [Client A] receiving an offer of ongoing support from an alternative psychologist, and that does not appear to have happened."

Particular 3c

1. Particular 3c of Complaint One alleges the Respondent entered into a close personal relationship with Client A in circumstances where: "… the practitioner was aware of Client A's prior history of psychological problems and that Client A was potentially vulnerable; …"
2. The Applicant relies on the statement of Client A's ex-husband, which states: "8. In addition to this trauma, [Client A] also had questions around her own sexuality. I was already aware of [Client A's] uncertainty about this because she had told me about it when we married, however it came up again as a question for her after her parents passed away. This, in addition to her childhood trauma, was why she decided to see a psychologist for counselling. [Client A] decided to see Karen because she had been recommended by a friend …. 9. [Client A] ended up seeing Karen regularly for counselling for about 2 years, from around 1996/1997 to mid-late 1998/1999. [Client A] had around two counselling sessions each month, sometimes more. [Client A] was really open and told me about her counselling sessions and what she and Karen spoke about. …"
3. The Applicant also relies on Ms Gordon's Clarification Report, which is extracted above at [72].

Particular 3d

1. Particular 3d of Complaint One alleges the Respondent entered into a close personal relationship with Client A in circumstances where: "… the practitioner was ethically obliged to ensure that her actions were in accordance with Client A's best interests and welfare and not to fulfil the practitioner's own personal and emotional needs."
2. The Applicant relies on Ms Gordon's Clarification Report extracted above at [31] and [72].
3. The Applicant also relies on Section B, clauses 7-8, 10-12 of the APS Code of Ethics 1997-2007, which states: "7. Members must avoid dual relationships that could impair their professional judgement or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to, provision of psychological services to employees, students, supervisees, close friends or relatives. 8. Members must not exploit their professional relationships with clients sexually or otherwise. … 10. No member may engage in a sexual relationship with a former client when less than two years have expired since the ending or termination of the professional relationship. 11. In circumstances where more than two years have elapsed since the ending or termination of the professional relationship between the member and former client, in determining whether a sexual relationship between the member and former client is unethical, the following matters will be taken into consideration: a) the length of the professional relationship; b) the nature of the professional relationship; c) the client's mental state at the time he or she commenced the sexual relationship with the member; d) the circumstances in which the professional relationship ended or was terminated; and e) the duration of time that has expired since the ending of the professional relationship. Additionally, any other salient matters may be taken into consideration when evaluating the conduct of a member who has engaged in a sexual relationship with a former client. 12. Where it has been established that a sexual relationship existed between a member and a former client after the expiry of 24 months from the ending or termination of a professional relationship, the onus shall be on the member to establish that the client was not vulnerable to exploitation as a consequence of the prior professional relationship."

Particular 4, generally

1. Particular 4 of Complaint One alleges: "In about mid 2002 the practitioner told Client A the following information that was false: a. that the practitioner's second husband and her two daughters died in a car accident on or around 11 September 2001; b. that due to the deaths of her two children and husband the practitioner was suicidal; c. that her friend Jasmin's husband and three children had been killed in the September 11, 2001 terrorist attacks in the USA."
2. The Applicant relies on Ms Gordon's Clarification Report, which states: "Ms Prowse and [Client A] had clearly developed an intense relationship by September 2001, even though it seems from [Client A's ex-husband's] evidence that there were some periods in which they had little contact. My concern is that that friendship developed during the course of therapy and the years subsequent to it, rather than what happened two years after the therapy had ended. Ms Prowse had knowingly been involved in building a friendship with [Client A] over months and years, and then continued with that relationship, alleging that she had now been cleared by a supervisor to do so. [Client A's ex-husband's evidence suggests that Ms Prowse knowingly developed a "dual relationship" with her client throughout therapy, such that more than two years later, [Client A] was the person to whom she turned for support when she was allegedly suicidal. It was her behaviour earlier, which fell significantly below the standard expected of a psychologist of her experience, which set up the potential for her to call on [Client A] for support, some two years after the termination of therapy."

Particular 4a

1. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which states: "There was no more contact from Karen until around mid-2022 [sic] when Karen phoned [Client A]. I remember coming home from work to find [Client A] on the floor [bawling] her eyes out. She told me that Karen had called her and explained what had happened when they got back from their weekend away to Currawong in 2001. This is when [Client A] relayed the story told to her by Karen about David, Saskia and Bella, that they had all been killed in a car accident near Canberra on 11 September 2011. [Client A] told me that Karen had returned to her home after their weekend away and had found the Police at her door, who told her the bad news. [Client A] said that Jeremy was in the Police car and Karen had to go and identify the bodies of her husband and children. [Client A] said that Karen collapsed when she went to do the identification."
2. The Applicant relies on the Notice of Intended Marriage referenced above at [49], and the text messages sent by the Respondent to Client A's daughter dated 19 July 2018 (referenced at [57]).
3. The Applicant also relies on the statement of Client C dated 3 February 2021, which states: "8. When I finished up my counselling with Ms Prowse in or around July 1998, I gave her a gift to say 'thank you', as I believe she tried her hardest to help me (even though in hindsight the treatment method she used to [sic] was not best suited to me). The gift was a coffee table made out of timber. I remember that she was blown away by the gift. 9. I never saw or spoke to Ms Prowse again after I finished counselling with her. … 14. [Client A's daughter] provided me with a copy of Ms Prowse's Facebook post, which contained a photograph of myself. A copy of this post has been attached to this statement and marked 'Annexure A'. I confirm that the photograph in the post is of myself. [Client A's daughter] told me that in the past Ms Prowse had also put upon her Facebook page other photos of me, however [Client A's daughter] said Ms Prowse had since removed these. … 16. Ms Prowse never contacted me or obtained my consent for posting my image to her social media account. The story is also completely fictional. Ms Prowse and I never had any sort of relationship outside of the therapeutic one and I am definitely not dead."

