Health Care Complaints Commission v Sheehan

NCAT Occupational|2016-03-17

Background to the complaints

The background to each complaint is that: 1. At all relevant times, the respondent provided psychological services as a Child and Family Specialist in Port Macquarie. 2. In September 2011, a general practitioner referred Patient A to the respondent due to anxiety, behavioural concerns and problematic behaviour at home. Patient A's first consultation with the respondent took place on 27 September 2011. The respondent ceased the therapeutic relationship with Patient A on 17 April 2012. 3. Ms X is the mother of Patient A and was in attendance at all relevant times during therapeutic consultations between Patient A and the respondent. 4. On 4 October 2012, Ms X's former husband made an unsubstantiated complaint about the respondent to the NSW Police. 5. On 11 January 2014, the Port Macquarie Community Services Centre (PMCSC) was notified of a domestic violence incident involving Ms X and the respondent.
The respondent admits the matters appearing in sub-paragraphs numbered (1), (4) and (5) above. While the respondent admits the contents of sub-paragraph (2) he states that the last consultation with Patient A was on 20 February 2012, and that following the date he met with Patient A's parents on 26 March 2012 and 17 April 2012 to discuss Patient A's care and handover to another psychologist. Patient A was not present at either of those meetings. The respondent also admits sub-paragraph (3), in that Ms X was the mother of Patient A, but states that at times Patient A would attend consultations on his own.

The filed documents

Two volumes of materials, numbering over 38 documents, were filed by the Commission. These documents include, but are not limited to: evidentiary certificates provided by the Australian Health Respondent Regulation Agency (AHPRA) and the Council; an expert report of Prof Dianna Kenny; correspondence between the Commission and the respondent; correspondence between the Council and the respondent in relation to the s 150 proceedings; the reasons for decision of the Council of 13 October 2014; there communications with the respondent's solicitor Mr Tony Cox, the clinical notes for Patient A , the respondent's curriculum vitae and hundreds of pages of phone records.
As noted, on the day of the hearing, the applicant filed a bundle of some 13 documents, numbering over 40 pages. These documents included a number of reports of Dr Lisa Millar, a clinical psychologist who was supervising the respondent, a brief curriculum vitae of the respondent, correspondence from police, and the respondent's Reply to Disciplinary Findings.
Only two witnesses were called to give evidence and were cross-examined at the hearing. These were Professor Dianna Kenny, and Dr Lisa Millar. Prof Kenny had been retained by the Commission to prepare an independent expert report in relation to the complaint made to the Commission by the Port Macquarie Community Services Centre. Dr Millar was engaged by the respondent to supervise him and his practice.
The respondent did not file a statement in the proceedings. It is to be noted that he was present in the Tribunal hearing room on each day of the hearing, a matter which was confirmed by his counsel. The failure of the respondent to provide a statement to the Tribunal or otherwise give evidence or to be cross-examined in relation to any evidence is commented on below.

The complaint and its aftermath

On 11 January 2014, the PMCSC was notified of a domestic violence incident involving Ms X and the respondent.
On 14 January 2014, the PMCSC lodged a complaint concerning the respondent with the Commission. The complaint relevantly referred to the respondent entering into a relationship with Ms X, who was the parent of a former client. The complaint arose in the context of the PMCSC receiving a report in relation to domestic violence allegedly committed by the respondent against Ms X.
On 28 January 2014, the Commission wrote to the respondent, its letter setting out the complaint made against him by the PMCSC.
On 17 February 2014, the respondent replied to the Commission's letter of 28 January 2014. In relation to the complaint that he "engaged in a relationship with the parent of a former client, [Ms X]", he relevantly stated: Ms X's son, [Patient A] was referred to me by Dr Shona Lewis in 2011. Ms X and her son saw me on five occasions over a three-month period. . . . It has now been over two years since I saw [Ms X] or her son. I deny that I have ever been in a relationship with [Ms X]. [Ms X] has informed me that her ex-husband has made disparaging remarks about her, her friends and other individuals she is acquainted with, including me. He has also told people that [Ms X] and I are in a relationship. As stated above, this is not true. I am fully aware of the Australian Psychological Societies Ethical Guidelines relating to inappropriate relationships and boundary crossing behaviour. I do not believe that any of my actions are in contravention of the APS Guidelines.
A meeting of the Council was held on 11 March 2014, following which the Council requested further information from the respondent.
On 29 April 2014 the respondent replied. Relevantly, the respondent stated: I act as a professional and highly moral Clinical Psychologist working with children and families. At all times I act to bring respect and integrity to a profession I'm passionate about. Though unfortunately my work has led me to be wrongly name[d] in vexatious and highly emotional, outcome driven disputes. . . . [Ms X] is and remains a close friend and confidant, that being the extent of our relationship. I am aware of my professional requirements and I believe I have not breeched [sic] same at any time.
On 12 November 2014, the Commission asked the respondent to provide it with information (in the form of answers to questions) pursuant to s 34A of the Health Care Complaints Act 1993. Relevant questions and answers were as follows: How did this relationship [with Ms X] develop? The relationship commence purely as a friendship in or about September 2012. When did your relationship with [Ms X] become sexually intimate? Maybe September/October 2013. Please advise whether you are currently in a relationship with [Ms X] Yes. If you are living with each other, please advise whether [Ms X's] children [Patient A and his sister] reside with you, whether part-time or full-time. Yes on a part-time basis as they reside with their father five nights out of 14. Please advise if you have ever provided any psychological health services to [Ms X]. If the answer to this is yes, please describe the diagnosis and nature of your treatment. No. Please advise the name of your current General Practitioner. Dr Andrew Oliver [You have stated] that you suffer with Bulimia Nervosa. Please provide the name of any respondent(s) he may be treating you for this condition. I am being treated by Dr Andrew Oliver for Endocronological Pituitary Gland disorder.
The respondent's response attached a statement of Ms X dated 13 October 2014, and submissions dated 10 October 2014 prepared for the respondent by his solicitors. In summary, in her statement Ms X states that: 1. Patient A saw the respondent on four or five occasions over a four to five month period, with their last appointment being 20 February 2012. 2. A relationship between her and the respondent gradually developed from around September 2012. The relationship was not a domestic or sexual relationship. There was simply a friendship that would further develop over time. 3. She did not cohabitate with the respondent until late November/early December 2013. 4. The respondent and Ms X were aware of the APS Code of Ethics (APS Code) in that they were not supposed to commence a relationship until after two years from when Patient A last saw the respondent. "With respect, we did all things possible with trying to fulfil Mr Sheehan's ethical obligations but at the end of the day Mr Sheehan and I are purely human". 5. She has not been manipulated or exploited by the respondent in any way. 6. She is aware that the respondent attempted to mislead the Council in terms of not being in a relationship, but states that "this conduct was purely one of panic knowing his ethical obligations". 7. She has a strong and loving relationship with the respondent. The children enjoy a very good relationship with him. He is a very caring and loving man. 8. She is "mortified and devastated" that the respondent's professional career is in jeopardy based on the fact they commenced a relationship. She states that "[w]e attempted to conceal our relationship in an effort to protect my family and his career but this fell short".
It appears that the submissions were prepared for the purpose of the Council investigation. The submissions note that, as a result of the complaint made by the PMCSC on 14 January 2014, at the request of both the Commission and the Council, the respondent provided to the Commission a response on 17 February 2014, and a further response on 29 April 2014. In those responses he states he was not a relationship with Ms X. The submission states that the statements by the respondent that he was not in a relationship [with Ms X] "were not entirely truthful", and that the respondent had not commenced a bona fide domestic relationship with Ms X until on or before late November/early December 2013.
The submissions state that the respondent admits he was not truthful in his response because he was aware of the APS Code, Ms X was subject of proceedings in the Family Court and he did not wish to prejudice such proceedings, and he simply did not wish to bring attention and/or trouble upon himself from the Council. In hindsight, he admits that this conduct was "foolish and unprofessional".
The submissions state that it was well after 20 February 2012 (at which point the respondent had ceased treating Patient A), namely September 2012, that a friendship between the respondent and Ms X commenced. It remained a relationship of friendship throughout 2012 and the majority of 2013. The relationship proceeded to cohabitation in or about late November/early December 2013, but not on a permanent basis. It was not until approximately April/May 2014 that the domestic relationship became permanent.
The submissions then state that any inconsistencies in the respondent's evidence to the Council or the Commission are "easily explained" as a misinterpretation of the meaning of the word "relationship" when used by the respondent, although, when he responded to the Council and the Commission, he was not truthful. The submissions state that the respondent understands and accepts the APS Code, and "it was his profession that he was trying to protect" by stating that he was never in relationship when communicating in his correspondence to the Commission on 17 February 2014 and to the Council on 29 April 2014. "It was for this reason that the respondent was prepared to deny any relationship existed between himself and [Ms X]".
The submissions then set out a number of mitigating circumstances in relation to any penalty to be imposed, asking that a reprimand be imposed and guidance given. It was submitted that the respondent's conduct amounted to a serious offence, and that while the respondent acknowledged that he misled the Council and the Commission, his conduct did not warrant the severity of suspending him from practice.

