Health Care Complaints Commission v Wardle

Judgment (7 paragraphs)

[1]

Background

The Tribunal determined a complaint of unsatisfactory professional conduct, misconduct and impairment concerning Mr Wardle in October 2019. That decision, Health Care Complaints Commission v Wardle [2019] NSWCATOD 172 (the Stage 1 decision), found all of the complaints proved. The factual findings and reasons for that decision will not be repeated here at any length. The complaints concerned Mr Wardle's conduct with two female patients who consulted his psychology practice during 2014 and 2015, respectively. This decision (the Stage 2 decision) concerns the making of appropriate orders.
The registration of the practitioner has been suspended since 17 December 2019 for the reasons outlined below.
In November 2019 the Health Care Complaints Commission (HCCC) applied for an order under s 165L(3) of the Health Practitioner Regulation National Law ("the National Law") that the practitioner's registration be suspended until the complaint had been finally disposed of. On 10 December 2019 an interlocutory hearing was held by the presiding member to determine the issue. The HCCC relied upon written submissions, supplemented orally, and the practitioner appeared by telephone and made oral submissions.
Under s 165L(3)(c) the Tribunal may make a decision to suspend a practitioner's registration during proceedings if, it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest.
The HCCC relied upon several findings of the Stage 1 decision to argue that a suspension was appropriate to protect the health or safety of the public. These included:

The inherent seriousness of the proved misconduct, involving endemic boundary crossings and violations over a prolonged period;
The grave concern recorded by the Tribunal about the competence and fitness to practise of a psychologist who undertook such conduct and who continued to maintain throughout the hearing that the bulk of such conduct was acceptable practice which did not raise any ethical issues or require the advice of a more senior colleague;

Submissions

The HCCC submitted that the circumstances of this case were such as to warrant cancellation of registration. The practitioner's breach of boundaries involved: complaints concerning two patients, inappropriate personal and sexual relationships over a lengthy period of time, a deliberate breach of his professional obligations and conduct closely associated with the provision of health services.
The HCCC submitted that the practitioner had demonstrated a marked and continuing failure to understand why the conduct was inappropriate. There was no evidence, apart from an assertion by the practitioner that he had made one recent attendance upon a psychiatrist, that the practitioner had understood or taken any steps in respect of the Tribunal's findings. Indeed, a number of aspects of Mr Wardle's Stage 2 written submissions indicated that he continued to dispute and debate the Tribunal's findings.
The character references provided by the practitioner should be given little weight as they were drafted with text provided by the practitioner himself, and made without knowledge of the Tribunal's findings.
The opinion of the practitioner's supervising psychologist that Mr Wardle had made progress in his understanding of boundary issues and acceptance of ethical codes should be accorded little weight given that the practitioner's own evidence and submissions at both stages of proceedings post-dated and contradicted such view. Mr Britt drew attention to the Stage 1 submission of the practitioner that he had 'not crossed the line' in his relationships with the two patients, except by commencing the sexual relationship with Patient A within the two year period following termination, and that he had acted at all times in the best interests of both patients.
In the HCCC submission, cancellation was required because of the very serious nature of the findings of misconduct, the 'profoundly' impaired nature of the practitioner's professional judgment, the need for general deterrence, the need to protect the public by reinforcing high professional standards and the maintenance of public confidence in the profession.
While there is no requirement to find a practitioner unfit to practise at the time of the hearing in order to make a cancellation order (Chen v Health Care Complaints Commission [2017] NSWCA 186, [56] and [67]) the Tribunal's finding of impairment lends further weight to the need for cancellation to protect the public. A significant period of time was required for Mr Wardle to undertake treatment and remediation efforts before he would be in a position to demonstrate that he was fit to practise.
A prohibition order was submitted to be appropriate in the circumstances as the practitioner posed a substantial risk to the health of the public. The risk must be real or apparent on the evidence presented, not speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10. The endemic nature of the boundary violations and the nature of his impairment rendered any form of counselling or mental health service a particularly risky context. The HCCC drew attention to a recent decision of the Tribunal which suggested that a prohibition order cast in terms of the entire definition of 'health services' from the relevant Act may be so broad as to be unenforceable: Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 ("Goyer (No 2)") [72]-[76].
The HCCC noted that costs generally follow the event, that there was no disentitling conduct on the part of the HCCC and that impecuniosity of the losing party is not a reason to deny a successful party an order of costs, citing Health Care Complaints Commission v Phillipiah [2013] NSWCA 342; Health Care Complaints Commission v Perroux (No 2) NSWMT 22, Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111.
In written submissions the practitioner stated that he had been 'rehabilitated by the whole complaints and supervisory process'.
In his oral submissions Mr Wardle stated that he accepts the findings of the Tribunal and accepts that some of his conduct fell below the standard expected. The conduct occurred four years ago and in the time since then, the practitioner submitted, he had 'taken on board' the peer expert's criticism by improving his clinical note taking and record keeping, including through the use of standardised patient summary forms. Further, he argued that he had worked to the appropriate professional standard since the complaints were first brought to his attention three years ago and there had been no further complaints.
In addition, Mr Wardle had successfully undertaken 'peer supervision' under the Psychology Council of NSW (the Council) conditions. He submitted that he had taken the advice of his supervisor such that she had reported to the Council that he had demonstrated an improved understanding of boundaries and had requested a decrease in the frequency of supervision.
Mr Wardle explained his original disputation of Dr Samuel's diagnosis of a personality disorder as resulting from the fact that such diagnosis had 'never been an issue before' and had not arisen from any other medical practitioner he had consulted. He did now accept that finding and had been to see a psychiatrist who was going to do a 'proper diagnosis and evaluation' and develop a treatment plan for the 'supposed personality disorder'. Unfortunately, as he had only been able to see her on 7 February 2020 he had not been able to obtain a letter to confirm his attendance.
In Mr Wardle's submission, the appropriate response to a finding of impairment would be to permit him to continue to practise under conditions. In support he noted there were many decisions that did so, citing Health Care Complaints Commission v Jiang [2018] NSWCATOD 78; Health Care Complaints Commission v Wong [2017] NSWCATOD 99. The Tribunal clarified with Mr Wardle that those were cases in which the conditions in question were imposed as an interim measure prior to final determination of matters, and so were not necessarily relevant to the determination of final orders before us. The Tribunal provided Mr Wardle with further opportunity to explain why conditions would be appropriate and sufficient to protect the health and safety of the public, given the Stage 1 findings.
Mr Wardle also referred to a decision of the Tribunal to impose conditions on a psychologist for a boundary breach in the case of Health Care Complaints Commission v Metelerkamp [2018] NSWCATOD 62. While that case did have some factual similarities to this one, in that it involved a personal and financial relationship with a patient, which also involved residing together, there were marked differences. These include that there was no finding of professional misconduct, no finding of impairment, the conduct occurred only in relation to one patient, and the Tribunal in that matter expressed confidence in the practitioner's candour and insight.
Mr Wardle submitted that he should not be liable for costs on the basis that he had already suffered greatly from the financial cost of proceedings, that the Mental Health Act should excuse him from liability as the Tribunal had determined he had an impairment, the HCCC is already funded by taxpayers and the HCCC unnecessarily exacerbated the length of proceedings and therefore their costs. He also stated, My intentions were honourable, I set out to help Patient B and have already suffered a significant financial loss to her by doing so. I thought I was following the Code of Conduct based on what it actually says, to be penalised for the shortcomings of the Code and not following what it is considered by opinion to imply is unfair and unjust.