Particular 4b

1. The Applicant relies on Client A's ex-husband's statement dated 3 May 2021, which states: "[Client A] said that Karen also told her during the call that her best friend, [Y]asmin (who Karen modelled with when she was younger), had been widowed on the same day and had also had her three children killed. [Client A] relayed that [Y]asmin's husband was a stockbroker and he and his three children had been in the two towers at the time of the terrorist attack and had all died."
2. The Applicant also relies on photographs of a Facebook post made by the Respondent, the Respondent's text messages with Client A's daughter dated 15 December 2019, and the affidavit of Mr Fair .

Particular 5, generally

1. Particular 5 of Complaint One alleges: "From about mid 2002 and for a number of years after the practitioner continued to maintain to Client A that her second husband and two daughters had died in a car accident in September 2001 …"
2. The Applicant relies on a complaint lodged by Client A's daughter with the Board of the Psychology Council of New South Wales dated 27 July 2020, which states: "Karen perpetuated this lie - the tragic loss of her husband and children, and its impact on her ongoing mental state - for 18 years for emotional and financial gain. …"

Particular 5a

1. Particular 5a of Complaint One alleges the Respondent continued to maintain this falsehood in circumstances where: "… Client A was deeply distressed by the information; …"
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which is extracted above at [82].

Particular 5b

1. Particular 5b of Complaint One alleges the Respondent continued to maintain this falsehood in circumstances where: "… Client A believed the practitioner was periodically suicidal due to the deaths of her husband and daughters; …"
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which states: "23. [Client A] told me that Karen was suicidal and that Karen's mother, Lynette, and Karen's friend, Lucinda, were going to Karen's a few days each week on rotation on 'suicide watch'. I recall that the term 'suicide watch' was the term specifically used by [Client A]. … 27. Sometime during the winter of 2003, Karen and [Client A] went to Italy together for around 3 - 4 weeks. When [Client A] got back home, she told me that she and Karen had been sexually intimate for the first time when they were away and that she wanted to be with Karen, as Karen needed her. [Client A] told me that I would be okay, but that Karen wouldn't be because she was suicidal due to the death of her family. I still had not met Karen at this point but felt sorry for her because of all she had been through."

Particular 5c

1. Particular 5c of Complaint One alleges the Respondent continued to maintain this falsehood in circumstances where: "… Client A was motivated to provide ongoing emotional and practical support to the practitioner including staying with the practitioner at the practitioner's home a few nights a week on suicide watch over the practitioner; …"
2. The Applicant again relies on the statement of Client A's ex-husband dated 3 May 2021, part of which is extracted above at [92]. The Applicant also relied on the following extract of that statement: "[Client A] asked me if she could also go and watch out for Karen. I was of course at the time absolutely devastated for Karen and agreed that [Client A] go and do this. From them on [Client A] would disappear for a few days each week, staying overnight with Karen at her place at Surf View Road in Mona Vale."

Particular 5d

1. Particular 5d of Complaint One alleges the Respondent continued to maintain this falsehood in circumstances where: "… the practitioner's ongoing deception of Client A garnered for the practitioner Client A's attention and sympathy and was not in Client A's best interests or welfare."
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021, which states: "It was not until after [Client A] died that I found out everything Karen told [Client A] was a lie; that there was no David, Jeremy, Saskia, Bella or Jasmin. Karen had never been married and had never had children. The only reason I had let Karen into my life the way I did was because I felt empathy for her and wanted to show compassion because of the double tragedy I thought she had experienced.
3. The Applicant also relies on Client A's daughter's complaint of 27 July 2020, which is extracted above at [87].

Particular 6

1. Particular 6 of Complaint One alleges: "In or around 2003, the practitioner commenced a sexual relationship with Client A which continued until Client A's death on 22 February 2020. The practitioner's conduct in commencing and maintaining a sexual relationship with Client A was improper and unethical having regard to the prior circumstances alleged in Particulars 1 to 5 above."
2. The Applicant again relies on the statement of Client A's ex-husband dated 3 May 2021, extracted above at [92].
3. The Applicant also relies on Ms Gordon's Clarification Report, which states: "It was her behaviour earlier, which fell significantly below the standard expected of a psychologist of her experience, which set up the potential for her to call on [Client A] for support, some two years after the termination of therapy. … The evidence presented to me in this case … is of a psychologist who knowingly was still the psychologist, with a power differential including a fantasy that she had provided to her then-client, engaged in an unhealthy relationship with someone who was no longer in a protective psychological process."
4. The Applicant relies on the current APS Code of Ethics which commenced in 2007, and which relevantly provides at Section C.3 entitled 'Conflict of Interest': "C.3.1. Psychologists refrain from engaging in multiple relationships that may: (a) impair their competence, effectiveness, objectivity, or ability to render a psychological service; (b) harm clients or other parties to a psychological service; or (c) lead to the exploitation of clients or other parties to a psychological service. C.3.2. Psychologists who are at risk of violating standard C.3.1., consult with a senior psychologist to attempt to find an appropriate resolution that is in the best interests of the parties to the psychological service."
5. The Applicant also relies on Section B, clauses 10, 11 of the APS Code of Ethics 1997-2007, which are extracted above at [79].

Complaint Two

1. In Complaint Two, the Applicant alleges: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. BACKGROUND TO COMPLAINT TWO As for Complaint 1."

Particular 1

1. Particular 1 of Complaint Two alleges: "From about 1997 and on an ongoing basis during the course of her relationship with Client A, the practitioner engaged in repeated deception of Client A, Client A's husband and Client A's children with respect to her personal history."
2. The Applicant relies on the statement of Client A's ex-husband dated 3 May 2021 (extracted above at [96]) and Client A's daughter's complaint of 27 July 2020 (extracted above at [8887]).
3. The Applicant relies on Section C.4 entitled 'Non-exploitation' of the current APS Code of Ethics, which relevantly provides: "C.4.1. Psychologists do not exploit people with whom they have or had a professional relationship."
4. The Applicant also relies on Section B, clause 8 of the APS Code of Ethics 1997-2007, extracted above at [32].