Commission's letter of 14 May 2015

On 14 May 2015, the Commission informed the respondent that it was at the end of its investigation. A letter to the respondent's solicitor dated that day states that the evidence indicated that the respondent had engaged in improper and unethical conduct in the practice of psychology and that his conduct in entering into entering a relationship with Ms X, the mother of Patient A, was significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience. In view of this, the Commission was proposing to refer the matter to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act for determination whether to prosecute a complaint before a professional disciplinary body. The Commission stated that the substance of the grounds of the proposed action was that there was evidence of the following (what is set out below is a summary only, only those matters relevant to the particulars in the Amended Complaint filed in the hearing are set out): 1. The respondent engaged in regular and extended phone contact with Ms X prior to the cessation of the therapeutic relationship with Patient A. Telephone records obtained for the period September 2011 to September 2012 provide evidence contact between the respondent and Ms X commenced on 9 April 2012, with multiple calls and SMS messages being made from that time onwards. Medicare data indicated that the respondent's final consultation with Patient A was on 17 April 2012. 2. In September 2012, the respondent entered into a personal relationship, in the nature of a friendship or sexual relationship with Ms X, only five months after the therapeutic relationship with Patient A had ceased in April 2012. 3. The respondent was not truthful in his response to the Commission dated 17 February 2014, and in his response to the Council of 29 April 2014. 4. The respondent entered in to an intimate sexual relationship with Ms X in approximately September/October 2013. 5. The respondent commenced an ongoing domestic relationship with Ms X in November/December 2013, which from April/May 2014 including children of Ms X, including Patient A, residing at his house nine nights out of 14.
The Commission's letter indicates that the evidence obtained during the course of the investigation had been reviewed by an expert reviewer. A copy of the expert's report and the copies of documents provided to the expert were enclosed, but for reasons of confidentiality, the expert's identity and any information relating to the expert had been deleted.
The purpose of the Commissions letter was to provide the respondent the opportunity to make submissions pursuant to s 40 of the Health Care Complaints Act.

Respondent's submissions of 18 June 2015

The respondent subsequently sent submissions dated 18 June 2015 to the Commission. Relevantly, in those submissions criticisms are made of the expert report relied on by the Commission, including but not limited to: 1. The expert relying on repealed legislation; the expert not being identified. 2. Parts of the expert's report being redacted. 3. No interview being conducted by the expert with Mr Sheehan.
In the circumstances, the respondent submitted that the expert opinion and report sought to be relied on by the Commission had numerous failings which called into question the validity of the report, and greatly questioned the probative value it might have in any determination of fact. It also noted that the report did not comply with the various court or Tribunal requirements for expert evidence in NSW and infringed s 79 of the Evidence Act.
The respondent addressed the grounds the Commission cited for considering whether or not to refer the matter to the Director of Proceedings under 39(1)(a) of the Health Care Complaints Act for a determination of whether to prosecute a complaint before a professional disciplinary body. In relation to the evidence that the respondent engaged in regular and extended phone contact with Ms X after the cessation of the therapeutic relationship with Patient A, the respondent submitted Ms X was isolated and without family or extended support, and that his concern prompted him to engage and to support her, as a friend. He stated that he sought advice from senior legal, professional and clergy in relation to the situation. Port Macquarie, being a "small town", he did not have access to an appropriate senior colleague to discuss the matter. He says that the treating therapeutic relationship did not cease to accommodate a personal relationship between him and Ms X. but rather was terminated at the request of Patient A's father. He says that he had since discussed the matter with his supervisor, Dr Millar, and "strategies are being formulated to facilitate consultation with other psychologists in the future should questions of a professional nature arise".
In relation to the evidence that, in September 2012, the respondent entered into a personal relationship, in the nature of a friendship or sexual relationship with Ms X, only five months after the therapeutic relationship with Patient A had ceased in April 2012, the respondent submitted that he commenced a domestic relationship with Ms X in late November, early December 2013. Before that time, they were friends.
In relation to the evidence that the respondent was not truthful in his response to the Commission dated 17 February 2014 and in his response to the Council of 29 April 2014, the respondent submitted that he was not truthful for the following reasons: 1. He was aware of the APS Code and in particular, Section B Relationships with Clients. 2. Ms X was subject to Family Court proceedings and he did not wish to prejudice those proceedings. 3. He did not wish to court trouble and/or attention from the Council.
In addition, he states that this was "clearly an act of self-preservation and in keeping with human nature".
In relation to the evidence that the respondent entered into an intimate sexual relationship with Ms X in approximately September/October 2013, the respondent submitted that a domestic relationship with Ms X commenced in late November or early December 2013 which was the natural progression of the relationship; before that time they were friends. The respondent has discussed the matter with his supervisor, and the development of the relationship has been the subject of much discussion.
The respondent then sets out certain matters described as going to mitigation. These included the following: 1. The APS Code was a guide only and not a prescriptive set of rules. He commenced a sexual relationship seven months after his last consultation with Patient A. While it was imprudent of him to do so, he did consult a solicitor to seek professional advice about this. He has limited resources in relation to his profession at his disposal as he practices in a small regional centre. 2. Secondly, he has been practising since 2006, and has been the subject of only one other complaint. This was made prior to 2011 and was dismissed. Psychology has been his only profession. 3. There is only one other clinical psychologists seeing children and practising in Port Macquarie. 4. His large caseload is an issue. 5. He remains in a relationship with Ms X and continues to support her and her children financially. He also occasional care of a sister who suffers from a bipolar disorder. 6. He has several financial responsibilities. 7. He has undergone medical assessment and continues fortnightly contact with a supervisor as stipulated by the Board. Initially he commenced supervision with Mr Gary Grant, but this ceased after three sessions. He commenced supervision with Dr Millar in early 2015. He continues ongoing supervision with her on a monthly basis, face-to-face, and every other fortnight via Skype. In sessions with Dr Millar, he has acknowledged his failings and developed an understanding of why his conduct was problematic. He has been honest and transparent with Dr Millar, and developed an understanding of the unique challenges that working in a small town may present to his professional practice and interpersonal relationships. (Attached to the submissions are six pages of Dr Millar's clinical notes, and a supervision report dated 22 April 2015.)
In conclusion, notwithstanding his criticisms of the expert's report relied on by the Commission, the respondent acknowledged that his actions could constitute unsatisfactory professional conduct within the meaning of s 139B of the National Law.
Following a hearing, on 13 October 2014, the Council decided to place conditions on the respondent's registration, including attending for medical assessment, undertaking face to face supervision with a clinical psychologist on a fortnightly basis. The supervision was to cover the Code of Conduct, ethical standards, professional boundaries and self-care. The supervising clinical psychologist was to provide bimonthly reports to the Council.
Following the Council's decision, the respondent attended Dr Anthony Samuels on 12 December 2014 for assessment. Dr Samuel's report of 12 December 2014 was before the Tribunal. In summary, Dr Samuels concluded that: 1. There was no clear evidence that Mr Sheehan was suffering from a Major Affective Disorder, Anxiety Disorder or Psychotic illness. He could find no clear evidence of substance misuse issues. 2. The respondent manifested some markers of personality vulnerability, and there were a number of factors in his early development that may have contributed to this vulnerability. 3. There were serious concerns in regard to the respondent's veracity, as evidenced by his initial responses to the allegations levelled against him. He continued to present in a somewhat evasive manner, and seem to minimise the significance of the various boundary transgressions and their potential impact on Ms X and her children. 4. While Dr Samuels could find no clear evidence of impairment, he wondered about the possibility of dysfunctional personality traits with narcissistic and possibly antisocial features, although the respondent may have a vulnerability to mood disorder. 5. He had some concerns in regard to the respondent's current capacity to maintain professional boundaries, particularly given the fact he works with families and young children.