Consideration and Findings

The Tribunal's findings at Stage 1 are undisturbed. These conclusions include that the misconduct comprised a pattern of conduct involving endemic boundary crossings and violations over a prolonged period. The Tribunal also expressed grave concern about Mr Wardle's competence and fitness to practise.
We accept the HCCC's submission in their entirety.
While the practitioner professed acceptance of the Tribunal findings and the need for changes to his practice in his oral submissions at Stage 2, there were many indications that he did not accept his wrongdoing and continued to lack any insight into his conduct or any genuine understanding of the ethical obligations of psychologists.
In the practitioner's reflection component in the report of his final supervision session, dated 16 December 2019 (that is, after the Stage 1 decision), he wrote that the supervision meant that he had, gained increased awareness and insight of situations that could lead to a potential for future boundary blur[r]ings, that could lead to boundary violations. I have become almost hyper-sensitive to the issue of boundaries, their subtle nuances, applicability and longevity.
In contrast, in written submissions dated 14 February 2020 the practitioner stated: I have continually stated that I acted with the best interest for the welfare of all concerned and within what I believed to be the strict letter of the law/code of conduct, as demonstrated by terminating therapy with Patient A and Patient B before commencing (respectively) a social and business relationship with them. This does not demonstrate a lack of regard for the Code of Conduct, a lack of understanding of boundaries, or myself over-valuing my own opinion and from the start I was very consciously aware of the need to handle these relationships carefully and sensitively.
We reiterate our finding that Mr Wardle's termination of the therapeutic relationships in order to pursue personal and business relationships with the patients was undertaken for his own ends and not as a consequence of an appropriate professional assessment of the patients' needs. Mr Wardle did not act in the best interests of Patient A or Patient B nor in compliance with the Code of Conduct in terminating treatment. This is particularly so when the termination was undertaken precipitously, without the advice or a more senior colleague and without taking steps to ensure continuity of care through any referral in the case of Patient A and through a misleading referral in the case of Patient B. There was nothing 'careful', or 'sensitive', in the practitioner's management of the terminations. The subsequent enmeshment of the social, financial, employment (and in the case of Patient B housing, and Patient A romantic) interests of himself and his patients represented a prolonged failure to have regard to, or prioritise, the health or welfare of his former patients.
The fact that the practitioner can still continue to claim to have acted in the best interests of Patients A and B almost defies belief.
In effect, the contrition expressed by Mr Wardle was limited to starting a sexual relationship with Patient A 'too soon' and to not keeping clinical records to the required standard.
We note that the practitioner continued through Stage 2 to refer to his impairment as 'alleged' or 'supposed', suggesting that he has not in fact come to terms with it.
We place little weight upon the current supervisor's reports concerning Mr Wardle, which, while they express the repeated view that Mr Wardle has 'improved' and is 'increasingly aware' of his ethical obligations, fall short of concluding that he possesses an appropriate standard of competence or professional judgment concerning ethical issues. Moreover the statements made by the current supervisor concerning Mr Wardle's 'moving away' from his 'own interpretation of the Code' and arguing about it, were openly and repeatedly contradicted by the oral evidence and submissions made by the practitioner at both stages of the hearing.
In the final report of 16 December 2019 the current supervisor concludes, The supervision sessions and progress made by Mr Wardle seemed to have weighed little in the final decision of the HCCC.
This statement suggests that the report was written without the supervisor having read the publicly available determination of the Tribunal (not the HCCC) which was issued on 5 November 2019.
This raises an important concern about the utility of Council mandated supervision in the context of what is often a lengthy investigation and disciplinary process concerning complaints of serious misconduct. Such a condition is imposed under s 150 of the National Law as an interim measure if it is considered appropriate in order to protect the health and safety of the public, or is otherwise in the public interest, pending resolution of the complaint.