Particular 2

1. Particular 2 of Complaint Two alleges: "On 19 January 2020 the practitioner misused the personal information of a former client, Client C, in that the practitioner falsely represented on a Facebook post that a photographic image of Client C was that of her first husband."
2. The Applicant relies on the timeline prepared by Client A's daughter (extracted above at [52]), and the photograph of Client C annexed to the timeline.
3. The Applicant relies on Client C's statement dated 3 February 2021, which is extracted above at [84].
4. The Applicant also relies on Section A.5 entitled 'Confidentiality' of the current APS Code of Ethics, which relevantly provides at clause A.5.5: "Psychologists use information collected about a client for a purpose other than the primary purpose of collection only: (a) with the consent of that client; (b) if the information is de-identified and used in the course of duly approved research; or (c) when the use is required or authorised by or under law."

Complaint Three

1. In Complaint One, the Applicant alleges: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of [the practitioner's] profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. BACKGROUND TO COMPLAINT THREE Client B attended for counselling with the practitioner at Avalon Wholistic Medical and Dental Centre between 24 June 2016 and 9 February 2018. At the time of her referral to the practitioner, Client B had been the victim of a sexual assault and was experiencing depression. In approximately early 2018, the practitioner commenced a personal friendship with Client B. The practitioner began residing with Client B from March 2020."

Particular 1

1. Particular 1 of Complaint Three alleges: "In or around early 2018 the practitioner commenced an inappropriate personal relationship with Client B including regular personal phone calls."
2. The Applicant relies on Client B's clinical records from the medical centre she attends, which relevantly includes the following under the heading "Progress Notes": 1. On 18 January 2017, the treating doctor recorded that Client B "was seeing [the Respondent] already for depression" and "needs further sessions". 2. On 18 April 2017, the treating doctor recorded that Client B "[a]lso needs a Mental Health Care Review. Psychologist keen for a change back to [E]ffexor - given washout and titration schedule and told to keep close contact with Psych Dr Karen Prouse [sic]". 3. On 3 August 2018, the treating doctor recorded that Client B was "[n]ot keen on seeing Karen Prouse [sic] again".
3. The Applicant relies on the Client B's appointment list with the Respondent , which records a total of 28 appointments for 'Clinical Psychology' commencing on 24 June 2016 and with the final appointment on 9 February 2018.
4. The Applicant refers to the call charge records obtained from Vodafone which shows the phone calls and text messages between the Respondent's mobile number and Client B's mobile number between 1 June 2016 and 1 December 2020.
5. The Applicant relies on the email sent on 5 July 2021 by Kennedys, who were still the Respondent's legal representative at the time, to the Applicant. The email relevantly states: "2. In respect to the allegations regarding [Client B], Ms Prowse accepts that she should have sought proper [s]upervision from a Clinical Psychologist. Ms Prowse accepts she had inappropriate telephone contact with [Client B], in that, she should not have been communicating with a patient or former patient without first undergoing proper supervision."
6. The Applicant also relies on Ms Gordon's Expert Report (First Gordon Report) dated 29 April 2021, which states: "5.7 … Despite the seemingly appropriate steps taken by Ms Prowse, I would suggest that allowing a friendship at all at the conclusion of therapy was not appropriate, according to C.3.1 of the APS Code of Ethics. A friendship may: (a) impair their competence, effectiveness, objectivity, or ability to render a psychological service, and is therefore not permitted. According to [Client B], Ms Prowse sought supervision around the possible development of the friendship - such supervision should have (C.3.2) found an appropriate resolution that is in the best interests of the parties to the psychological service. It is unclear as to the supervision that was received but it is unlikely that the outcome would have allowed the friendship to begin. Thus, in my opinion Ms Prowse's conduct in allowing the friendship at all falls significantly below the standard expected of a 'senior clinical psychologist'. … 5.13 … Personal phone calls and texting would have been entirely inappropriate, under clause B.3(g) of the APS Code of Ethics, which states that … psychologists are aware of, and take steps to establish and maintain proper professional boundaries with clients … If these were personal calls and messages, then that conduct falls significantly below the standard of conduct expected of someone of her level of expertise."

Particular 2 generally

1. Particular 2 of Complaint Three alleges: "The practitioner's personal relationship with Client B constituted a breach of s C.3.1 of the Australian Psychological Society Code of Ethics …"
2. The Applicant relies on clause C.3.1 of the current APS Code of Ethics, extracted above at [101].

Particular 2a

1. Particular 2a of Complaint Three alleges the Respondent's personal relationship with Client B constituted a breach of clause C.3.1 of the Code in that: "… The practitioner entered into a "multiple relationship" with Client B, which impaired her effectiveness and objectivity to render the psychological services to Client B; …"
2. The Applicant relies on Client B's email dated 13 November 2020 responding to the Applicant's questions, which states: "1. I met Ms Karen Prowse mid 2016 in a professional capacity. 2. We became friends (not a close, personal relationship) in early 2018. 3. Reaching a state of 'wellness' and towards the end of my therapy with Ms Karen Prowse, I asked if we could have a friendship (not a close, personal relationship) outside of therapy. I believe this was around October 2017. 4. Ms Karen Prowse advised me that if we were to be friends outside of therapy that she would need [to] get supervision. She then informed me at a later date that she did get supervision. …"
3. The Applicant also relies on the email sent on 5 July 2021 by Kennedys, extracted above at [117].

Particular 2b

1. Particular 2b of Complaint Three alleges the Respondent's personal relationship with Client B constituted a breach of clause C.3.1 of the Code in that: "… At the time of the personal friendship, Client B had a history of mental health issues requiring treatment."
2. The Applicant relies on Client B's clinical records extracted above at [114], and also the records made by the treating doctor on 18 April 2017 about Client B's "[referral] to Karen Prowse".
3. The Applicant also refers to the PBS Patient Summary for Client B for the period 19 November 2015 to 1 November 2020.

Particular 3

1. Particular 3 of Complaint Three alleges: "The practitioner inappropriately commenced residing with Client B in March 2020, and remained in an ongoing close personal relationship with Client B until at least 13 November 2020."
2. The Applicant relies on the First Gordon Report, which states: "By mid-March 2020, Ms Prowse and [Client B] appear to have an established friendship. It was on that basis that any engagement between them should be viewed. It seems that that request was reasonable in the context of their friendship."
3. The Respondent admitted to this particular in her Reply dated 30 June 2022.

