Health Care Complaints Commission v Wise

Procedural history

1. On 23 March 2021 the HCCC sent a letter to the practitioner dated 22 March 2021 notifying her that the HCCC had determined to prosecute a complaint against her in the Tribunal.
2. On the same day the practitioner forwarded an email to the HCCC. She said: "I am writing to let you know that I am unable to participate in this process due to mental health issues. I have already surrendered my registration and am happy for the NCAT to make whatever decision they feel necessary. The HCCC already has all of the information I have to give".
3. Ms L Cannon, the legal officer with the carriage of this matter for the HCCC, wrote to the practitioner, requested her to contact the Tribunal and explained that orders could be made in the practitioner's absence including de-registration and costs. Ms Cannon also explained "If you change your mind at any time you can still participate in the proceedings".
4. On 23 March 2021 the practitioner forwarded an email to the Registrar (with a copy to Ms Cannon). She explained, by reference to her correspondence with Ms Cannon, (included in the email trail) that "I am unable to participate in proceedings regarding the matter in hand. I understand orders may be made in my absence which could include de-registration and costs. I apologise for any inconvenience my absence creates".
5. As noted above the HCCC filed a complaint in the Tribunal on 29 March 2021. The practitioner was served with the complaint by email on the same day.
6. A directions hearing was conducted on 23 April 2021. On that occasion Boland, ADCJ made the following orders: 1. Health Care Complaints Commission is to give to the other party, any material on which that party relies together with the protective orders sought on or before 31 May 2020. 2. Jo Wise is to give to the other party the following material: a Reply on or before 25 June 2021. 3. Jo Wise is to give to the other party, any material on which that party relies on or before 25 June 2021. 4. The parties are to give to the Tribunal 5 copies of all their material and 4 USBs containing that material on or before 25 June 2021. 5. The proceeding is listed for hearing on 12 July 2021 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 1 day. 6. Pending further order pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint. 7. Liberty to Jo Wise to seek to set aside or vary any of the orders made today within three weeks of today's date by writing to the Registrar and to the Health Care Complaints Commission. 8. IT IS NOTED THAT Jo Wise has notified the Health Care Complaints Commission that she does not intend to appear at the hearing and the hearing may proceed as undefended.
7. On 11 May 2021 Ms Katherine Finn, Investigation Officer, HCCC sent an email to the practitioner. The email noted that an interim Prohibition Order issued by the HCCC prohibiting the practitioner from providing any health services, either in paid employment or voluntarily, to any person had been renewed on 19 May 2021 for a further period of eight weeks. The email referred to searches of websites which revealed listings for the practitioner's former business "Jo Wise Youth Work and Counselling Service". The email concluded "If you decide to change your email address while the Commission's proceedings are ongoing please provide an alternate email address".
8. On 19 May 2021 the practitioner responded by email to Ms Finn. After explaining that she was not working in her former business, the practitioner stated she would not work in any health related position again. The practitioner provided an alternate email address (the new email address) to contact her, but explained she would be entering into an in-patient facility for trauma recovery at the end of August/September and that she would not have access to "tech".
9. On 28 May 2021 Ms Cannon sent a letter by email to the practitioner's new email address setting out the four orders the HCCC proposed to seek in this matter including an order for costs. On the same day the practitioner responded to the email and asked "What does point 4 'costs' mean?". Ms Cannon then received a telephone call from the practitioner. Ms Cannon's file note of the conversation records "I explained that costs follow the cause and that as the matter is undefended she will have to pay the Commission's costs as order will likely be made to that effect".
10. On 1 June 2021 an officer of the HCCC send an email to the practitioner. The email noted "I attach the electronic copy of the Commission's documents which comprises of 1 Volume. Tab 54 to be provided. The file share access to the material is: [redacted]".
11. On 7 July 2021 Ms Cannon sent an email to the Tribunal, with a copy to the practitioner, attaching by way of service her affidavit annexing her correspondence with the practitioner referred to above. Ms Cannon undertook this method of "filing" because the Tribunal registry was closed because of the Sydney "lockdown".
12. On 7 July 2021, also by way of email, the HCCC "served" copies of Evidentiary Certificates from the Australian Health Practitioner Regulation Agency (AHPRA) and from the Psychology Council on the practitioner and the Tribunal.
13. On 9 July 2021 the HCCC filed in the Tribunal an affidavit of the client (referred to in the schedule to the complaint as "Client A").
14. On 9 July 2021 the HCCC filed in the Tribunal an Amended Complaint. No leave was sought of the Tribunal to rely on an Amended Complaint at or before the time of filing of the document.
15. On 12 July 2021 (the hearing day) at 8.47am the practitioner sent an email to Mr H Hazelton at the HCCC. Mr Hazelton is the solicitor at the HCCC who appeared at the hearing by AVL. Later in these reasons we refer to the contents of the email. Suffice it to say at this point the terms of the email make it clear that the practitioner was well aware that the matter was listed for hearing and that she indicated she did not intend to participate in the hearing.

Listing of hearing and service of documents

1. The National Law does not contain provisions relating to service of documents in disciplinary proceedings. However, s 165I of National Law provides that the Tribunal must give 14 days' notice of the hearing into an inquiry about a practitioner. We are satisfied that the practitioner received notice from the Tribunal of the hearing date for this matter.
2. The Civil and Administrative Tribunal Rules 2014 (NSW) deal, amongst other matters, with the service of documents. Part 4, rule 13 sets out methods of service under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Rule 13 (2) (g) provides as follows: (g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body - by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or …
3. While the HCCC did not formally seek the practitioner's consent to service by email, correspondence received from the practitioner discloses that she did receive all relevant documents, but has chosen not to read the HCCC's material relied on in these proceedings or to participate in the proceedings. We note that, in this case and in other matters where service is in issue such as where substituted service is sought, the provisions of the NCAT Act and the regulation and rules under the NCAT Act are relevant (see EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [15] (Bell P)).
4. Notwithstanding the non-compliance with the rule, we are satisfied that there is no procedural unfairness to the practitioner in the matter being determined in her absence. The history we have set out above makes it clear that the practitioner was aware of the hearing date, received relevant documents and has chosen not to participate in the proceedings. She adduced no evidence to corroborate her assertions of mental ill health.

