Mayr v Health Care Complaints Commission

NCAT Occupational|2023-07-10

Introduction

This is an application by the Applicant, Mr Mayr, for review of an order made by the Tribunal on 7 April 2017 cancelling his registration as a psychologist. Mr Mayr seeks a reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law).
On 7 April 2017 the Tribunal found that each of the particulars of complaints of unsatisfactory professional conduct against Mr Mayr were made out and that the complaints cumulatively amounted to professional misconduct: Health Care Complaints Commission v Mayr [2017] NSWCATOD 52 (HCCC v Mayr).
The Tribunal cancelled Mr Mayr's registration and made an order that Mr Mayr could not apply for a review of the cancellation order for a period of five years.
The Tribunal also made an order prohibiting Mr Mayr from providing a series of other health services, namely community health services, counselling, health education services, mental health services, supervision or coaching of psychologists, psychology students or any allied health services and welfare services or any allied health services necessary to implement the prohibited services, unless and until he obtains re-registration as a psychologist.
The Health Care Complaints Commission (HCCC) appeared as a contradictor in these proceedings. The HCCC opposes a reinstatement order and seeks an order under s 163B(5) of the National Law that the order cancelling Mr Mayr's registration may not be reviewed until after a further two years.

Relevant Principles

As ss 163C(1) and 163C(2) of the National Law make clear, the review is not a review of the original decision to cancel the practitioner's registration, but is a review to determine the appropriateness of the cancellation order as at the date of the hearing of the application. As Brereton JA, with whom Bell P (as His Honour then was) agreed, stated in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17] (footnotes omitted): [17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public.
The approach to be taken in considering an application for a reinstatement order under the National Law has been set out in numerous decisions of the Tribunal. In Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13, Adams J noted that the general principles to be followed had been correctly identified by the Tribunal below in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [7]-[8] as follows (internal case citations omitted): "[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; (5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance; (6) "Clear proof" is required to establish that there has been a reformation of character. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made"; (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the Applicant. [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n Applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession."
In Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [13] the Tribunal said: [13] We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan [1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales [1989] NSWCA 58 at [12] (Mahoney JA). …
The standard of proof is the civil standard of proof, that is, on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Given that the National Law is directed at the protection of the public, the Tribunal must be satisfied to a robust level: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39] and the cases there referred to.

The Complaints and the Tribunal's findings

The Complaints made against Mr Mayr and found proved by the Tribunal related to him failing to maintain professional boundaries with a patient he had been treating, Patient A. The therapy provided by Mr Mayr to Patient A dealt primarily with Patient A's past sexual traumas.
The particulars of the Complaints are detailed and are set out in full in the Tribunal's decision cancelling Mr Mayr's registration: HCCC v Mayr at [1] - [43].
In summary, the Complaints were that Mr Mayr, a registered psychologist since 1992: 1. had an inappropriate and sexual relationship with Patient A which commenced in 2011 while Patient A was his patient and which continued for approximately 18 months after she was his patient; 2. failed to review his provisional diagnosis of Patient A or consider a different diagnosis; 3. failed to appropriately manage issues of transference and counter-transference with Patient A; 4. failed to keep appropriate clinical records concerning Patient A's treatment; 5. inappropriately requested Patient A delete all evidence of their personal communications for the period she was in therapy; and 6. breached patient confidentiality by telling Patient A about, or introducing her to, other patients.
Mr Mayr did not defend the proceedings against him and largely conceded the allegations made against him, except that he denied that he had commenced a sexual relationship with Patient A prior to the termination of his treatment of her as a patient, claiming that the sexual relationship commenced only after the termination of his professional relationship with her. He also denied that he asked Patient A to delete emails.
The Tribunal found: [102] The Tribunal has considered in detail the submissions made by the Applicant which clearly analyses each of the elements of the complaint brought against the Respondent. In light of the fact that the Respondent did not appear the Tribunal is comfortably satisfied that each of the particulars of complaints 1 to 4 are made out against the Respondent. [103] The Tribunal is comfortably satisfied that the arguments put forward by the Respondent and the character references provided to the Tribunal by the Respondent, none of which was capable of being questioned or cross-examined on by the Applicant or the Tribunal, can be given very little weight. Accordingly it does not affect the view of the Tribunal that in all respects, based on the evidence available to the Tribunal and the submissions made by the Applicant, that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct, which the Respondent in any event conceded in writing. [104] Having come to the conclusion that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct the Tribunal was obliged to consider the seriousness of the Respondent's behaviour in relation to Patient A and the protection needed by the public from the Respondent. [105] The Tribunal was deeply concerned that the Respondent's behaviour was of such a serious nature that the public requires to be protected from the Respondent and.(sic) In addition, the profession needs to be made aware that such behaviour cannot be tolerated by the profession without damage to the good name of the profession of psychology. The Tribunal's view is that the Respondent, a trained and qualified psychologist must have been aware of the very vulnerable state in which Patient A was when consulting the Respondent in respect of her past traumatic history. He would have been fully aware of the imbalance of power which exists between a psychologist and a patient particularly one in such a vulnerable state. Nevertheless he proceeded to use that imbalance of power to satisfy his own needs. [106] In the circumstances, the Tribunal came to the conclusion that the conduct of the Respondent was such a serious breach of his obligations as a psychologist that it warrants severe protective orders to be made.