Particular 4

1. Particular 4 of Complaint Three alleges: "The practitioner did not obtain appropriate professional supervision in relation to her personal relationship with Client B, either prior to or during the personal relationship."
2. The Applicant relies on the statement of Ms Anne Fletcher dated 25 February 2021, which states: "12. I have been advised by the Commissioner that Karen has reported she sought supervision with myself on 23 October 2017 and 5 February 2018 regarding a proposed friendship between herself and her client, [Client B], after the therapeutic relationship ended. I have also been advised by the Commission that Karen reported I told her on both occasions that it was permissible for her to have a friendship with [Client B] when the therapeutic relationship ended. 13. This is not true. I never had any discussions with Karen about her having, or planning to have, a personal friendship or relationship with a client after the therapeutic relationship ended. This was also never raised by Karen during our group discussions and there was never any time where Karen, [Client A] or I spoke about professional boundaries in the sense of a psychologist engaging in a relationship with a former client. 14. I did not know that Karen was in a relationship with one of her clients until after the death of [Client A]. I also never knew the name of this client to be [Client B's name], she was only known to me as '[nickname]'. I found out about this relationship through [Client A's] ex-husband … and have never spoken to Karen about it."
3. The Applicant again relies on the email sent on 5 July 2021 by Kennedys, extracted above at [117].
4. The Respondent states in her Reply that she "[a]dmits she did not obtain appropriate professional supervision after the conclusion of the therapeutic relationship".

Complaint Four

1. In Complaint Four, the Applicant alleges: "Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of psychology."
2. Particulars 1 and 2 of Complaint Four allege: "1. The practitioner has a personality disorder - severe type - with social and narcissistic features, and elements of psychotic illness. 2. The practitioner has a factitious disorder imposed on self (Munchausen Syndrome)."
3. In relation to both Particulars 1 and 2, the Applicant relies on Dr Anthony Samuels' Independent Health Assessment of the Respondent dated 10 March 2021, which states: "82. The allegations made by [Client A's daughter] are amongst the most disturbing and concerning that I have heard in the context of my professional role. They certainly raise the possibility of a severe Personality Disorder with Social and Narcissistic Features and suggestions of a Factitious Disorder Imposed on Self (also known as Munchausen syndrome). There is of course a possibility that Ms Prowse is suffering from some more severe underlying mental disorder such as a psychotic illness. … 84. … I am satisfied on the basis of the material I have reviewed that Ms Prowse is likely to be a severely impaired practitioner who poses a potential risk to the public."

Complaint Five

1. In Complaint Five, the Applicant alleges: "The practitioner is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a psychologist."
2. The only particular to Complaint Five states: "The particulars of Complaint Four are repeated and relied upon individually and cumulatively. Particular 2 of Complaint 1 and the particulars of Complaint 2 are repeated and relied upon individually and cumulatively."
3. In relation to this complaint, the Applicant relies on the same evidence as for Complaint One, Particular 2, Complaint Two, and Complaint Four.

Complaint Six

1. In Complaint Six, the Applicant alleges: "The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in: i. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
2. The only particular to Complaint Six states: "The particulars of Complaints One, Two and Three are repeated and relied upon both individually, and cumulatively."
3. In relation to this complaint, the Applicant relies on the same evidence as for Complaints One, Two, and Three.

Principles

1. Section 3B of the National Law provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

Standards to be Observed

1. The need to protect the health and safety of the public has been repeatedly referred to. In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA said (inter alia) at [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. …"
2. In this application, the conduct relied upon by the Applicant is said to constitute unsatisfactory professional conduct under section 139B(1) of the National Law in respect of the following, namely: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) … (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
3. The Tribunal must be satisfied that the complaints made against the Respondent are established. For this purpose, the Tribunal must be comfortably satisfied that the complaints made against the Respondent are established. For this purpose, the standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 has been repeatedly applied in this Tribunal as a guide, even though in Tribunal proceedings the rules of evidence do not apply and there is no "standard" of proof. However, the Applicant bears the onus of satisfying the Tribunal that the material placed before it establishes the particulars and the complaints. The degree of satisfaction which the civil standard of proof calls for may vary according to the gravity of the facts to be proved and must be based on all the relevant evidence before the Tribunal: see Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].

Oral Evidence

1. Dr Anthony Samuels, Ms Amanda Gordon and Client A's ex-husband provided oral evidence to the Tribunal.

Dr Samuels

1. Dr Samuels, who has never been consulted by the Respondent, considered that the conduct of the Respondent demonstrated lack of remorse, lack of care and lack of empathy for Client A, and was very serious. He considered the conduct to be incredibly manipulative and premeditated. He believed the Respondent had insights into Client A's vulnerability and deliberately aligned herself to create the fiction of a similar background, and that such conduct was engaged in to obtain the confidence of Client A which was then exploited. He considered the conduct of the Respondent to be very extreme. He believed that such conduct demonstrated the Respondent was either not of good character or suffering from a psychiatric condition or personality disorder. He said the origin of such behaviour was not clear but he stated that the Respondent should not be able to engage with the vulnerable people on a professional level. The Respondent would need to demonstrate insight, correction by treatment, and an understanding of professional boundaries and ethical requirements before she could return to practice. He said that no member of the public would otherwise be safe.
2. Dr Samuels relevantly stated in this Report dated 10 March 2021: "82. The allegations made by [Client A's daughter] are amongst the most disturbing and concerning that I have heard in the context of my professional role. They certainly raise the possibility of a severe Personality Disorder with Social and Narcissistic Features and suggestions of a Factitious Disorder Imposed on Self (also known as Munchausen syndrome). There is of course a possibility that Ms Prowse is suffering from some more severe underlying mental disorder such as psychotic illness. There also appears to be strong evidence from the materials supplied that alcohol and other substance misuse may be impacting upon Ms Prowse's mental state. 83. Notifying me of a supposed conflict of interest minutes before the scheduled assessment suggests this could be a further effort to undermine the process. Her email stating that we worked together over a number of years, does suggest a capacity for making up complex and unfounded stories. 84. Clearly Ms Prowse needs to be fully psychiatrically assessed. It will be helpful if there are any medical, psychiatric or psychological records about past treatment that could assist in better understanding her underlying mental health issues. Nevertheless, I am satisfied on the basis of the material I have reviewed that Ms Prowse is likely to be a severely impaired practitioner who poses a potential risk to the public and until there is further clarification about what is going on, she certainly should not be practising as a psychologist."
3. Dr Samuels said that he considered the Respondent's conduct to be incredibly manipulative, and he had never in 30 years of practice encountered such an extraordinary case, which he described as "the sort of thing you see on Netflix".
4. Dr Samuels believed that the Respondent may have a very severe personality disorder and/or substance use disorder, and that a long-standing anti-social personality may be untreatable. He stated that the Respondent may have to be treated for an indeterminate number of years before she may be fit to resume practice, if ever. Dr Samuels considered that the Respondent would need to undergo a comprehensive psychiatric assessment prior to any resumption of practice. Dr Samuels considered that the manipulation by the Respondent, the lying and the boundary violations were most serious.
5. A meeting had been arranged for Dr Samuels to consult with the Respondent on 10 March 2020. However, six minutes before the assessment was due to take place, the Respondent sent an email to Dr Samuels stating that there was a potential conflict of interest because he had worked with her when Dr Samuels was working as a registrar in Northern Sydney between 1995 and 1998. Dr Samuels said that such statements were patently untrue; he had never been a registrar in Northern Sydney. He qualified as a psychiatrist in 1990 in New Zealand and his only involvement in Northern Sydney was when he was previously Director of Mental Health at Hornsby Hospital between 1998 and 2000, during which time he never encountered the Respondent. Dr Samuels considered that the conduct of the Respondent in cancelling the appointment at such notice and for such reason was consistent with her alleged behaviour.

