Health Care Complaints Commission v Rouen - [2019] NSWCATOD 76 - NSWCATOD 2019 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Rouen

[2019] NSWCATOD 76

NCAT Occupational|2019-05-08

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Source facts

Court

NCAT Occupational

Decision date

2019-05-08

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Introduction

Mr Rouen holds a Bachelor of Science (Honours in Psychology) and a Masters of Psychology (Clinical). After a period of conditional registration under supervision he gained full registration as a psychologist on 7 March 2000.
Since completion of his studies Mr Rouen has worked in research and as a clinical psychologist in drug and alcohol services. In 2003 he took on the role of clinical psychologist in a Community Mental Health Service Clinic specialising in anxiety and traumatic stress operating under the auspices of the Department of Health, South Western Sydney Local Health District. He was promoted to the position of Senior Clinical Psychologist of that service in 2007. In this role he was responsible for the supervision of less senior psychologists.
On 16 December 2016 a person made a risk of harm report to the Department of Family and Community Services. Soon after, and at the request of the police, Mr Rouen's former partner made a statement and gave them two USB sticks belonging to Mr Rouen. The USB sticks were examined and child abuse material was identified. On 19 December 2016 police executed a search warrant at Mr Rouen's home and seized items belonging to him including computers. After further investigation the police charged Mr Rouen on 28 March 2017 with four counts of possessing child abuse material. The material which Mr Rouen had in his possession was sourced from the internet.
On 7 March 2018, Mr Rouen was convicted in the Local Court of NSW on four counts of possessing child abuse material contrary to section 91(H)(2) of the Crimes Act 1900. These are referred to in this decision as "the convictions".
In respect of two of the counts the Court sentenced Mr Rouen to a term of imprisonment of 12 months and 3 months respectively. Each sentence was suspended and Mr Rouen was required to enter into good behaviour bonds. Fines and good behaviour bonds were imposed in respect of the remaining counts.
On 7 April 2017 the Psychology Council of NSW suspended Mr Rouen's registration as a psychologist under section 150 of the National Law. Mr Rouen's employment as a Senior Clinical Psychologist was suspended on 13 April 2017 under section 120A of the Health Services Act 1997

[2]

The Complaints

The first complaint is that Mr Rouen's convictions of themselves form a ground of complaint under section 144(a) of the National Law.
The second complaint alleges that Mr Rouen is not a suitable person to hold registration as a registered psychologist under section 144(e) of the National Law.
The second complaint has four particulars.
The first particular outlines Mr Rouen's conduct which underlies the convictions. Specifically his possession of child abuse material on 21 November 2016 which related to two USBs that his former partner discovered, and his possession of child abuse material on 19 December 2016 located when police seized two computers from his residence during the exercise of the search warrant.
The remaining particulars go beyond the conduct of possession of child abuse material which underlies the convictions, and extends to viewing and transferring explicit images of children.
The second particular outlines Mr Rouen's conduct over an extended period between 2000 and 2011 of viewing explicit images of children online, saving the images to his home computer and using them for masturbatory purposes. The third particular identifies Mr Rouen's conduct in transferring the images from his home computer onto two USBs in about 2011. The fourth particular specifies Mr Rouen's conduct between approximately 2015 and November 2016 in that about once every 2-4 weeks he viewed explicit images and videos of children on the two USB sticks and used them for masturbatory purposes.
In a Reply dated 9 April 2019 to the Complaint, Mr Rouen accepts both Complaint One and Complaint Two. He indicated that he would not be contesting his removal from the roll of practitioners as a result of his conduct for any period of time that the Tribunal in the exercise of its jurisdiction considers appropriate.
Mr Rouen has made significant admissions in his Reply and in a Statement of Agreed Facts which was filed several days before at the hearing. There is no contest about the factual matters identified in the particulars. There is evidence before us to prove all the particulars. This evidence includes but is not limited to Certificates of Conviction; police evidence discovery reports; medico legal reports from Dr Allnutt, Forensic Psychiatrist, Dr Sanbrook, Consultant Psychiatrist and Dr Ellis, Forensic Psychiatrist; a community corrections pre-sentence report; a statement from Mr Rouen's former partner; Mr Rouen's employment records and treatment records from Mr Rouen's clinical psychologists.

