Kaye v Health Care Complaints Commission

Statutory framework for determining a complaint

1. Any person can make a complaint under the HCC Act concerning the professional conduct of a "health practitioner": ss 7(1), 8 of the HCC Act. A health practitioner is defined to mean a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law): s 4 of the HCC Act. A complaint may be made against a health practitioner even though, at the time the complaint is made, the health practitioner is not qualified or entitled to provide the health service concerned: see s 7(3) and definition of "health service provider" in s 4 of the HCC Act.
2. "Health service" is defined in s 4 of the HCC Act to include "mental health services", whether provided as public or private services: para (c) of the definition of health service.
3. Section 23(1)(b) of the HCC Act requires the Commission to investigate a complaint if, following assessment of the complaint, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) if substantiated, would provide grounds for disciplinary action against a health practitioner, or (iv) if substantiated, would involve gross negligence on the part of a health practitioner, or (v) if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010 .
4. At the completion of an investigation of a complaint against a health practitioner, the Commission must do one or more of the things listed in s 39(1) of the HCC Act. These include taking action under s 41A of the Act: s 39(1)(g) of the HCC Act.
5. Section 41A states: (1) The Commission may take action under this section if: (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … (5) In this section: "code of conduct for non-registered health practitioners" means a code of conduct prescribed by regulations under section 100 of the Public Health Act 2010 "relevant offence" means: (a) an offence under Part 7 of the Public Health Act 2010 , or (b) an offence under the Fair Trading Act 1987 or the Competition and Consumer Act 2010 of the Commonwealth that relates to the provision of health services.
6. The Public Health Act 2010 (NSW) provides that the regulations may prescribe codes of conduct for the provision of health services by health practitioners who are not subject to the scheme for registration under the Health Practitioner Regulation National Law: s 101(a). A code of conduct for unregistered health practitioners has been prescribed under the Health Practitioner Regulation 2012: cl 99, Sch 3 (the Code).
7. The Code adopts the definition of health services and health practitioners used by the HCC Act.
8. Clause 3 of the Code requires health practitioners to provide health services in a safe and ethical manner: (1) A health practitioner must provide health services in a safe and ethical manner. (2) Without limiting subclause (1), health practitioners must comply with the following principles: … (c) a health practitioner must not provide services that he or she is not qualified to provide, …
9. Clauses 11 and 12 of the Code state that health practitioners must not diagnose or treat an illness or condition without an adequate clinical basis and must not engage in any form of misinformation or misrepresentation in relation to the their qualifications, training or professional affiliations: 11 HEALTH PRACTITIONERS REQUIRED TO HAVE CLINICAL BASIS FOR TREATMENTS A health practitioner must not diagnose or treat an illness or condition without an adequate clinical basis. 12 HEALTH PRACTITIONERS NOT TO MISINFORM THEIR CLIENTS (1) A health practitioner must not engage in any form of misinformation or misrepresentation in relation to the products or services he or she provides or as to his or her qualifications, training or professional affiliations. (2) A health practitioner must provide truthful information as to his or her qualifications, training or professional affiliations if asked for information about those matters by a client. (3) A health practitioner must not make claims, either directly or in advertising or promotional material, about the efficacy of treatment or services provided if those claims cannot be substantiated.

Task on review

1. Where, as in this case, the Commission has made a decision under s 41A of the HCC Act to make a prohibition order and/or a public statement in relation to a health practitioner, the affected health practitioner may apply to the NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): s 41C of the HCC Act.
2. On review, the Tribunal must make the "correct and preferable" decision having regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63(1) of the ADR Act. In undertaking that task, the Tribunal may exercise all of the functions that are vested in the Commission: s 63(2) of the ADR Act. On review, the Tribunal may affirm, vary, or set aside the Commission's decision: s 63(3) of the ADR Act. If the decision is set aside, the Tribunal may substitute its own decision for that of the Commission, or remit the matter to the Commission together with any directions or recommendations: s 63(3) of the ADR Act.

The decision under review

1. The following history is a summary taken from the reasons for the original decision.
2. In July 2011 while travelling to work, Client A fell and injured her wrist. The following month she lodged a workers compensation claim in respect of those injuries. She alleges that on returning to work in September 2011 her employer unlawfully discriminated against her on the grounds of her work-related injuries.
3. In March 2012, Client A suffered a further injury and made a second workers compensation claim. She instructed Law Firm 1 to act on her behalf in relation to this claim. Throughout 2012 and 2013, Client A consulted several health practitioners including clinical psychologists, Drs Anthony Pignataro and Claire Scannell.
4. In January 2013, Client A lodged a complaint with the Anti-Discrimination Board of NSW alleging unlawful discrimination on the ground of disability by her employer. The Board referred Client A's complaint to the Administrative Decisions Tribunal of NSW, one of NCAT's predecessor tribunals.
5. Client A instructed Law Firm 2 to act on her behalf in relation to the discrimination complaint. In July 2013, Law Firm 2 wrote to 'Dr David Kaye at Sydney Trauma Clinic' and requested that he provide a medico-legal report, addressing whether Client A had suffered a psychological injury as a result of the alleged discrimination.
6. On 22 August 2013, Client A attended Mr Kaye's consulting room and was assessed by Mr Kaye. The following month, Mr Kaye arranged to meet with Client A to discuss the contents of the report and the arrangement for payment for that report. In the course of this consultation, Mr Kaye recommended to Client A that she engage the services of Law Firm 3 in relation to her workers compensation claims. On 2 September 2013, Client A paid Mr Kaye $2600 for preparing the report and associated costs.
7. In addition, Client A paid Mr Kaye directly for the first four face-to-face treatment sessions she attended with him in September and October 2013. In an SMS message sent to Client A on 16 October 2013, Mr Kaye wrote that (from that point onwards) his services would be of no cost to her and invoices for his services would be sent to Law Firm 3. By this time, Law Firm 3 had taken over the carriage of Client A's workers compensation claims and referred Client A back to Mr Kaye for treatment.
8. Between 3 September 2013 and 28 May 2014, Client A had 17 face-to-face consultations with Mr Kaye. According to Client A, while the purpose of these consultations was to receive treatment for her psychological injuries, Mr Kaye frequently gave her advice about the discrimination complaint and workers compensation claims and, among other things, drafted documents in relation to the latter.
9. Client A claimed that for the following reasons she believed that from 16 October 2013 Mr Kaye's fees for treatment would be paid at the settlement of her claims: 1. An SMS message sent by Mr Kaye to her on 16 October 2013 stating that his services would be at no cost to her and invoices would be sent to Law Firm 3. 2. An "Irrevocable Authority", which she signed on 2 September 2013 stating that Mr Kaye would be paid out of the settlement of her claims.
10. On 28 May 2014, Mr Kaye sent an invoice to Client A and Law Firm 3 for fees of $13,700 for 50 hrs for services provided to Client A over the previous eight months (25 October 2013 to 28 May 2014). The invoice did not itemise the services.
11. Client A told Mr Kaye she would not pay the invoice unless she received an itemised invoice, which he refused to issue. In July 2014, Mr Kaye commenced proceedings in the Local Court of NSW to recover the sum of $13,700 from Client A. Client A claimed that it was around this time she discovered that Mr Kaye was not a doctor or psychologist and did not hold any qualifications in psychology.
12. In an affidavit dated 28 August 2015, Client A claimed that in the course of the Local Court proceedings she became aware that versions of Mr Kaye's invoices had been sent to various parties, including Law Firm 2, Law Firm 3 and her employer's insurer, Allianz.

Client A complains to APHRA

1. In a complaint made in September 2014 to APHRA, Client A wrote that Mr Kaye had misrepresented his qualifications and training and overcharged her for services.

Previous complaints made about Mr Kaye

1. In its reasons for the original decision, the Commission recorded that it had previously received two complaints about Mr Kaye.
2. In the first of those complaints, made in September 2012, the complainant alleged that he consulted "Dr Kaye" as a doctor and was later asked by Dr Kaye to sign a "waiver form" stating that he had not introduced himself as a doctor. In his response to the Commission, Mr Kaye alleged the complainant had coerced him to write favourable reports for a workers compensation claim. Mr Kaye's response to the Commission is signed off as 'Dr David Kaye BA(Psych) PhD Director I Trauma & Injury Management Consultant'.
3. In the second complaint made in November 2013, the complainant alleged that Mr Kaye had failed to make adequate disclosure about his fees and the nature of services provided. The complainant wrote "I initially made a complaint with the Australian Psychological Society as I believed him to be a psychologist, but have been informed otherwise". Mr Kaye denied this allegation. Mr Kaye's letters to the complainant were signed off 'Dr David Kaye BA (Hons)(Psych)PhD Principal Consultant'.
4. Both complaints were withdrawn.

