Kirbach v Health Care Complaints Commission [2015] NSWCATOD 162 | Case summary

The evidence

The respondent called no oral evidence but instead relied on the s 58 documents (exhibit R1) and other documentary material.
The applicant gave oral evidence by telephone at the hearing. He adopted his statement dated 24 August 2015, in which he stated inter alia that he and his family had been under the impression that as the commission had decided not to make a statement of decision publicly available because of the extensive health information it contained about A and out of consideration for the well-being and privacy of his wife and children, there would not be any public release of information about the matter, other than to A and the appropriate authorities. That information was, he said, misleading as the commission published a public statement on its website and issued a media release linking to it. There was little tangible difference between the content of the two statements in terms of the damage and harm it was likely to cause his family.
The commission could not properly claim to be protecting his family when they had published his surname, which is highly unusual and easily recognizable. A Google search of the surname immediately brings up the public statement. He did not wish his children or their friends to have access to personal information about him, including his own father's suicide and details of his relationship [presumably with A]. He could not see how that level of detailed information could be perceived as being in the public interest or protecting the public. The statement as originally published was also factually incorrect in that it stated that he received a 12 month full-time custodial sentence which, he said, showed that the commission is prone to making mistakes.
He believed that having his criminal record accessible online by potential employers was discriminatory in relation to his efforts to provide income for his family. His wife Rebecca Clark had complained to the commission about the statement and asked them to withdraw it, but after some exchanges and discussions the respondent had declined to amend or retract the public statement.
The applicant said he accepted responsibility for the wrong he had done, was remorseful for it and had been punished. He accepted the prohibition order imposed for breach of the code of conduct and had lost his job, his income and his profession. He would not breach the prohibition order and the public would be protected. He could not understand how publishing detailed personal information beyond basic details of the prohibition order could be deemed to be in the public interest.
At the hearing the applicant reiterated those points, adding that the information in para (vii) of the statement about his failure to ensure that A had access to appropriate adult mental health supports was incorrect.
His four children aged between 8 and 14 had enjoyed a protected upbringing in relation to access to information, but his eldest daughter (14) would soon find out about him and the death of her grandfather. She was currently in year 9 at Alstonville High School and was likely to be bullied and ostracized over the information that would become available. He was well known in the area, and employers and others would be googling also. He could not understand why his father's suicide was relevant, and that was something that was difficult to discuss with young children.
Currently he was struggling to find any kind of employment and was unable to carry on any kind of life. He had applied for labouring work, organic farm work and truck driving positions, had been called in for interviews but the interviews had been cancelled. He knew what he had done wrong and was terribly, very, very sorry about it and would not reoffend. He knew that his record would limit his employment prospects, but currently he was living only on Newstart and on his wife's part-time work income.
The applicant said he had much support in the community. One of the detectives who had been investigating the offences with which he was charged had a daughter of about the same age as his eldest and had no qualms about allowing her to sleep over with his daughter at the applicant's house. He also was quite accepting of the fact that the applicant was involved in driving his daughter around on those occasions. He was worried about the future, as children can stumble for a variety of reasons. Magistrate Hennessy had assessed the matter in a balanced way, but the HCCC had been unfair.
The applicant also tendered an email (part exhibit A2) from his wife, Rebecca Clark, dated 28 June 2015 expressing "absolute shock and dismay about the content of the public statement". She was greatly concerned about the children's privacy, well-being and safety, and that in that regard there was little tangible difference between the content of the statement of decision and the public statement. She understood the need to protect the public and administer justice but did not understand how the public statement protected the public. It seemed to her to be unnecessary, a punishment without a purpose. And while it punished Mr Kirbach primarily, it would definitely impact on her and the children. The children would face public scrutiny, and might be bullied or teased. She asked how they were supposed to respond to comments about what was contained in the public statement. They had already suffered greatly as a result of their father's imprisonment. The public statement had the potential to destroy their ability to live in their community, where they had lived for ten years, at a time when she and the applicant were seeking to re-build their family. It would seriously damage Andreas's chances of obtaining any paid employment in any capacity, as it was well known that any employer runs Google checks on potential employees these days. The commission's release of the public statement circumvented legal restrictions on the release of criminal history information to potential employers. The investigating officer had undertaken to raise Ms Clark's concerns with senior management.