The Material Relied Upon

In support of his application for a reinstatement order, Mr Mayr relied upon: 1. A letter in the nature of a character reference addressed to the Tribunal dated 19 June 2023 from Chris Patchett, a Counselling Psychologist (Exhibit A1); 2. A letter in the nature of a character reference dated 2 July 2023 from Ivan Bakich, a Clinical Psychologist and Clinical Supervisor (Exhibit A2); 3. A document dated 2 May 2023 headed "Submissions in Reply" which is in the nature of a statement made by Mr Mayr (Exhibit A3); 4. His application and the documents submitted with his application received by the Tribunal on 18 November 2022 including an earlier statement (undated) of Mr Mayr, letters dated 8 November 2022 from Mr Patchett and Mr Bakich and two other reference letters (Exhibit A4).
Mr Mayr also gave evidence at the proceedings, was cross-examined at some length and re-examined by his counsel.
The HCCC relied upon: 1. Email correspondence between the HCCC and Mr Patchett on 7 July 2023 (Exhibit R1); 2. An email to Mr Bakich dated 7 July 2023 (Exhibit R2) and Mr Bakich's email dated 7 July 2023 in reply (Exhibit R3); 3. A bundle of documents served by the HCCC in HCCC v Mayr comprising 349 pages (Exhibit R4); 4. Email correspondence between the HCCC and Mr Mayr's legal representatives between 19 June 2023 and 8 July 2023 (Exhibit R5); 5. A document headed "Commission's Reply" dated 5 July 2023 (Exhibit R6).

Conduct which the Tribunal found proved

Under cross-examination Mr Mayr said that he had read the Tribunal's decision in HCCC v Mayr three times: once when the decision was published, once approximately a month later, and then again about one month before the hearing of his reinstatement application.
When asked what the Tribunal had found in its decision, he said that he was found "guilty of malpractice and unprofessional conduct" but that he could not remember the "other legal terms". He said the Tribunal found that he had acted unprofessionally, violated professional boundaries, that his behaviour would have badly impacted Patient A, that what he did bought disrepute to the psychology profession, that he didn't record matters appropriately and that overall his conduct was below the standard that it should have been.
In cross-examination Mr Mayr was taken individually through many of the particulars of the Complaints the Tribunal found proved and asked whether he admitted now to that conduct. He did admit to most of the conduct particularised including that: 1. In around mid 2011 during a therapy session he invited Patient A to sit on his lap and he lifted her shirt above her breasts, kissed Patient A's stomach and breasts and told Patient A about his sexual desires; 2. In around mid 2011 during a therapy session he licked Patient A's face and continued until Patient A kissed him; 3. At the end of later therapy sessions he masturbated Patient A with his hand and watched Patient A as she masturbated herself; 4. He engaged in sexual intercourse with Patient A on a desk at his clinic during a therapy session; 5. He performed oral sex on Patient A at his clinic while she sat on the kitchen bench at the clinic; and 6. From mid 2011 to March 2013 he had an ongoing sexual relationship with Patient A.
However, there were a number of particulars of the conduct found proved by the Tribunal that Mr Mayr either could not remember or denied, including: 1. He could not remember saying to Patient A around early to mid 2011 words to the effect of "If I kiss you I will always want more". In re-examination he said that he may have made a general statement about what can occur if professional boundaries are broken, but did not believe he made this comment specific to his relationship with Patient A because it had not started at that time; 2. He denied that he told Patient A to delete emails exchanged between himself and Patient A during the period she was in therapy; 3. He denied saying to Patient A words to the effect "I am the type of person who would be in the shower with you and would take a shampoo bottle and put it up your arse"; 4. While he admitted that on one occasion at Patient A's home he motioned for her to lie on the floor and performed oral sex on her, he did not believe that occurred on an occasion when he had visited Patient A's home for the purpose of a therapy session with Patient D (Patient A's son) after Patient D had returned to school.
When asked if he thought that he had helped Patient A in her therapy, he said that, on reflection, he believed he had not helped her, that he had "possibly re-traumatised her or increased her trauma" and her "sense of unsafety" and that her ability to trust anyone in future may have been greatly affected.

Mr Mayr's non-attendance at the disciplinary proceedings

When asked why he did not attend the disciplinary proceedings Mr Mayr said that it was a combination of three factors: firstly, not being able to afford the costs of the hearing which had been estimated to be approximately $120,000, secondly that he had legal advice that the proceedings could be dealt with on the papers and thirdly that he did not want to retraumatise Patient A by being present at the hearing. However, he said that he now "drastically regrets" not appearing. When asked by the Tribunal whether he considered, at the time of the hearing, what effect his not attending the hearing might have on Patient A he said that he had not considered that at the time. He said that he thought Patient A was going to appear by AVL. He said that in the papers for the hearing there was a reference to Patient A being afraid of him. While he didn't understand why she would be fearful of him, he didn't want her re-traumatised by having to give evidence. He was trying to protect her and didn't understand at that time the impact that his not attending the hearing might have had on Patient A. He said that after he realised she did attend the hearing, he realised it was wrong of him not to have attended the hearing himself. He said that he could now see that by not appearing, he could be seen as being "arrogant, hiding and not being answerable to Patient A". He thought Patient A would have been confused, been asking herself "if he did love me, why is he not here?" and thinking to herself "He has only used me." He said it was "horrible" and that Patient A was entitled to have him present at the hearing.

Professional Development

In cross-examination Mr Mayr was asked whether he had undertaken any Ethics courses in the five years since his deregistration. He said that he had not. However, in re-examination he said that he had done an online course relating to being a supervising psychologist (which is a role he has had in the past and something he may look to do again if re-registered). He explained that 2 of the 5 days of that course were directed to ethics and boundary issues which he thought it was important to go over again. Mr Mayr did not say when he took this course.
In his "Submissions in Reply" and in re-examination Mr Mayr also said that he has also undertaken other online courses including relating to Internal Family Systems, the Neurobiology of Attachment and Trauma. He said he has also listened to professional podcasts and read journals and books including in relation to trauma including the book "Trauma and Recovery" by Judith Herman.
The Tribunal asked Mr Mayr if he had read anything about the rehabilitation of professionals who have violated sexual boundaries and Mr Mayr said that he had not. Nor had any such material been provided to him by either Mr Bakich or Mr Patchett (who are referred to below). Nor has he done any courses on counter-transference.