Findings made by the Commission

1. The Commission found that Mr Kaye knowingly misrepresented himself to Client A, the Commission, the Australian Counselling Association (ACA) and various organisations who referred patients to him for psychological assessment as holding tertiary qualifications in psychology and a bachelor degree in arts with honours. In addition, the Commission found that Mr Kaye's use of the title "Dr" and the post nominal "PhD" misled patients into thinking that he held a "legitimate" PhD and that his so called Doctor of Philosophy degree related to qualifications in psychology and/or counselling.
2. The Commission concluded that Mr Kaye breached the Code by: 1. Failing to provide health services in a safe and ethical manner: cl 3(1) 2. Providing services that he was not qualified to provide: cl 3(2)(b1) 3. Misrepresenting his qualifications and training: cl 12(1).
3. In addition, the Commission found that Mr Kaye posed a risk to the health and safety of members of the public.
4. The Commission wrote that Mr Kaye has an "astonishing lack of insight into the manner in which he misrepresents" his qualifications. The Commission pointed out that despite being informed by RMIT and Swinburne University that he did not hold tertiary qualifications from those institutions, he continued to misinform Client A, organisations who referred "psychological injury work" to him, and the public at large that he held those qualifications.
5. The Commission concluded that in misrepresenting his training, experience and qualifications and in providing treatment he is not qualified to provide, Mr Kaye posed a risk to public health and safety. The Commission reasoned: Health consumers who are likely to utilise, rely on and pay for Mr Kaye's services are particularly vulnerable in that they are seeking assessment of and treatment for mental health conditions. The misrepresentation of qualifications and training "engenders a false belief" in those who seek assessment and treatment that Mr Kaye has the skills and ability to accurately diagnose their symptoms, design an appropriate and effective treatment regime. Incomplete training and the absence of minimum qualifications as a counsellor combined with dishonesty, means that Mr Kaye lacks the ability to act on "red flag" situations where there is a need to refer to refer the patient to another practitioner or because of the seriousness of the condition or the treatment afforded in "not getting results".
6. The Commission made orders under s 41 of the HCC Act prohibiting Mr Kaye from: 1. Providing counselling of any description and any other mental health services in a paid or voluntary capacity for a period of six months. 2. And thereafter, providing counselling of any description or any other mental health service unless he satisfies the Commission that he has successfully completed a Level 5 qualification in counselling from an accredited institution.
7. In addition, the Commission decided to issue a public statement in relation to Mr Kaye under s 41A(2)(b) of the HCC Act.

Issues

1. The key issues we must decide are: 1. Whether Mr Kaye provided health services to Client A. 2. Whether, in breach of the Code Mr Kaye: 1. misrepresented his qualifications and training. 2. provided health services that he was not qualified to provide. 3. provided a diagnosis without an adequate clinical basis. 1. Whether Mr Kaye poses a risk to the safety of the public. 2. If, the answer to Questions 1, 3 and all or part of Question 2 is yes, whether orders should be made under s 41A(2) of the HCC Act, and, if so, what orders should be made.

Did Mr Kaye provide "health services" to Client A?

1. Mr Kaye asserts that the services he provided to Client A, namely counselling services and the production of a medico-legal report, are not health services within the meaning of the HCC Act. It follows, he contends, that in providing these services he was not covered by the Code and therefore it was not open to the Commission (or the Tribunal on review) to make orders under s 41A(2) of the HCC Act. The Commission disagrees and argues that each of those services are plainly mental health services and therefore health services for the purposes of the Act.
2. Section 4 of the HCC Act defines "health service" to include 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. (emphasis added)
3. The Code adopts this definition.

What was the nature of the counselling services provided by Mr Kaye?

1. Before considering whether the counselling services provided by Mr Kaye constitute a health service, it is first necessary to consider the nature of the counselling services provided to Client A.
2. In a letter to the Commission dated 20 July 2015, in response to a notice issued under s 34A(1) of the HCC Act, in answer to the question "Describe what care and treatment you provided to [Client A] in relation to your opinion of her anxiety and depression", Mr Kaye wrote: My involvement in [Client A's] care and treatment involved using CBT, psychodynamic psychotherapy and strategic outcome focused therapy. I discussed and sought input regarding [Client A's] management with her treating clinical psychologist, Mr Anthony Pignataro. I also encouraged [Client A] to return to her general practitioner and seek a referral to a consultant psychiatrist I understand that she did this and was referred to Dr Ben Teoh.
3. While Mr Kaye does not dispute that he provided counselling services to Client A, in submissions made in these proceedings, he described his role as one of helping Client A "make money" and assisting her to digest and make sense of the vast amount of material generated in relation to her claims. Further, he stated that he assisted her to make decisions about various matters, including her health, family and work. He made no mention of the claim made to the Commission of "using CBT, psychodynamic psychotherapy and strategic outcome focused therapy".
4. The evidence given by Client A supports Mr Kaye's claim that his role extended to providing advice about the management of her claims. She claims, and Mr Kaye does not dispute, that he assisted her with the drafting and review of documents and gave advice on the management of her claims and instructions given to her lawyers. In addition, she describes the services provided as "helping me to overcome a great deal of my stress and anxiety".
5. It seems likely that some of the services provided by Mr Kaye strayed into what could loosely be described as claims management or quasi-legal advice. Nonetheless, on the basis of his admissions and the evidence of Client A, we are satisfied that in addition to those services, Mr Kaye provided or purported to provide, counselling services of the type described in his letter to the Commission of 20 July 2015. In reaching that conclusion, we note that Mr Kaye had accepted a referral from Client A's GP for the "opinion and management, re: anxiety and depression".

Are counselling services of the type provided to Client A health services?

1. Mr Kaye argues that counselling is not a health service because it is not one of the services listed in the definition of health services in s 4 of the HCC Act. The Commission disagrees. The Commission is correct in our view.
2. That counselling is not listed in the definition of health services is not determinative of whether it is a "health service". Counselling will constitute a "health service" if, as submitted by the Commission, it constitutes a mental health service.
3. The expression "mental health services" is not defined by the HCC Act or the Code. Its meaning is to be determined by reference to its text and statutory context. The conventional starting point is the text itself. What is the ordinary and natural meaning of the expression "mental health services"? The Macquarie Dictionary, 7th edition, defines "mental" to include "denoting a disorder of the mind", "designated for or relating to the care of those with disordered minds: mental hospital; mental nurse." The Macquarie Dictionary defines the term "mental health" to mean "the branch of medicine or the health services that deal with people with mental illnesses". In its ordinary and natural meaning the term "mental health" relates to the psychiatric or psychological condition or status of people, that is, to the health of their minds. Given the context in which the term appears, it is clear that the term is intended to be distinguished from a person's medical, dental or physical condition or status.
4. The World Health Organisation describes the state of good mental health as "a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community": see <http://www.who.int/features/factfiles/mental_health/en/ at 28 October 2017.
5. "Mental health services" is an umbrella term covering a wide field. It is common knowledge, in our view, that they range from services such as locked acute wards in psychiatric units for acutely ill patients scheduled under the Mental Health Act 2007 (NSW) to far less drastic measures such as GPs discussing issues of stress, anxiety, or depression with patients. The key issue is whether a service has as one of its purposes the improvement or maintenance of a person's mental health, that is, their mental capacity to "cope with the normal stresses of life", to "work productively and fruitfully, and … to make a contribution to her or his community". Any service relating to that purpose, in our opinion, falls under the umbrella of "mental health services".
6. The Macquarie Dictionary defines the word "counselling" to mean: "the provision of help and advice, especially to someone experiencing difficulty, by a person trained to do so: the survivors of the train crash were given trauma counselling. The type of care and treatment Mr Kaye claims he provided to Client A is consistent with these definitions.
7. One of the services Mr Kaye provided was counselling. One of the purposes of that counselling was to provide advice in relation to psychological issues or problems presented to him by Client A. On his account, after receiving a referral from her GP, he met with Client A, took a history and conducted a number of assessments; made a diagnosis; and provided Client A with care and treatment which included CBT, psychodynamic psychotherapy and strategic outcome focussed therapy. The only reasonable inference from the fact that Mr Kaye took a history, conducted the assessments and ultimately provided the advice he did is that at least one of the main purposes of that exercise was to address Client A's mental condition. In providing such a service with such a purpose, he provided a mental health service.
8. It is well-known that there are multiple therapies for mental health conditions. They include pharmacological therapies, physical therapies such as electroconvulsive therapy and "talking" therapies. Counselling a person with a mental health condition for which treatment is sought, as was the case in relation to Client A, would appear to have a therapeutic purpose. Whether or not the counselling is effective is not the point. The question is the underlying purpose.
9. It is difficult to see on what basis it could reasonably be argued that counselling services of the type Mr Kaye claimed to provide Client A do not constitute "mental health services".
10. We find the services provided by Mr Kaye to Client A included mental health services.

In providing a medico-legal report did Mr Kaye provide a health service?