Also in evidence was a detailed letter from Karen Hendrix, a registered psychologist aged 62 employed by the New South Wales Health Service as a youth and family mental health worker for northern New South Wales. Dated 17 February 2015, it was addressed to the magistrate at Lismore Local Court. She stated that she had known the applicant since 2005 when he began working at Community Mental Health at Lismore and had been "his privileged colleague ever since". She was aware of the charges against him and of the likelihood that he would be unable to continue to work as a social worker if found guilty of assault occasioning actual bodily harm.
Ms Hendrix and her partner had developed a family relationship with the applicant and his family outside the work environment and had observed him across all situations, interacting with his family and others. At no time did he ever display any aggression. "This behaviour is completely out of character with the Andreas that I know. He is gregarious and gets along harmoniously with all people. He is a popular colleague who is highly respected." She was impressed with his gentle but authoritative parenting style as well as his professional skill as a therapist. They had agreed some years ago to provide peer supervision to each other on a monthly basis, such was her respect for his ability. In supervision the applicant had described his family of origin and the traumas he had endured in that setting. He had been abandoned by his mother as a baby, his father was frequently absent and unreliable, was an alcoholic and eventually committed suicide.
She believed that the applicant had processed all these experiences at a cognitive level, but in the past 2 years had been processing them at a deeply psychological level and was having depressive symptoms. The culmination of all those factors made him susceptible to strong transference and countertransference when he was working with adolescents who expressed intentions to suicide and were identified as being at a significant risk of attempting suicide. He had mentioned a number of times in 2013 the case in which he was being identified as the only person offering the client support and hope for a positive life. He said that he felt "a fatherly love" for that client and indicated that she appeared to be becoming infatuated with him. He made appropriate efforts to distance himself from her but was unable to withdraw from her case management and was directed to continue to work with her. At the time she believed that the applicant's own mental state over the previous year (2012) made him vulnerable to experiencing vicarious trauma related to any client's risk of suicide. He also appeared to lose the capacity over time to manage his own countertransference and may even have been in denial.
His clinical work was usually very successful and he did not give up simply because it became too hard. He had a quest for self-betterment and knowledge in his clinical work and his clients reaped the positive benefits of it. She hoped he would be exonerated.
The applicant also tendered an email from a psychiatrist, David Furrows, dated 21 November 2012 outlining discussions he had had with the applicant in connection with his efforts to arrange follow-up treatment for A.

Consideration

The tribunal has jurisdiction to hear and determine this application by reason of s 41C of the HCC Act. That provision permits a health practitioner to apply to the tribunal for an administrative review of a number of classes of decisions, including "(c) a decision to issue, revoke or revise a public statement about the health practitioner". Section 4 defines a "health practitioner" as "a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law)". A "health service" is defined to include a number of services, including "(f) community health services", "(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g)" and "(j1)… psychology services". The applicant, as a social worker, falls within one or more paragraphs of that definition.
Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the commission's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material so as to affirm the original decision, vary it, set it aside or remit it: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. Under s 63(2), the tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the commission when making its decision.
The hearing was conducted by telephone. At the outset the applicant objected to the composition of the tribunal and demanded that the review be conducted by Magistrate Hennessy DP, who had heard and determined his stay application and who, he said, had a true understanding of the issues (the implication being that other members did not or could not). The respondent pointed out that a party cannot request that a particular member (or, in judicial proceedings, a particular judge or magistrate) should be allocated to a case. The applicant then demanded that the matter be heard by a magistrate or a judge rather than a tribunal member and enquired as to the writer's position in the tribunal. It required some persuasion before he would acquiesce in, and cooperate, with the proceedings. When the hearing duly got under way, he at first repeatedly and vehemently interrupted, talked down and talked over counsel and the tribunal in a manner that threatened to make it impossible to conduct the proceedings in an orderly fashion.