Expert Report of Professor Kenny

Professor Kenny has been a registered psychologist for over 30 years. Her qualifications and expertise are not in dispute. No submission made at the hearing that her report failed to comply with NCAT Procedural Direction 3: Expert Witnesses.
On 25 February 2015, she was retained by the Commission to provide an independent expert report in relation to the complaint made to the Commission by the PMCSC. A summary of the questions she was asked to answer, and her responses, are set out below. 5.2 The Review 1 Assuming Mr Sheehan's version of events is correct, please provide your opinion of his conduct in entering into a personal relationship, in the nature of a friendship, with [Ms X] in September 2012, when he had seen her son as his treating psychologist on five occasions over a three-month period concluding on 20 February 2012 2 Assuming the Medicare data is correct in indicating that [the respondent] saw Patient X on 12 occasions between 27 September 2011 and 17 April 2012, please provide your opinion of Mr Sheehan's conduct in entering into a personal relationship, in the nature of a friendship, with [Ms X] in September 2012. 5.2.1 These two questions will be discussed together . . . 5.2.4 With hindsight, it was imprudent of Mr Sheehan to become personally involved with [Ms X] at a time which her family was in turmoil. He . . . showed poor judgement in becoming the "third "in a conflict of marriage and poor psychological insight into the possible consequences to himself from a man (Ms X's husband] who by all accounts had considerable personal pathology. On the other hand, Mr Sheehan appears to have exerted a positive influence on the two children [of Ms X, including Patient A], according to their mother and clinical psychologist, Mr Gary Grant . . . On balance, I consider that this conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. This conduct invites my strong criticism. 3. Assuming Mr Sheehan's version of events is correct, please provide your opinion of Mr Sheehan's conduct having regular and often daily contact with [Ms X] starting on 9 April 2012, when he had been her son's treating psychologist up until 20 February 2012 3.1 the therapeutic relationship with [Ms X's] son had ended and both parties State that at this time, the relationship was platonic. However, it is wise to maintain the boundaries of a professional-client relationship even after the therapy is ended, in the event the patient wishes to return for further consultations. From all accounts, [Patient A's] behaviour was erratic and enduring change had not been effected due to the negative modelling of his father. In many respects, parents are also clients of their child's therapist, as much of the work requires advice to parents about implementation of behavioural management programs, or the gaining of insight into their children's behaviour that would become difficult if the contact was complicated by the commencement of a personal relationship with the parent. This behaviour constitutes conduct significantly below that which is reasonably expected of a respondent of equivalent training or experience and invites my strong criticism. 4. Assuming Medicare data is correct in indicating Mr Sheehan saw [Patient A] as his treating psychologist until 17 April 2012, please provide your opinion of Mr Sheehan's conduct in having regular and often daily telephone contact with [Ms X] starting on 9 April 2012 what the therapeutic relationship with [Patient A] was still ongoing. 4.1 a critical question in this scenario was whether the therapy was terminated expressly so that the couple could commence a social relationship. This case, this would be professional conduct that did not have the best interests of the child patient in mind and would constitute conduct significantly below what is reasonably expected of a respondent of equivalent training or experience and would invite strong criticism. 4.2 if, however, the therapy came to a "natural end", based on progress according to a time-limited involvement, or for some other reason, in this case referral of [Patient A] to another respondent at the request of [his] father, the over-lapping week of contact during which her son was still a patient may be considered imprudent but not tantamount to misconduct. However the close proximity between the end of the professional relationship and the commencement of the social relationship may have interfered with all complicated the appropriate therapeutic management of [Patient A] . . . This would have created a rupture in the therapeutic relationship between [Patient A] and Mr Sheehan that may have resulted in an exacerbation of his problematic behaviours. I consider that this conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience and invites my strong criticism. 4.3 Another matter in the scenario needs consideration. Mr Sheehan was no doubt aware of [Patient A's father's] suspicions that there was a developing relationship between [Ms X and Mr Sheehan], given his demand that Patient A] be transferred to another therapist. At this time, [Ms X and her husband] were cohabiting. It was therefore imprudent for any third party to become involved with [Ms X] during a time in which a volatile marital conflict was being played out in this couple. I note that the couple did not separate until July 2012. For this reason, more so than the overlapping week in 4.2, I would consider that Mr Sheehan's conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. This conduct invites my strong criticism. . . . 6 . . . Please provide your opinion of Mr Sheehan's conduct in entering an intimate relationship with [Ms X] some time prior to December 2012 [assuming that to be the case]. . . . If he did in fact enter into a sexual relationship at this time, I would feel concern for all the reasons stated above, which case I would consider that his conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. This conduct invites my strong criticism. 7. Assuming Mr Sheehan's version of events to the Commission of 28 November 2014 is correct please provide your opinion of Mr Sheehan's conduct of entering into an intimate relationship with [Ms X] in approximately September/October 2013. . . . 7.2 In considering the appropriateness of the sexual relationship with Mr Sheehan and [Ms X], I note that the marriage between [Ms X and her husband] ended in July 2012. This timeframe sets the new sexual relationship at 14 months post-separation. Mr Sheehan had not been involved therapeutic leave with any member of [Patent A's] family since April 2012. Except for the reservations I have already expressed about Mr Sheehan becoming entangled in the complex lives of [this] family, on its face, this conduct, while falling below what is reasonably expected of a respondent of equivalent training or experience, does not fall markedly below established standards. 8. Please provide your opinion of Mr Sheehan's conduct in commencing an ongoing domestic relationship with [Ms X] in November/December 2013, which, from April/May 2014 includes her children living in his house 9 nights out of 14. This situation constituted the natural progression of relationship that had progressed from friendship to sexual intimacy to cohabitation. Although none of these relationship faces complied with the guideline of a two year gap between the therapeutic and social relationship, this remains a guideline rather than injunction, and a somewhat arbitrary. It is not clear how [Patient A] understood the multiple relationships he had with Mr Sheehan or whether he was confused by these. I therefore consider this conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. . . . 10. Please provide your opinion of Mr Sheehan submission to the Commission in his response of 28 November 2014 that "[Ms X] was not vulnerable and nor was she exploited by Mr Sheehan". 10.1 From the evidence before me, I consider that [Ms X] was indeed vulnerable but I am of the opinion she was not exploited by Mr Sheehan. 11. . . . Please provide your opinion of Mr Sheehan's conduct in offering employment to [Ms X] in circumstances where (a) there was an AVO in place against him (b) he was in a personal relationship with [Ms X] (c) he had previously been in a therapeutic relationship with [Ms X's] son. . . . 11.2 Mr Sheehan appears to demonstrate a lack of self-care and self-protection indecision such as these that one may conclude that his capacity for mature professional judgement has been overridden by factors that are clearly outside of his conscious awareness. It was therefore extremely unwise and Mr Sheehan to offer [Ms X] employment in his practice, or indeed to continue any social or professional relationship with her. Each of the situations presents further blurring and crossing a personal, social and professional boundaries and engagement in multiple relationships that were certainly contra-indicated as these events unfolded. I consider that this conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. This conduct invites my strong criticism. 12 Please provide your opinion of Mr Sheehan's conduct in stating to the Psychology Council and the Health Care Complaints Commission that he was not in a relationship with [Ms X] when this was untrue. . . . People sometimes entangled themselves in such convoluted webs that it becomes difficult to tell the truth. . . Their innovation and lies are motivated by wished to avoid incriminating themselves. No doubt, Mr Sheehan was motivated by the same reasons. Notwithstanding Mr Sheehan's explanations for such conduct, it nevertheless falls significantly below what is reasonably expected of a respondent of equivalent training or experience and my strong criticism. 13. Please provide your opinion of Mr Sheehan's contention that he was "not entirely truthful" to the Commission in his responses of 17 February and 29 April 2014 because (a) he was aware of the APS Code of Ethics and in particular Section B, Relationships with Clients (b) [Ms X] was subject to Family Court proceedings and he did not wish to prejudice such proceedings (c) who do not wish to bring attention and/or trouble upon himself from the Psychology Council of New South Wales . . . Inability to face up to one's errors, and to examine, understand and correct them is problematic in life in general, but highly detrimental to members of the psychology profession. Prevent honest appraisal of one's professional conduct, and interferes with the achievement of psychological insight. I consider that this conduct fell significantly below what is reasonably expected of a respondent of equivalent training or experience. This conduct invites my strong criticism. 