Relevant Law

1. These proceedings are brought under Part 8 of the National Law.
2. As with all proceedings conducted under the National Law the objectives and guiding principles in s 3 and particularly s 3A are of relevance. Section 3A provides: 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.
3. The Complaint One asserts the practitioner engaged in improper or unethical conduct under s 139B (1) (l). Section 139B (1) (l) provides as follows: "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following - (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. Complaint Two alleges the practitioner engaged in unsatisfactory professional conduct as defined in s 139B (1) (a). That provision defines unsatisfactory professional conduct as: Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
5. Complaint Three alleges that the practitioner is guilty of professional misconduct. Professional misconduct is defined in s 139E of the National Law as follows: For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner'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 practitioner's registration.
6. The Health Care Complaints Commission bears the onus of proof of the complaint.
7. The purpose of protective orders made if the complaint is established is not to punish the practitioner. Primarily the role of any protective order is to protect the public (see Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [55]).
8. The Tribunal must be satisfied that the complaints agitated by the HCCC are established to the appropriate standard of proof. That standard is discussed in many authorities and has generally been accepted to be one which requires the Tribunal to be comfortably satisfied on the balance of probabilities a complaint is established as explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (see also Gautam v Health Care Complaints Commission [2021] NSWSC 85 at [86]-[87] (Payne JA)).

Background

1. The evidentiary certificates tendered by the HCCC disclose that the practitioner obtained the degree of Bachelor of Arts-Psychology from Texas State University, USA in 2001. She obtained a Graduate Diploma in Psychology from Macquarie University in 2011 and a Postgraduate Diploma of Professional Psychology from Macquarie University in 2013.
2. The practitioner was first registered in Australia on 30 March 2012 and she surrendered her registration on 30 November 2020.
3. A complaint about the practitioner's conduct was received by the Health Care Complaints Commission on 17 November 2019.
4. In 2018 and 2019 the practitioner engaged in practice in three practices. Between August 2018 and September 2019 she practised as an Allied Health Clinician at Headspace, Brookvale NSW. She also engaged in practice between May 2018 and December 2019 as a contracted psychologist with Community Care Northern Beaches. Additionally, she carried on practice from her home under the name "Jo Wise Youth Work and Counselling" between March 2013 and December 2019.
5. Client A's mother asserts that her son had "a bit of an episode" in 2017 when he engaged in self-harm and was not eating. She reported Client A spent a lot of time in his room and did not socialise. She arranged for Client A to see a "few doctors" and a psychologist. Client A did not establish a rapport with the psychologist.
6. In 2018, four of Client A's friends died, including a close friend who was killed in a car accident. Another friend died by suicide and one died with cancer. Not long after these deaths a friend, who was surfing, drowned. Client A's mother asserted her son "went downhill from there" and that she took him "to the doctors for help".
7. Client A's mother relates that, although Client A was strong and supported his friends at the time of the three funerals, he then "crashed", did not go out socially, did not eat and or see his friends, go surfing but stayed in his bedroom.
8. Client A's mother says she received a recommendation about the practitioner and "Googled" her name and checked a Facebook entry. Client A's mother thought, because the practitioner attended clients' homes for sessions, it would be helpful for her son to meet with the practitioner in his home environment.
9. According to his mother, Client A's sessions with the practitioner were booked through ATAPS, a service of the Sydney North Health Network. Client A obtained a Mental Health Plan from his general practitioner in order to access his sessions.
10. The practitioner had her first session with Client A at his house on 28 August 2018. The appointment was for approximately one hour. At the end of the session, Client A's mother reports that the practitioner called out and said she was leaving and she observed the practitioner give Client A a hug which she described as "a friendly hug".
11. Client A consulted with the practitioner between 28 August 2018 and 15 November 2018. On 28 August 2018, after Client A's first consultation, the practitioner sent a text message to Client A with a love heart emoji.
12. Client A had a number of sessions with the practitioner attending his home. Client A's mother says other family members were present in the home at the time of the sessions. She also reports that Client A and the practitioner had a number of phone calls. Client A's mother asserts that the practitioner always gave her and Client A "a cuddle" at the conclusion of a session.
13. On a number of occasions the practitioner sent text messages to Client A with a number of love heart emojis.
14. On 30 September 2018 the practitioner texted advice to Client A about the dosage of his prescribed medication. She also provided advice about when he should take the medication which was prescribed by his psychiatrist.
15. On 3 October 2018 the practitioner sent a text message to Client A which read "You are always welcome in my house".
16. On 7 October 2018 the practitioner sent a text message to Client A saying she was working at a northern beaches location on Mondays and Tuesdays and asked Client A whether he got a lunch break and that they could do "lunch together".
17. On 11 October 2018 the practitioner sent Client A a photo of her infant child's head referring to the child having a "mullet" hairstyle. Client A had earlier exchanged emails with the practitioner and included photograph of his hair having been cut into a "mullet".
18. On 12 October 2018 the practitioner attended Client A's home and asked to see his duck collection which he kept in his bedroom. Client A reports that the practitioner sat on his bed, with her leg touching his leg. He described the practitioner as "getting more and more touchy, holding his hand and putting it against her cheek". He says when he was stretched out on the bed he pushed the practitioner playfully and she "jumped on top of me and was like trying to pin my hands down". He described the practitioner as having a knee either side of his body. Client A reported that, whilst in his bedroom, the practitioner "let me know that her husband had a 24 hour shift the next day and that I was welcome to go to hers for a free session". Client A said he was confused by the practitioner's behaviour given she was his psychologist.
19. After the session on 12 October 2018 in Client A's bedroom, the practitioner sent Client A a text message "miss you already… want to come to mine before or after 18th pre's tomorrow". The practitioner texted Client A saying he could get an Uber to her house and provided him with her address.
20. On 13 October 2018 the practitioner sent a text message to Client A stating she was worried how close they were getting. At 7.51pm the practitioner texted Client A, who was at a party, the following message "I wish I could see you tonight". Client A responded saying he would be there at 9pm. The practitioner responded "all good need to leave by 11ish". Client A went to the practitioner's home. He had consumed about six or seven beers at the party before his arrival. He asserts the practitioner had been drinking and offered him a beer which he refused. He reports that the practitioner undressed him, then herself and they engaged in sexual intercourse but he did not ejaculate. Client A says that the practitioner then performed oral sex on him.
21. On 14 October 2018 the practitioner sent the following text to Client A: I'm sooo sore this morning!! Woke up smelling you on me (smiley emoji) Don't write back, just wanted you to know I'm thinking about you (heart emoji) PS you should delete all my texts (three emojis) I meant don't write back anything explicit (emoji) We can still text each other normally (heart emoji) How you feeling today?
22. Client A's mother says her son did not improve after a number of sessions with the practitioner and that she took him to a psychiatrist.
23. On 19 November 2018 the practitioner attended at Client A's home. Client A initially refused to see the practitioner, but after his mother told him not to be rude, he spoke to the practitioner for approximately 30 minutes in the gazebo in the garden of the family home.
24. On 23 November 2018 the practitioner attended Client A's house and left a birthday present for Client A for his 18th birthday.
25. On 7 December 2018 the practitioner sent a text to Client A which read "[Client A's first name] I seriously need help are you out? Very fucked at [redacted]".
26. On 6 February 2020 Client A was admitted to the emergency department of Northern Beaches Hospital. The discharge summary noted that he attended with suicidal ideation having self harmed by inflicting a number of cigarette burns to his arms the previous week. Client A's burns were dressed at the hospital and he was discharged and collected by his father. The hospital notes record "Previously seeing a psychologist - things became weird, trust issues with anyone since". And "bad experience with previous female psychologist who made advances on him".
27. On 20 March 2020 Client A participated in a recorded interview with two officers of the HCCC. Client A swore an affidavit on 8 July 2021. The annexure to his affidavit is a transcript of the interview.