As the hearing proceeded, the applicant's tone at times tended to evoke some of the commission's comments about the applicant's attitude to the proceedings, as being "indicative of the significant deficiencies that remain in his contrition and insight" (exhibit R1, tab 2, 6.21) and of the "many examples of his tendency to seek to blame others for his own conduct and choices" (id., 6.1).
The commission's powers to make public statements pursuant to s 41A(2) of the HCC Act are broad and discretionary. Those powers may be exercised only if the three conditions in s 41(1) have been satisfied. It is not disputed that paras (a) and (b) have been met. The question is whether the respondent has satisfied the requirements of para (c), such that the commission or the tribunal can be "of the opinion that the health practitioner poses a risk to the health or safety of members of the public".
In order to review the public statement issued in this case it is necessary to set it out in full: The NSW Health Care Complaints Commission conducted an investigation into the professional conduct of Andreas Kirbach, 51 year old social worker working in community mental health in Northern NSW. The investigation concerned his conduct towards Client A, a young woman to whom he provided counselling services from just after her 17 th birthday in February 2011, to the end of her final year of school in November 2012. Client A was a particularly vulnerable young woman with a complex mental health history. The investigation found that Mr Kirbach failed to maintain appropriate therapeutic boundaries with Client A and failed to appropriately manage her growing attachment to and dependence on him. The investigation found that Mr Kirbach commenced a sexual relationship with Client A while he was her mental health case manager and that the sexual relationship continued until late June 2014. The improper close personal and sexual relationship was marked by emotional manipulation, control and escalating verbal abuse and threats on the part of Mr Kirbach. As a result, Mr Kirbach was issued with an apprehended domestic violence order on 22 May 2014 on 20 February 2015, the Lismore Local Court found Mr Kirbach guilty of assaulting and stalking/intimidating Client A in relation to breaching that AVO on a number of occasions. Following an appeal to the District Court of NSW in relation to the severity of sentence, on 29 April 2015, Mr Kirbach was sentenced to an 8 month suspended sentence. The investigation found that Mr Kirbach breached the Code of Conduct for Unregistered Health Practitioners when he: *Failed to provide health services in a safe and ethical manner in that: 1. He failed to deal appropriately with behaviour that he recognized constituted transference; 2. he encouraged Client A's dependence on and attachment to him in circumstances where this suited his own interests rather than being for Client A's therapeutic benefit; 3. he failed to maintain appropriate therapeutic boundaries in that he disclosed that his own father's suicide meant that he and Client A shared similarities and a deep connection; 4. he maintained Client A's dependence on him when she was an inpatient by visiting regularly despite recognizing the need to widen her treatment team; 5. he failed appropriately to manage Client A's self-harming behaviours and engaged in this behaviour with her, to satisfy his own interests rather than her therapeutic needs; 6. he exploited Client A's emotional immaturity, vulnerability and desire for a father figure by allowing himself as her therapist to become the most significant male figure in her life; 7. he failed to ensure that once Client A was discharged from the Use and Family Community Mental Health Services she had access to appropriate adult mental health supports; *engaged in a close personal and sexual relationship with Client A, which commenced while she was his client (Clause 13(1)) The Commission is satisfied that Andreas Kirbach poses a risk to the health or safety of members of the public. Prohibition order As a consequence of the findings that Mr Kirbach has breached the Code of Conduct and poses a risk to the health or safety of members of the public, that Commissioner makes the following prohibition order pursuant to section 41A(2)(a) of the Health Care Complaints Act 1993: Andreas Kirbach is prohibited from providing any health services in either a paid or voluntary capacity for a period of five years from the date of this order (22 June 2015). This statement was amended on 8 September 2015….
As was noted above, the powers in s 41A(2) to issue public statements can be exercised only when the conditions in s 41A(1) are met, including where the commission or the tribunal has formed "the opinion that [a] health practitioner poses a risk to the health or safety of members of the public" (s41A(1)(c). Prohibition orders and public statements are thus appropriate where they serve the public interest of protecting the health or safety of members of the public, or where they permit the prevention of harm, or minimization of risk, to the health or safety of members of the public.