1. At the request of Law Firm 2, in August 2013 Mr Kaye prepared a 13-page report, headed "confidential psychological report". Mr Kaye argues that the preparation of a report of this type, which he describes as a "medico-legal" report, is not a health service because it was a "preliminary" report prepared for the purpose of assessing the merits of the legal claims made by Client A. In addition, he submits that it could not have been the intention of Parliament to include "medico-legal services" as a health service because to do so would expose the medical practitioners preparing such a report to a negligence claim if their opinion was not ultimately accepted by the Court.
2. The Commission disagrees and points out that in the report Mr Kaye set out, among other things, his opinion about diagnosis and recommended treatment, services which can only be considered as health services.
3. In a letter dated 29 July 2013, Law Firm 2 requested Mr Kaye to prepare a report and answer a number of questions, which included: 1. Has our client sustained a mental illness /injury as a result of the alleged discrimination? 2. If yes, what is the mental illness? 3. How long has the client been suffering from the mental illness and are you able to comment on the likely length of the illness? 4. How can the illness be treated (if treatment is required)? 5. Based on your professional opinion, what is the indirect/direct cause of the said illness?
4. In answer to that request, in a "confidential psychological report" dated 29 August 2013, Mr Kaye set out his findings and opinions in relation to Client A's mental health. He recorded: 1. A detailed history taken from Client A. 2. The results of psychometric assessment used to "formally assess Client A's "emotional functioning", namely the Beck Depression Inventory and Beck Anxiety Inventory (BAI). 3. His opinion about diagnosis and prognosis. 4. His recommendations for treatment.
5. Under the heading "Diagnosis and opinion" Mr Kaye wrote: In my opinion, the present assessment based on a detailed history, clinical interview and psychometric tests indicates that [Client A] is currently exhibiting symptoms consistent with the diagnosis of both Major Depressive Disorder and Post Traumatic Stress Disorder using the Diagnostic and Statistical Manual. Her symptoms are severe and chronic at present. Her level of distress is significant enough to cause major interference in important areas of her life as outlined throughout this Report. It is also my opinion that based on the history given by [Client A], both the Depression and PTSD-like symptoms developed due to the series of stressful events she experienced at work. There is also significant presence of serious symptoms such as suicidal ideation and substantial impairment in social and occupational functioning. The assessment results are consistent with this description in [Client A's] case.
6. With respect to the prognosis, he went on to write: Given her history, complex physical and psychological difficulties and the detailed assessment conducted, my opinion is that [Client A's] prognosis is guarded and significantly dependent on recovering from her physical and psychological complaints.
7. Under the heading "Treatment" Mr Kaye wrote "current literature on evidence based psychological treatments points to the effectiveness of psychopharmacological treatment as an adjunct to psychotherapy including Cognitive Behaviour Therapy (CBT) for mood and anxiety disorders". He went on to recommend that Client A receive approximately 12-15 sessions of CBT from "an experienced Therapist who has a grasp of the factors involved in the development of psychopathology due to occupational stress".

Consideration

1. The extracts set out above reveal that in the report Mr Kaye gave an opinion about diagnosis, the aetiology and prognosis of the diagnosed condition and made recommendations about the treatment of that condition. He stated that those opinions were based on, among other things, history he had taken and the results of psychometric testing he had administered.
2. Mr Kaye provided a service. The question then arises: what was the nature of that service? The answer to that question is provided by the context. The service provided included the making of a diagnosis and recommending treatment of the diagnosed conditions. These are quintessentially issues relating to the mental health of the patient. In our view, these services could properly be characterised as either "medical services" or "mental health services", within paragraph (a) and (c) of the definition health services. Whether, as claimed by Mr Kaye, the opinions he expressed in the report were "preliminary" and/or prepared for the purpose of providing guidance to Client A's lawyers, is irrelevant to the proper characterisation of the services.
3. It is irrelevant that the report was preliminary or that the report was sought for legal purposes or that, in theory, a practitioner producing such a report could be held liable in negligence in some circumstances. In producing that report, purporting to exercise his specialist expertise, Mr Kaye provided a service that materially related to the mental health of a person and therefore provided a mental health service. While the service might also be described as a form of legal service, that does not extinguish its character as a mental health or indeed "medical service".

Did Mr Kaye breach the Code by engaging in a form of misinformation or misrepresentation as to his qualifications and / or training?

Educational qualifications

1. Until August 2016, when he received a copy of the Commission's draft statement of decision, in various documents including business cards, letterhead, CVs, and invoices Mr Kaye used the title "BA (Hons), and/or BA (Psych)", and/or "BA (Hons) (Psych)". Emails sent by Mr Kaye carried the following electronically generated signature: Dr David Kaye BA (Hons) (Psych) (PhD)
2. In all versions of Mr Kaye's CV, including the one provided to Client A in August 2014, he listed his qualifications as follows: 1986 Bachelor of Arts. Major in Sociology and Politics (Hons) Monash 1996 Bachelor of Arts. Major in Psychology. Swinburne 1988 Graduate Diploma in Counselling Psychology. Inc RMIT (Royal Melbourne Institute of Technology). Completed Fourth year Thesis: The link between irrational beliefs and anger. Research Supervisor Associate Professor Peter Caputi 2000 Completed PhD. ACMT Minnesota USA 2014 Student-at Law UNE, Currently discontinued until 2014
3. In a letter dated 8 September 2016, in response to the draft statement of decision prepared by the Commission, Mr Kaye: 1. Acknowledged he was not a psychologist or a "medical doctor" and did not hold a doctorate in psychology. 2. Denied telling any client that he was a psychologist, medical doctor or held a doctorate in psychology. 3. Denied telling Client A that he was a psychologist, rehabilitation psychologist or medical doctor. 4. Described himself as a counsellor and psychotherapist with 30 years counselling experience.
4. In submissions to the Commission dated 8 September 2016, (then) Counsel for Mr Kaye asked the Commission to take into account the following matters when making its decision: First, Mr Kaye denies he told client A he was a psychologist. He informs client A and other clients that he was not a psychologist. Second, Mr Kaye fully accepts that the claims he has made about his qualifications were apt to mislead clients and the public generally, particularly when taken together. This is so when working in a health setting alongside health practitioners and dealing with vulnerable clients with mental health issues. He accepts it is not good enough to refrain from actually saying he is a psychologist. Third, Mr Kaye gives an undertaking that he will not use the post-nominal "Dr" or post nominal "PhD" or state that he has a Bachelor of Arts majoring in psychology from Swinburne University (or elsewhere) in the absence of the award of the same …

Qualifications from Monash University

1. As noted, in various documents, including a number provided to Client A, Mr Kaye described himself as holding a BA (Hons), and/or BA (Psych), and/or BA (Hons) (Psych).
2. Records obtained by the Commission in the course of its investigation into the Complaint, reveal that Mr Kaye graduated from Monash University in 1986 and was awarded a Bachelor of Arts (BA), not a BA (Hons).
3. In these proceedings and in his response to the Commission dated 8 September 2016, Mr Kaye acknowledged that he did not hold a BA (Hons) from Monash University and claimed to have ceased claiming to hold such qualification since May 2016. Mr Kaye stated that his use of the "Hons reference" was an "honest mistake" because five of the six subjects in his third year of study at Monash were "honours subjects".
4. When cross-examined in May 2016 about his claim to hold a BA with honours from Monash University in proceedings in the Supreme Court of NSW, Mr Kaye conceded that the copy of the degree tendered on his behalf made no mention of the word "Honours" but stated that the reference to honours degree is found in the transcript of the degree. Those proceedings were commenced by Mr Kaye against the State of NSW claiming he had been the subject of malicious prosecution by NSW Police.

Qualifications from RMIT

1. In 2005, Mr Kaye applied to become a member of the Australian Counselling Association (ACA). In his application for membership, Mr Kaye listed his qualifications as including a Graduate Diploma in Counselling. In addition, as noted, that purported qualification in the version of the CV provided to Client A and others.
2. Mr Kaye was enrolled at RMIT in the Graduate Diploma in Counselling in 1987 and 1988. The certificate of academic transcript produced to the Commission by RMIT reveals that Mr Kaye passed each of the nine subjects in which he was enrolled in his first year, and, eight of the nine subjects in which he was enrolled in the second. In addition, the certificate records: 1989 Research Project 2 DNS [Did not sit- fail] 1990 Research Project 2 NN [Fail]
3. In 2009, NSW Police conducted an investigation into an alleged invoicing fraud involving Mr Kaye. As part of that investigation, police investigated claims made by Mr Kaye about his academic qualifications. A record of interview with Mr Kaye conducted, by police on 25 May 2009, reveals that when questioned about the claim of holding a diploma in counselling from RMIT, Mr Kaye conceded he had not been awarded such a diploma but claimed he had "completed every single subject in that course" and later "not to have been credited for one subject".
4. In submissions made to the Commission dated 8 September 2016, it was acknowledged for Mr Kaye that he did not complete a graduate diploma in counselling. In cross-examination in these proceedings, Mr Kaye stated he cannot remember ever claiming to hold a graduate diploma in counselling and if he had, he would have added it was not completed.