Issues to be determined

1. We discern the issues we must determine in this case are: 1. Whether we are satisfied to the requisite standard, on the evidence adduced before us, that the practitioner's conduct in respect of her 17 year old client was improper and unethical because she: 1. failed to maintain appropriate professional boundaries; 2. gave advice outside her scope of practice; 3. failed to implement any clear treatment goals; and 4. inappropriately gave Client A a personal gift contrary to the relevant Australian Psychological Society's code of conduct (the APS Code of Conduct). 1. Whether the practitioner's conduct demonstrated her knowledge, skill or judgment or care exercised was significantly below the standard reasonable expected of a practitioner of an equivalent level of training or experience because she: 1. failed to maintain adequate clinical records in respect of Client A; and 2. made false entries into Client A's clinical records. 1. Whether any particular conduct or the instances of conduct considered together are of such seriousness that they justify the suspension or cancellation of the practitioner's registration.

Expert report

1. The HCCC relied on an expert report prepared by Dr Sonia Sultan (Dr Sultan) Dr Sultan's curriculum vitae discloses that in 2010 she completed her doctorate in Clinical Psychology at the University of Tasmania.
2. At par 6.3 of her report Dr Sultan notes that she has read and understood the Tribunal's Procedural Direction in respect of expert evidence. At par 6.2 of her report Dr Sultan notes: I have discussed this matter with my mentor - Professor Mark Dadds, University of Sydney and colleague Dr Joshua Broderick, Clinical Psychologist, PSYCS. The content in both meetings was discussed in a de-identified, generalised way via telehealth (Coviu).
3. The Tribunal's procedural direction sets out what is required of an expert in preparing his or her report: 19. An expert's report must, either in the body of the report or in an annexure, include the following: (a) an acknowledgement that the expert has read the experts' code of conduct and agrees to be bound by it; (b) the expert's name, address and qualifications as an expert on the issue the subject of the report; (c) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed); (d) the expert's reasons for each opinion expressed; (e) if applicable, that a particular issue falls outside the expert's field of expertise; (f) any literature or other materials used in support of the opinions; (g) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out; (h) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report). 20. If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report. 21. If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed. 22. If an expert witness changes his or her opinion on a material matter after providing a report, the expert witness must immediately provide a supplementary report to that effect containing any relevant information referred to in paragraph 19.
4. In Health Care Complaints Commission v Al Mozany [2021] NSWCATOD 51 in an interlocutory application, the respondent practitioner opposed the admission of an expert report obtained by the HCCC on the basis that the report was not "wholly or substantially" based on the expert's knowledge as explained by Heydon JA (as his Honour then was) in Makita v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. The Tribunal determined that the expert report should not be struck out, rather what was relevant was the question of weight to be afforded to the report.
5. It is to be remembered that proceedings under the National Law are not proceedings to which the rules of evidence apply in respect of admissibility, but those rules and common law principles provide useful guidance in ensuring procedural fairness.
6. In this case, because we had concerns about what parts of the report, or the opinions expressed in it, were those of Dr Sultan, or those of her colleagues, we required her for cross-examination. Dr Sultan candidly conceded there were two "grey" areas which had caused her concern, namely the issues of the practitioner seeing Client A in his home and in his bedroom. Dr Sultan explained that, other than these two matters, the conclusions and opinions expressed in the report were based on her own expertise and knowledge.
7. We generally agreed with the opinions expressed by Dr Sultan. We refer to aspects of her report which we discuss under the relevant complaints. We also note that this Tribunal as a specialist Tribunal can bring its own expertise to issues for determination (see Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [62]).

Improper and unethical conduct claims

1. Particulars of Complaint One assert inappropriate conduct by the practitioner between 28 August 2018 and 15 November 2018 by hugging Client A, inviting Client A to her home outside of work hours, and offering to meet Client A for lunch.
2. Particular 2 asserts the practitioner's text messages were inappropriate as the language and tone used was not of a professional nature. It is also asserted the frequency of the text messaging was not appropriate, some messages were sent late at night and were of a sexualised nature, and included a photograph of the practitioner's young child.
3. Particular 3 asserts that the practitioner acted outside her scope of practice in giving advice to the client about his prescribed medication.
4. Particular 4 addresses the practitioner's conduct in Client A's bedroom on 12 October 2018.
5. Particular 5 relates to the practitioner's conduct on 13 October 2018 when she invited Client A to her home and engaged in sexual intercourse with him.

Hugging Client A.