Ms Amanda Gordon

1. Ms Gordon has provided four reports to the Tribunal. She stated that the consequence of the Respondent's conduct was to bring Client A closer to her; to identify with her, and to manipulate her by falsehoods. The benefit to the Respondent was to have Client A share the Respondent's feelings, based upon the lies which the Respondent created. She considered that Client A was very vulnerable to manipulation.
2. Ms Gordon relevantly stated in her Supplementary Expert Report dated 4 October 2022: "The similarities proposed between their backgrounds - and indeed, the possibility that they actually met as children, could lead the client to believe that the practitioner would understand her world and her feelings. The effect would likely be both overt - an awareness that she and the practitioner were alike and the meaning made of that, consciously - and covert, such that the client would unconsciously be drawn towards and even believe she had a friendship or at least empathetic understanding with the practitioner. The contrived similarities in their upbringings would likely draw the client towards the practitioner. The similarities in their addresses now could add an air of destiny to the thought processes of the client. This could likely lead the client to take very seriously the thoughts and ideas of the practitioner, as if they were 'kindred spirits'. In considering this behaviour, I would suggest that the practitioner could be said to be grooming the client towards a potential future relationship, which would therefore inevitably be inequitable, with the practitioner having knowledge and power that the client does not. … It is almost certain that Ms Prowse would have known of the likely effects of her contrivances, designed as they were to create a sense of alliance in the client. Indeed, the behaviour had to have been intentional - she knowingly and deliberately lied to the client, with purpose."
3. Ms Gordon also stated, relevantly, in her Expert Report dated 14 May 2021: "The evidence provided by [Client A's ex-husband] is describing a manipulative woman, grooming his wife and taking her away from him, wheedling her way into the family. The evidence suggests that [Client A] came to love Ms Prowse and for some time they were a happy couple. His narrative then implicates Ms Prowse in the unhappiness of [Client A] and her subsequent suicide. [Client A's ex-husband's] evidence suggests that Ms Prowse consciously and mindfully used her role as a psychologist to seduce his wife. …"

Client A's Ex-husband

1. Client A's ex-husband confirmed that Client A told him that she felt sorry for the Respondent. When the children of Client A (the ex-husband's stepdaughters) raised objections to Client A spending time with the Respondent, he informed them that they had to be compassionate in view of the fact that the Respondent had lost both her husband and two children. Client A told her ex-husband that he could cope by himself if she spent time with the Respondent, but the Respondent could not cope without her. The ex-husband said that the family accepted that the relationship developed and he in fact moved out of the former matrimonial home to enable the Respondent to move in, whereupon he occupied the Respondent's home unit on Sydney's Northern Beaches. The family then met together for occasions in an apparent harmonious relationship. The ex-husband provided a statement to the Applicant dated 3 May 2021 in which he provided extensive background concerning his ex-wife, Client A, and of her parents; and of Client A's doubts about her own sexuality. He also referred to the fact that during the last six months of Client A's counselling, she and the Respondent spoke by telephone about once a week; that when the counselling ended in mid-to-late 1998 or 1999, Client A told him that she and the Respondent wanted to be friends. He thought it was simply a social relationship as opposed to an intimate relationship, and thought little more about it. At one stage, the Respondent "disappeared" for about a year and a half. However, she maintained contact with Client A. During such relationship, the ex-husband said that the Respondent told him that she had lost a husband and two children in a car accident; that her parents were good friends of the late Jacqueline Onassis; that she had a PhD from Harvard University. He recalled one occasion in approximately 2020 when Client A told him that the Respondent had formed a friendship with Client B. He said that they did not suspect the Respondent was lying about her background.
2. The submission dated 15 March 2020 made by Client A's ex-husband to the Coroner investigating Client A's death confirms his oral evidence before the Tribunal. Further, the statement by Client A's daughter dated 27 July 2020 refers to the Respondent's unusual behaviour in the months immediately before her mother's suicide, and her undated submission to the Coroner refers to a conversation where Client A spoke with her then-husband about a "special connection" she felt with her psychologist.