Qualifications from Swinburne

1. As noted, the CV provided to Client A and others states that Mr Kaye holds a "Bachelor of Arts, Major in Psychology" from Swinburne University.
2. In a statement provided at the request of the Commission, Swinburne's Director of Governance and Integrity wrote that the records of the University reveal that Mr Kaye: 1. has not completed a degree from Swinburne 2. was a student at Swinburne for one semester in 1996, and completed one unit of study, the Psychology of Personality 3. received exemptions from Swinburne for three subjects: Psychological Measurement, Psychological Foundations of Counselling and Design and Measurement.
3. Records produced to the Commission by the University record that Mr Kaye applied to graduate from Swinburne in 2008 and was advised he had not satisfied the requirements for a BA. In a letter to Mr Kaye dated 22 December 2010, the University rejected Mr Kaye's application to enrol in a BA (Honours) psychology.
4. In a letter provided by Mr Kaye to the Commission dated 7 September 2016, Swinburne Course Undergraduate Course Director (Psychology), Ben Bullock, wrote that Mr Kaye completed a Bachelor of Arts (Psychology) and that "the above named degree completed by David [Kaye] in 1997 [Bachelor of Arts (Psychology)]" is an accredited AQF Level 7 Bachelor degree". In a subsequent letter dated 28 September 2016, Dr Bullock retracted that statement and wrote that the University's records reveal that Mr Kaye had not completed a BA (Psychology) at Swinburne. The original letter was apparently based on material provided to Dr Bulllock by Mr Kaye.
5. In support of his claim to have completed the course requirements for a BA (Psychology), Mr Kaye relies on a letter from Professor Anne Knowles of Swinburne, dated 2 May 1997, in which Professor Knowles congratulates Mr Kaye on completing his "three year sequence of subjects in psychology". Professor Knowles wrote "we would like to present you with a certificate stating that you have satisfied the Australian Psychological Society requirements for an accredited sequence of subjects".
6. Swinburne's Director of Governance informed the Commission that a search of the University's records was unable to locate a copy of the letter from Professor Knowles. In addition, the Director claimed that Professor Knowles has no recollection of writing the letter.
7. In cross-examination in the Supreme Court proceedings in relation to the malicious prosecution claim, Mr Kaye stated that he held a Bachelor of Arts from Swinburne University with a major in psychology. He stated that he was invited by Professor Knowles to attend a "certification of the Bachelor of Arts with a major in psychology at Swinburne University" but was unable to attend. When asked about the electronically generated signature he used in emails - "BA (Hons) (Psych) (PhD)" - Mr Kaye stated he believed it to be an accurate description of his educational qualifications.
8. As noted, in submissions dated 8 September 2016, it was conceded for Mr Kaye that he had not been awarded a BA from Swinburne but it was asserted that he "completed an accredited sequence in psychology equivalent to a degree in psychology". In these proceedings he appeared to retract the concession that he not been awarded a BA from Swinburne and stated he had instructed his lawyers to take steps to "set the record straight".

PhD from American College of Metaphysical Theology

1. In a letter to the Commission dated 20 July 2015, Mr Kaye wrote that he was conferred a Doctorate of Philosophy by the American College of Metaphysical Theology (ACMT) in February 2000, after completing a thesis, titled "Cross Roads "Your Journey Within", under the supervision of consultant psychiatrist, Dr John Cone.
2. In a statement dated 17 September 2009, an officer involved in the 2009 NSW Police investigation in relation to Mr Kaye wrote that an internet search revealed that a PhD could be purchased from the ACMT for $249. In that statement the officer reproduced the following notices said to have been downloaded from the ACMT website: Licences and credentials American College of Metaphysical Theology degree programs are not designed to meet any particular local, state or national licensing or credentialing laws, nor to meet any requirements established by any private independent associations. If you are seeking a degree for licensing purposes, the American College of Metaphysical Theology advises you to check with that association, state or specific school district to determine if it is acceptable.' Accreditation Accreditation of any college, school or university is strictly voluntary. The America College of Metaphysical Theology is not accredited. It is an incorporated religious non-profit organisation and a non­secular school. Theology, like religion, is recognized and protected under the first amendment of the United States Constitution, which guarantees any citizen the right to practice and to teach it to others. This is the essence of our type of degree. Thus accreditation is of minor importance.
3. NSW Police were provided with material obtained by the Victoria Police in the course of an investigation into allegations about Mr Kaye made by the Psychological Registration Board of Victoria. That material included documents relating to the claim made by Mr Kaye that consultant psychiatrist, Dr Cone was his thesis supervisor.
4. Dr Cone practised in Melbourne until he retired in 2003. He died in 2007. In a statement provided to Victorian Police, Dr Cone's personal assistant wrote that she knew David Sarikaya [aka David Kaye] to be a patient of Dr Cone, who attended his practice each week for treatment. She wrote that throughout the period she worked for Dr Cone, 1997 to 2003, Dr Cone did not train David Sarikaya nor indeed anyone else. She stated that Mr Sarikaya paid by credit card or cheque on issue of accounts for treatment provided by Dr Cone.
5. In a statement provided to Police in 2010, Dr Cone's widow wrote that she knew David Sarikaya and recalled seeing his name on her husband's accounts as a patient. She wrote that neither David Sarikaya nor David Kaye, worked for or studied under her husband. She claimed that she would "definitely recall" if a person of the name David Sarikaya or David Kaye had been employed by her husband as she prepared the accounts for her husband's practice.
6. Records produced to the Commission by Medicare reveal that Medicare rebates were issued for payments for claimed regular treatment provided by Dr Cone to Mr Kaye between June 1997 and 2002. In addition, those records reveal that on a number of occasions throughout this period, Dr Cone prescribed Mr Kaye the anti-depressant, Sertraline.
7. In cross-examination in these proceedings, Mr Kaye denied being a patient of Dr Cone although he conceded that from time to time Dr Cone assisted him with "health and family problems". He claimed that for a period of two to three years he saw Dr Cone for the purpose of receiving supervision for his clinical practice. He stood by the claim made to the Commission in a letter dated 20 July 2015, that he paid Dr Cone the sum of $4,800 for providing that supervision.
8. In the course of its investigation, NSW Police obtained two references purportedly written by Dr Cone. Each was on Dr Cone's letterhead, signed "John Cone" and bearing the date 19 August 2003. One reference was handwritten; the other was typed. The handwritten reference reads: I have known Dr Kaye personally and in depth for seven years. He is dedicated to his profession and to his continuing education and the development of his several skills, these include clinical practice, administration and the development of psychological services. He has a warm and engaging personality and good interpersonal skills. I find his book "Cross words" very suitable for its purpose. I believe he will add to the status of his profession. I have confidence in his future. I find his book "Crossroads" very suitable for its purpose.
9. The content of the typed letter is identical in all material respects save for the inclusion of the following sentence, appearing at the end of the first paragraph: [David Kaye] came to see me weekly to provide supervision for his on-going clinical work and I was very impressed with his knowledge and skill as a therapist.
10. In these proceedings, Mr Kaye denied creating the typed reference or forging Dr Cone's signature. He claimed that the reason Dr Cone gave him two written references on the same date was because he had asked for a personal and a professional reference as he was moving to Sydney.
11. The Commission submitted that there is a "very real doubt" that Dr Cone supervised Mr Kaye's thesis as claimed. Counsel for the Commission contends that it is inconceivable that the claimed thesis was produced under the supervision of Dr Cone, contending that the document is "essentially rubbish". She points out that the thesis contains no footnotes and is replete with typographical errors and sentences without verbs.

Membership of the ACA

1. In his application made in 2006 to become a member the ACA, Mr Kaye answered no to the question "Have you ever been convicted of a criminal offence"? In the 1990's Mr Kaye was convicted of multiple of multiple offences of "obtain property by deception".
2. In addition, in that application Mr Kaye listed his qualifications as "BA, Grad Diploma in Counselling and PhD".
3. In January 2012, following a random audit of the qualifications held by its members, the ACA wrote to Mr Kaye and informed him that it did not recognise the doctorate he had been awarded by the ACMT. The ACA pointed out that the ACMT is recognised on "several government and private websites" as being a "non-accredited training provider" and also is listed as an "Accredited Degree Mill". The ACA wrote that the only USA qualifications it recognises are those that meet the criteria established by the Council for Higher Educational Accreditation (CHEA), the leading private accreditation body in the USA. The ACA wrote that the CHEA classifies the ACMT as a non-accredited organisation.
4. The ACA wrote that as a consequence of the ACMT's status, Mr Kaye's use of the title "Doctor" or "Dr", is deemed to be "unethical and potentially misleading". In a letter to the Commission dated 20 July 2015, Mr Kaye explained that he continued to refer to himself as "Dr" after receiving the advice form the ACA because he had been given legal advice that he was entitled to do so providing "I did not lead people into thinking I was medical doctor".