This mode of supervision of a psychologist does not involve any objective observation or assessment of their clinical practice. While the supervisor must be approved by the Council, they will usually be selected by the practitioner, and must provide a copy of their reports to the practitioner. Further, supervisors may practice in the same small community and thereby necessarily undertake peer supervision or professional development activities together with the supervisee, and may even share referral networks with them. For these and many other reasons it is foreseeable that supervisors may over time experience a conflict in their role - assisting the practitioner to remediate at the same time as reporting on them in a disciplinary context in which complaints have not yet been determined.
If Council mandated supervisors do not have access to the formalised complaint or the evidence upon which the complaint is based, then they may be unable to avoid forming conclusions and making recommendations based on incomplete, or false, information.
It does appear that some of the above factors may have hampered the effectiveness of supervision in this case. For example, the previous supervisor's report to the Council in January 2018 evaluated Mr Wardle with a score of 5/5 in 'Understanding of Appropriate Ethical and Professional Behaviour', finding that, Alistair has shown a very good understanding of appropriate ethical professional behaviour.
That report noted that the supervisor had not identified any areas requiring special attention or further development and stated that Mr Wardle is, 'a competent senior psychologist who has been practicing for more than 20 years.' The report concluded, 'I have no concerns regarding Alistair's practice or Professionalism and I have even referred a client enquiry for therapy to him...'.
In actuality, while registered since 1996, the practitioner has never worked full time as a psychologist and had conducted a limited part time practice as a psychologist for only around 10 years at that point. The Tribunal concluded at Stage 1 that Mr Wardle in fact had 'quite limited practice experience as a psychologist.' More relevantly, at the time that report was written Mr Wardle was still employing his former patient, and former girlfriend, in his psychology practice.
There is no indication that either of the supervisors were made aware by Mr Wardle of the peer expert's evaluation of his conduct, of the health assessment made of him by Dr Samuels, or of the detailed terms of the complaints.
It appears that the practitioner did not disclose all relevant facts concerning his alleged misconduct, the supervisors may not have been provided with any external material, and the practitioner professed an 'increasing' understanding of, and fidelity to, a Code of Ethics that he continued to in fact cavil at. This led the supervisors to produce a series of reports to the Council opining that the practitioner was safe to practise and the conditions should be lessened or removed. While the Council did not accept those recommendations it is still unclear how a supervision condition of this nature - resting effectively upon one practitioner taking another practitioner's word for it - could effectively protect the health and safety of the public in a case such as this.
In light of all of our findings, the only appropriate order to protect the health and safety of the public is cancellation of the practitioner's registration. We find that the higher threshold of substantial risk to the health of members of the public is also met, justifying the imposition of a prohibition order. Given the practitioner's extreme failings, his past work in a range of counselling roles and his propensity to style himself as an 'advisor' to his patients and others on a range of personal and financial matters, we find that he would pose a substantial risk in any mental health service, including counselling, psychotherapy, 'life coach' or other associated practice.
Given the gravity of our concern about the practitioner's professional judgement and the impact of his impairment upon it, we are concerned that he would pose a substantial risk to the public in almost any health service. However we are mindful of the view expressed in Goyer (No 2) that a prohibition order framed to include every health service as defined by s 4 may be so broad as to be unenforceable. While that view was an obiter view only, and has not been judicially tested, we are concerned to identify a range of specific health services to ensure both that the practitioner is able to understand the scope of the orders, and that they are enforceable.
As such, we make clear that the purpose of the prohibition order is to cover all kinds of 'talk therapy' as well as health services where the practitioner would be in possession of confidential health information concerning patients, or in a treating or caring role where he was in physical contact with patients. The prohibition order is defined to include: (a) community health services; (b) counselling; (d) mental health services; (e) hypnotherapy; (f) psychotherapy (g) supervision or coaching of psychologists, psychology students or any allied health services; and (h) welfare services or any allied health services necessary to implement the above services within the terms of s 4 of the Health Care Complaints Act 1993 (NSW).

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (8)