14. Assuming Medicare data is correct in indicating that Mr Sheehan saw [Patient A] between 27 September and 17 April 2012, please provide your opinion of Mr Sheehan stating that he only saw [Patient A] on five occasions, with the last appointment occurring on 20 February 2012. With the caseload that Mr Sheehan was carrying, it was not surprising that he made errors of fact with respect to numbers of sessions and date of termination et cetera. On the other hand, these but have been readily available via practice records. It was incumbent on Mr Sheehan to provide accurate information is requested to oversight bodies such as the HCCC. Failure to provide accurate records constitutes conduct that fell significantly below what is reasonably expected of a respondent of equivalent training or experience and invites my strong criticism. 15. Please provide your opinion on the adequacy and appropriateness of Mr Sheehan's clinical records of his consultations with this client. . . . Although not completely accurate, current or complete, there are sufficient material for a subsequent clinician to ascertain the nature of the presenting difficulties. The quality of the note taking therefore does not fall below what is reasonably expected of a respondent of equivalent training or experience. (Bolding as in original)
Prof Kenny was also asked to provide her opinion on any other aspect of Mr Sheehan's conduct that she felt was relevant to the matter. She considered there were four additional matters worthy of discussion. Relevantly, two of these included the following: 1. She was very concerned that the caseload carried by Mr Sheehan, as he was seeing 9 to 10 patients daily back to back as a sole respondent. This she says afforded him no time in his working weeks for supervision or even personal reflection and the recording of adequate session notes on his clients that could assist in case formulation and management. 2. On his own admission, Mr Sheehan suffered from an eating disorder. She states that these are rare disorders in men, with higher psychiatric morbidity then with women. She states that interpersonal difficulties are strongly associated with bulimia, particularly distrust, negative interaction and conflict with others; levels of social anxiety are also higher; affective disorders are also strongly associated with this condition. She concludes therefore that it is highly likely that Mr Sheehan experiences a significant degree of psychological vulnerability that may benefit from psychotherapy. She said that he would also benefit from a reduction of his caseload and regular supervision of his patients.
On 24 June 2015, the Commission wrote to Prof Kenny, noting that in section 5.1 of her report she referred to Mr Sheehan's alleged behaviour as falling under the Psychologists Act 2001. The Commission pointed out that this Act had been repealed in 2010 and replaced with the National Law. The Commission also noted that the Psychology Board of Australia (which was created following the introduction of the National Law), had adopted the APS Code for the profession and it is that document which articulates and sets the specific standards to guide both psychologists and members of the public to a clear understanding and expectation of what is considered ethical professional conduct by psychologists. The Commission requested Prof Kenny to provide a supplementary report acknowledging the current guidelines as set out in the APS Code and a comment if any of her opinions regarding respondent's conduct had changed.
On 30 June 2015 Prof Kenny responded, attaching a report with a "corrected" section 5.1, and re-dating the report to 30 June 2015. She stated in an email to the Commission that there were no changes to her report or its conclusions based on the different wording regarding the issues related to the development of relationship of trust between a psychologist and a client.
On 5 January 2016, the Commission refers to paragraphs 7.1 and 7.2 of her report where she referred to the NSW Psychologists Registration Board Code of Professional Conduct, and opined that the respondent's behaviour fell below, however, not markedly below established standards. After referring to standard C.4.3 of the APS Code, the Commission asked her to review her report and provide a supplementary report should her opinion change in regard to the conduct of the respondent.
On 7 January 2016 Prof Kenny replied by email. She stated: . . . This was a difficult position. I am aware of the two-year injunction, and status much in my report at 8.1. [Although none of these relationship faces complied with the guidelines of the two-year gap between the therapeutic and social relationship, this remains a guideline rather than an injunction, and is somewhat arbitrary]. He remains a time limit arrived at by consensus by group of psychologists. There is no information about how such a timeframe was derived; it is not a research-derived limit is based on findings that most relationships undertaken within the two-year limit are problematic and those undertaken beyond the two-year year limit are unproblematic. I derive my judgement from a consideration of all the very complex circumstances in this case; in particular the time lapse between the dissolution of marriage and [the respondent's] involvement with [Ms X] was 14 months. There was a time lag of 17 months since the end of the therapy. Mr Sheehan was working in a small country town where there is inevitable blurring between professional and personal boundaries and psychologists are entitled to a private life. I gave Mr Sheehan a "discount" because there is a significant time lapse between events and for all the other reasons outlined in my report. I have added a phrase "which constitutes a time lapse of 17 months" at 7.2. (bolding as in original)
Paragraph 7.2 of Prof Kenny's independent report now reads as follows: 7.2 In considering the appropriateness of the sexual relationship with Mr Sheehan and [Ms X], I note that the marriage between [Ms X and her husband] ended in July 2012. This timeframe sets the new sexual relationship at 14 months post-separation. Mr Sheehan had not been involved therapeutic leave with any member of [Patent A's] family since April 2012, which constitutes a time lapse of 17 months. Except for the reservations I have already expressed about Mr Sheehan becoming entangled in the complex lives of [this] family, on its face, this conduct, while falling below what is reasonably expected of a respondent of equivalent training or experience, does not fall markedly below established standards.
Prof Kenny was required for cross-examination. She gave some brief additional oral evidence in chief. She confirmed that the conclusions set out in par 7.1 of her report, which applied the provisions of the now repealed Psychologists Act 2001, would be the same under the National Law. In addition, Mr Ginters, for the Commission, asked her to assume that rather then the respondent last seeing Patient A on 17 April 2012 but rather, had remained a patient until mid to late February 2012. Prof Kenny also explained that where the patient was a child and consultations kook place with the parents of the child as well, it was appropriate to consider that those persons constituted a "client unit".
Prof Kenny was cross-examined briefly by Mr McMahon for the respondent. Prof Kenny confirmed that she had not assessed the respondent herself, and that the opinions were based on the material with which she had been provided. He asked her about the statement in paragraph 16.4 of her report that, as a response from a binge eating disorder and Bulimia, it is highly likely that he experienced a significant degree of psychological vulnerability and may benefit from psychotherapy. She agreed that she had reached this opinion without the benefit of any assessment of the respondent, and she may have been assisted by an assessment. Nevertheless, she considered that there was able material available to support a diagnosis of bulimia (and here she noted various references by the respondent to wanting to vomit), and that even with a face-to-face assessment, people do not necessarily disclose the full extent of their psychological distress because of the shame of disclosure.
Prof Kenny was asked to address the difference between boundary crossing and boundary violation. She agreed that boundary crossing does not automatically lead to boundary violation and harm. She agreed that she had said certain things in his report which were not harmful to Patient A, such as he and the respondent getting on well together, and his involvement in the family appearing to be of benefit. She noted, however, that the harm lay in the volatility of the relationships. She was asked whether the fact that the family was "in turmoil" was a circumstance which lent itself to volatility. Prof Kenny said that Ms X had a volatile personality, thus leading to psychological "question marks". She agreed with the proposition that the relationship between the respondent and Ms X was complicated by virtue of them living and he practising in a small town, that the therapeutic relationship had ceased, and given a psychologist was entitled to a social life. She agreed that this lead to a "blurring of lines", and that there were difficulties in maintaining boundaries in these situations.
Prof Kenny said that she was less concerned that the relationship commenced within two years of the therapeutic relationship ceasing (a "time line" which she described as "arbitrary"), than she was about the fact that the relationship commenced in circumstances where Ms X was still married, there was conflict in her marriage, and her son was a patient of the respondent.
She was also asked about the respondent being isolated professionally and receiving little assistance in the form of mentoring. Prof Kenny said that these were all high risk factors for boundary violations. She noted that psychologists should not practise alone, from their home, and without supervision. She said that an excessive workload, such as that of the respondent's, allowed no time for reflection; this too was a risk factor.