Client A's account of the representations made by Mr Kaye about his qualifications

1. In August 2015 Client A was referred by a solicitor from Law Firm 2 to Mr Kaye for the purpose of obtaining a "medico-legal report". The solicitor requested Client A to obtain a letter of referral to "Dr Kaye" from her GP. In an affidavit dated 28 August 2015, prepared for the purpose of defending the Local Court proceedings commenced by Mr Kaye (the 2015 affidavit), Client A wrote that her solicitor told her that Mr Kaye was a psychologist.
2. In an email to the Commission sent on 21 July 2015, the solicitor wrote that he was aware that Mr Kaye was not a psychologist or psychiatrist. He did did not the claim that he told Client A that Mr Kaye was a psychologist.
3. At Client A's request, her GP provided a letter of referral addressed to "Dr Kaye, Sydney Trauma Clinic". In that letter, the GP thanked Mr Kaye for seeing Client A for an "opinion and management, re: anxiety and depression". In a statement prepared at the request of the Commission dated 21 December 2016, the GP wrote that when asked to provide that letter she had not heard of Mr Kaye and was told by Client A that he was a psychologist. The GP stated that in March 2014 Client A said she was "happy with psychologist Dr David Kaye".
4. In the 2015 affidavit, Client A wrote that at all material times throughout the period when she saw Mr Kaye, she believed him to be a doctor, a doctor of psychology and/or a counsellor with qualifications in psychology, for the following reasons: 1. I was required to get a referral from my GP before seeing Mr Kaye; 2. Mr Kaye referred to himself as a doctor in our consultations; 3. Mr Kaye referred to himself as a doctor or "Dr" in his correspondence with me; 4. Mr Kaye referred to himself as a doctor and psychologist in his resume; 5. Mr Kaye referred to himself as a doctor on his business card, which he gave to me during our consultations (a copy of which is at tab 51 of exhibit BR1); 6. Mr Kaye referred to himself as a doctor or "Dr" in the invoices he issued to me; and 7. Mr Kaye requested that I get a referral from Dr Veselic [Client A's GP] to Mr Kaye in relation to the Worker's Compensation Claim.
5. In her initiating complaint to the Commission, Client A pointed out that in her dealings with Mr Kaye he described himself as "Doctor". She stated that she first became aware he was not a registered health practitioner when she checked the APHRA register in September 2014.
6. In cross-examination in these proceedings, Client A claimed that when she first met Mr Kaye he introduced himself as a psychologist and throughout the period she consulted him she believed him to be a psychologist and a counsellor with a degree in psychology. In a document headed "psychological treatment" prepared in March 2014, Client A listed the practitioners who provided her treatment between 2011 and 2014. That document described Drs Claire Scannel and Tony Pignataro as "psychologists" and Dr David Kaye as "counsillor" (sic). (Drs Scannel and Pignataro are clinical psychologists who treated Client A at various times between 2011 and 2014.)

Consideration

1. Clause 12(1) of the Code provides that a health practitioner must not engage in any form of misinformation or misrepresentation as to his or her qualifications, training or professional affiliations.
2. The Commission contends that Mr Kaye misrepresented to Client A and others that he held qualifications relevant to the field of psychology and/or mental health. Mr Kaye disagrees.

Interpretation of cl 12 of the Code

1. We are not aware of any authorities which have considered the operation of cl 12(1) of the Code. While there are differences between the terms of that provision and s 18 of the Australian Consumer Law (NSW) (ACL NSW) (formerly s 52 of the Trade Practices Act 1974 (Cth)), nonetheless in our opinion the authorities that have considered the latter provide helpful guidance about the meaning and application of cl 12(1).
2. Section 18 of the ACL NSW (and s 52 of the TPA) relevantly provide: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
3. In Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN 050 275 226) [2009] FCA 682, the Federal Court set out a useful summary of the principles developed in relation to s 52 of the TPA. We set out below those relevant to this matter (citations removed): 1. A contravention of s 52(1) of the TPA is established by "conduct" which is misleading or deceptive or likely to mislead or deceive. The "conduct", in the circumstances, must lead, or be capable of leading, a person into error and the error or misconception must result from "conduct" of the corporation and not from other circumstances for which the corporation is not responsible. "Conduct" is likely to mislead or deceive if there is a "real or not remote chance or possibility regardless of whether it is less or more than fifty per cent". 2. Section 52(1) is concerned with the effect or likely effect of "conduct" upon the minds of that person or those persons in relation to whom the question of whether the "conduct" is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context. 3. "Conduct" can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive. 4. By making a statement of past or present fact, a corporation's state of mind is irrelevant unless the statement involved the state of the corporation's mind. Contravention of s 52(1) does not depend upon the corporation's intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.
4. For a contravention of s 52 of the TPA, intent is not necessary. All that is relevant is whether the conduct, tested objectively, was misleading or deceptive or had an intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191. Nonetheless, while intent is not necessary to establish a contravention of s 52, a review of the authorities indicates that the courts are generally more ready to find that a person has engaged in misleading or deceptive conduct where an intent to mislead can be inferred: Campomar Sociedad Limited v Nike International Limited [2000] HCA 12; 202 CLR 45; 169 ALR 677; 74 ALJR 573.
5. Neither party addressed in their submissions whether an intention to engage in a form of misinformation or misrepresentation qualifications, training or to establish a breach of cl 12. While different in terms, cl 12(1) like s 52 of the TPA (and s 18 of the ACL (NSW)), does not expressly state that an intent to misinform must be established. Clause 12(1) simply states that the practitioner "must not engage in any form of misinformation or misrepresentation". The Code is intended to protect consumers of health services. The underlying principles are the same as those that apply in relation to the consumer protection parts of the TPA and ACL. Consumers (or patients or clients of health practitioners) are entitled to rely on representations made to them. Misinformation or misrepresentations, intentional or otherwise, can seriously disadvantage or even jeopardise the safety and health of consumers of health services. In our view, an intention to misinform or misrepresent is not required to establish a contravention of cl 12(1) of the Code.

Consideration

1. The issue we must determine is whether having regard to all contextual circumstances, Mr Kaye engaged in any form of misinformation or misrepresentation as to his qualifications and training. The alleged misrepresentation and misinformation, includes the documentary material as to his qualifications and training provided by Mr Kaye to Client A and others and the alleged statements made by Mr Kaye to Client A during the first consultation.

The alleged verbal misrepresentation

1. We accept Client A's claim that prior to the first consultation she believed Mr Kaye to be a psychologist. That is consistent with the information she gave to her GP and her email to Law Firm 2 sent on 15 August 2013, which referred to Mr Kaye as "a psychiatrist". That she held this view is unremarkable given that she had been told by her solicitor that a referral from her GP was necessary to see "Dr Kaye at the Sydney Trauma Clinic", and the reason she would be seeing "Dr Kaye" was to obtain a medico-legal report to use in support of her claim of suffering a psychological injury.
2. However, for the purpose of cl 12(1), the relevant enquiry is whether Mr Kaye, not some third party, engage[d] in "any form of misinformation or misrepresentation as to [Mr Kaye's] qualifications or training". Nor will a contravention of cl 12(1) be established if, independently or any representation made by, or information provided by, Mr Kaye, Client A made an assumption about his qualifications or training.
3. We accept that prior to meeting Mr Kaye, Client A had assumed he was a psychologist. However, on the available material we could not be satisfied to the requisite standard that at their first meeting Mr Kaye stated that he was a psychologist. In reaching that conclusion we note that in the document prepared in March 2014 before the relationship with Mr Kaye soured, Client A described Mr Kaye as a "counsellor". In addition, we note the absence of any reference in the 2015 affidavit to Client A's claim that Mr Kaye said he was a psychologist at their first meeting.
4. However, this does not dispose of the issue. Clause 12(1) is not restricted to express statements and extends to "any form of misinformation or misrepresentation". We will return to consider, having regard to all relevant circumstances, whether Mr Kaye misrepresented that he was a qualified psychologist.

Documents produced by Mr Kaye relating to his academic qualifications

1. As noted above, in various documents provided to Client A and others, Mr Kaye claimed to hold a BA (Hons) from Monash University, a Graduate Diploma in Counselling from RMIT and a "BA Major in Psychology" from Swinburne.
2. While in submissions made to the Commission in September 2016, Mr Kaye conceded he did not hold these qualifications, the CV attached to those submissions listed "APS & APAC Accredited Major in Psychology. Swinburne University" under the heading "qualification". In those submissions, Mr Kaye wrote that the attached CV had been amended to ensure it did not contain "any information that is misleading or factually incorrect".
3. We understand Mr Kaye now to argue that he was not awarded a BA with a major in psychology because of an error by or maladministration on the part of Swinburne. Whether Swinburne erred in failing to award Mr Kaye with a BA with a major in psychology, which on the available material appears improbable, the incontrovertible fact is that Swinburne did not award Mr Kaye with any degree, a fact of which he has been on notice for many years.
4. By claiming to hold each of the three disputed academic qualifications, Mr Kaye represented that he held those qualifications. That representation was false and constitutes a misrepresentation for the purposes of cl 12(1).