1. Dr Sultan opines that the practitioner's behaviour in hugging Client A in the course of his treatment may be considered "problematic" and "leaves open the risk of misinterpretation". She notes that "physical contact needs to be "respectful and appropriate and commiserate with the client's presentation, for example, a reassuring touch to the arm if a client is in distress". She goes on to refer to the Australian Psychological Society (the APS) guidelines regarding physical contact (criteria 6.9.1) and states this guideline "discusses the need for appropriate physical contact and the potential for misinterpretation".
2. We note that the APS Ethical guidelines 15th ed were produced by HCCC. These guidelines are noted to "Complement the APS Code of Ethics".
3. Dr Sultan does not opine that the practitioner's conduct in hugging Client A was improper or unethical.
4. What constitutes "other improper and unethical conduct" for the purposes of the National Law has been discussed in a number of decisions of the Tribunal. The words "improper" and "unethical" are not defined in the National Law. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [93] the Tribunal examined the meaning to be imported to the words. We agree with and adopt that exposition of the provision in that decision. It highlights the fact that there is no reason why the words should not be attributed their ordinary meaning as found in the Macquarie Dictionary, namely "improper" as "not in accordance with propriety of behaviour, manners etc. or abnormal or irregular" and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct."
5. Giving the word "improper" its ordinary dictionary meaning, we are satisfied, in the circumstances of this case, that the conduct of the practitioner in hugging Client A was improper. We observe that Dr Sultan referred to circumstances where a practitioner hugging a small child for reassurance may be appropriate. That was not the case here. Client A was a vulnerable 17 year old male. He was unnecessarily placed in a position which caused him confusion by the practitioner's actions. It is clear he instinctively felt something was wrong or unprofessional in the practitioner's actions but was confused because she was his treating professional. It should have been readily apparent to this woman practitioner that by engaging in the close personal physical action of hugging a vulnerable 17 year old male, her behaviour did not accord with the APS guidelines and was improper and unethical.

Text messaging

1. We had the benefit of copies of the text messages passed between the practitioner and Client A.
2. In her report Dr Sultan at para 5 opines: It is my opinion that the text messages sent by [the practitioner] to [Client A] during the course of the therapeutic relationship were unprofessional and fall significantly below the standard expected of a psychologist. In particular the language used to address [Client A] was not consistent with a professional relationship (i.e babe, darling, sweets etc …) and the frequent use of the 'red/pink love heart' and 'kisses' emojis bear the risk of being misinterpreted as they may appear suggestive and have sexual connotations. Communications with clients via text message is typically to manage appointments and offer brief therapeutic support outside consultations. Text messages provided in section 3 for example, 'Lunch together?', 'really wish I could see you?'. 'miss you already, want to come to mine..' are unacceptable. According to the APS ethical guidelines criteria 3.2 stipulates that Psychologists ensure digital communication with clients such as text messaging maintains a professional focus.
3. We note that Dr Sultan has expressed her opinion on the basis that the conduct of the practitioner in sending inappropriate sexualised messages was significantly below the expected standard, which is conduct encompassed by s 139 (1) (a) of the National Law. However, Complaint One is agitated under s 139B (1) (l) (other improper or unethical conduct).
4. If we were required to do so, we would have found the conduct particularised in Complaint One Particular 2 was in breach of s 139 (1) (a). That is, we accept the opinion expressed by Dr Sultan about this conduct.
5. We turn then to determine whether we are satisfied to the requisite standard that the conduct was improper and unethical as alleged in the complaint.
6. We are satisfied that the text messaging was both improper and unethical. As the HCCC's submissions note, over a relatively short period, the practitioner exchanged over 240 text messages with Client A. The tenor of the vast majority of the messages is unprofessional and of a sexualised nature. It is to be remembered that these messages were addressed to an immature, psychologically vulnerable teenager. Further, the practitioner inappropriately commented on photographs of Client A's haircut and sent photos of her own infant child to him.
7. Of significant concern are the messages which clearly disclose the practitioner was seeking improperly to use Client A for her own needs, such as her message on 12 October 2018 which read: "Miss you already ..want to come to mine before or after 18th pres tomorrow?".
8. It is of concern that in the practitioner's letter dated 20 February 2020 she stated that "[I] unreservedly deny each and every allegation made against me in the Complaints insofar as it is alleged that I engaged in an improper personal and sexual relationship with a client".
9. In her letter the practitioner referred to the text message she sent to the practitioner after the incident of 13 October 2018. We note in this letter the practitioner asserts that Client A instigated the sexual contact with her by kissing her, picking her up from where she was seated on the couch and laying her back down. She then asserts "He proceeded to take off my pants. I said 'don't' but he persisted. I neither intended or wanted to engage in sexual intercourse with [Client A]". She goes on to assert that Client A "is considerably taller and stronger than me. I was scared and felt vulnerable. I froze. Client A proceeded to engage in sexual intercourse". The practitioner relates being concerned for her safety and that of her children because her husband was not at home.
10. Under the heading "Subsequent conduct" the practitioner states that because of concerns about what had happened, particularly her ethical obligations and the impact the incident could have on her career, that: This manifested itself in me messaging [Client A] in a manner designed to "boost his ego", and interacting with him in a way that did not suggest I was angry or hurt by the incident, even though I was.
11. We do not accept the practitioner's explanation. It is contrary to the content of her emails to Client A and inconsistent with her version of events on 13 October 2018. It follows that we accept Client A's version of the events of 13 October 2018 which is corroborated by the text messages of 12 and 13 October 2018.
12. We accept that the text messages sent by the practitioner on 7 December 2018, on her own admission in a subsequent message, disclose she was intoxicated at the time the messages were sent.
13. We find that the vast majority of the text messages were not sent for a therapeutic purpose and the practitioner's conduct was in breach of the APS Ethical Guidelines. We are satisfied Particular 2 is established in respect of the text messages.