Observations

1. Although the Respondent has not appeared and in her Reply, she has disputed the alleged conduct pertaining to the misrepresentations alleged to have been made by her and she has not adduced any evidence to the Tribunal. Further, the Tribunal notes that there is evidence which supports the allegations upon which the Applicant relies, which is set out below as follows: 1. There are the images which the Respondent relied upon as being images of her mother and of herself, both of which have been shown to be fabrications, such photographs being of Brigitte Bardot and of Yasmin Le Bon respectively. 2. Secondly, there is the direct evidence of conversations between Client A's ex-husband and the Respondent where the Respondent made several statements which are relied upon by the Applicant. Client A's ex-husband stated the Respondent told him that she had been married. In fact, the Notice of Intended Marriage signed by the Respondent upon her marriage to Client A contained the following statement: "Never Validly Married". 3. The Tribunal has the statements of Client A's ex-husband made to the Tribunal which sets out how the relationship developed between the Respondent and Client A. He stated that Client A had experienced trauma in her childhood due to a very acrimonious divorce of a parent; that her parents were wealthy and well-known and had a privileged lifestyle. In addition to such trauma, Client A told her ex-husband that she had doubts about her own sexuality. As such, she commenced to see the Respondent regularly for counselling for about two years from 1996/1997 to mid-to late 1998/1999. The sessions occurred about twice per month. Client A always told her then-husband what was said in such sessions. The ex-husband said that the counselling ended in approximately mid-to-late 1998/1999, and that Client A and the Respondent wished to be friends. He understood this to be a social relationship as opposed to an intimate relationship. Thereafter, he said the Respondent "disappeared" for about a year and a half, but maintained some telephone contact with client A.
2. The Respondent re-emerged in approximately 2000/2001 and resumed contact with Client A, which intensified. In September 2001, Client A and the Respondent went to a holiday resort near Sydney for a weekend. Following that weekend, the Respondent again "disappeared" for about three months. Contact resumed when the Respondent left "a garbled voice message on our voice machine, saying she was in New York" and that she was "doing something for the kids".
3. The Passenger Arrival Cards completed by the Respondent when she returned from her overseas visits show the Respondent travelled to Greece in 2013; Italy and Japan in 2015; Fiji in 2016; Hungary in 2016; China in 2018; Indonesia in 2019. There is no Commonwealth record produced to the Tribunal establishing that the Respondent has ever visited the United States of America.
4. No further contact was made by the Respondent until mid-2002, when the Respondent telephoned Client A. Client A's ex-husband said he returned from work to find Client A crying because the Respondent had called her and explained that the Respondent had informed her that her husband and two children had been killed in a car accident near Canberra on 11 September 2001; that the Respondent had returned home after the weekend away in September 2001 with Client A and found police at her home where they told her the news. At this time, the ex-husband said that Client A informed him that the Respondent had told her that the Respondent's best friend Jasmin, with whom the Respondent had modelled with when she was younger, had been widowed on the same day and that her three children were killed in the terrorist attack on the World Trade Centre in New York. She said that Jasmine's husband was a stockbroker. He and their three children were in the World Trade Centre at the time of the attack.
5. Client A's ex-husband said that he understood the Respondent was suicidal and that the Respondent's mother and the Respondent's friend were staying with her a few days each week on rotation on "suicide watch". He said he was asked by Client A if she could also go and keep watch over the Respondent.
6. Client A's ex-husband said that during the winter of 2003, the Respondent and Client A visited Italy for 3 to 4 weeks, and when Client A returned, she informed him that she (Client A) and the Respondent had been sexually intimate for the first time and that she wanted to be with the Respondent as the Respondent needed her.
7. Client A's ex-husband said he was unaware until Client A had died that the Respondent had no husband nor children, and that she had never been married. He said that the only reason he had let the Respondent into their life was because he felt empathy for her and wanted to show compassion for what he believed was the double tragedy he understood she had experienced. The Respondent had told Client A's ex-husband that her mother was well-acquainted with Jacqueline Onassis, who shared the same building in New York.
8. Client A's ex-husband said that the Respondent claimed that her mother had come to Australia and had in fact met Client A's father. The Respondent had also claimed that Client A's father, who had been through a bitter divorce, was having trouble seeing his daughter, Client A, and had sought the Respondent's mother's assistance.
9. Client A's former husband said that Client A and he were amicably divorced in August 2006. He was working in China for approximately seven years from 2010, yet he maintained contact with Client A and remained on friendly terms with her.
10. Client A's ex-husband said that had he known the true facts, he would have prevented the relationship from developing. Client A's ex-husband provided two statements to the Coroner enquiring into the death of Client A. The first statement dated 15 March 2020 does not reveal that he was aware of the false basis of the Respondent's history. This was revealed in his second statement to the Coroner. In his statement dated 12 October 2022, he said he would describe Client A as a spiritual person. She believed in reincarnation and attended yoga retreats. He further stated that Client A informed him that the Respondent had said to her that she (the Respondent) had an "instant recognition" when she met Client A. Client A also told him that the Respondent went to Beijing where she visited a psychic, and that the psychic had said to the Respondent that Client A would be very important "afterwards".
11. Client A's ex-husband also referred to the development of the relationship between the Respondent and Client B. He said that he recalled a family occasion not long before Client A's death at which Client A was present with the family, but the Respondent was not present. Client A explained to the family that the Respondent had a friend. He said that he met Client B when the Respondent and Client A were together. He said that the Respondent asked Client A's daughter if he could obtain tickets for a client who would greatly benefit by seeing a particular production. Through her employment, the daughter was able to secure such tickets. He later realised that the person who was to attend the production was Client B. He said he also recalled meeting the Respondent and Client B at a time when they were trying to obtain some cocaine.
12. Client A's ex-husband stated that the Respondent had presented herself to Client A and to their family as a traumatised person. All of the family's feelings for the Respondent were influenced by such lies. He said that he had had a conversation with Client A two weeks before death. He suspected that Client A was then aware of the lies and that that was why she had taken her own life.