Combined effect of representations made by Mr Kaye

1. Mr Kaye has been on notice since at least 2009 that the ACMT is not recognised by relevant accreditation bodies in either Australia or the USA. In the same year he was advised by the NSW Medical Board and the Psychologists Registration Board of NSW that the use of the title "Dr" was capable of conveying the impression that he was a psychologist or medical practitioner. Three years later, the ACA notified Mr Kaye that his use of the title is "unethical and potentially misleading".
2. Whether, as the Commission contends and seems likely, Dr Cone was not Mr Kaye's thesis supervisor, is relevant only to credit. The incontrovertible fact is that Mr Kaye was awarded a PhD in a subject unrelated to counselling or psychology, by an institution not recognised by any relevant accreditation body in Australia or the USA, and took no steps to draw these pertinent facts to the attention of Client A, other clients or persons with whom he had professional dealings.
3. The representations made by Mr Kaye to Client A and others through his CV, business cards and other material went further than merely representing that he held academic qualifications which he did not hold. The combined effect of the use of the title "Dr" and the post nominals "BA (Hons) (Psych) (PhD)" was to represent that he held recognised qualifications relevant to the fields of counselling and psychology. By this conduct Mr Kaye misrepresented his qualifications and training.
4. We note that in submissions made to the Commission in September 2016, Mr Kaye accepted the claims that he made about his qualifications were "apt to mislead clients and the public generally": [M]r Kaye fully accepts that the claims he has made about his qualifications were apt to mislead clients and the public generally, particularly when taken together. This is so when working in a health setting alongside health practitioners and dealing with vulnerable clients with mental health issues. He accepts it is not good enough to refrain from actually saying he is a psychologist.
5. We find Mr Kaye contravened cl 12(1) of the Code.

Did Mr Kaye provide health services to Client A that he lacked qualifications to provide?

1. Clause 3(1) of the Code states that a health practitioner must provide health services in a "safe and ethical manner". As part of that obligation a health practitioner must comply with a number of principles which include not providing services that he or she is not qualified to provide: cl 3(2)(c) of the Code.
2. The evidence reveals that Mr Kaye provided a number of services to Client A throughout the period, September 2013 to May 2014. Among other things, he provided: 1. counselling services, 2. assessment and diagnostic services.

Assessment and diagnostic services

1. We discussed above the nature of the services provided or purported to be provided by Mr Kaye in the course of preparing the psychological report dated 29 August 2013.
2. As will be recalled, in that report Mr Kaye stated that in his opinion Client A suffered from both a Major Depressive Disorder and Post Traumatic Stress Disorder. He wrote that his assessment was based on among other things "psychometric tests" and that he had used the Diagnostic and Statistical Manual to make that diagnosis. In addition, he expressed an opinion about prognosis, aetiology, the diagnosed conditions and made recommendations as to their treatment.
3. In evidence given in these proceedings, Mr Kaye disagreed with the proposition that only registered psychologists are qualified to administer the type of psychometric tests he administered to Client A. He claimed tests of this type are commonly administered by unregistered health practitioners, such as social and welfare workers.
4. In evidence given in these proceedings, Dr Pignatoro asserted that the minimum qualifications required to make a diagnosis of a Major Depressive Disorder and PTSD is a qualification in clinical psychology or psychiatry.

Consideration

1. Mr Kaye submits that by making a diagnosis of Major Depressive Disorder and Post Traumatic Stress Disorder and recommending the form of treatment Client A receive should receive, no issue arises as to whether he held appropriate qualifications because he was not providing a "health service". In addition, he submits that the report contained nothing more than a "preliminary assessment" to be used for the purpose of assisting Client A's solicitors to prosecute her claims for compensation.
2. For the reasons discussed above, these submissions must be rejected. With respect to the second of these submissions, we note that there is nothing in the letter from Law Firm 2 to Mr Kaye requesting a medico-legal report to suggest that he was being asked to provide a "preliminary" opinion. Nor is there anything in the report itself to suggest that the opinions expressed were provisional or preliminary.
3. While Mr Kaye apparently believes he is capable of making a diagnosis of a psychiatric or psychological condition and recommending appropriate treatment, he has been unable to point to any qualifications which equip him to undertake those tasks. He is not a registered health practitioner and holds no formal qualifications in the field of psychiatry or psychology.
4. Dr Pignatoro's opinion that the minimum qualifications required to make a diagnosis of a Major Depressive Disorder or PTSD is a qualification in clinical psychology or psychiatry is unchallenged and uncontradicted.
5. In undertaking a health assessment and providing an opinion about diagnosis and treatment, Mr Kaye provided health services he was not qualified to provide. In so doing, Mr Kaye contravened cl 3(2)(b1) of the Code.

In providing counselling services did Mr Kaye provide services he was not qualified to provide?

1. The Commission contends that Mr Kaye was not qualified to provide counselling services. Mr Kaye disagrees. Before considering this issue we will first consider whether, as asserted by Mr Kaye, and disputed by the Commission, Mr Kaye holds an Australian Qualification Framework (AQF) Level 7 qualification in counselling.

Does Mr Kaye hold an AQF level 7 qualification?

1. The basis of Mr Kaye's assertion that he holds this qualification appears to be: (i) the decision by Swinburne to grant Mr Kaye an exemption for three subjects completed at other tertiary institutions; (ii) the assertion that as a consequence he completed Stages 1 and 2 of the Swinburne degree; (iii) an undated letter provided by the Australian Psychology Accreditation Council (APAC), said to confirm that he had completed a "three year sequence in psychology".
2. The resolution of this issue can be simply stated. While there is no question that a BA (psychology) awarded by Swinburne is accepted to be an AQF Level 7 qualification in counselling, Mr Kaye does not hold a degree from Swinburne. When enrolled at Swinburne, Mr Kaye completed one subject (Personality) and was given exemption for three subjects.. Completion of those four subjects does not meet the requirements set by Swinburne for completion of the degree. The correspondence relied upon by Mr Kaye from APAC takes the issue no further than confirming that a BA (psychology) from Swinburne is deemed to be an accredited AQF Level 7 Bachelor degree.

Was Mr Kaye qualified to provide counselling services?

1. The Commission claims that Mr Kaye was not qualified to provide counselling services to Client A. Mr Kaye disagrees.
2. Counsellors are not subject to the scheme of registration under the Health Practitioner Regulation National Law. Nor there is a statutory requirement that counsellors hold any prescribed qualification.
3. In support of the proposition that Mr Kaye lacks qualifications to provide counselling services, the Commission relies on the evidence given by Phillip Armstrong, the Chief Executive Officer of the ACA.
4. The ACA is the largest national peak body representing counsellors in Australia. Membership of the ACA is available to individuals who meet minimum qualification requirements, as determined by the Association. Those requirements are set out in a document produced by the Association, "Scope of Practice for registered counsellors", October 2016 (the Scope of Practice).
5. That document states that the minimum required qualification to provide health services as a registered ACA counsellor, is the completion and award of a Level 5 (diploma) qualification in a counselling course from an institution accredited under the AQF. The Scope of Practice describes a Level 5 qualification as an "entry level" qualification, and deems it insufficient to qualify a person to operate independently in private practice. To operate independently in practice as an ACA counsellor, an individual must hold an AQF Level 7 qualification.
6. According to Mr Armstrong, approximately 20,000 people claim to work as counsellors in Australia. Of those, about 7,000 belong to the ACA and/or the Psychotherapy and Counselling Federation of Australia, the other peak organisation representing counsellors in Australia.
7. In Mr Armstrong's opinion, Mr Kaye does not hold an AQF Level 5 qualification and therefore is not qualified to work as a counsellor.
8. There can be no argument that Mr Kaye does not hold any formal qualification in the fields of counselling, psychology or indeed any type of health service. However, the issue raised is whether, in the absence of a statutory requirement that a health practitioner providing counselling services must hold a qualification, by providing mental health services, specifically counselling services it can be said that Mr Kaye breached cl 3(2)(b1) of the Code.
9. As Mr Armstrong points out, counsellors often deal with extremely vulnerable and damaged individuals and the effective discharge of their role requires significant skill and expertise. There can be no argument that it would be highly desirable that persons providing counselling services hold appropriate qualifications. Qualifications of the type required for membership of the ACA would, among other things, ensure a degree of quality control in the services provided.
10. However, in the absence of a statutory requirement, in our view it cannot be said that a person providing counselling services per se is not qualified to provide such services unless they hold some form of qualification, such as that recognised by the ACA. Many people, such as members of the clergy, school teachers, sports coaches, emergency workers, even family and friends, provide informal counselling to others. To require formal qualifications for all counselling services, formal or informal, would be impracticable and counter-productive.
11. However, the question of whether Mr Kaye was qualified to provide counselling services cannot be answered in isolation from the context in which he provided those services. That context was not that of informal, sympathetic support for a distressed person but what purported to be a formal, clinical, professional and therapeutic relationship following the making of a diagnosis and recommending the form of treatment. Client A was referred to Mr Kaye for management of anxiety and depression. Without reference to the referring GP or any other registered health practitioner, he reached a different opinion about diagnosis to that made by the GP and proceeded to provide counselling services on that basis. His claim of having discussed Client A's treatment with her treating psychologist is denied by Dr Pignataro, is unsupported and is not accepted by us.
12. We find that by providing counselling services to Client A, of the type provided, Mr Kaye contravened cl 3(2)(b1) of the Code.

