Ledner v Health Care Complaints Commission

The application

1. The guiding principle and objective of the National Law in s 3A is that 'the protection of the health and safety of the public must be the paramount consideration'.
2. The approach to reinstatement under the National Law has been clearly laid out and applied in tribunal decisions such as Bahramy v Medical Council of NSW [2014] NSWCATOD 116; Scully v HCCCC [2013] NSWNMT 7; Shah v HCCC [2014] NSWCATOD 94 and [2016] NSWCATOD 68; Donnelly v HCCC [2014] NSWCATOD 155; Brown v HCCC [2015] NSWCATOD 40; Mnyandu v HCCC [2015] NSWCATOD 43. The approach to reinstatement includes the following considerations: 1. the applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the profession; 2. the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities; 3. the purpose of the jurisdiction is not punishment or further punishment of the former practitioner, rather the jurisdiction is exercised is for the protection of the public; 4. the power to reinstate should be exercised with great caution and only upon solid and substantial grounds; 5. there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance; 6. in making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register.

Evidence and Submissions

1. Ms Ledner was self-represented in these proceedings.
2. Ms Ledner provided a written statement in which she outlined her current personal and employment circumstances, as well as detail of extensive training and professional development she has undertaken in recent years, including an APS ethics course and training in personal and professional boundaries.
3. Since the last proceedings, the applicant has worked part time in research and training roles associated with the drug and alcohol health sector. Ms Ledner's family situation is stable and supportive, she has undertaken a sustained course of individual counselling and has abstained from drinking alcohol for a prolonged period.
4. In support of her application Ms Ledner submitted a recent report by an assessing psychiatrist, Dr Graham Vickery, whose opinion was in evidence in the original proceedings, and five character references from colleagues, supervisors and mentors, three of whom are registered psychologists.
5. In Dr Vickery's opinion Ms Ledner was genuinely remorseful for her conduct, had acknowledged the findings of the Tribunal and had made reasonable efforts to address its concerns. In his view the strategies she had put in place to ensure that such conduct would not be repeated were sufficient, there was 'minimal if any likelihood' of reoffending, and he recommended Ms Ledner as a fit and proper person to be engaged in the profession of psychology.
6. The written references provided by the Applicant all make it clear that they are aware of the findings of the previous Tribunal. None of the referees were required to give oral evidence.
7. These references are consistently supportive; they state that the authors believe Ms Ledner to be a capable and ethical professional and an excellent psychologist who has, in essence, learnt from her mistake.
8. A reference from the practitioner's current employer states, I have experienced Brooke to show great remorse around her behaviour. She has been open and transparent about her misconduct and the implications her behaviour has had on both herself, and the client involved. I believe that that shows great character in being able to move forward from this incident.
9. The Applicant gave oral evidence and was cross examined by the HCCC. The HCCC, in its role as public interest contradictor, sought to elicit more detailed and up to date information about the applicant's state of health, support mechanisms, insight about the misconduct, and her employment and professional plans. This was done in a constructive and helpful manner.
10. Ms Ledner's evidence was that she has worked consistently since the time of her deregistration to learn and improve. She has undertaken individual counselling, ethics and other professional training, and has put into place active strategies to ensure that any potential professional boundary issues that arose in the future would be identified and addressed in supervision or through peer support before heading down 'the slippery slope'. She stated, 'I'm aware that when boundaries are breached, harm is done.' She accepted that the improper relationship had caused the patient lasting harm, including through a substance abuse relapse, anxiety and lack of trust in health professionals. She further stated that she had failed in her duty to keep her patient safe.
11. The applicant stated that she was keen to return to practice in a setting where she would be able to avail herself of structured professional guidance and support, including through both individual clinical supervision and group supervision.
12. The HCCC took a neutral position in responding to the application and neither supported nor opposed reinstatement. The HCCC submitted that if reinstatement were ordered, certain conditions of practice to ensure oversight and supervision of the practitioner for the first year would be appropriate to ensure the safety of the public.
13. The Applicant agreed that conditions would be appropriate, although she did seek to tailor the conditions so as to allow for a possible employment opportunity that may arise with her current employer as an outreach counsellor. In particular Ms Ledner sought that order 3 be framed such that only one and not two registered psychologist be required in the practice or in the alternative that this be replaced by two 'allied health professionals'.
14. The HCCC submitted that the conditions were directed towards ensuring a structured and supervised return to practice in order to protect the public, and as such employment opportunities should be tailored to the conditions, and not vice versa.
15. The Tribunal accepts the HCCC submission on this point as in accordance with the practical application of the paramount principle of the protection of the health and safety of the public.