Client A

1. The Tribunal is concerned only with the question whether the professional conduct of the Respondent has, by virtue of the material before it, shown to be below the standard expected. Clause A.3 of the Australian Psychological Society (APS) Code of Ethics contains a statement concerning a "friendship" with a former client, which is summarised by the expert report of Ms Gordon dated 29 April 2021 as follows: "Although 'friendship' as such is not noted as forbidden in the APS Code of Ethics, friendships invite a power equality that is not maintained in the therapeutic relationship. A 'friendship' with a former client also potentially reduces the ability of the client to seek further psychological help, as they now cannot see their old psychologist and may feel disloyal in seeking assistance elsewhere. It could be seen as a "Multiple Relationship" (Principal C.3.1 APS Code of Ethics ). Thus Principle C.3.2 comes into play, whereby the psychologist should seek counsel from a Senior Psychologist, to protect the former client. The initiation of a friendship from a former client may ultimately lead to a more intimate relationship, whether or not it becomes sexual. The psychologist must be responsible for determining whether this line from friendship to intimacy may be crossed and take reasonable steps to maintain proper boundaries while they seek counsel from a senior psychologist."
2. Ms Gordon stated in her report dated 29 April 2021: "The only circumstances in which it would be appropriate for a psychologist to commence and engage in either a friendship or an intimate relationship with a former client, would be if that friendship was initiated by the former client. I would expect that the initiation of friendship would be in the context of a shared social group or connection, such that a meeting would be inevitable, and avoidance of each other would actually be awkward for the former client. This is most likely to occur in regional or rural settings, or other situations such as closed communities, in which mingling within the community of the former client is part of the life of the psychologist."
3. Although the Respondent has asserted that she obtained supervision from social worker, namely Ms Fletcher, Ms Fletcher has rejected such assertion stating that she was never asked by the Respondent to provide to supervision and did not do so.
4. The Tribunal also notes that in the course of Client A's treatment, the Respondent made statements which it finds were untrue concerning her background. The Tribunal accepts the expert evidence of both Dr Samuels and Ms Gordon that such statements were made solely for the purpose of drawing Client A closer to the Respondent when the Respondent was aware that Client A was vulnerable. Such lies had the effect of making Client A feel sorry for the Respondent. In the circumstances, the Tribunal finds that the conduct of the Respondent breached the Code and constituted unsatisfactory professional conduct under section 139B(1)(a) of the National Law. The Tribunal finds that each particular to each subparagraph of Complaint One is established.
5. With respect to Complaint Two, this is directed to the period after which the treatment was provided by the Respondent to Client A. The personal history described concerning the Respondent and the representations on Facebook, which utilised the image of Client C as being that of the Respondent's first husband, was deceptive. Such conduct took place with the Respondent's intention to influence Client A. Accordingly, each particular of Complaint Two is established.

Client B

1. Client B had been the subject of a sexual assault, as evidenced by the records of her general practitioner. An entry by a medical practitioner in the medical records of Client B includes a record dated 18 January 2017 which states: "new patient alleged sexual assault by colleague at work Christmas do [sic], anal and vaginal penetration. [O]n work CCTV. [T]hinks she was drugged as she had not drunk much. …"
2. The Respondent, in her Reply, denies that Client B had been the victim of a sexual assault. However, such denial may be explained by the fact that the background to Complaint Three in the Applicant's Amended Complaint alleges: "At the time of her referral to the practitioner, Client B had been the victim of a sexual assault and was experiencing depression".
3. The facts establish that the assault occurred during the period of treatment of Client B by the Respondent.
4. Since the referral was before the assault, the Respondent stated in her Reply: "In answer to the allegations in the background to Complaint Three, the [R]espondent says that: a. Client B had not been the victim of a sexual assault at the time of her referral; and b. Admits the balance of the facts alleged in the background to Complaint Three."
5. The relationship between the Respondent and Client B developed from a professional relationship into a friendship and then into an intimate relationship. The records show that Client B attended a family dinner of the Respondent, Client A and members of her family in May 2018. Client A [and] the Respondent married in October 2018. At the end of her therapy, Client B stated that she felt herself to be in a "state of wellness" and was ready to commence a friendship with the Respondent once the therapy ended. The Respondent informed Client B that she (the Respondent) had sought supervision prior to the commencement of the friendship. This is denied and there is no evidence of any such supervision.
6. In her Expert Report dated 29 April 2021 at par 5.14, Ms Gordon refers to Clause B.3 of the Code and states: "… [Clause] B.3 of the APS Code of Ethics … expects psychologists to (b) take responsibility for reasonably foreseeable consequences of their conduct and (g) be aware of, and take steps to establish and maintain proper professional boundaries with clients. If [Client B] was no longer a client, then Ms Prowse was at fault for revealing the previous relationship between herself and [Client B] to a third party, betraying [Client B's] confidentiality. …"
7. The Tribunal finds that Complaint Three is established.

Impairment

1. Complaint Four alleges that the practitioner is suffering an impairment, as defined in section 5 of the National Law as follows: 5 Definitions … impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession …
2. The evidence of Dr Samuels establishes that there are strong grounds for believing the Respondent suffers from an impairment. In her Reply, the Respondent denies that she is suffering from any such impairment. However, the Tribunal notes: 1. No evidence nor any medical evidence has been produced by the Respondent to challenge the evidence of Dr Samuels. 2. The Respondent did not attend the appointment with Dr Samuels, citing a reason, at short notice, which Dr Samuels found to be baseless. 3. The Respondent did not attend a hearing held under section 150 of the National Law. She wrote to the Applicant on 3 April 2020 alleging that the allegations against her were false. She acknowledged that her former spouse (Client A) was her former client. Her letter includes the following: "From my recollection, she was a client from late 1996 until early-mid 1999. This therapy occurred at the Mental Health Unit, Mona Vale Community Health Centre, Northern Sydney Area Health Service. I had no contact with my former spouse for two years after therapy ended." Such letter also continues that the former spouse contacted her and wish to establish a friendship. The Respondent claims to have obtained supervision from Dr Roger Batrop, psychiatrist (Dr Batrop) from in or around early-mid 2001. There has been no evidence produced of any advice from Dr Bartrop. The letter continues: "My former spouse is the only former client I have had a sexual relationship with [and] this commenced upon 2 years after therapy had ended. I have never had a sexual relationship with a current client." 1. By email from Kennedys to the Psychology Council of New South Wales (the Psychology Council) dated 25 September 2020, it was suggested that the Respondent was incapable of giving instructions to her solicitors and incapable of attending the Psychology Council meeting scheduled for 28 September 2020 due to being "significantly traumatised by recent events". 2. A letter from a general practitioner, Sharron Davis dated 22 September 2020 states that the Respondent "is currently incapable of giving instructions to her solicitors", and suggests a deferment of the section 150 hearing. 3. The Psychology Council convened on 28 September 2020 and determined to suspend the Respondent's registration and written reasons for such decision were provided on 12 October 2020. Such suspension was ordered on the finding that the Respondent posed a risk to public health or safety. The reasons, in summary form, are stated as follows: 1. The Respondent was currently in a relationship and resides with the former client (Client B) who is emotionally vulnerable and is reported to have a history of suicidal ideation; 2. The Respondent has a pattern of boundary violations in relation to former clients; 3. The Respondent demonstrates features of a significant personality disorder that could impair her practice; 4. There are allegations of erratic behaviour due to possible drug and/or alcohol abuse; 5. The circumstances surrounding the suicide of her wife and her contact just prior by phone with her wife is part of a police investigation and will proceed to coronial inquest in the future.
3. The Tribunal accepts Dr Samuels' evidence and finds that the Respondent is suffering from an impairment as defined. The Tribunal notes that the Respondent claims that on about 28 June 2021 the Respondent was diagnosed with post-traumatic stress disorder and major depressive disorder. As such, the Tribunal considers that the Respondent is not competent to practice psychology and refers to the decision of the NSW Court of Appeal in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[169]. The Respondent has elected not to participate in the hearing nor to provide any evidence on her behalf. The Tribunal accepts the expert evidence of Dr Samuels that the Respondent is suffering from an "impairment" as defined in section 5 of the National Law and referred to in section 144(d) of the National Law.