Did Mr Kaye lack an adequate clinical basis for diagnosing Client A?

1. Clause 11 of the Code states that a health practitioner must not diagnose an illness or condition without an adequate clinical basis.
2. In the original decision, the Commission did not expressly address whether Mr Kaye contravened cl 11 of the Code. However, in these proceedings the Commission contended that Mr Kaye lacked an adequate clinical basis for diagnosing Client A with the conditions of Post-Traumatic Stress Disorder, Major Depressive Disorder and severe Borderline Personality Disorder. Mr Kaye denies making any diagnosis about Client A.

Did Mr Kaye diagnose Client A with a severe Borderline Personality Disorder?

1. In support of the proposition that Mr Kaye diagnosed Client A with a Borderline Personality Disorder, the Commission points to the letter received from Mr Kaye, dated 20 July 2015, in response to Client's A complaint. In that letter Mr Kaye requested that the letter not be provided to Client A because: [Client A had] been diagnosed with severe borderline personality disorder with aggressive and paranoid tendencies by her treating clinical psychologist and I have concerns that were [Client A] provided with this statement and a copy of her clinical file, it may be harmful to her psychological well being.
2. In that letter in answer to the question "Describe what care and treatment you provided to [Client A] in relation to your opinion and management of her anxiety and depression?", Mr Kaye wrote: Following her referral to me by her general practitioner … I conducted a comprehensive intake assessment of [Client A]. This assessment involved a detailed history from [Client A] in relation to her health, family, relationships, profession, education, finances and self. Symptomatic data was also obtained in relation to her anxiety and depression. [Client A] presented with severe underlying borderline personality disorder which had permeated all aspects of her functioning and life generally. I decided that before long term counselling and therapy could take place to assist her with the underlying personality disorder, her immediate issues relating to her allegations of workplace victimisation, bullying and harassment needed to be addressed.
3. In correspondence with various regulatory bodies in response to the complaint made by Client A, Mr Kaye accused her of being "a pathological confabulator, a vexatious complainant and suffers from a server borderline personality disorder". (see for example, letter from Mr Kaye to the HCCC of 18 October 2014; affidavit made by Mr Kaye dated 18 June 2015, filed in the NSW Local Court.)
4. It will be recalled that Mr Kaye made no reference to Client A having a Borderline Personality Disorder in the "psychological report" of 29 August 2013. In that report he expressed the opinion that Client A suffered from Major Depressive Disorder and Post Traumatic Stress Disorder. He did not retract from either of these diagnoses in these proceedings
5. However, in these proceedings, Mr Kaye denied diagnosing Patient A with a Borderline Personality Disorder. He stated that in the letter to the Commission he was merely conveying that the treating psychologist, Claire Scannell, had made a diagnosis of Borderline Personality Disorder.
6. The Commission contends that there is no basis for the assertion that Dr Scannell made a diagnosis of Borderline Personality Disorder. In support the Commission points to the "Psychological/Counselling management plan" completed in January 2012 in which under the heading "diagnosis", Dr Scannell wrote "depression, stress, anxiety".
7. The plan is the only document tendered in these proceedings authored by Dr Scannell. However, as Mr Kaye points out in a letter to Client A, dated 24 February 2014, in relation to a complaint made by Client A about Dr Scannell, the Commission wrote that Dr Scannell had made a diagnosis of Borderline Personality Disorder. The basis for that reference is unknown. Nonetheless, for current purposes we will assume but not decide that Dr Scannell made that diagnosis.
8. The letter from Mr Kaye to the Commission, dated 20 July 2016, goes further than merely pointing out that Dr Scannell had made a diagnosis of Borderline Personality Disorder. In the extract of the letter set out at [159] above, Mr Kaye expressed the opinion that Client A presented with severe underlying Borderline Personality Disorder. He wrote that at the intake assessment she presented with "severe underlying borderline personality disorder which had permeated all aspects of her functioning and life generally". He wrote that he had decided that before therapy could take place to assist her with that condition, her "immediate issues" needed to be addressed.
9. It may be that that the opinion expressed by Mr Kaye that Client A had Borderline Personality Disorder was an opinion not honestly held. It may also be that that opinion was based in part on the diagnosis made by Dr Scannell. Nonetheless, in the letter to the Commission Mr Kaye clearly states he had reached an opinion about Client A's condition and on that basis made a decision about the appropriate form of treatment. We find that Mr Kaye made or purported to make a diagnosis of Borderline Personality Disorder.

Did Mr Kaye lack an adequate clinical basis for diagnosing Client A?

1. In a statement provided to the Commission dated 12 January 2017, Dr Pignatoro wrote that he disagreed with the opinion expressed by Mr Kaye in his report of 29 August 2013 that Client A had "complex PTSD or PTSD symptoms". He wrote that Client A was "a high functioning individual" and in most life domains her functions was "not disturbed". He wrote that he had never received information from Client A which would support a diagnosis of PTSD. Further he stated that Client A had not experienced a "traumatic event", a criterion for a diagnosis of PTSD under the DSM V.
2. In addition, Dr Pignatoro stated that he disagreed with the opinion expressed by Mr Kaye that Client A had a Major Depressive Disorder. He explained that such disorder has clear cognitive and physical signs which "in his opinion were never exhibited by Client A". He explained that hopelessness is a "key marker" for major depression and he saw no evidence of this in Client A. In his opinion, Client A had a reactive depressive state in the context of a work-related injury. He explained that this is a different diagnosis to a Major Depressive Disorder.
3. Dr Pignatoro wrote that severe Borderline Personality Disorder is the most severe type of personality disorder and almost always impairs an individual's functioning in most domains. He wrote that Client A was not so impaired and did not exhibit symptoms of a personality disorder.
4. The GP who had referred Client A to Mr Kaye stated she had not diagnosed Client A with any mental health disorder and nor was she aware of any other health practitioner having diagnosed Client A with a mental health disorder.
5. It is not uncommon for health practitioners to reach different opinions about diagnosis, especially in the medico-legal context. However, Dr Pignatoro's opinion goes further than merely expressing disagreement with an opinion reached by another health practitioner, albeit one who lacked the qualifications to make a diagnosis of a mental illness or condition. In his opinion there was no clinical basis for any of the diagnoses made or purported to have been made by Mr Kaye. Mr Kaye has been unable to point to any evidence to support the proposition that he had an adequate clinical basis to diagnose Client A as suffering from PTSD or a Major Depressive Disorder. Even if it is accepted that Dr Scannell had made a diagnosis of a severe Borderline Personality Disorder, Mr Kaye has not been able to point to any evidence to support the proposition that there was an adequate clinical basis for that diagnosis.
6. We find that Mr Kaye lacked an adequate clinical basis to make a diagnosis of PTSD, Major Depressive Disorder and severe Borderline Personality Disorder, and in doing so contravened cl 11 of the Code.

Does Mr Kaye pose a risk to the safety of the public?

