Health Care Complaints Commission v Prowse

Health Care Complaints Commission v Prowse - [2023] NSWCATOD 56 - NSWCATOD 2023 case summary — Zoe

[3]

History of Proceedings

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.
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."
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.
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.
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.
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.
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.

[5]

Client A

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.
The Applicant alleges that every statement above was false.
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.
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.
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.

[11]

Particular 1b

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."
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'."
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."
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."
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."

[16]

Particular 2d

Particular 2d of Complaint One alleges the Respondent falsely represented to Client A: "… that the practitioner had been married to [a] man named Jeremy; …"
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.
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."
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."
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.
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."

[21]

Particular 3, generally

Particular 3 of Complaint One alleges: "In early or mid 2001, the practitioner entered into a close personal relationship with Client A …"
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."
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."

[22]

Particular 3a

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 …"
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."
The Applicant relies on the second statement of Client A's ex-husband dated 12 October 2022, which is extracted above at [30].
The Applicant again relies on Section B, clause 8 of the APS Code of Ethics, 1997-2007 extracted above at [32].
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."

[25]

Particular 3d

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."
The Applicant relies on Ms Gordon's Clarification Report extracted above at [31] and [72].
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."

[27]

Particular 4a

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."
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]).
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."

[39]

Particular 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."
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".
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.
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.
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."
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."

[49]

Standards to be Observed

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. …"
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.
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].

[51]

Dr Samuels

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.
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."
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".
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.
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.

[52]

Ms Amanda Gordon

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.
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."
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. …"

[53]

Client A's Ex-husband

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.
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.

[54]

Observations

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.
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".
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.

[55]

Client A

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."
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."
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.
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.
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.

[56]

Client B

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. …"
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".
The facts establish that the assault occurred during the period of treatment of Client B by the Respondent.
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."
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.
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. …"
The Tribunal finds that Complaint Three is established.

[57]

Impairment

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 …
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.
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.

[60]

Disciplinary Sanction

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.
The Tribunal refers again to the statement of Meagher JA in Do at [35] (see above at [144]).
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.
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).
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.

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