[4]

Circumstances surrounding the conduct

Dr Allnutt's report dated 14 November 2017 references that Mr Rouen realised he was drawn to underage images around 2000. The evidence suggests that Mr Rouen tended to view child abuse material at times in his life when he was depressed and lonely. This was particularly so between 2000 and 2007 and as detailed in the report of Dr Allnutt.
In the report of Dr Ellis dated 28 September 2018, Mr Rouen reported that at the time of viewing the images during 2000 to 2007, he was feeling depressed and socially anxious. He said that he found the taboo nature of the material, the collection of images he held, the thrill of the activity and the fact that it was free interested him and provided an escape from his depressed mood.
Mr Rouen also used child pornography during times of relationship unhappiness or breakdown as a means of detachment and disconnection, as referred to in the report of Dr Sanbrook dated 7 November 2017. When he started the relationship with his former partner around 2007 he stopped looking at child abuse material but he kept the USBs where the material was stored.
When Mr Rouen's relationship deteriorated in 2015, he was deeply depressed, with suicidal thoughts and made at least one suicide attempt. At this point he returned to accessing child abuse material.
Dr Allnutt diagnosed Mr Rouen with a major depressive episode with persistently depressed mood over a period of years consistent with an underlying persistent depressive disorder (dysthymia), a history of significant anxiety in social situations consistent with social anxiety disorder. He indicated that Mr Rouen suffers from a depressive condition with intermittent suicidal ideation, and has ongoing substance use in the form of alcohol and is relatively socially isolated. Dr Allnutt referred to Mr Rouen's history of previous cannabis use prior to his arrest consistent with cannabis use disorder in early remission and a recent history of drinking between 500 and 750ml of wine every evening to sleep.
Mr Rouen was diagnosed by Dr Sanbrook with social anxiety disorder with avoidance, and dysthymia, essentially chronic depression of mild to moderate severity, that evolves into major depression episodically. Dr Sanbrook's opinion is that Mr Rouen's depressive illness and social anxiety disorder with avoidance contributed to him seeking soothing and detachment, initially from adult pornography which then evolved into material involving younger individuals.
At various times in 2006/2007, 2015 and 2017 Mr Rouen has been prescribed Sertraline, an anti-depressant.
Mr Rouen reported to the community corrections officer in February 2018 that he had committed the offences during times of loneliness, and indicated that his greatest triggers for depression continued to be loneliness and isolation.
Dr Ellis assessed Mr Rouen on 24 July 2018 and reported that he was continuing to take antidepressant medication. He referenced that Mr Rouen had written a letter in the form of a suicide note in 2017 and consumed a bottle of wine every day earlier in 2018. Dr Ellis diagnosed him with social anxiety disorder, paraphilic disorder and a recurrent mood disorder either dysthymia or major depression currently in remission under antidepressant treatment.
The evidence also suggests that Mr Rouen viewed child abuse material at times in his life when he was using cannabis.
Dr Allnutt's report references Mr Rouen using two cones of cannabis every evening regularly from 2000 until 2006. In a pre-sentence report Mr Rouen disclosed that he used cannabis on a daily basis until 2007, regularly using cannabis prior to downloading child abuse material. He further disclosed that he occasionally used cannabis in 2015 and 2016, during which time he viewed child abuse material.
Mr Rouen reported to Dr Ellis that at the time of his conduct during 2000 to 2007, he was living alone and smoking cannabis regularly. He reported to Dr Ellis that he started using cannabis again in 2015 and started growing his own cannabis plants.
Dr Allnutt references in his report that when Mr Rouen downloaded or viewed pornography, it would generally be when he was at home alone, depressed and "stoned".
There is some evidence to suggest a link between Mr Rouen's conduct viewing child abuse material in November 2016 at a time when one of his clients had disclosed a history of sexual abuse.
When Mr Rouen's former partner discovered the child abuse material he told her that was thinking about a client he had the next day whom had been sexually abused as a child. He explained his conduct on trying to get his head around what it would do to a person and their sense of self to be sexually abused as a child. Mr Rouen gave a similar explanation to a friend and fellow psychologist. Dr Ellis's report references Mr Rouen explaining that he viewed child abuse material after a clinical psychology session with a client who had a history of sexual abuse.
In the context of the current matter, the Commission submits that Mr Rouen's explanation provides a temporal link between his conduct viewing child abuse material in November 2016 and his practice as a psychologist at that time.
We do not know if the explanation proffered by Mr Rouen has any veracity. However, and as submitted by the Commission, in our view if the explanation is true it raises serious concerns as to why an experienced psychologist could consider it necessary or appropriate to view child abuse images before or after consulting a client with a history of sexual abuse. Moreover it is concerning that why at that point he did not realise that this was a significant issue, and one which he should have raised with a senior professional colleague either at his workplace or outside it.