Providing advice about medication

1. Particular 3 of Complaint One asserts that the practitioner acted outside of her scope of practice when she provided advice to Client A about when and how much of the psychotropic medication he should take, the side effects of the medication, and how much alcohol he could consume while taking the medication.
2. Again, we note this complaint is not agitated under s 139B (1) (a) but under s 139B (1) (l) although the topic is addressed by the HCCC's expert as a complaint framed under s 139B (1) (a).
3. Dr Sultan addresses this complaint in para 7 of her report at p 6. She opines: I feel that this is inappropriate and falls significantly below the standard. [The practitioner] is not practising within her competency as a registered psychologist. She should have either encouraged [Client A] to contact his treating GP or Psychiatrist or if she was concerned about his compliance with medication she could have contacted his GP or Psychiatrist herself expressing this concern. The APS code of ethics, ethical standards, criteria B.1.1. stipulates that Psychologists only provide psychological services within the boundaries of their professional competence.
4. The factual basis for this complaint is established in the practitioner's text messages to Client A. The HCCC do not address this particular in their written submissions.
5. The practitioner purported to give professional advice about two medications to Client A, namely, Syguet and Loxalate. We are satisfied that she lacked the qualifications to give the advice. In so doing she demonstrated a lack of judgment, and the care she exercised was significantly below the standard reasonably expected of a practitioner of the equivalent level of experience and expertise. But as with particular 2, all the particulars alleged by the HCCC in Complaint One are agitated under s 139B (1) (l) of the National Law. That provision is not addressed by Dr Sultan in her report. In saying this we do not wish to be seen as critical of Dr Sultan. We note that in the HCCC's letter of instructions to her dated 27 March 2020 the investigation officer requested, in bold type, that the expert respond in relation to each question asked of her "whether the practitioner's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or expertise".
6. Relying therefore on the Tribunal's expertise, we turn to consider whether the practitioner's conduct in giving advice about the two medications prescribed for Client A by his psychiatrist is improper and or unethical conduct.
7. Par 8.1.2 "Ethical Standards" of the APS Code of Ethics is clear in its terms. It provides that psychologists only provide psychological services within the boundaries of their professional competence. The paragraph explains, in various sub-paragraphs, that a psychologist should work within the limits of their education, training, supervision experience and appropriate professional experience and that a practitioner should base his/her services on the established knowledge of the discipline and profession of psychology.
8. We are satisfied that the practitioner breached the ethical standard in par 8.1.2 of the APS Code of Ethics when she provided advice about the two drugs. Her behaviour was improper and unethical. We find this particular proved.

"Therapy" session in Client A's bedroom

1. We have earlier set out in summary form Client A's version of this event. The practitioner's letter to the HCCC dated 20 February 2020 at par 20 to 27 set out her version of the consultation. Again, we accept and prefer Client A's version of what occurred in his bedroom. His version is corroborated by emails sent by the practitioner immediately after sessions including an email sent the same afternoon in which the practitioner says "Miss you already … want to come to mine before or after 18th pres tomorrow".
2. We observe that the practitioner states that a large part of her practice involved treating adolescents. She goes on to explain: I would ordinarily conduct therapy sessions with the individual in whichever room of the house they felt most comfortable. This often meant conducting therapy sessions in the individual's bedroom with the door open.
3. Dr Sultan, whom we note consulted two colleagues on this issue, states at p 4 of her report: In relation to [the practitioner's] advice that she conducts psychology sessions in her clients' bedrooms with the door open leaves open a number of risks. There's a possibility this could be done therefore her conduct does not fall below the standard. It could be problematic if clear boundaries weren't maintained and according to Cortes (2004) home based counselling is typically provided at the dining room table or in a lounge room.
4. Earlier in her report, at p 3, Dr Sultan explained that "the practice of conducting psychology sessions in her client's home is not considered unreasonable and does not fall below the standard". She notes home based counselling may make teenagers feel more comfortable but adds a cautionary note by saying "One however must be more mindful of their professional boundaries when offering home based therapy rather than in an office". She goes on to refer to the APS guideline (Criteria 6.13) which she notes "stipulates that when encountering clients in other settings Psychologists demonstrate respect for their client".
5. First, we observe that the guideline is just that, a guideline to best practice. It is not a law. However, a guideline gives valuable direction to professionals about appropriate behaviour. In this instance, we think that for a practitioner, who on her own evidence was principally treating adolescents, seeing those clients in their bedrooms was not an appropriate setting and did not demonstrate respect for the client. We note the paper by L Cortes "Home based Family Therapy: a Misunderstanding of the Role and a New Challenge for Therapists, The Family Law Journal Vol 12 No 2 2 April 2004 quoted by Dr Sultan that, if the consultation is home based, a dining room table or lounge room may be appropriate. We consider, however, that this paper should be read in its context. The paper deals with "family therapy" not individual psychological consultations. We discern that the circumstances where it would be necessary and appropriate for a psychologist to see a client in his or her bedroom would be extremely rare. The consultation is a professional one to provide treatment not a social visit by a friend conducted in the intimacy of the client's bedroom.
6. In this instance, there was no need for the practitioner to conduct the session in Client A's bedroom. There were appropriate venues in his home for the consultation. We note it was the practitioner's suggestion that Client A should show her his duck collection. It must have been obvious to the practitioner as soon as she entered his bedroom that it was not a suitable venue for a consultation as the only facility for them to sit was on the bed. We find the practitioner's conduct as reported by Client A was improper. As earlier recorded, we accept and prefer Client A's version of what happened on this occasion to that of the practitioner. Again, we note his evidence is consistent with the text messages sent by the practitioner before and after the event.

Engaging in sexual intercourse with Client A in the practitioner's home

1. We have already set out the practitioner's explanation to the HCCC about the evening of 13 October 2021. We do not accept her version of events. It is inconsistent with her text message to Client A the following morning and her request to him to delete text messages from his phone.
2. We note that Dr Sultan opines that if the events occurred as reported by the practitioner, she should have immediately contacted Client A's parents, terminated their relationship, consulted a colleague and made a record in her clinical notes. The practitioner undertook none of these steps.
3. It was improper and unethical for the practitioner to have invited Client A to her home in the evening when she had told him her husband would not be at home. The practitioner was aware that Client A was going to an 18th birthday party and that he had consumed alcohol when he arrived at her home. But she invited him into her home and offered him more alcohol before instigating sexual intercourse with her and later oral sex.
4. Client A was troubled by what had occurred and sometime later spoke to his elder brothers about what had happened. His trust in professionals was shattered by the incident and from his relationship with the practitioner as evidenced in his hospital notes of 2020 and as reported by him in his interview with the officers of the HCCC.
5. We are satisfied that the practitioner's conduct was dishonourable and highly unprofessional. She was in a position of power in respect of Client A and her conduct on 13 October 2018 was a gross violation of and exploitation of the power imbalance in their relationship. Her conduct is to be condemned in the strongest of terms. We are satisfied this particular is proven.