Public statements and other orders also serve the public interest by establishing a disciplinary structure for a profession that not only directly protects the public from harm, but also helps to preserve public confidence in that profession and its members. The Court of Appeal explained that function in Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise (at [35]) (emphasis added).
The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340: 113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 114 That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against a repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.
Although professional disciplinary legislation is not part of the criminal law, these cases among other authorities show that the concept of deterrence, both specific and general, which plays a large part in the criminal justice system, also has an application in this context. Specific deterrence as regards a public statement relates to the protection of the public by giving members of the public, as well as potential employers, access to information about the relevant health practitioner and assisting enforcement of a prohibition order by making it more difficult for the relevant practitioner to violate the prohibition order without such a breach being identified.
On that basis, the revised public statement serves to protect the public in several ways. Naming the applicant ensures that the direct protections afforded by the prohibition order are fully effective, as otherwise they might be overlooked or more difficult to monitor. It provides a summary description of the factual context of the commission's findings and of the criminal offences of which the applicant was convicted and the sentence ultimately imposed. That represents a clear objective measure of the severity of his conduct. It also contains a brief summary of the breaches of the code of conduct that the commission found the applicant had committed and gives a statement of the ultimate findings and order.
In the present case there is little possibility of the applicant's reoffending in the same way in New South Wales if the prohibition operates to its full effect, as it is effective throughout the State for a period of five years. It cannot operate outside New South Wales: Qantas Airways Ltd v Lustig [2015] FCA 253. The public statement will, however, partly extend its practical effect beyond the State's borders; it will also provide relevant information to prospective employers outside the health care sphere who might consider it relevant to know that an applicant has been convicted of an offence of violence, especially against a vulnerable young woman, while occupying a position of public trust.
At one point during the exchanges of correspondence before the hearing, the applicant argued that inclusion of his criminal history was discriminatory. There is, however, no general law against publishing the criminal history of an adult who has been convicted of offences, subject to certain exceptions in the case of spent convictions. In addition, criminal history is not a category of unlawful discrimination.
Do and Meakes explain the operation of general deterrence in the professional context by denouncing such misconduct and helping to maintain public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. Those and similar cases make it clear that the widespread dissemination of information about the contravention of professional standards and the sanctioning of offending behaviour forms an integral part of that process. Criminology has long recognized that publicity is vital for that purpose: Publicity is an essential component of the general deterrent process, for the wider the dissemination of sanctioning information, the greater is the potential impact of that information. Publicity designed to deter unlawful behaviour usually takes the shape of media campaigns or informal word-of-mouth. It may communicate accurate information regarding the sanctioning process…. Further, it may focus on specific offences (for example a message that drug dealers are severely penalized) or general compliance with the law (for example a communication that "crime does not pay") (S Brown, F-A Esbensen, G Geis, Criminology: Explaining Crime and its Context (2015) p 173).
The respondent does not dispute the family circumstances raised by the applicant and Ms Carter in seeking to have the public statement withdrawn or modified. It does seem likely that the applicant's children will endure, and apparently have already endured, hurtful comments and treatment on the part of other children or adolescents at school or elsewhere. It is also in the children's interests that their father should be able to engage in gainful employment in one capacity or another and thereby to support, or help support, them. The tribunal would seek to avoid any detriment to the children and their circumstances, but must bear in mind the respondent's cogent argument that such considerations do not outweigh the public interest in protecting members of the public from behaviour such as that displayed by the applicant in his interaction with A.
I find that the applicant's conduct was of such a character and seriousness as to make him a risk to public health and safety within s 41A(1)(c) of the HCC Act. His actions were not the consequence of an impulsive lapse but were sustained over a period of years and involved serious criminal elements. The applicant was well aware that his conduct was wrongful, endeavouring to keep it secret and pressuring A to lie to the authorities about it. The respondent submitted that "grooming" behaviours were apparent, which would be an aggravating factor. In light of Ms Hendrix's evidence, and she is qualified to express an informed opinion on such matters, I think his behaviour may in part have flowed from his own unresolved psychological problems. As a well-qualified and experienced professional, he should have known how to resist such pressures and set appropriate boundaries, however, but he failed to do so and indeed appeared to immerse himself willingly in them. Nevertheless, I do not think he was consciously engaged in a deliberate "grooming" program in relation to A.