[5]

Relevant Standards

There have been various iterations of the NSW Health Code of Conduct whilst Mr Rouen was in the employ of the Department of Health. Looking at the various Codes he would have been aware that viewing child abuse material was contrary to ethical standards.
The 2001 NSW Health Code of Conduct was given to Mr Rouen in March 2003 when he commenced employment at the Community Mental Health Service. It required commitment to the highest ethical standards.
The 2005 NSW Health Code of Conduct acknowledged by Mr Rouen in 2007 when he was appointed to the role of senior psychologist required him to observe any laws, professional codes of conduct and ethics relevant to his profession and report to an appropriate person or authority any situations that may affect clinical or professional standards. This revised code also required employees to report to their employer if they had been charged or convicted of certain serious offences within seven days. Serious offences included sex offences. Furthermore the 2005 Code of Conduct specifically required him to report any charges relating to the production, dissemination or possession of child pornography.
The evidence discloses that although Mr Rouen did report the nature and extent of the charges to his employer this was not done until 12 April 2017, which was more than seven days after he was charged on 28 March 2017; and indeed after the Psychology Council had held its section 150 proceedings.
The 2012 NSW Health Code of Conduct required Mr Rouen to avoid conduct that could bring NSW Health or any of its staff, patients or clients into disrepute: see 4.3.10
The Australian Psychological Council Society (APS) 2010 Code of Ethics requires psychologists to avoid engaging in disreputable conduct that reflects negatively on the profession: see clause C.1.2. The Code of Ethics also requires psychologists to seek professional supervision or consultation as required to maintain appropriate levels of professional competence: see clause B.1.3
The evidence indicates that Mr Rouen returned to viewing the material in 2015, knowing that the conduct was wrong and contrary to professional standards, but he did not cease until the USBs were detected in November 2016.

[6]

Action taken by Mr Rouen to address his transgressions and the issues underlying it