Treatment without a clear treatment plan

1. Dr Sultan addresses this particular of Complaint One at par 6 of her report. She opines that the practitioner's treatment of Client A was adequate by reference of steps taken prior to 13 October 2018. In support of her opinion she explains that there are a lot of options available for the management of the treatment of depression. However she goes on to explain: [F]rom a review of the case notes that [the practitioner] may have drifted away from evidence based treatment of depression however managed his symptoms whilst in treatment. She has completed a safety plan for managing suicidal ideation, discussed concerns with his parents around risk and made an appropriate referral to his GP following risk, communicated with his Psychiatrist and frequently checked in with how he is feeling and offered strategies for managing his mood.
2. However, Dr Sultan goes on to opine at par 4 of page 6 of her report: In relation to [the practitioner's] termination of the therapeutic relationship, she indicates in her statement that she felt it best to maintain a positive relationship with him while gradually taking steps to cease treating him following the incident on 13 October 2018. [t]he practitioner] indicated this was out of fear. This could be seen as significant breach of the APS Code of Conduct, B.3 Professional Responsibility, as psychologists are personally responsible for the decisions they make and treating [Client A] without clear treatment goals may be seen as not acting professionally. Supervision could have been sought to better manage the cessation of treatment following the incident on 13 October 2018.
3. Dr Sultan goes on to explain appropriate steps which could have been taken by the practitioner after 13 October 2018 including telephoning his parents to see he "was 'o.k' and no longer needed treatment given he was a minor". Dr Sultan opines this is a "minor" breach of the code of ethics.

Was there a treatment plan for Client A after 13 October 2018?

1. We accept that the practitioner did take the steps outlined by Dr Sultan prior to 13 October 2018. However, we do not accept that the practitioner had a clear treatment plan for Client A after the events of the evening of 13 October 2018.
2. Client A's evidence is unequivocal. He did not want to see the practitioner after 13 October 2018, but he remained in need of professional assistance. He only saw the practitioner on his mother's insistence. It is to be remembered that at this time his mother had no knowledge of what occurred on 12 or 13 October 2018.
3. We are satisfied from the practitioner's notes that she had no clear treatment plan for Client A after 13 October 2018. We note that the records produced by the practitioner to the HCCC contain typed entries for Session 6 dated 13 October 2019, for Session 7 on 24 October 2019, a handwritten note of 25 October 2018, a typewritten entry for Session 9 on 26 October 2019, a further typewritten entry for Session 10 on 1 November 2019 and Session 11 on 15 November 2019. Each of the entries after 24 October refers to speaking to Client A and checking on his medication compliance.
4. We are satisfied that the practitioner was endeavouring to continue her relationship with Client A and that she did not formulate a clear treatment plan for him. Client A's evidence is that he discussed the events of the evening of 13 October 2018 with the practitioner the following Thursday and that she said to him "I know you are a boy and all you think about his sex but I was hoping for a little more". He explained he "interpreted to mean as she wanted a relationship or something which, yes, made it 10 times worse for me" [transcript of interview 20 March 2020 p 56]. Client A's explanation is consistent with the practitioner arriving at his home unexpectedly on 23 November 2018 and leaving a birthday gift for him.
5. The particular asserts the failure to implement a clear treatment plan is a breach of the APS Code of Ethics "Professional responsibility". B.3 of the Code of Ethics deals with "Professional Responsibility"
6. B.3 (a) requires a psychologist providing psychological services to "act with the care and skill expected of a competent psychologist", (b) requires a psychologist "to take responsibility for the reasonably foreseeable consequences of their conduct", (c) provides that the psychologist must "take reasonable steps to prevent harm occurring as a result of their conduct", (d) requires that a psychologist "provide psychological services only for the period when those services are necessary for the client", and (e) provides that psychologists "are responsible for the professional decisions they make".
7. We are satisfied that, after 13 October 2018, the practitioner did not act with the care and skill expected of a competent psychologist. She did not take appropriate steps to end her relationship with Client A and to transfer the care of this very vulnerable teenager to another psychologist or refer him back to his general practitioner, notwithstanding she knew he was not taking is anti-depressant medication as prescribed. We are satisfied that in not taking appropriate steps the practitioner failed to develop an appropriate plan for Client A and that she was in breach of B.3(a), (b), (c) and (d) of the Code of Ethics. As such, bearing in mind the dictionary definition of "unethical", we are satisfied the practitioner's conduct constitutes improper and unethical conduct for the purpose of s 139B (1) (l) of the National Law. Particular 6 of Complaint One is established.

Gift giving to Client A

1. On 23 November 2018 the practitioner attended Client A's home with a birthday gift of a Wooden Duck inscribed with the words "Happy 18th [Client A's name] (painting of a red heart) 'love [practitioner's first name]'". Particular 7 and 8 of Complaint 1 assert by doing so the practitioner was in breach of B.3 of the Code of Ethics.
2. At par 14 p 9 of her report Dr Sultan describes the giving of this gift and message as highly inappropriate and unprofessional and provides a generalised reference to B.3 of the Code of Ethics.
3. We have already set out parts of B.3 of the Code of Ethics. We note that the Code at (g) states: [psychologists] "are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues…"
4. We agree with and accept Dr Sultan's opinion that the giving of this gift with its inscribed message was highly inappropriate and unprofessional and breached B.3 (g) of the Code of Ethics. We are satisfied particulars 7 and 8 of Complaint One are established.