Counselling or supervisory sessions undertaken by Mr Mayr and identification of the factors which led to his boundary violations

In his "Submissions in Reply" document, Mr Mayr said that, since his deregistration, he has undertaken "regular sessions and meetings" with professionals in the psychology and other allied health fields. These activities, he says, have ranged from "formal therapy, supervision and guidance with his primary professional supervisor (Mr Ivan Bakich) to regular professional communication and discussion with Mr Chris Patchett (psychologist) and informal catch-ups" with other psychologists and other people.
He said: Sessions with Mr Bakich and Mr Patchett specifically have focused on my de-registration in 2017, the factors that contributed to this occurring, ownership of issues and systematically working through them, healing, recovery, acceptance, insight, shame, forgiveness, support, future professional and personal direction and growth, potential future challenges and risk factors, and the importance of ongoing supervision, guidance, growth and support.
When asked in cross-examination if he was currently undertaking any formal therapy, Mr Mayr said that he was not. He said he was always open to therapy but right now he thought he was "in a good place". He was asked whether he considered he would benefit from therapy in relation to attachment issues and he said he did not think he needed such therapy at the moment.
In re-examination he was asked whether he was having informal therapy sessions with Chris Patchett. He said "I'm not sure what you mean by informal therapy" but that he has had "catch-ups" on a 4-6 weekly basis with Mr Patchett and has been doing so for the last six and a quarter years. He said that in these sessions they would discuss how he is going, how he feels about the cancellation of his registration and what he wants to do in the future. He said that they were "informal therapy sessions in that sense". When asked whether he also discussed with Mr Patchett the underlying issues which led to his conduct with Patient A, he said he did discuss those issues with him "quite thoroughly".
When asked in re-examination if he had identified, in the sessions with Mr Patchett, what factors had led to his boundary violations occurring he said that his "scripting" was that he wanted to help people but that he was not well enough to help Patient A appropriately and the fact that he had allowed a relationship to develop was "awful". He said, "looking back, there was no supervision", his "notes were not thorough", he "had the pressure of running a practice and other life issues" and he was not aware of that and "didn't stop to take a break" and then when he found himself in a situation that he had a client he was attracted to, he "was not objective enough to refer her on".
Mr Mayr said that he regretted allowing his conduct to occur, ignoring it, denying it happened and then being arrogant about it, especially as the matter came before the Tribunal.
He said he prides himself on his work and it has been enormously difficult for him. He said he felt shame about the impact of his conduct on his own family and the impact on Patient A and her family.
He described the reasons for the conduct occurring as "attachment, transference/counter-transference, burn out and 'scripting'". Later in re-examination he said that he had a need for approval and the way he got that was by helping people, but he sees now that his attachment with his mother (wanting her to approve of him as a person) had a role in the incidents which occurred.
In response to a question from the Tribunal as to what he meant by the expressions "transference" and "counter-transference" Mr Mayr said that, instead of seeing him as a professional, Patient A may have seen him as a "father giving advice, that she wanted to please her dad and, therefore, followed his advice". He said, as she had done that, "his want to protect a little child came into play". She saw him as a father, and he saw her as a child he was looking after. This was all unconscious. When asked "is that what actually occurred?" Mr Mayr said "to some degree." He said his own issue was wanting to "please a woman so someone would look after him". That was his counter-transference.
Mr Mayr confirmed in re-examination that Mr Bakich had supervised him by order of the Psychology Board in the period leading up to his deregistration in 2017. Since his deregistration he has had four sessions with Mr Bakich, two in 2017, one in 2019 and, he thinks, one more session in 2021 although he cannot fully remember that. He said that each of these sessions were one hour long.
In the sessions with Mr Bakich before his deregistration Mr Mayr said, in answer to a question from the Tribunal, that they generally spent the first 15 minutes discussing the cases he was currently dealing with and the balance of the session dealing with the incident with Patient A, his self-reflection and what would prevent that from happening again.
In the sessions with Mr Bakich after his deregistration he did not discuss cases with Mr Bakich because he was no longer practicing. However, they discussed the issues leading up to the hearing, the impact of deregistration on him and other issues he wanted to clarify, the way he was coping and what he wanted to do in future. He was interested in obtaining Mr Bakich's objective guidance. The first two of these sessions he paid for, the last (one or) two sessions were free.
Mr Mayr said that he had voluntarily seen Mr Patchett and Mr Bakich because he valued their objective professional opinions and advice on "any remaining issues" he needed to clarify or go over again such as transference/counter-transference and attractiveness cues. He said he continued to see Mr Patchett and Mr Bakich in part to deal with the conduct that led to his interactions with Patient A and his own reflections on why it happened. He wanted to air those issues with a professional and work through it. He felt shame about what had happened, he had let everyone down and it had had enormous repercussions. He wanted help coping with the process. He also wanted to discuss his decision to seek re-registration.
Later, in response to a question from the Tribunal, Mr Mayr said that he did not need further sessions with Mr Bakich because he considered that his issues had been resolved by the time of the disciplinary proceedings.
When asked in re-examination what he had learnt about preventing a similar situation happening again or getting to a point where it could happen, My Mayr said that he was proposing that there be a condition on his registration that he have regular supervision, that he would be aware of potential triggers, such as an attraction, or topics that could trigger him or raise a "danger alert" and he would discuss those with his supervisor. He does not, however, presently want to be placed in a scenario where a patient has chronic trauma or to carry out therapy with women in general.
In response to a question from the Tribunal as to how he would manage a situation where he was sexually attracted to someone again, Mr Mayr said that if that were to happen and he was aware of it, he would be "very clear about boundaries". If he was in a professional relationship with the person, he would refer them on. He said that he would never again have a sexual relationship with a client or former client.