The evidence demonstrates that Mr Rouen continued engaging in viewing the material for periods between 2000 and 2011 and for periods in 2015-2016, and failed to seek help, notwithstanding that he had access to support and supervision. From 2001 to 2017, and during his employment at South Western Sydney Local Health District, he had access to free confidential counselling through the Employee Assistance Program (EAP). Further it was open to him to seek private counselling at any time
Mr Rouen's training and experience would have alerted him to the need to monitor his own wellbeing and take prompt steps to recognize and deal with any problems in his personal life which could potentially impact on his professional life.
This is reflected in the APS 2010 Code of Ethics which requires psychologists to strive to be aware of the possible effect of their own physical and mental health on their ability to practise competently. Further to continuously monitor their professional functioning and, if they become aware of problems that may impair their ability to provide competent psychological services, take appropriate measures to address the problem, including by obtaining professional advice: see explanatory statement clause B and B.1.4.
Mr Rouen was aware, or should have been aware, of the 2004 NSW Psychologists Registration Board Code of Professional Conduct which requires that psychologists should seek professional help and/or consult with colleagues when a physical or psychological condition, for example, as a result of drugs or personal stress, impairs their abilities or professional judgement: see clause B.4.
Mr Rouen did not seek professional help until after his conduct had been detected. He first consulted Dr Sanbrook, on 9 March 2017. He subsequently attended a psychologist, LSC Psychology, on 8 November 2017, after he was charged and before being dealt with by the Local Court. He acknowledged to LSC Psychology that he has a long history of depression, had been taking antidepressant medication for over a decade and found it difficult to cope with relationship breakdowns. In his pre-treatment interview with LSC Psychology he claimed to be reluctant to consult a psychologist because he was concerned about "fit" of the psychologist's approach and worried about his confidentiality professionally.
Mr Rouen continues to consult LSC Psychology and sees a psychologist who is skilled in treating and working with sex offenders. However we do not have the benefit of an opinion from his psychologists as to his present progress. The most recent report we have as to Mr Rouen's progress, canvassing treatment and management recommendations, is the report of Dr Ellis who conducted a clinical interview with Mr Rouen in July 2018.

[8]

Suitability to hold registration

The phrase "suitable person" is not defined in the National Law. The Macquarie Dictionary defines "suitable" as "such as to suit; appropriate; fitting; becoming". Section 55 of the National Law deals with unsuitability to hold general registration and sets out the circumstances or criteria used to assess whether a person is unsuitable for registration. Accordingly it provides some guidance as to the meaning of suitable person.
Relevantly Section 55 states that a National Board may decide that an individual is not a suitable person to hold general registration, if: (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
The meaning of the expression "not a suitable person to hold registration" was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]- [73]: [I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
That interpretation was cited with approval by the Tribunal in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v R [2017] NSWCCA 24 at [56].

[9]

Conclusions

Mr Rouen's criminal convictions form a ground of complaint under section 144(a) of the National Law. Accordingly Complaint One is made out.
For the reasons that follow we are also satisfied that Mr Rouen is not a suitable person to hold registration as a registered psychologist, and that Complaint Two is made out.
In our view there is potential psychological harm that could be experienced by clients, as well as the families of those clients, and the public if they became aware of Mr Rouen's conduct in viewing child abuse material. Further there is the potential for a compounding detrimental impact on a client's psychological health if that client was themselves a survivor of child sexual abuse, or other sexual abuse, or was a client consulting Mr Rouen for matters related to the abuse of his/her child. He has engaged in disreputable conduct that reflects negatively on the profession, and it was not in the public interest for him to practise his profession.
Further the evidence discloses that Mr Rouen viewed child abuse material at times of relationship breakdown, depression and social isolation. The Commission submits and we accept that a relevant factor is that Mr Rouen continued engaging in the conduct, for periods between 2000 and 2011 and for periods in 2015-2016, and failed to seek help, notwithstanding that he had access to support and supervision. His failure to seek support and help is not consistent with the standards of health professionals we have identified in the various iterations of the Code of Conduct.
The APS Code of Ethics requires psychologists to seek professional supervision or consultation as required to maintain appropriate levels of professional competence and continuously monitor their professional functioning. If they become aware of problems that may impair their ability to provide competent psychological services, they are expected to take appropriate measures to address the problem, including by obtaining professional advice. Although Mr Rouen has now taken some steps in this regard he did not do so until after his conduct was detected.
The evidence demonstrates that Mr Rouen's conduct was linked to his cannabis use, and has in the past had high levels of alcohol use. However, he did not attend drug and alcohol counselling to address these issues. This is compounded by the fact that he had experience as a Psychologist in the drug and alcohol sphere. Given the nature of the health services provided by a psychologist it would seem only appropriate and fitting that they endeavour to address their own mental health issues.
After being charged, Mr Rouen did not promptly notify his employer of the nature of the charges. His delay was not in keeping with acting with integrity and scrupulously.
In our view for these reasons Mr Rouen did not practice ethically or competently. He is not suitable person to hold registration as a psychologist.