Evidence of Dr Millar

At the hearing, the respondent attended a number of reports of Dr Lisa Miller, the principal report being a report titled Confidential Report and dated 7 March 2016. This report indicates that she and the respondent had met on some 24 occasions for supervision in the period March 2015 to March 2016. The primary goals of the supervision sessions were to evaluate, review, enhance and maintain understanding of and adherence to: 1. The Code of Conduct and ethical standards required in the practice of psychology. 2. Professional boundaries required in the practice of psychology. 3. Appropriate self-care strategies required in the practice of psychology.
Dr Millar states that, in relation to the respondent's progress towards these goals, he has consistently demonstrated awareness regarding past, present and future limitations in his professional practice. During supervision, they reviewed the Code of Ethics and Ethical Guidelines and the respondent had provided a range of real-life examples in which he had considered and implemented ethical and professional practice.
Dr Millar states that the respondent engaged reliably, proactively and willingly in the supervision process in all areas. She says the respondent displayed understanding of an insight into the facts surrounding the complaint made against him.
Dr Millar states that the respondent was able to identify important aspects of ethical professional psychological practice including engaging in supervision, utilising self-reflection, reviewing relevant guidelines, codes, and other relevant literature, seeking other support or advice (for instance through peer consultation, the APS or AHPRA) and the implementation of self-care and professional boundaries.
Dr Millar concludes by stating that the respondent had achieved the goals set by the Council. She says that it is her opinion that the respondent has genuinely, willingly, and proactively engaged in the supervision process, and that he has demonstrated a sound knowledge and understanding both of the facts surrounding the complaint made against him, and of potential ethical issues that may arise in the future.
Dr Millar gave brief additional evidence in chief, including evidence that the respondent was "regretful, and disappointed in himself".
Dr Millar was cross-examined by Mr Ginters. She agreed that psychologists occupied a position of trust, and considerable responsibility. When asked whether this was more so if the psychologists provided services to children, she stated that she was "not sure". She agreed that psychologists had to be seen to be acting with integrity and honesty, and public confidence was dependent on them so acting. She agreed this also applied to the situation where psychologists had to deal with regulatory authorities. She agreed it would be of considerable concern if psychologists were less than honest in answering questions from appropriate authorities, and agreed that she would condemn the pre-the provision of such information.
Following that, Dr Millar was then cross-examined about the respondent's provision of false and misleading information to the Commission and the Council. She agreed that it was entirely unethical and inappropriate for a respondent to provide false information to their regulatory authorities. She stated that the respondent did inform her about the false and misleading information that he had provided, although it was not until later during their supervision sessions that this came to her attention.
In cross-examination, Dr Millar stated that the respondent was "very disappointed with himself", and for that reason had sought supervision from a clinical psychologist and advice from a doctor or psychiatrist. She thought that he had displayed "good insight" into his conduct.

Relevant standards

It is appropriate to summarise the relevant applicable standards, namely the APS Code, and the APS Ethical Guidelines for Psychological Practice in Rural and Remote Settings (the Guidelines).