Work Mr Mayr would envisage undertaking if re-registered

Mr Mayr said that he wishes to re-register as a psychologist because he believes he has expertise, he wants to help people and to be an asset to the profession.
In cross-examination Mr Mayr was asked what patients he would see himself providing care to if re-registered. He said that, if re-registered, he would look at providing training or supervision, and later he said he would also like to do assessment work rather than therapy for a year or so. In re-examination he said that he thought he could use his expertise really well in the areas of assessment, training and supervision. He said he thinks he is a better professional now because of what he has gone through and that he could offer training and supervision more insightfully in respect of how vulnerable professionals can be. He thinks he can help people not make the same mistake he made.
In cross-examination he said that if he was to see clients he would look to work with clients who were experiencing grief rather than chronic or extreme Post Traumatic Stress Disorder (PTSD). He said that working with people with chronic or extreme PTSD was very demanding and intense work and he did not want to be placed in a situation where he could possibly retrigger them or cause trauma to them. He said he did not believe that he would, but he "just didn't want to be placed in that situation". He said treatment for chronic PTSD usually took about two years and that would be too demanding on him at this point of time, he would not have the energy to be involved in those cases at the moment. He said those patients would be better served by other practitioners. In re-examination he said that he did not believe he would be qualified to do that work.
When asked in cross-examination whether he would be concerned that he might abuse his power with such patients, he said that he did not believe that would occur, he would make sure through supervision and discussion of the case that it would not happen. He was not fearful of that happening. However, he said such clients may feel unsafe with him. If they did, he would make sure he got supervision on the matter and if it was too much for him, because it was retriggering for him, he would possibly refer the patient on.
He said he would not take on female clients who had sexual assault trauma in the past as he wouldn't be comfortable treating them at the present time as it would be too close to what occurred in 2011 to 2013 (when the conduct occurred). He said that no matter how clear he was about boundaries, there unconsciously "has to be transference and counter-transference issues" and he does not want to put himself in that situation as it could possibly influence his work and he could re-traumatise the patient.
When asked if there would be other patients he would not feel comfortable providing therapy to at this time, he said that was a difficult question because it depends on the patient and the issues being presented.
Mr Mayr was asked how he would manage the risk that a patient may not originally present with PTSD but it may emerge during the course of therapy that they did, in fact, have PTSD. He said that if that occurred he would tell the patient that he would like to refer them to another colleague who would be better able to deal with the issue.
In response to a question from the Tribunal as to whether, as a supervisor of a psychologist, there may be times when he might not be comfortable dealing with the case material they are discussing, Mr Mayr said that was a possibility. He said that if that occurred he would tell his supervisee that it was not an issue he felt comfortable dealing with because of his previous deregistration and refer them to someone else. He acknowledged that, as a supervisor, discussions with the practitioner would not be limited to discussion of that practitioner's clients' cases and could extend to the practitioner's own reaction to a client. He said he acknowledged that and would be aware of it, but he thought most cases would "flow ok". If an issue came up, as it could, he would need to address it at that point.

Insight

In his submissions in support of his application, Mr Mayr said that his deregistration had made him very aware of the "privileged, unique and vital role that psychologists fill". He said that the importance of psychologists in the lives of people who face mental health challenges and trauma has been made clear to him, "as have the necessities of strong boundaries, transparency, privacy, confidentiality, honesty, supervision and answerability". He said with a stronger understanding of these matters, he can see how his previous actions caused "much damage to the health and lives of many people and the psychological profession itself".
In re-examination, Mr Mayr was asked to compare his level of insight today to his level of insight during 2011 to 2013. He said that he would put his level of insight in 2011 at 2% and today at 100%.
When asked how his behaviour had impacted Patient A he said "terribly". He said his behaviour would have caused her great confusion, he did not keep boundaries clear and he did not keep his patient safe. He said it would have been traumatising for Patient A and her family and she would "possibly have been worse off mentally than before therapy".

Conditions Mr Mayr proposes be placed on his registration

Mr Mayr has proposed the following conditions be placed on his registration if his application for re-instatement is successful: 1. That he continue to be supervised by Mr Bakich and Mr Patchett for a further 12 months or such longer period the Tribunal deems necessary; 2. That he not attend upon any clients at their homes unless there are exceptional circumstances, and then only in the company of another registered psychologist; 3. That he be limited to treating a maximum of three patients a day for a further period of two years upon registration; and 4. That his clinical notes be subject to auditing by the Psychology Council of NSW on an annual basis agreed between him and the Council.
In re-examination Mr Mayr confirmed that he was willing to abide by those conditions. When asked whether he would benefit from weekly supervision he said that he was not against that, but fortnightly supervision might be better. When asked how the conditions proposed would assist, he said that they would make sure he was answerable to the profession, bring an element of objectivity to his work, would help him to reflect back on how he was going with his clients and what he was learning and any triggers or warning signs which were coming up and identify any aspects he might be missing. He said he thought supervision would also aid him in identifying warning signs. He said it would also help him identify whether "this is the sort of work I want to do". He also thought clients would "find it easier".