Claims under s 139B (1)(a) - below the standard reasonably expected

Failure to keep adequate records and falsification of records

1. The Code of Ethics at B.2 sets out standards for record keeping by psychologists. B.2.1 requires that "Psychologists make and keep adequate records".
2. The particulars of this complaint address the asserted failure of the practitioner to record a number of events in Client A's records (details of the consultation conduct in his bedroom on 12 October 2018, the events of 13 October 2018, offers of to meet outside of consultations, volume and content of text messages and the birthday gift).
3. Particular 2 asserts that: Between 13 October 2018 - 16 December 2018 the practitioner falsely recorded in Client A's clinical records the sentence "[Client A's first name] came for an impromptu home session after reaching out for support" to record for 13 October 2018 in circumstances where Client A had attended the practitioner's home on 13 October 2018 at the practitioner's invitation and the practitioner had engaged in sexual activity with Client A.
4. Dr Sultan deals with the issue of record keeping at par 15 to 17 on p 8 of her report.
5. She opines that, even accepting the practitioner's version of events, her record keeping falls significantly below the standard expected because she has omitted critical information regarding the incidents on 12 and 13 October 2018.
6. On the basis that Client A's version of events is correct, Dr Sultan also opines that the record keeping is significantly below the standard expected because the practitioner has omitted critical information (the events of 12 and 13 October 2018, the personalised gift, offers of catching up outside consultation hours, the frequent text messages, including those of a sexual nature with inappropriate use of emojis).
7. The HCCC addresses these particulars at par 35 to 37 of the written submissions. In summary, it is submitted that the omission of the text messages from the records means the records do not present a true and adequate record. The submissions point out that the record of 13 October 2018 is different to the practitioner's own more recent account and submits it has been deliberately falsified.
8. The practitioner's entry of 12 October 2018 makes no mention of the fact that the consultation occurred in Client A's bedroom or that any inappropriate behaviour by the client occurred (as later reported by the practitioner). We are satisfied that entry is inadequate.
9. Of greater significance is the entry of 13 October and to a lesser extent that of 24 October. Each of these typed entries bears the date of 2019. While Dr Sultan speculates that the recording of 2019 may be an accidental error, it is also consistent with these typed entries being created non contemporaneously, particularly where the practitioner has produced two different versions for the same date and the only correctly dated entry is handwritten. We note the typed record produced by the practitioner to the HCCC dated 13 October 2019 reads as follows: Session 6: 13/10/2019 Presented as intoxicated and expressed concern around delusions of a sexual nature (thought he had raped a girl in the past but apparently didn't happen) Assessed risk - [Client A's given name] advised he would never do anything like that. Advised counselling can't progress while he is under the influence. Checked safety: Nil suicidal ideation; [Client A] organised to walk down to a friend's house in [suburb name] and have his dad pick him up.
10. The typed file note provided by the practitioner to the service provider reads: Session 6: 13/10/2019 [Client A's given name] came for impromptu home office session after reaching out for support.
11. Thereafter the entry repeats the material in the entry provided to the HCCC.
12. We find both entries dated 13 October 2019, contain false information. The entry provided to the service provider is designed to suggest the visit was impromptu when the practitioner's invitation to Client A in her text message is explicit. We are satisfied that both particulars 1 and 2 of Complaint Two are established.

Relevant principles

1. A number of authorities discuss what constitutes professional misconduct and the effect of a finding of professional misconduct. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA explained: The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.

Assessment of the conduct

1. We are satisfied for the reasons earlier given that the practitioner's conduct was both improper and unethical and her record keeping was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. We have found that the practitioner inappropriately conducted a consultation in Client A's bedroom, and engaged in frequent text messaging including messages of a sexualised nature. These established particulars considered together are of sufficient seriousness to warrant the cancellation or suspension of the practitioner's registration.
3. The practitioner's action in inviting her vulnerable 17 year old client to her home at night at a time when her husband was absent and engaging in sexual relations with him is such a significant breach of the practitioner's ethical obligations that this event is, of itself, sufficiently serious to justify the suspension or cancellation of her registration. The practitioner's actions on that evening are compounded by the creation of the false entry in her records which was clearly designed to deflect or mask her own conduct.
4. We find that the practitioner's conduct, and our findings about that conduct discussed earlier in these reasons constitutes professional misconduct as defined in s 139E of the National Law.

Relevant principles

1. We have earlier noted that the purpose of protective orders is to safeguard and promote the health and safety of the public. Such orders are not designed to punish a practitioner, but it is well recognised that in many cases they do have that effect.
2. Basten JA explains relevant principles in Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83]: … As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: see, eg, Ziems v The Prothonotary of the Supreme Court (NSW) [1957] HCA 46; 97 CLR 279 at 286 (Dixon CJ), 289 (Fullagar J, quoting Jordan CJ); Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 201-202; Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 201 (Kirby P). That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: see, eg, Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [28]- [32], referred to in the context of a medical practitioner in Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [48]. Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order . For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101] (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist.

Client A's recent psychiatric history

1. We refer briefly to the evidence before us of Client A's admission attendance at the Emergency Department of Northern Beaches Hospital in February 2020.
2. We find Client A's statement to officers of the HCCC on 20 March 2020 compelling and relevant to the question of the protective orders to be imposed.
3. Client A said in response to an officer of the HCCC "Is there anything you would like to say about, you know your health or the impact on your health that you feel has happened because of your interactions with [the practitioner]?; "Yes, It really did mess me up a lot mentally after it happened I just couldn't sleep. I just don't feel comfortable talking to any counsellors or anything anymore because, yes, the trust is completely gone. Yes, I just have sleepless nights because of her. Yes, really did mess me up, like just always on my mind what could I have done? Why? I was just blaming myself, like I shouldn't have gone. I shouldn't have done it. Yes, it took a real big toll on me really".