[11]

Principles regarding protective orders

The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law.
This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34].
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see for example, Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at [ 637].
In Health Care Complaints Commission v Do, [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

[12]

Consideration of protective orders

Mr Rouen pleaded guilty to the criminal charges; he has obtained alternate employment outside the health sector, started treatment with a psychologist and made prompt admissions regarding the Complaint before the Tribunal.
Equally however, he has engaged in conduct which is a serious breach of the standards that the public have a right to expect of a psychologist. Beyond the specific transgressions of possessing and viewing child abuse material, the totality of his conduct is very serious.
Mr Rouen tended to access child abuse material during lengthy periods when he was apparently depressed, regularly using cannabis and socially isolated due to relationship breakdowns. Notwithstanding his training, experience and regular supervision, he never sought help from his employer and he only sought private psychological treatment after his conduct was detected.
The Commission submits, and we accept that in circumstances where Mr Rouen has not given any evidence about his steps towards rehabilitation or put on any expert evidence about his treatment gains, it is very difficult for us to confidently assess the risk posed by him in engaging in similar conduct in the future. Given that he has only fairly recently commenced treatment and that various practitioners have identified areas of concern, risk factors and recommended further treatment, in our view we ought to take a cautious approach.
Further the evidence suggests a link between Mr Rouen's depression and his conduct and we have no recent evidence demonstrating the extent to which his depression has been treated.
Having regard to these matters, we are satisfied that it is appropriate that Mr Rouen's registration should be cancelled.
However, we are also satisfied that such cancellation should be for a longer period than that submitted by the Commission and Mr Rouen's legal representative.
This is because Mr Rouen collected, concealed and used child abuse material over a lengthy periods from 2000 to 2011, and then later in 2015 and 2016. Mr Rouen could have reflected on his conduct. He could have disposed of the USB sticks. He could have sought help for his issues. He did none of these things. Indeed the evidence before us discloses that when he was confronted about his conduct by his former partner on more than one occasion, he denied it. Further, he did not promptly reveal the full extent of the nature of his transgressions to his employer.
Mr Rouen's transgressions and the issues which he claims underlie them existed long before he was detected and the subsequent intervention of the police and criminal justice system.
We conclude that Mr Rouen should not be able to make any application for review of the cancellation of his registration for a period of three years. In our view given the gravity of the conduct and the upholding of public confidence in the profession requires that his conduct in its entirety be denounced as unacceptable and that a period of three years appropriately reflects that.
Mr Rouen will require prolonged treatment to address his diagnosed paedophilic disorder, social anxiety disorder, substance use disorder and lengthy history of depression before he is in any position to apply for reinstatement. Three years will afford an appropriate period for Mr Rouen to address these matters.
There was some discussion in submissions made by both parties as to the making of a prohibition order. At the hearing the Commission indicated that it did not actively seek a prohibition order.
Legislative controls on employment of persons convicted of child pornography offences are relevant in framing appropriate protective orders: see for example Dr Richard Wingate [2007] NSWMT 2 at [14]. Mr Rouen's convictions are for reportable offences for the purposes of the Child Protection (Offenders Registration) Act 2000 so he cannot apply for any child-related employment.
In circumstances where the offending did not involve any direct contact with patients and Mr Rouen has not given any evidence regarding his future employment plans, it is difficult to determine whether there is sufficient evidence for us to be satisfied that he poses a substantial risk to the health of members of the public if he provides a health service as required under section section 149C(5) of the National Law.
While we have found Mr Rouen is not presently a suitable person to hold registration as a psychologist, and that his registration should be cancelled; we are not satisfied on the evidence available to us to the requisite standard that he presents a substantial risk to the public if he sought to provide a health service. Accordingly we do not propose to make a prohibition order.

Health Care Complaints Commission v Rouen

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