APS Code

The APS Code was adopted by the Australian Psychological Society on 27 September 2007. The APS Code articulates and promotes ethical principles, and sets specific standards to guide both psychologist members and the public to a clear understanding and expectation of what is considered ethical professional conduct by psychologists. [1] The APS Code is based on three general ethical principles, being respect for the rights and dignity of people and peoples, propriety, and integrity.
Two particular standards are relevant to this matter. Standard B.3, Professional Responsibility, relevantly provides that: Psychologists provide psychological services in a responsible manner. Having regard to the nature of the psychological services they are providing, psychologists: . . . (g) are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues.
Standard C.4.3 (Non-exploitation), relevantly states that psychologists: (a) do not engage in sexual activity with a client or anybody who is closely related to one of their clients; (b) do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client;

The Guidelines

The Tribunal also had before it the APS Ethical Guidelines. The introduction states that the Guidelines were developed in response to issues raised by psychologists with an interest in psychological practice outside the major capital cities and regional centres of Australia. The consultation leading up to the development of the Guidelines yielded general agreement that there were a number of "dimensions of difference" between rural and urban practice in psychology. While all psychologists, including those practising in rural and remote settings, are expected to observe the principles set out in the APS Code, the aim of the Guidelines is to apply the principles of the APS Code to specific challenges in the rural practice of psychology. The Guidelines referred to some of the challenges to working in rural and remote settings, such as a lack of an anonymity and an accompanying increase in transparency regarding a psychologists social and personal life which may make it more difficult to establish a "professional/personal split". However, the Guidelines state that the Guidelines "are not intended to be interpreted in contradiction to the fundamental principles of the APS Code, which are not negotiable".

Relevant principles in making findings of fact

In making its findings of fact, the relevant principles are to be applied by the Tribunal: 1. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law, and s 38(2) of the Civil and Administrative Tribunal Act 2013. 2. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75]. See too Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10 NSW at [18] and [19]. 3. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336; see Forster v Hunter New England Area Health Service [2010] NSWCA 106, and the discussion of the relevant authorities in Health Care Complaints Commission v Smith [2015] NSWCATOD 85 at [131] to [134].

Failure to appear at the hearing

The Commission notes that while Mr Sheehan was in fact present during the hearing, a matter confirmed by his counsel, however, he did not give evidence to the Tribunal, either orally or by way of statement, and thus was not cross-examined.
The Commission submitted that this was significant for two important reasons.
First, the Tribunal was deprived of the opportunity to see and hear the respondent. Therefore, it was not possible for the Tribunal to assess in a direct way whether or not he displayed sufficient (or any insight) into, at the very least, his admitted conduct. It was submitted that this matter was not addressed by virtue of the fact that Dr Millar had given evidence of the respondent's remorse and insight.
Secondly, it was submitted that the respondent had shown himself to be a person who was prepared to make false and/or misleading statements. In the circumstances, including where the respondent has made the conscious decision not to give evidence, and the Tribunal has not heard from Ms X, the Tribunal should treat with considerable circumspection any statements made by the respondent.
The Tribunal specifically gave the respondent, through his counsel, the opportunity to give oral evidence, and put the respondent on notice that the Commission may ask the Tribunal to draw inferences against him for his failure to do so.
The Tribunal considers that it is entitled to draw inferences from the respondent's "silence": Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] - [141]; see too Meakes v NSW Bar Association [2006] NSWCA 340 at [70] - [78]; Health Care Complaints Commission v Wingate [2007] NSWCA 326. In Wingate, the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: "In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical respondent, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical respondents of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical respondent fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." (emphasis added)

Findings of Fact

Based on the filed materials, and the admissions made by the respondent, and confirmed by his counsel at the hearing, and the agreed statement of facts, the Tribunal makes the following relevant findings of fact. (Those matters which appear in the agreed statement of facts are underscored.)

Personal

The respondent was born in 1983. He is 33 years old.

Professional

The respondent graduated with a Bachelor of Arts (psychology) (Hons) from the Macquarie University in 2006. He graduated with a Master of Clinical Psychology from James Cook University in 2010.
The respondent was first registered as a psychologist (general) on 1 July 2010. He was registered with a Clinical Psychology endorsement from 1 December 2012.
The respondent commenced practice of psychology in 2006 and in late 2009/early 2010 he was granted clinical status.
The respondent operates a practice in Port Macquarie NSW, predominately specialising in child psychology. Prior to this, the respondent worked as a counsellor for a number of years.
The respondent was the treating psychologist of Patient A. The therapeutic relationship commenced on 27 September 2011 as a result of a referral of Patient A from a general respondent due to anxiety, behavioural concerns and problematic behaviour at home.
Ms X is the mother of Patient A.
Sometime after the commencement of the therapeutic relationship between the respondent and Patient A, the respondent commenced a casual friendship with Patient A's mother, Ms X.
The respondent last met with Patient A on 20 February 2012. On two subsequent occasions, being 26 March 2012 and 17 April 2012, the respondent met with Patient A's parents, Ms X and her husband, to discuss continuity of care and handover to another respondent.
On 9 April 2012, the respondent made telephone contact with Ms X at 8.10pm for a period of 1 hour and 53 minutes.
On 15 April 2012, the respondent made telephone contact with Ms X at 7:50pm for a period of 3 hours and 45 minutes.
Between 17 April 2012 and 29 September 2012, The respondent engaged in regular and extended telephone contact with Ms X in that he: 1. Had telephone call contact with Ms X approximately 338 times; and 2. Had SMS contact with Ms X approximately 5,619 times.
From at least approximately September 2012, the respondent entered into and maintained a personal relationship with Ms X.
Following cessation of the therapeutic relationship with Patient A,the respondent continued a personal relationship with Ms X in circumstances where a complaint had been made to the NSW police against The respondent. The complaint was not substantiated.
The respondent was engaged in a sexual relationship with Ms X from at least approximately September or October 2013.
In her statement dated 13 October 2014, Ms X states that a relationship between her and the respondent "gradually developed" from around September 2012. She states it was, not a domestic relationship or sexual relationship.
In October 2012, allegations of child sexual abuse involving Patient A and his younger sister were made against the respondent by Ms X's former husband. This allegation was referred to the Joint Investigations Response Team Port Macquarie.
In a letter dated 5 December 2012 to the respondent, Detective Senior Constable Dean of Port Macquarie Child Abuse Squad stated that the allegations were not substantiated.
In late November, or early December 2013, the respondent and Ms X commenced a domestic relationship.
On 11 January 2014, the PMCSC was notified of a domestic violence incident involving Ms X and the respondent.
In an undated letter, Ms X retracted the allegations she made against the respondent.
On 14 January 2014 PMCSC lodged a complaint regarding the respondent to the Council.
In a letter dated 17 February 2014 to the HCCC, the respondent stated: 1. "It has now been over two years since I saw Ms X or her son"; 2. "I deny that I have ever been in a relationship with Ms X"; 3. "[Ms X's husband] has also apparently told people that Ms X and I are in a relationship. As stated above, this is not true"; and
The above statements by the respondent were false and/or misleading.
In a letter dated 29 April 2014 to the Council, the respondent stated that "Ms X is and remains a close friend and confidant, that being the extent of our relationship"
The above statement by the respondent was false and/or misleading.
In early to mid-2014, the respondent advised the HCCC the total number of consultations and dates of consultations with Patient A was 5 when Medicare records indicated it was 12 occasions.
In late April or early May 2014, the domestic cohabitation between the respondent and Ms X became permanent. Ms X's children have lived with the respondent and Ms X from this date for 9 nights out of 14.
The respondent commenced supervision with Dr Millar in early 2015, this was following numerous requests of approval from various other supervisors which were rejected.
The Australian Psychological Society Code of Ethics at Clause C.4.3(b) states: Psychologists do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client.
The respondent was and is aware of his obligations under the APS Code of Ethics relating to inappropriate relationships and boundary crossing behavior.