Lacking Capacity

1. In view of the opinion of Dr Samuels, the Tribunal considers that there is ample evidence to support the assertion that the Respondent is not competent to practise within the meaning of section 139(a) of the National Law because the Respondent presently lacks the mental or physical capacity to practise as a psychologist. The Tribunal considers that the evidence establishes that the Respondent has an impairment as referred to in section 144(d) of the National Law. Accordingly, Complain Five is established. The Tribunal notes the Respondent acknowledges that she is suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder. The Respondent does not understand that such condition may lead to impairment, which is considered by Dr Samuels. The Respondent has had the opportunity to provide evidence, and in the absence of her doing so, the Tribunal may draw the inference of impairment more readily: see Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [22] (Hodgson JA, Beazley JJA (as Her Honour then was) and McColl JJA agreeing); Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94].

Complaint Six: Professional Misconduct

1. This complaint alleges that the conduct referred to in the complaint is of a sufficiently serious nature to justify suspension or cancellation because the Respondent is guilty of professional misconduct within the meaning of the term defined in section 139E of the National Law.

Disciplinary Sanction

1. The Tribunal is satisfied that the conduct of the Respondent detailed previously in this decision in respect of both Complaints One and Two constitutes professional misconduct as defined in section 139E of the National Law, namely that it is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. Such cancellation is necessary for the protection of the health and safety of the public, which is the paramount consideration: National Law, s 3B. The expert evidence satisfies the Tribunal that the conduct of the Respondent has breached the relevant provisions of the Code and has had far-reaching consequences. The Tribunal is also satisfied that but for the false representations made by the Respondent, it is most likely that the marriage of Client A and her ex-husband would have continued.
2. The Tribunal refers again to the statement of Meagher JA in Do at [35] (see above at [144]).
3. The Tribunal notes the Evidentiary Certificate relating to the Respondent's registration. It states that the Respondent graduated with a Bachelor of Arts with Honours from the University of Sydney in 1989, and a Master of Psychology from the same university in 1991. The Respondent was first registered on 4 June 1991 as a Psychologist - General, registration number PSY0001136939.
4. Despite such high qualifications, the Tribunal finds that the Respondent's conduct leads to the conclusion that the Respondent is not competent to practise the profession of psychology within the meaning of section 149C(1)(a) and accordingly the registration of the Respondent as a psychologist should be cancelled. Such cancellation is warranted for the protection of the health and safety of the public. The cancellation is not to be construed as punishment, since the disciplinary sanctions imposed are not punitive: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 184; [1968] HCA 20; see also Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] (Barrett JA) and Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] (Basten JA).
5. The Applicant seeks an order of cancellation of the Respondent's registration and a non-review period of six years. The Tribunal considers that a non-review period of five years should be imposed for the protection of the public. This period should be sufficient to enable the respondent to gain insight into her conduct and to receive any treatment that may be necessary to render her fit for re-registration, should the medical evidence establish fitness. The Respondent's conduct outside of her practice is relevant to her fitness: see Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46.

Costs

1. The Applicant makes an application that its costs be paid by the Respondent. An award of costs is discretionary. However, the New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 has held that the usual rule that costs should follow the event, that is, that the successful party should be compensated by an award of costs, should apply to proceedings such as disciplinary proceedings before the Tribunal. This principle was established previously in Ohn v Walton (1995) 36 NSWLR 77 where the court, considering the extant Medical Practitioners Regulations, reg 27(1), found that the Medical Tribunal had a discretion to award costs similar to those applied by a court in similar circumstances such that costs should follow the event unless the circumstances of the case required the exercise of discretion not to do so. Such principle has been followed in other proceedings, such as NSW Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67].
2. It should be observed that an award of costs is not intended to punish the losing party, but rather the costs are solely compensatory. In Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59, Mason CJ said: "… costs were not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings …."
3. As the Applicant has been successful, the Tribunal considers that the usual rule should apply that costs should be paid by the Respondent, and it will accordingly so order pursuant to clause 13(1) of Schedule 5D of the National Law.

Orders 1. The Respondent's registration as a psychologist be cancelled pursuant to section 149C(1)(b) of the National Law, with a non-review period of five years. 2. The Respondent pay the Applicant's costs, under clause 13 of Schedule 5D of the National Law, as agreed or assessed. 3. An order prohibiting the disclosure of the names of Client A, Client B, and Client C listed in the Schedule attached to the Applicant's Complaint and the Applicant's Amended Complaint, and the names of any relatives of such persons, pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

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 19 May 2023 - Paragraph 73 amended. Removed inadvertent inclusion of Client A's surname. 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: 19 May 2023