The practitioner's attitude to proceedings and protective orders

1. We have already made findings that the practitioner knew that the hearing was to occur. She had copies of proposed orders and correspondence from the Tribunal. There was no medical or other evidence, other than the practitioner's assertions of mental ill health to suggest that she was unable to participate in the proceedings.
2. Earlier in these reasons we referred to an email which the practitioner sent to Mr Hazelton at the HCCC on the morning of the hearing. We now reproduce that email: I am writing to request in good faith that you and NCAT and the HCCC and whoever else is involved finally bring my matter to a close. If there is a cost to me for the time and energy the HCCC solicitors have put into this matter, I ask that you bill me ASAP so I can get that taken care of immediately. I am going into hospital for an inpatient mental health stay on August 9th. The biggest part of the work I will be doing in there will be recovering from this trauma, which is why it is so important to me to close the matter before then. I beg of you to support me to put an end to all of this. I want to get well and I want to be the best mum I can be. That is the most important thing. I have had to learn a very hard lesson through all of this about boundaries. If the goal is to punish me, consider the torture I've been through over the last 2.5 years as adequate punishment. If the goal is to rehabilitate me, then note that I have been able to recover from alcoholism through all of this - I have not had a drink in over a year. But that is only the start of my recovery journey - I need to get on with my life to recover from all of the trauma. If the goal is to hold me accountable, I am. I take responsibility for everything that has gone wrong in this matter, and in my life. If the goal is to keep the public safe, then do what you feel in your heart you need to do to rest assured you have done your job, which I understand may mean final orders to prevent me from being a Psychologist and working in health services again. If the goal is to bring justice to the person and family who have reported against me, then I'm afraid that goal is unattainable, as justice requires the absolute truth from all parties, which I know you have not gotten. If the goal is simply to win in court, you have already won, as I have not put up a fight, and couldn't even if I wanted to, as I have no fight left in me. This matter has brought me to my knees and to the darkest places in my mind. Not a day goes by that I don't think about it 50 times and hate myself for not being a much better Psychologist. I can't undo what has been done. But I can live everyday for the rest of my life making sure I am a good human being.

Consideration

1. While the practitioner acknowledges accountability for her actions, she does not express any remorse for the very adverse effects of her conduct on Client A. It was of concern that, notwithstanding she had every opportunity to put material before us she chose not to do so, and still appears to be seeking to make adverse comments about the veracity of the evidence of Client A and his mother.
2. It is clear to us from the practitioner's email that she remains focused on the impact the discovery of her conduct has wrought on her, rather than displaying any insight into of the consequences for Client A of her behaviour on this young man who was a very vulnerable teenager in 2018.
3. The practitioner's conduct was reprehensible, improper and unethical. Rather than assisting Client A, her conduct has likely had a detrimental effect on his already fragile state. It is conduct to be condemned in the strongest terms bringing as it does the profession of psychology into disrepute.
4. We are satisfied, based on our findings in respect of the three complaints that the only appropriate order is to recognise that if the practitioner had been registered we would have cancelled her registration.
5. Further, we are also satisfied to reflect our condemnation of the conduct and to act as a deterrent to other practitioners that a disqualification period of five years is appropriate in the circumstances of this case. In reaching this conclusion we refer to the remarks of Payne JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] about the general deterrent effect of a disqualification period.

The legislation and principles

1. The HCCC seeks that we make an order prohibiting the practitioner from providing health services.
2. The power to make such an order is found in s 149C (5) of the National Law. It provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
3. Health services are defined in s 5 of the National Law. The expression is also defined in the Health Care Complaints Act 1993 (NSW) in broadly similar terms as follows: health service includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.
4. Principles relevant to the making of a prohibition order are explained in Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [138].
5. We can only make a prohibition order if we are satisfied that the practitioner poses a substantial risk to the public.

Evidence of conduct by the practitioner after 2018

1. On 21 January 2020 the practitioner forward an email to officers of the HCCC in response to a proposed interim prohibition order to be made by the HCCC. The practitioner stated: I need to let you know that I absolutely was not going to continue to work as a counsellor if the HCCC didn't wish for me to do so…. The interim order keeping me from working in [the] health services profession isn't necessary - since the incident with the client whom the complaint refers to. I have been very careful with my professional boundaries and have done nothing unethical to my knowledge over the past 14 months. In that time I have conducted over a thousand counselling sessions, and I can assure you that I do not pose a threat to the public….. I feel the picture that has been painted of me via this complaint is one awful side of the story but certainly not the whole truth. I am not a predator, and have spent my whole career fighting against predators and trying to repair the damage done by them. I hope I will have the chance to tell my story at some point. In the meantime, I was the high income earner in our family and I am out of a job. I have 3 young children and a mortgage to pay. My only skill sets are within the health services area so if the interim order remains in place I will not be able to work. I had been applying for casework roles in family centres and in child protection which is where my strength and experience lie. I am asking (begging) to have the interim order changed to include (prohibit) private practice services, but to exclude (allow) family casework as part of a supervised team…."

Consideration

1. We observe the following. First, both the practitioner's email to Mr Hazelton received on the morning of the hearing and her email of 21 January 2020 both show a lack of insight into the effect of her conduct on Client A. Secondly, although the practitioner had every opportunity in these proceedings to "tell her story" she declined to participate in the proceedings. Thirdly, the practitioner's own statement to the HCCC demonstrates her need and desire to generate income from a health service and finally it is clear that after 2018 she did engage in providing a significant number of counselling services.
2. In these circumstances we consider there is a substantial risk that the practitioner is likely to engage in some form of health service during the period she is disqualified and her lack of honesty, insight and remorse means she poses a risk to the health and safety of the public. Accordingly it is appropriate we make the prohibition order sought.

Costs

1. The Tribunal's power to make a costs order is found in Cl 13 of Schedule 5D. That clause provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. The principles to be applied by the Tribunal when asked to make an order for costs are discussed by the NSW Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 34 as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]).
3. In this matter the HCCC has been successful in establishing the complaints asserted against the practitioner. The practitioner was aware prior to the commencement of the proceedings that the HCCC intended to seek a costs order. We are satisfied this is a matter where costs should follow the event and the practitioner should pay the HCCC's costs as agreed, and failing agreement as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW).

ORDERS 1. Pursuant to s 149C (4) (a) of the Health Practitioner Regulation Law (NSW) (the National Law) if Jo Wise (the practitioner) was still registered the Tribunal would have cancelled her registration. 2. Pursuant to s 149C (4) (b) of the National Law the practitioner is disqualified from being registered as a psychologist for a period of five years from the date of these orders. 3. The Tribunal notes that pursuant to s 149C (4) (c) the Psychology Board of Australia is required to record on the National Register maintained by the Australian Health Practitioner Regulation Agency the fact the Tribunal would have cancelled the practitioner's registration if she had been registered at the date of the hearing. 4. Pursuant to s 149C (5) the practitioner is prohibited from providing Health Services (as defined in s 4 of the Health Care Complaints Act 1993 (NSW)) unless otherwise ordered by the Tribunal determining an application for re-instatement under s 163A of the National Law. 5. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 14 September 2021