The applicant has expressed serious regret over his role in the episode. The commission's findings note, however, "significant deficiencies…in his contrition and insight" (exhibit R1, tab 2, 6.21) and I have mentioned above traces of an attitude of entitlement that seemed somewhat out of place in the present setting. Even so, there appears to be little likelihood that the applicant will reoffend in the same way as before, given that the prohibition order should ensure that he will now have little opportunity to do so. While specific deterrence is a factor, especially in view of the seriousness of the conduct involved, an appropriate degree of proportionality and measure is thus in order. As the Court of Appeal said in Meakes, "no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose" (at [113]).
The seriousness of the conduct also makes general deterrence a material factor adding support to the need for a public statement proportional to the gravity of the offending behaviour.
Turning to the content of the amended statement (exhibit R3), it will be seen that it falls into three parts. The first is a general summary of the findings of the respondent's investigation, including the applicant's criminal convictions. The second is a list of the commission's findings concerning the applicant's breach of the code of conduct through failing to provide health services in a safe and ethical manner and engaging in a close personal and sexual relationship with A which commenced while she was his client. This part provides particulars in 7 numbered paragraphs. The third part is the commission's finding that the applicant poses a risk to the health or safety of members of the public. This third part contains no particulars.
The fact that the third part of the statement does not supply particulars is significant, as the commission's reasons for decision (exhibit R1, tab 2, 6.25) set out eleven findings that support that part of its conclusions. They include abuse of trust, threats to kill a client, keeping his conduct towards A secret and ensuring that she did also, verbal abuse, threatening, controlling and manipulative behaviour, supplying cannabis and alcohol and inducing her to use it, engaging in sexual activity with her in which she was reluctant to participate, encouraging her self-harming behaviours and participating in ritual acts of self-cutting with her, his convictions for assault occasioning actual bodily harm, stalking/intimidating and AVO breach, lying to investigators and a general lack of honesty, contrition and insight about the enormous damage he had caused to a vulnerable young person in his care. If the commission had supplied a list of such particulars, as it was entitled to do, the public statement would have been much more damning from the applicant's point of view than the one that was actually issued. He therefore cannot complain that the statement was in any general sense unduly weighted against him.
Nevertheless, in light of the interests of the children, it is appropriate to amend paragraph (iii) in so far as it mentions the applicant's father's suicide. That detail could give rise to morbid curiosity and mockery that would be needlessly wounding for the children while adding little to the deterrent effect of the statement. It would therefore be preferable to amend the paragraph to read "in that he disclosed that traumas in his own upbringing meant that…."
The applicant objected to paragraph (vii) on the ground that the correspondence showed that he had in fact initiated some steps to ensure that A received appropriate adult mental health supports. The respondent submits that those efforts were insufficient, and perhaps they were. This paragraph also adds little to the effect and impact of the statement, however, and it would be preferable to omit it.
Orders: 1. Pursuant to s 64(1)(a) of the NCAT Act, the disclosure of Client A's name is prohibited; 2. Pursuant to s 64(1)(c) of the NCAT Act, publication of Client A's name or personal information, or both, being matters contained in documents lodged with the tribunal, is prohibited. 3. Paragraph (iii) of the public statement (exhibit R3) is amended to read as follows: "(iii) he failed to maintain appropriate therapeutic boundaries in that he disclosed that traumas in his own upbringing meant that he and Client A shared similarities and a deep connection". 4. Paragraph (vii) of the public statement (exhibit R3) is deleted. 5. In all other respects the decision under review is affirmed. 6. The stay order made on 23 September 2015 is revoked. 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: 17 March 2023

Kirbach v Health Care Complaints Commission

At a glance

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Judgment (5 paragraphs)

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Cases Cited (3)