Mr Bakich and Mr Patchett's Letters

In a two-page letter addressed to the Tribunal dated 8 November 2022 Mr Ivan Bakich, a clinical psychologist and clinical supervisor, states: Please accept my comments relating to Mr Harry Mayr, psychologist, I supervised during the process of his deregistration by the Psychology Board of Australia in 2017 related to his overstepping of professional boundaries with a former patient. Mr Mayr received intense clinical supervision from me as suggested by the NSW Psychology Council. During this supervision, Mr Mayr has examined his previous patterns of interaction with patients, his personal needs including attachment, self-desirability, and a need to be wanted and needed. … Mr Mayr has addressed his needs: he has become cognisant of his vulnerable self; he has acknowledged that he misread patient's transference and responded with inappropriate emotional and intimate countertransference toward his patient. Mr Mayr is now aware of the then regressed self, which has since matured considerably. I believe firmly that, through supervision, through self-examination and through self-analysis, Mr Mayr had identified his sensitive sides, his "boutons sensibles". Mr Mayr has developed further awareness of possible transgressions in clinical situations; now he demonstrates alertness to such clinical presentations. Mr Mayr has confirmed his commitment to follow Ethical Guidance and to seek immediate consultations with a senior colleague if a challenging/confronting situation occurs in his clinical practice. I am aware of Mr Mayr's motivation and desire to return to psychology practice: recent interactions with Mr Mayr indicated that he was ready to return to psychological work. I believe that Mr Mayr will adjust to psychological work very well; Mr Mayr is an experienced and capable psychologist. I suggest that Mr Mayr may benefit from occasional monthly supervision as he commences his psychological work, however, it is a suggestion, not a mandate. I believe that Mr Mayr is now responsible enough to accommodate this into his practice. As his previous clinical supervisor, I support Mr Mayr's application for reinstatement as a psychologist.
In a further two-page letter dated 2 July 2023 Mr Bakich states: Please be advised that I attest to Mr Mayr's personal and professional development during the period of his deregistration, from 2017 to the present. During this period Mr Mayr has addressed personal issues such as early developmental dynamics and significant attachments during his formative and subsequent years. Through his consultations with me, Mr Mayr has been working through the significant relationships in his life which necessitated both emotional and physical attachments to significant others. Please be informed, these brief reflections and working through focused on Mr May's early attachment styles, specifically, maternal, and other female. Mr Mayr's motivation and desire to return to his role as a psychologist were strong from the outset; and are strong now. Through consultations, frequent discussions, and guidance offered relating to the ethical and boundary violations, I feel that Mr Mayr has acquired sufficient knowledge and developed awareness of potential pitfalls which must be recognised in the psychologist-patient relationships. In addition, Mr Mayr has sharpened his perception of possible attraction cues, and developed adequate self-control and management strategies of his responses in such potential circumstances.
On Friday 7 July 2023, ahead of the hearing on 10 July 2023, the solicitor for the HCCC emailed Mr Bakich attaching a summons to produce records in relation to Mr Mayr for the last five years.
In an email dated 7 July 2023 in response Mr Bakich said: Bon jour Madame. I am at a loss right now because I do not know what material your good self is referring to!? I had supervised Mr Mayr [for the] Psychology Council, he was deregistered for 10 years and, the [m]atter was closed for me. In the period since then I have moved my practice and I am not sure that any of my reports are to be found anywhere.
In a two-page letter dated 8 November 2022 addressed to the Tribunal, Mr Chris Patchett, a psychologist with 43 years' experience, stated: This letter is provided at the request of Mr. Mayr, as a professional and character reference. I am fully aware of his deregistration and related restrictions imposed in 2017 after facing the matters regarding 'unsatisfactory professional conduct and/or professional misconduct, as well as conduct that was improper and unethical in the practice of psychology' before NCAT. … History with Mr. Mayr I initially met Mr. Mayr when I commenced clinical work at the Sydney Wesley Central Mission's Lifeline service as a Psychologist/Drug & Alcohol Counselor in 1979. He was a volunteer telephone and face to face counsellor at that time. We became friends and professional colleagues as he completed his training as a Psychologist. I worked directly with Mr. Mayr on a part time basis, primarily in two periods in the late 1990s and 2000's. We have had many professional case discussions up to the present time, usually 2-3 times each year. Responses to Deregistration Mr. Mayr is deeply remorseful for his actions, and the very negative impact this has had on his ex-client and her family. He has a clear understanding of the responsibilities of his professional role as a psychologist, and how his actions through that period were unacceptable. Through intense clinical supervision since 2015 with Clinical Psychologist Ivan Bakich, Mr. Mayr has developed a much greater understanding of his personal and professional life patterns, and lack of necessary professional self care that led to his inappropriate boundaries and lack of recognition of the power differential with his ex-client. In response to the whole process of being deregistered, as well as very deep regret for the impacts on his ex-client, Mr. Mayr has experienced very significant grief, shame and distress in his personal and family life. He has worked very hard in learning from this harrowing time, undertaking a thorough review of his professional ethics, values and practices. In discussing the learnings through this time, Mr. Mayr has described deeper awareness of ethical practice in regard to boundaries and the power dynamics in professional clinical service provision, as well as the vital role of consistent, planned professional supervision and self-care. He has also developed a deep level of sincere humility about the privilege of working in this field, and the care and accountability that is required for our community. Conclusion Mr. Mayr is deeply remorseful about his inappropriate and unprofessional actions that led to his deregistration, particularly the impact his actions had upon his ex-client and her family. I have observed the depth and rigorous ways in which he has worked on the personal and professional factors that led to and maintained these behaviours. Mr. Mayr has a genuine desire to apply his learnings from this whole time, in conjunction with his extensive experience and specialized skills as a psychologist and contribute to the provision of ethical and effective psychological services to our community. Given his genuine and deep remorse, and the productive impact of his intense personal and professional work on the patterns and practices that led to the Inappropriate conduct, I support Mr. Mayr's application for registration as a Psychologist.
In a further two-page letter dated 19 June 2023, Mr Patchett states: This letter is provided at the request of Mr. Mayr, as a brief updated summary of my Secondary Supervision with him on an ongoing basis since his Psychologist's deregistration and related restrictions were imposed in 2017 after facing the matters regarding 'unsatisfactory professional conduct and/or professional misconduct, as well as conduct that was 'improper and unethical in the practice of psychology' before NCAT. Please refer to my previous letter dated September 2022 for my detailed history with Mr. Mayr. Secondary Supervision Mr. Mayr has had ongoing, formal Primary Clinical Supervision with Clinical Psychologist, Ivan Bakich since 2017. I have had an ongoing Secondary Supervision relationship with Mr. Mayr both prior, and subsequent to his deregistration in 2017. Since 2017, this contact has been regular, averaging 10-12 sessions each year, and it will continue on this basis. During these sessions, our focus has been intensive reflective practice regarding Mr.Mayr's learnings and changes from the cognitive and emotional patterns and behaviours in his professional and personal life that led to his unsatisfactory professional conduct and professional misconduct. This had a particular focus on the harm to his previous client and her family in this matter, and to his own family. Topics and themes in these sessions included: personal responsibility for clinical relationships based on his role as a Psychologist with the inherent power imbalance with all clients; careful reviews and applications of the Australian Psychological Society Code of Ethics and relevant Guidelines; effective professional, ongoing accountabilities through professional development in key clinical areas and ethical practices, including careful risk assessments and boundary issues, and also professional self care with a proactive and committed approach to dynamic work life balance. We also review Mr. Mayr's ongoing professional development: courses in Internal Family Systems, Attachment and other Trauma Interventions; working through professional podcasts, journal articles and books, and also his self care with a special focus on weekly and intensive Tai Chi sessions, as well as focussed work on his key personal relationships. Mr. Mayr has continued to apply himself in a very committed way in all of these professional and personal activities. As noted previously, he remains deeply remorseful about his inappropriate and unprofessional actions that led to his deregistration, particularly the impact his actions had upon his ex-client and her family, and his own family. I have observed the depth and rigorous ways in which he has worked on the personal and professional factors that led to and maintained these thought patterns and behaviours. Given the deep learnings and changes Mr. Mayr has made, and his commitment to ongoing primary and secondary supervision and professional development, including careful adherence to the Australian Psychological Society Code of Ethics and relevant Guidelines, I support his application for re-registration as a Psychologist.
In an email dated 7 July 2023 to the solicitor for the HCCC, also in response to an email enclosing a summons to produce records relating to Mr Mayr, Mr Patchett stated: I would like to clarify that my supervision contacts with Mr Mayr from 2017 to the present, were always on an informal basis, therefore no records were kept. The recent letter I have supplied expresses my opinion of Mr Mayr's personal work and professional reflections in that context.