1. Having found that Mr Kaye has breached the Code, the power to make a prohibition order and/or issue a public statement can be exercised if we are of the opinion that Mr Kaye "poses a risk to the health or safety of members of the public": s 41A(1)(a) of the HCC Act. Section 41A(1)(a) of the HCC Act is expressed in the present tense. Accordingly, the question posed is not whether Mr Kaye was but whether Mr Kaye is a risk to the health or safety of members of the public. This requires an assessment of the likelihood that any conduct found to have been in breach of the Code will be repeated and an assessment of whether that conduct poses a risk to the health or safety of the public.
2. A health practitioner who makes or purports to make a diagnosis of a mental health condition, in circumstances when they lack the qualifications and/or an adequate clinical basis to do so, places the person diagnosed at risk. Depending on the nature and severity of the condition, persons in the care of the diagnosed person, and others, might also be placed at risk. In the case of Client A, on the basis of a diagnosis he was not qualified to make, Mr Kaye made recommendations about Clients A's ability to work and the types of treatment she should receive. Whether anyone acted on those recommendations is not to the point. There was a real and material risk that as a result of that diagnosis a third party (or Mr Kaye himself) might provide an inappropriate form of treatment. This placed Client A at risk.
3. Mr Kaye did not argue, and nor is there material to suggest, that Client A was a one-off or an exceptional case. The available evidence supports a finding that Mr Kaye routinely diagnosed and went on to treat clients referred to him for assessment and /or treatment.
4. By misrepresenting his qualifications relevant to the practice of counselling and psychology, Mr Kaye misled his clients and those who referred them to his care. This misrepresentation led them to rely on him to provide relevant health services in respect of the particular mental health problems which caused the person to seek, or be referred for, counselling. That reliance was misplaced. Mr Kaye was not suitably qualified to provide the relevant health service. That conduct placed those clients at risk because he was not qualified to diagnose the clients despite purporting to do so. This created the risk of wrong diagnosis and therefore wrong treatment or therapy.
5. The undertakings offered to the Commission on behalf of Mr Kaye in September 2106 are relevant to determining whether there is a real and material risk that in the future Mr Kaye might misrepresent his qualifications. In submissions to the Commission dated 8 September 2016, counsel for Mr Kaye advised that he undertook not to use the title "Dr" or the post nominal "PhD" or state that he held a Bachelor of Arts majoring in psychology from Swinburne University (or elsewhere) "in the absence of the award of the same".
6. For the following reasons we are have concluded that there is a risk that Mr Kaye mightl not honour this undertaking.
7. First, for a number of years Mr Kaye has been warned about the potential of the impugned representations to mislead, yet he has continued to make those representations. For example, since at least 2009 he has been on notice that his use of the post nominal PhD has the potential to represent that he had been awarded a PhD by an accredited tertiary institution in an area relevant to his field of practice. Nonetheless, Mr Kaye continued to use that post nominal in promotional and other material. The purported Swinburne qualification provides a further example. Mr Kaye has been on notice for a number of years of the misleading character of the representation made about that qualification. Nonetheless, as recently as September 2016, when Mr Kaye advised the Commission that he had amended his CV to ensure it did not contain "any information that is misleading or factually incorrect", the amended CV carried this entry under the heading "Qualification": "APS & APAC Accredited Major in Psychology. Swinburne University". The answers given by Mr Kaye when questioned about whether in his opinion this was an accurate representation indicated that fails to acknowledge the capacity of the repletion to misrepresent his qualifications .
8. Second, the weight of evidence is that Mr Kaye is either unable or unwilling to acknowledge that by his conduct he has held himself out as having qualifications relevant to psychology and counselling.
9. Third, Mr Kaye has a history of convictions for offences of dishonesty raising concerns about his character. While it is not inevitable that as a consequence he will continue to misrepresent his qualifications, it raises doubts whether he will honour the undertaking given to the Commission. That concern is heightened by the many examples throughout the evidence of Mr Kaye's lack of candour. For example, in the declaration made in his application for membership of the ACA he declared he had not been convicted of a criminal offence and claimed he held qualifications he did not hold. In evidence given to the Supreme Court on 11 May 2016, he gave conflicting evidence when questioned whether he held a BA with a major in psychology from Swinburne.
10. In addition, on the available evidence we are not satisfied that in the future Mr Kaye would discontinue the practice of diagnosing clients and making recommendations about their treatment. In reaching that conclusion we note that, first, in these proceedings he steadfastly refused to concede he had made a diagnosis Client A. Second, nonetheless it is apparent he has every confidence about his ability to diagnose and treat persons with mental health problems. In 2009, when interviewed by NSW Police he said: I don't … formally diagnose patients I've spent 24 years providing counselling services. I know depression when I see it, I know schizophrenia when I see it, I know someone who's anxious when I see it. I don't need to DSM4 to diagnose, they're just labels.
11. The available evidence indicates that Mr Kaye continues to hold such views. It was apparent from the evidence given and submissions made in these proceedings that he does not appear to even entertain the possibility that the mental health of persons who come to him for assistance may be at risk because of his practice of providing health services that he is not qualified to provide.
12. For these reasons we find Mr Kaye poses a real and material risk to the safety of the public.

Should orders be made under s 41A of the HCC Act?

1. Being satisfied that the criteria listed in s 41A(1) of the HCC Act are met, the power to make a prohibition order and/or issue a public statement can be exercised. In exercising that power the protection of the health and safety of the public must be the paramount consideration: s 3(2) of the HCC Act.
2. In the original decision the Commission, decided to make a public statement in relation to Mr Kaye; prohibit him for a period of six months from providing any other mental health services and thereafter prohibit him from providing counselling of any description or any other mental health service unless he satisfies the Commission that he has successfully completed a Level 5 qualification in counselling from an accredited institution.
3. The six-month period has now expired, and accordingly from a practical point of view the real issue to be determined is whether the correct and preferable decision is to make further orders and, if so, the form of orders.
4. The Commission submits that the original decision should be affirmed. Mr Kaye contends that no orders are necessary and, in any event, the order made by Commission prohibiting him from providing any mental health service unless he holds a Level 5 qualification in counselling, is ultra vires. He reasons that because there is no statutory requirement that health practitioners providing counselling services hold any specified qualifications, the Commission, and the Tribunal on review, lack the power to require that he hold a Level 5 qualification in counselling.
5. Mr Kaye is correct that there is no statutory requirement that a health practitioner who provides counselling services and is not subject to the Health Practitioner Regulation National Law must hold a Level 5, or indeed any form of qualification.
6. Nonetheless, the power conferred by s 41A(2)(ii) of the HCC Act to place conditions is, in our opinion, sufficiently broad in scope to enable a qualification condition of the type imposed by the Commission, to be made. It states: 41A PROHIBITION ORDERS AND PUBLIC STATEMENTS … (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: … (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently,
7. Our preliminary view is that it is appropriate that orders be made under s 41A(2) of the HCC Act but that the orders made by the Commission are insufficient to protect the health and safety of the public. As set out above, in the opinion of the ACA, a Level 5 qualification is insufficient to equip a person providing counselling services, to operate independently in private practice. While the opinion of the ACA is not determinative, it nonetheless warrants careful consideration. For the past decade Mr Kaye has worked exclusively in private practice apparently without supervision. There is no evidence to suggest this Mr Kaye has plans to change this arrangement. This raises the question of whether it would be more appropriate if Mr Kaye was required to hold a Level 7 qualification.
8. But a more fundamental concern is whether the type of risk Mr Kaye poses to the health and safety of the public is capable of being remedied by obtaining further educational qualifications and/or an appropriate level of clinical supervision. The long history of Mr Kaye misrepresenting his qualifications together with the evidence of providing health services he is not qualified to provide, raises concerns about Mr Kaye's suitability to practice as a counsellor. Mr Kaye's response when notified of the complaint made by Client A was to accuse her of having fabricated evidence and to attribute this to a severe personality disorder. His readiness to make such allegations raises further concerns about his suitability to provide mental health services.
9. At the hearing we indicated that if we were to consider making orders under s 41A(2) different in form to those imposed by the Commission, we would give the parties the opportunity to make further submissions. We have listed the matter for a directions hearing to consider the most appropriate manner to determine this issue. Attachment A Public Statement and Statement of Decision in relation to Mr David Kaye (aka Ali Davut Sarikaya) 10 October 2016 The NSW Health Care Complaints Commission conducted an Investigation into the professional conduct of counsellor, Mr David Kaye (aka All Davut Sarikaya). Mr Kaye represented himself to Client A, the Commission and others as holding university qualifications in psychology and counselling. Specifically Mr Kaye represented himself as holding a Bachelor of Arts with honours, a Bachelor of Arts with a major in Psychology and a Graduate Diploma in Counselling Psychology. Mr Kaye also used the title doctor and the post-nominal PhD. Mr Kaye made these representations through his use of his CV, letters, reports, business cards, emails and through verbal advice to Client A and others. Further, the evidence regarding Mr Kaye's PhD indicates that it is in theology and not related to his practice in counselling or psychology. The evidence also showed that it was obtained from an American, online, non-accredited institution called "The American College of Metaphysical Theology" (ACMT). The ACMT website has been decommissioned but prior to this the website stated that "ACMT programs are not designed to meet any particular local, state of national licensing or credentialing laws. Mr Kaye was warned against using the title doctor and post-nominal PhD in his work as a counsellor as it is unethical and likely to mislead clients into believing he held an accredited doctorate which related to his practise as a counsellor. Despite this advice Mr Kaye continued to use the title doctor and post-nominal 'PhD' in his practise as a counsellor. The Commission's investigation found that Mr Kaye has no formal qualifications in psychology or counselling. He does not have a Bachelor of Arts with a major in Psychology and he does not have a Graduate Diploma in Counselling Psychology. Mr Kaye has misled clients and others persistently over a number of years in to believing that he has the relevant credentials required to deliver counselling services when this was simply not the case. He has been deliberately deceptive in his conduct. The Commission's investigation has found that Mr Kaye provided counselling services to Client A when he did not hold any qualifications in counselling. On the basis of the above evidence the Commission found that Mr Kaye breached the following clauses the Code of Conduct for Unregistered Practitioners In that he: • Failed to provide a health service in a safe and ethical manner • Provided counselling services to a client in circumstances where he did not hold the appropriate qualifications • Misrepresented himself as holding university qualifications in psychology and counselling Through his actions, Mr Kaye has deprived both client A and countless other clients over the years the opportunity to receive the care and treatment that they required from an appropriately qualified practitioner. During the Commission's investigation Mr Kaye failed to acknowledge this, or the fact that he has no formal qualifications in Counselling. However, prior to the finalisation of the investigation Mr Kaye, in his final submissions, acknowledged that the claims he made about his qualifications were misleading to the client and the public generally. Further Information Access the Commission's Statement of Decisions here Access to the Commission's media release here For further information, contact the Executive Officer of the Health Care Complaints Commission, on 7444.

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: 31 October 2017