Consideration

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health respondents; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health respondents who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health respondents wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health respondents; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health respondents; and (e) to facilitate access to services provided by health respondents in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health respondents. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Respondent Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision.

Complaint One

Given the Tribunal's findings of fact above, and the respondent's admissions, the Tribunal is satisfied that each of particulars (1), (2), (3) (4) and (5) is established. The Tribunal considers each particular considered individually justifies a finding that the respondent is guilty of unsatisfactory professional conduct. It follows that a combination of one or other of the particulars cumulatively, and all the particulars cumulatively, also justify a finding that the respondent is guilty of unsatisfactory professional conduct.

Complaint Two

Given the Tribunal's findings of fact above, and the respondent's admissions, the Tribunal is satisfied that each of particulars (1) and (2) is established. The Tribunal finds considers: 1. Particular (1) of itself justifies a finding that the respondent is guilty of unsatisfactory professional conduct. 2. Particular (2) of itself justifies a finding that the respondent is guilty of unsatisfactory professional conduct. 3. Particulars (1) and (2) when considered cumulatively also justify a finding that the respondent is guilty of unsatisfactory professional conduct.

The Commission's submissions

The Commission alleges that the respondent is guilty of professional misconduct. The one particular relied on is Complaints One and Two, and their particulars.
The Commission submits that the Tribunal is required to assess whether respondent's unsatisfactory professional conduct is of a "sufficiently serious" nature to justify suspension or cancellation of his registration. This is a reference to s 139E of the National Law. That section refers to conduct that is of a sufficiently serious nature to justify suspension or cancellation of the respondent registration; it concerns itself with the measure of the seriousness of that conduct. The determination of whether conduct amounts to professional misconduct therefore has it as its starting point, an objective assessment of the respondent's conduct against the standard "reasonably expected of an equivalent respondent".
The Commission relies on Health Care Complaints Commission v Gauchon [2015] NSWCATOD 158 at [109] where the Tribunal stated: In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
In making a finding of professional misconduct, the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
In this respect, the Commission submits that any (mitigating) submission that Ms X may have been a "willing participant" misses the point. The Commission submits that, by analogy, in Dr Vipal Kumar Mehta and the Medical Practice Act of NSW (29 November 2002, page 13.7-.8), the Medical Tribunal, in dealing with a complaint that a respondent had engaged in a sexual relationship with a vulnerable patient, whom the respondent asserted was a willing party, said: It is of course not the point that he perceived her to be a willing party. "Mutuality" in the relationship can never truly exist. The position of power occupation by a treating doctor is such that a relationship with a patient can never be truly "equal'. The doctor and not the patient has the ethical and professional obligation to avoid such relationships. As Denning LJ observed in De Gregory v General Medical Council [1961] AC 957 at 966 "even if she set her cap at him, he must in no way respond or encourage her."
The Commission submits that the respondent's conduct is such that the Tribunal would be entitled to conclude that public perceptions of the psychology profession may have been tarnished. The Commission submits that the respondent's conduct represents a serious breach of the standards the public have a right to expect of a psychologist. The Commission relies on Health Care Complaints Commission v Do [2014] NSWCA 307. There, Meagher JA (with whom Basten and Emmett JA agreed) said 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 respondent from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other respondents 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 respondents 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 respondents. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Commission also relies on Prakash v Health Care Complaints Commission [2005] NSWCA 153, where Basten JA stated at [91]: … . The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the respondent concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical respondents. There is also an element of deterrence or, to put it more positively, encouragement to other respondents to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
In summary, the Commission submits that the following matters warrant a finding that the respondent is guilty of professional misconduct: 1. The respondent specialises in child psychology. [2] Patient A was referred to the respondent because he was suffering anxiety, behavioural issues and problematic behaviour. [3] This was in circumstances where Patient's A's parents were involved in an acrimonious separation and, ultimately, divorce. The Commission submits that Ms X was therefore in a position of particular vulnerability. [4] 2. The boundary violations engaged in by the respondent. 3. The respondent was prepared on two separate occasions to make false and/or misleading statements to regulatory authorities about the nature of his relationship with Ms X. 4. The respondent was aware of his obligations under the APS Code relating to inappropriate relationships and boundary crossing behaviour.

The respondent's submissions

The respondent's counsel indicated that while there was no evidence on this issue, the respondent and Ms X were still in a relationship and co-habitating. He said his client accepted he had committed boundary violations in the context of clinical practice and had been dishonest in making misleading statements to his regulatory authorities. Nevertheless, he submitted that the boundary violations had to be considered in their factual matrix, in that a relationship had developed from April 2012, grown over time, and changed into a sexual relationship in September 2013.
Mr McMahon submitted that there were mitigating circumstances which needed to be considered. These included the following. 1. First, the respondent practised in a small town, which resulted in inevitable blurring of boundaries. In this respect, he drew the Tribunal's attention to the APS Code's principles in relation to practice in rural and remote settings. 2. Secondly, Mr McMahon relied on Prof Kenny's statement that "the guideline of a two year gap between a therapeutic and social relation . . . remains a guideline rather than an injunction, and is somewhat arbitrary". 3. Thirdly, he submitted that the matters the subject of the respondent, that is his relationship with Ms X, was an "isolated episode", and that there was no evidence of repeated behaviour of a pattern of similar behaviour: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. 4. Fourthly, the respondent had made admissions in relation to to Complaints One and Two and also admitted unsatisfactory professional conduct. 5. Fifthly, in making the false and misleading statements the respondent was not attempting to obtain a financial, advantage.

Relevant Law

Section 139B of the National Law (which is an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health respondent generally [NSW] (1) Unsatisfactory professional conduct of a registered health respondent includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of the respondent's profession is significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience. . . . (l) Other improper or unethical conduct relating to the practice or purported practice of the respondent's profession.
Section 139E of the National Law (which is an additional provision for NSW), which provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health respondent means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration.

Consideration

In essence, Complaint One related to boundary violations, Complaint Two to the matters relating to the respondent's ethical and professional obligations to and interactions with his professional bodies.
Whether the degree of seriousness of conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. Where there is a finding of professional misconduct the Tribunal has a wide discretion, and the gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
The Tribunal considers that the conduct that is the subject of each complaint is sufficiently serious in nature to justify suspension or deregistration. The respondent has admitted to conduct knowing it to transgress his professional code, namely the APS Code, and then lying about that conduct on two occasions to professional bodies. Having considered the nature and duration of the impugned conduct, the claimed mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct, the Tribunal concludes that the conduct the subject of the two complaints is conduct of a sufficiently serious nature to justify the respondent's deregistration. In this regard the Tribunal notes the particular vulnerability of Ms X, and that the respondent was aware of his obligations under the APS Code relating to inappropriate relationships and boundary crossing behaviour.
Accordingly, the Tribunal finds Complaint Three proved.