The Parties' submissions

Mr Mayr submits that the evidence should comfortably satisfy the Tribunal that: 1. He is suitably qualified and trained to practise in a competent and ethical manner. 2. If able to re-register as a psychologist, the protection of the health and safety of the community is secured by virtue of his rehabilitation. 3. He can be trusted to practise in a way that conforms with the relevant professional standards and in a way that presents no risk to the public and the confidence it has in the profession. 4. He has affirmatively and clearly demonstrated his rehabilitation and reformation and is deserving of a second chance. 5. He can be relied upon to act in an appropriate way in accordance with the high standards of the profession in his future practice of psychology.
The HCCC submits that: 1. Given the seriousness of the proven conduct, the cancellation order remains appropriate to protect the public; 2. Given the available evidence, the Tribunal cannot be confident that Mr Mayr's character is reformed; 3. Given he has not taken the opportunity to complete relevant rehabilitation, the Tribunal cannot be confident that Mr Mayr would comply with his professional obligations in future; 4. Given Mr Mayr's limited insight, the Tribunal cannot be satisfied that he has demonstrated genuine insight and gained a proper appreciation of the role of psychologist.

Consideration

Mr Mayr desires to return to his profession to which he feels he can make a meaningful contribution.
Five years having passed since the Tribunal's orders were made against him, it is open to Mr Mayr to seek a review of the order cancelling his registration under s 163A of the National Law.
However, as set out above, the Tribunal must be satisfied that Mr Mayr can be trusted to return to practise in a manner that presents no risk to the safety of the public and their confidence in the profession. On the evidence before us, we cannot be so satisfied.
We do not accept the HCCC's submission that Mr Mayr does not properly understand the cancellation decision or what the Tribunal found against him. While he did not know all the legal terminology, and has read the decision only three times, we find that Mr Mayr does understand the nature of the findings against him.
Mr Mayr admitted to most of the serious misconduct the Tribunal found against him. However, it is concerning that he would, at this hearing, deny some of the findings of the Tribunal in the disciplinary proceedings against him in circumstances where he did not defend those proceedings. This review is not a re-hearing of the findings made in the disciplinary proceedings and we proceed on the basis of the Tribunal's findings in those proceedings.
We acknowledge that Mr Mayr has expressed remorse for his conduct. However, while the letters from Mr Patchett refer to Mr Mayr having expressed remorse for the impact of his conduct on Patient A, it is concerning that in his grounds and submissions in support of his application for reinstatement, Mr Mayr made no specific mention of the impact or potential impact of his conduct on Patient A.
In terms of the impact of his conduct on Patient A, Mr Mayr now acknowledges that he had not helped Patient A in her therapy. However, it is also of concern that his evidence, on two occasions, was only that he had "possibly" retraumatised her or increased her trauma.
While Mr Mayr now deeply regrets not attending the disciplinary proceedings, it is concerning that, at the time of that hearing, by which time he says he had been under the supervision of Mr Bakich for some time, and by which time, he told the Tribunal, he thought that he had "resolved his issues", he did not understand why Patient A might be fearful of him.
Mr Mayr has not taken appropriate steps to address the issues which led to his egregious behaviour and his failure to do so demonstrates to us that Mr Mayr still does not appreciate the impact of his conduct on Patient A. We return to the question of insight further below.
Mr Mayr says that he has identified the issues which led to his boundary violations. He described them as "attachment, transference/counter-transference, burn out and 'scripting'". However, on the evidence before us, there remains a lack of clarity as to exactly what personal factors led to Mr Mayr behaving as he did. Mr Mayr's explanations of these matters were confusing. He said that his attachment with his mother (wanting her to approve of him as a person) had a role. Further, of particular concern to us was Mr Mayr's description of the transference/counter-transference issues which contributed to his conduct. He described this issue as, in part, Patient A wanting to "please her father" and him wanting to "protect a little child". These statements were deeply concerning and provide, in our view, an unlikely explanation for what occurred. While what Mr Mayr describes may explain his attachment to the client, we do not see how either of those issues could possibly explain his choice to exploit a sexual relationship with Patient A. These unlikely explanations also give us reservations as to his fitness to practise as a psychologist.
As to the work Mr Mayr says he has done to address the issues he has identified, there were inconsistencies in Mr Mayr's evidence in this regard and, again, his evidence was confusing.
In his "Submissions in Reply" document Mr Mayr said that since his deregistration in 2017 he has undertaken and "continued" "formal therapy" with Mr Ivan Bakich. However, in cross-examination Mr Mayr conceded that since his deregistration he had had, at most, four "sessions" with Mr Bakich the latest being (possibly) in 2021. Mr Bakich has no notes of those sessions and Mr Bakich's email dated 7 July 2023 addressed to the HCCC indicates that he considered his formal relationship with Mr Mayr closed when Mr Mayr was deregistered, so it is clear that those sessions were not in the nature of "formal therapy". We also note that in those "sessions", as well as discussing the issues leading up to the disciplinary proceedings, Mr Mayr and Mr Bakich discussed the impact of de-registration on him, how he was coping and what he wanted to do in the future.
In his "Submissions in Reply" document Mr Mayr said that he had also had "regular professional communication and discussion" with Chris Patchett. In his evidence under re-examination he described the sessions he has had with Mr Patchett as "catch-ups" every four to six weeks. It was only at his counsel's suggestion that he accepted those "catch-ups" might be characterised as "informal therapy". These discussions have also not been documented.
However the discussions with Mr Patchett might be characterised, it is clear that since his deregistration, while he may have had a large number of informal discussions, Mr Mayr has had no formal therapy in relation to the issues which led to his egregious boundary violations occurring.
This is perhaps unsurprising given that he said that, by the time of the disciplinary proceedings he felt that he had resolved the issues which led to his boundary violations.
Other than the discussions with Mr Bakich and Mr Patchett the only other steps Mr Mayr has taken since his deregistration which, he says, demonstrate rehabilitation are to have undertaken some online training courses (in respect of which there is no supporting evidence before the Tribunal), listen to "professional podcasts", read some magazines and books and attend weekly tai chi and qi gong classes.
The training Mr Mayr says he has undertaken is wholly inadequate considering the seriousness of his misconduct. He has undertaken no properly accredited courses on the issue of ethics, has not read any material about the rehabilitation of professionals who have violated sexual boundaries and has done no courses relating to counter-transference.
In support of his submission that he is rehabilitated Mr Mayr also seeks to rely on Mr Bakich's and Mr Patchett's character references.
In so far as Mr Bakich's character references are concerned, as noted above Mr Bakich has seen Mr Mayr on, at most, four occasions since 2017, the most recent occasion being no later than 2021.
This Tribunal's task is to consider Mr Mayr's current fitness to practice and whether he currently poses no risk to the public. Mr Bakich cannot speak to Mr Mayr's present circumstances and his letters, therefore, can be of no real assistance in this regard and we give them no weight.
So far as Mr Patchett's letters are concerned, in both letters, Mr Patchett indicates that it is his understanding that Mr Mayr has been undertaking intense clinical supervision with Mr Bakich ongoing since 2015 (in the 8 November 2022 letter) or 2017 (in the 19 June 2023 letter) which is clearly not correct. Further, Mr Patchett describes his relationship with Mr Mayr as an ongoing "Secondary Supervision" relationship subsequent to his deregistration. However, as Mr Mayr has not been practising since that time, that characterisation of their relationship cannot be accurate.