Findings and Reasons

1. The Tribunal proceeds on the basis that the misconduct was of a very serious nature. Patients are vulnerable in their interactions with their treating health professionals which is why sexual relationships in this context are unethical and improper. Patients seeking care from mental health professionals have particular vulnerabilities which sexual relationships with such professionals necessarily exploit.
2. The practitioner presented in both her written and oral testimony as capable, organised, mature and considered. She had taken the period of deregistration to reflect on her misconduct and the circumstances surrounding it, as well as the findings of the previous Tribunal. At the time of the misconduct Ms Ledner was relatively young and inexperienced, practising in a complex area with minimal supervision, and at a time of personal turmoil.
3. We found the practitioner to be candid, thoughtful and insightful in her approach to her wrongdoing and considered in her efforts to remediate and return to practice. She did not seek to minimise or evade the misconduct; rather she accepted responsibility for it while also seeking to tackle contributing factors such as her own past alcohol misuse and lack of personal and professional support mechanisms.
4. We also give weight to the supportive references from five of the practitioner's colleagues that they believe her to be deeply remorseful, and a skilled, ethical and compassionate professional.
5. We accept that the practitioner has come a long way from the circumstances of the misconduct and is committed to a future of ethical professional practice. The evidence accepted by this Tribunal indicates that the matters of concern to the former Tribunal have been addressed.
6. Having conducted the inquiry under section 163B of the National Law, in relation to Ms Ledner's application for reinstatement as a psychologist, the Tribunal is satisfied that the order of deregistration is no longer appropriate.
7. A transitional period of one year in which the practitioner's return to practice is supported through conditions requiring mentoring and supervision is sufficient to ensure the safety of the public.

Costs

1. The HCCC submitted that it should be entitled to its costs against the Applicant even if she was successful in her application on the basis that it had carried out its neutral role as contradictor properly and in the public interest.
2. In Donnelly v HCCC [2014] NSWCATOD 155 the Tribunal noted that the compensatory principle 'is not necessarily apposite to reinstatement cases' (at [55]-[57]): In those cases it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. …
3. An extensive review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that 'the unfettered nature of the discretion is perhaps the primary principle' (at [65]). In that matter, involving a successful application for reinstatement, the Tribunal declined to make a costs order on the basis that: In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. [66]
4. Although we note that every reinstatement case occurs as a consequence of the original proven and serious misconduct of the practitioner, which may in some circumstances tip the balance in favour of costs to the contradictor, we concur with the reasoning in Donnelly to make no order as to costs in this instance.
5. This is not to suggest that there was any disentitling conduct on the part of the respondent. The HCCC participation was very helpful in the public interest in ensuring that all relevant information was made available and properly tested to enable the Tribunal to be confident in its decision that a reinstatement order was appropriate and the public properly protected. We disagree with the suggestion in Ristevski v Medical Council of NSW [2016] NSWCATOD 18 that a no costs order should generally be confined to cases where the contradictor was of no, or limited, assistance to the Tribunal.

Orders 1. The Applicant is reinstated to the register of psychologists per s 163B(c) of the National Law subject to the following conditions; 2. The Applicant is to nominate a registered experienced psychologist to act as her professional mentor for approval by the Psychology Council of NSW; 3. The Applicant is to practise only in a group practice where there are at least two other registered psychologists and as approved by the Psychology Council of NSW; 4. The Applicant is to attend professional supervision every fortnight; 5. Conditions 2-4 apply for a period of 12 months from the point of registration; 6. The Psychology Council of NSW is the appropriate review body for these conditions.

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: 25 February 2019