Disciplinary Powers

Section 149A of the National Law relevantly provides that, if the Tribunal finds the subject matter of the complaint against a respondent to have been proved, the Tribunal may do any one or more of the following in relation to registered health respondent: (1) The Tribunal may do any one or more of the following in relation to the registered health respondent - (a) caution or reprimand the respondent; (b) impose the conditions it considers appropriate on the respondent's registration; (c) order the respondent to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the respondent to complete an educational course specified by the Tribunal; (e) order the respondent to report on the respondent's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the respondent to seek and take advice, in relation to the management of the respondent's practice, from persons specified by the Tribunal.

Principles

The relevant principles to be applied in determining the appropriate sanction include the following: 1. The paramount consideration in proceedings is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3. 2. The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 3. In the exercise of protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the profession, the preservation of public confidence in the profession, and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 4. The purpose of the proceedings includes the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
If the Tribunal is satisfied that the respondent is guilty of professional misconduct, it may suspend a registered health respondent's registration for a specified period or cancel the registered health respondent's registration: s 149C.

Commission's submissions

The Commission submits the Tribunal would conclude that, particularly having regard to the public interest, in terms of the standing of the psychology profession and the maintenance of the high standards of behaviour that are expected of members of that profession, that the respondent's conduct warrants the making of order cancelling his registration pursuant to s 149C(1) of the National Law, and that the "specified period" of the deregistration would be two years.
In addition, the Commission seeks a prohibition order pursuant to s 149C(5) of the National Law prohibiting Mr Sheehan from providing specified health services, whether provided as a public or private service unless and until registered as a psychologist, namely: 1. Therapy. 2. Counselling. 3. Psychotherapy. 4. Welfare services (as defined in section 4 of the Health Care Complaints Act 1993. 5. Any other mental health service. 6. Clinical supervision of psychology students. 7. Any other alternative/healing/health care/therapies.

Respondent's submissions

The respondent initially submitted that that he should be allowed to continue to practice subject to supervision, failing which a period of suspension for a period would be appropriate. He relied on those mitigating factors set out in par [128] above.

Consideration

One of the real difficulties facing the respondent is that he did not give evidence to the Tribunal. In particular, there was no direct evidence before the Tribunal of his remorse (if any), or insight. True, these matters were referred to by Dr Millar, but the Tribunal sees no reasons why, to paraphrase the words of Wingate highlighted above, why the respondent should complain if the Tribunal draws an unfavourable evidentiary inference from his absence of giving evidence. For instance, the Tribunal had before it: 1. His submissions dated 10 October 2014 that "it was his profession that he was trying to protect" by stating that he was never in a relationship. That appears to be a submission based on protecting oneself, rather than one's profession, and was supported by a later statement in his submissions of 18 June 2015 that he did not wish to "court trouble". As the respondent did not give evidence at the hearing, despite his presence at the Tribunal and a further invitation to do so, the Tribunal was not able to ascertain whether he still held those views, and why he held them in the first place. 2. His submissions of 18 June 2015, in which he stated that his conduct in making false statements was "clearly an act of self-preservation and in keeping with human nature". Again, this appears to the Tribunal to be a troubling statement for a professional such as the respondent to have made, at least while it remains unexplained. 3. The respondent's repeated statements that he did not have access to senior colleagues because he was working in a small town, also seem surprising. As he did not give evidence, the Tribunal, was not able to explore with him why he could not have contacted the Council and asked for assistance or advice, and/or made contact with colleagues by telephone, facsimile, facebook, skype, viber or other social media.
The Tribunal notes that, perhaps unusually, the respondent did not provide any character references from patients or colleagues attesting to his professional and personal qualities. The Tribunal accepts that often such testimonies or references are formulaic, and provide very generalised statements of support. Nevertheless, it is appropriate to note that there were no references or statements of support for the respondent save for an undated letter of Ms X included in the Commission's documents. Ms X relevantly stated that the respondent is a very well respected psychologist, and a "good and moral member of our society".
Given: 1. The respondent's failure to give evidence at the hearing and for his evidence to be tested, and for the Tribunal to understand whether or not the respondent had insight into his conduct and regret for what he had done. 2. That the respondent was prepared on two separate occasions to make false and/or misleading statements to regulatory authorities about the nature of his relationship with Ms X, and was aware of his obligations under the APS Code relating to inappropriate relationships and boundary crossing behaviour, the Tribunal considers that the appropriate penalty is that the respondent's registration should be cancelled for a period of two years.

Prohibition Order

The Commission also seeks the imposition of a prohibition order on the respondent.
If the Tribunal either suspends or cancels a practitioner's registration under s149C(1) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s 149C(5).
The Tribunal proposes to make the prohibition order sought. We find that a prohibition order, in conjunction with a period of deregistration, is required because the practitioner conducted himself in boundary violations, in circumstances where he was aware of his professional obligations not to do so. That behavior was compounded by his lying to the regulatory authorities. Because the Tribunal did not have the benefit of the practitioner's evidence in the proceedings, we must rely upon the material produced for the earlier s 150 proceedings and the respondent's correspondence to the Commission. A determination must be based on the most relevant and recent information available. Notwithstanding that even the most recent of this material is over two years old, it is the best available. In addressing the respondent's fitness to practice in determining the appropriate period of deregistration, and the question of whether he poses a substantial risk to the health of the public for the purposes of any prohibition order, we are of the view that these materials indicate that the risk posed by the practitioner is significant.

Costs

The Commission seeks its costs. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40].
As the Commission has been successful, the Tribunal proposes to make an order that the respondent pay tis costs, as agreed or assessed. The respondent has leave to file submissions if he seeks some other order, including that no order as to costs should be made. Such submissions should be made within 14 days after the publication of these reasons. The Commission may reply within a further 14 days if necessary. Any further decision as to costs will be made on the papers.

Orders

The Tribunal orders that 1. The respondent is guilty of unsatisfactory professional conduct. 2. The respondent is guilty of professional misconduct. 3. The respondent is publicly reprimanded. 4. The registration of the respondent is cancelled. 5. The respondent may not apply for a review of order 4 for a minimum period of two years from the date of this decision. 6. The respondent not provide to the public, while not registered as a psychologist, the services of: 1. Therapy. 2. Counselling. 3. Psychotherapy. 4. Welfare services (as defined in section 4 of the Health Care Complaints Act 1993. 5. Any other mental health service. 6. Clinical supervision of psychology students. 7. Any other alternative/healing/health care/therapies. 1. The respondent is to pay the Commission's costs, as agreed or as assessed.

Endnotes

Code of Ethics (2007), Preamble
Agreed Facts, [2].
Agreed Facts, [3].
Tab 15, page 11, [10.1] of Ex A. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2016

NSWNMT 10 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) David John Sheehan (Respondent) Representation: Counsel: P Ginters (Applicant) S McMahon (Respondent)

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Parties

Cases Cited (19)

Cited By (2)