Nevertheless, we are prepared to give some weight to Mr Patchett's reference.
However, neither Mr Bakich's nor Mr Patchett's letters comprise a rigorous independent expert assessment of Mr Mayr's current psychological state, level of insight or as to whether he is fully rehabilitated. Neither Mr Bakich or Mr Patchett would be in a position to make an expert assessment of Mr Mayr having undertaken no structured psychological consultations or holistic assessment of Mr Mayr.
Given the informal nature of his sessions with Mr Mayr, the absence of any notes of those sessions and the brevity of Mr Patchett's letter, Mr Patchett's letter is simply insufficient to give us any real comfort as to these matters.
Mr Mayr complains that the HCCC did not require either Mr Bakich or Mr Patchett for cross-examination and that, had they done so, their evidence could have been "explored further" by the HCCC. He submits that for the HCCC to criticise Mr Bakich's or Mr Patchett's evidence amounts to a breach of the rule in Browne v Dunn (1893) 6 R 67 (namely that a cross examiner cannot rely on evidence that is contradictory to the witness' evidence without putting the contradictory evidence to the witness in order to allow them to attempt to justify the contradiction). However, Mr Mayr has the onus of proof in these proceedings. It is not incumbent on the HCCC to cross-examine Mr Mayr's witnesses to seek to fill evidentiary gaps.
Mr Mayr also relies on two further character references. The first is from a registered nurse who has had a friendship with Mr Mayr since 1980, but who has not had a professional relationship with him. That referee expresses the opinion that Mr Mayr has shown remorse and "has renewed insight into the areas that will challenge him in any future therapeutic relationships and is committed to having ongoing clinical supervision to ensure he remains clear and objective in the therapeutic milieu". The second is from a priest who has known Mr Mayr for 50 years which states that Mr Mayr "is also very much aware of what led to his regrettable actions and the consequences of his irresponsible professional boundary violation". While these letters also support the conclusion that Mr Mayr is remorseful about his conduct, neither of these referees are qualified to provide a psychological assessment in respect of Mr Mayr or to draw conclusions as to the matters in respect of which this Tribunal must make findings.
Accordingly on the basis of the evidence before us we cannot find that Mr Mayr is rehabilitated.
Mr Mayr indicated that, if re-instated, he would prefer to be involved in training, assessment and supervisory work, rather than treat patients, at least for a period. However, if he were to treat patients he would prefer not to see female patients and would not want to treat patients with chronic PTSD because he would not have the energy to be involved in treating those patients at this stage and did not wish to be placed in a position where he could retrigger patients or cause them further trauma. He said that such clients may feel unsafe with him. He said he did not think he would be "qualified" to do that work. It is possible Mr Mayr would also not be comfortable treating other patients. These are all clear further indications, in our view, that Mr Mayr is not yet fit to return to practice.
Mr Mayr's plan to refer patients on who might present with PTSD later in treatment also demonstrates clearly to us that Mr Mayr remains prepared to put his own needs and desires (his wish to return to practise) ahead of the needs of his patients. It could potentially be traumatic for a vulnerable patient who has developed a relationship with one practitioner to have to be referred to another practitioner part way through therapy. This demonstrates to us that Mr Mayr has not gained sufficient insight into the fact that what he did with Patient A was to put his needs and desires before hers.
The plan that Mr Mayr has for ensuring that there is no repeat of similar conduct involves continuing to adopt healthier lifestyle activities like tai chi and qi gong, having a regular supervisor going forward and being aware of potential "triggers" so that he may discuss them with his supervisor.
However, the supervision conditions Mr Mayr would propose be placed upon his registration if re-instated are ill thought through and problematic.
First, they assume Mr Mayr would be treating patients, whereas he has said his preference was not to do so.
Secondly, the proposal to "continue" supervisory sessions with Mr Bakich and Mr Patchett is problematic as neither Mr Bakich nor Mr Patchett have been formally supervising Mr Mayr since his deregistration.
Thirdly, Mr Mayr says that he would be aware of "potential triggers" or topics that could "trigger" him and he would discuss those with his supervisor. It is not clear whether the proposal would be to discuss those issues before seeing a patient or after seeing a patient where those issues have arisen. If the latter, we do not understand how, in practice, that would work to ensure that boundaries are not violated before the discussion takes place. Of particular concern in this regard was Mr Mayr's response to a question put by the Tribunal that, if he found himself in a situation where he was sexually attracted to someone again and he was aware of it, he would refer them on.
The proposed condition that he not attend clients at their homes unless in exceptional circumstances and then only in the company of another registered psychologist, again raises practical issues. First, it is not clear in what "exceptional circumstances" it would be deemed appropriate for him to attend a client's home for therapy. Secondly, this would be likely, in our view, to be problematic for his patients who may not feel comfortable having another person present. This again demonstrates a willingness to put his own needs above those of his patients.
My Mayr said that he would not propose to treat women or patients with chronic trauma, but this is not factored in as a proposed condition to be placed on his registration.
The proposed supervision conditions give us no comfort that they would operate to prevent any future boundary violations.
The onus is on Mr Mayr to demonstrate to the Tribunal that, having engaged in conduct of such a serious nature as to have his registration cancelled with a non-review period of five years, he can now be trusted to return to practise in a way that presents no risk to the safety of the public and their confidence in the profession. Clear proof is required that he has gained insight and that he will not behave in future in a way that causes risk to patients or may bring the profession into disrepute. The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of the public.
Mr Mayr has clearly not discharged his onus of proof on this review. While Mr Mayr has expressed remorse, we do not think he has gained real insight into his conduct and the impact or potential impact it has had on Patient A. On the evidence before us we cannot be comfortable that Mr Mayr is rehabilitated to the point that he is fit at this time to practise as a psychologist. We are not satisfied that if Mr Mayr found himself in a situation again where he was sexually attracted to a patient there is no risk that he would act inappropriately. We do not consider the conditions which Mr Mayr proposes would mitigate against that risk. In the circumstances, we cannot be satisfied that, if he were to return to practise, Mr Mayr would pose no risk to the safety of the public or their confidence in the profession.
Accordingly, we will order that his application for reinstatement be dismissed.
Further, we consider that Mr Mayr should be prevented from making a further application for re-instatement for a period of 18 months from the date of these reasons. Such a period should be sufficient for Mr Mayr to take further steps to address the issues which led to his conduct occurring, undergo formal therapy, undertake properly accredited courses in relation to ethics and the maintenance of professional boundaries particularly in a sexual context and allow him to reflect further on the consequences or possible consequences of his behaviour towards Patient A in terms of her psychological state and her life as a whole. When such steps have been taken and Mr Mayr believes he is fit to return to practice without risk to the public, he will need to provide clear proof as to his then level of insight, rehabilitation and fitness to practise by way of a report by an independent expert psychologist or psychiatrist who has demonstrated knowledge in the assessment of health professionals who commit sexual boundary violations, which report details rigorous psychological/psychiatric testing having been undertaken.

Costs

In exercising the power to award costs under cl 13 of Schedule 5D of the National Law, the general rule is that "costs follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
Mr Mayr submits that, in this case, no order as to costs should be made and points to the decision of Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and a number of cases which have followed it where no order as to costs was made. Donnelly and a number of the cases referred to by Mr Mayr were considered at some length in the case of Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At [82] the Tribunal concluded: What emerges from the review of the cases raised by the applicant where no order was made is that the public interest respondent who is given leave to appear in answer to a reinstatement application should not assume that the Tribunal will compensate it for their participation, at least where the applicant's application is successful. Some attention will be given by the Tribunal to the way the respondent conducted itself in the proceedings (a usual matter in all cases involving costs disputes). Where the participation is seen as unsatisfactory or of little or no value, it may be disposed not to order costs.
At [87] the Tribunal concluded: … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused.
In conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the HCCC as a public interest contradictor: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [51].
As Mr Mayr properly concedes in his submissions, the HCCC has not engaged in any disentitling conduct in the manner in which it has opposed his reinstatement application. The HCCC has conducted its case appropriately. As such, we can see no reason to depart from the general rule that costs should follow the event.

Orders 1. Pursuant to s 163B(1) of the Health Practitioner Regulation National Law (National Law), the application is dismissed. 2. Pursuant to s 163B(5) of the National Law, the Applicant is not to make a further application for review of the order cancelling his registration as a psychologist for a period of a further 18 months from the date of this decision. 3. The Applicant is to pay the Health Care Complaints Commission's costs as agreed or assessed.

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: 29 September 2023

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (1)

Cases Cited (15)

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