REGISTRATION ACT 2000](/cgi-bin/viewdoc/au/legis/tas/consol_act/pra2000338/)

Professions and Trades - Health care professionals - Psychologists - Disciplinary proceedings - Sexual relationship with former client - Procedural fairness when new basis for alleging professional misconduct emerged during proceedings - Sufficiency of disciplinary authority's reasons in relation to complainant's marriage to the psychologist.

Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997, BC9707354; Re a Medical Practitioner [1995] 2 Qd R 154; A Practitioner v The Medical Board of Western Australia [2005] WASC 198; RJT v Nurses' Board of Victoria [2000] VSC 498; Cato v Medical Board of Victoria, unreported, Supreme Court of Victoria, 21 June 1985, BC8500201, referred to.

Psychologists Registration Board of Tasmania: B R McTaggart

Psychologists Registration Board of Tasmania: Wallace Wilkinson & Webster

Judgment Number: [2009] TASSC 70

IN THE MATTER OF THE PSYCHOLOGISTS REGISTRATION ACT 2000

1 This is an appeal by a psychologist pursuant to the Psychologists Registration Act 2000 ("the Act"), s58(1). The appellant is aggrieved by a decision of the Psychologists Registration Board of Tasmania ("the Board") in relation to a complaint about him having a sexual relationship with one of his former clients. Amongst other things, the Board decided to suspend his registration as a psychologist for six months. The proceedings were initiated by a complaint by the former client. She is the appellant's wife. The appellant contends that the Board made various errors, that its decision should be quashed, and that the matter should be remitted, with appropriate directions, for rehearing.

2 The appellant and the complainant met as psychologist and client. The complainant had been suffering from panic attacks and anxiety symptoms. She was injured in a motor vehicle accident on 25 July 1996, after which her symptoms were worse. Her general practitioner referred her to the appellant in December 1996. She saw him for the first time on 28 January 1997. He saw her on 57 occasions. He treated her for about 2½ years. Her last appointment with him was on 12 July 1999. At the conclusion of that last appointment he and she kissed each other passionately. They commenced a sexual relationship about two weeks later. They commenced living together in about November 2000. They were married on 4 March 2001. There were marital difficulties by Easter 2003. The couple finally separated in mid-2004. They have not been divorced, but a dispute as to property settlement went to trial in the Family Court in May 2006. In June 2007 the complainant made a written complaint to the Board in accordance with the Act, s42(1).

3 The Act contains, in s43(2), a non-exhaustive list of matters that may constitute professional misconduct on the part of a registered psychologist. Under s43(2)(c), a registered psychologist is guilty of professional misconduct if he or she "contravenes a provision of the Psychologists Code". That code is a series of by-laws made by the Board pursuant to s11.

4 The Act contains provisions as to a complaints procedure, to the following effect:

•

A complaint has to be investigated by a disciplinary committee, constituted by no less than three persons, at least two of whom are to be registered psychologists: s46.

•

A disciplinary committee must observe the rules of natural justice: Schedule 3, cl 3(d).

•

After conducting an investigation, a disciplinary committee must give the Board a written report on the investigation and its findings and recommendations, including any recommendations as to costs: s49.

•

On the receipt of such a report, the Board may, in its discretion, take one or more of certain listed actions, including the removal of the defendant's name from the Register of Psychologists; suspension of the defendant's registration, totally or partially, for a period not exceeding 12 months; and requiring the defendant to take or refrain from taking specified actions: s50(1).

1">5 It is an offence for a person who is not a registered psychologist to practise a profession or trade under any of the titles psychologist, certified psychologist, licensed psychologist, qualified psychologist, or registered psychologist: s62.

6 The Board appointed a disciplinary committee consisting of two psychologists and a legal practitioner. That committee conducted a hearing on 28 April 2008. A legal practitioner from another firm, Mr Wood, appeared as counsel assisting the committee. The appellant attended the hearing and represented himself. Before that hearing, on 2 April 2008, the Registrar of the Board wrote to the appellant advising that the committee would hold a formal hearing in relation to breaches of the Psychologists Code that had allegedly been committed by him. The letter went on to set out two provisions in the Psychologists Code, and to list numbered "particulars of breach" in respect of each provision.

7 The Psychologists Code did not exist until 3 September 2003, when the Board made by-laws under s11. The hearing held by the disciplinary committee related to the appellant's conduct in the two years after his professional relationship with the complainant ceased, ie in the two years ending on 12 July 2001. The Psychologists Code does not operate retrospectively.

8 None of the lawyers or psychologists present at the hearing on 28 April 2008 noticed, at the time, that the hearing related to allegations that the appellant had breached the Psychologists Code before that code had come into existence.

9 The allegations and particulars set out in the Registrar's letter of 8 April 2008 read as follows:

"1 Breach of section 2.12 of the Psychologists Code of Practice [sic], which provides -

'No psychologist may engage in a sexual relationship with a client or a former client when less than two years have expired since the ending or termination of a professional relationship. In any event psychologists are advised to seek the advice of a senior colleague before beginning a sexual relationship with a former client'.

1.1 That on or about July 1999 you commenced an inappropriate sexual relationship with a former client, [the complainant] within an inadequate period of time after the termination of your professional relationship with the complainant.

1.2 That you failed to seek the advice of a senior colleague prior to entering into a sexual relationship with [the complainant].

1.3 That you failed to terminate your inappropriate sexual relationship with [the complainant] at a time when you knew or ought to have known that you were in breach of the Psychologists Code of Conduct [sic] by engaging in a sexual relationship with [the complainant].

2 Breach of section 1.1 of the Psychologists Code of Practice [sic], which provides -

'Psychologists are required to conduct their professional duties in a manner that meets the standards accepted by the general body of psychologists'.

2.1 By failing to terminate your professional relationship with the complainant when you became aware that you had personal feelings for the complainant.

2.2 By commencing a sexual relationship with the complainant prior to the expiration of the requisite 2-year period after you concluded treating the complainant.

2.3 By continuing a sexual relationship with the complainant prior to the expiration of the requisite 2 year period.

2.4 By failing to seek the advice of a senior colleague before beginning a sexual relationship with a former client.

2.5 By failing to be wary of dual personal or professional relationships with clients and by failing to seek the advice of a senior colleague contrary to clause 2.8 of the Psychologists Code."

10 Nobody at the hearing noticed that the second of these charges was entirely misconceived. It alleged that the appellant had breached a requirement as to the conduct of his professional duties. But he ceased conducting professional duties in relation to the complainant on 12 July 1999, and the allegations made in the particulars related entirely to events that occurred after that date.

11 The appellant admitted having breached by-laws 2.12 and 1.1, though he disputed the allegations in particulars 2.1 and 2.5 in the Registrar's letter.

12 The disciplinary committee met in private on 18 July 2008 to deliberate, and to finalise its report to the Board. At that stage its members realised that the Psychologists Code was not in existence at the time of the conduct it was considering. However the committee made findings that the appellant had engaged in conduct which amounted to professional misconduct at common law by (1) commencing a sexual relationship with the complainant less than two years after the end of their professional relationship; (2) continuing that sexual relationship within that two year period; and (3) failing to seek the advice of a senior colleague before beginning a sexual relationship with a former client. It recommended to the Board that it suspend the appellant's registration for a period of not less than six months, require him to undertake certain studies as to ethical issues, require him to undertake regular monthly sessions of peer review on recommencement of his practice, and require him to pay the costs and expenses arising from its investigation.

13 The Registrar of the Board wrote to the appellant on 22 August 2008, sending him a copy of the disciplinary committee's report, and offering him an opportunity to make written submissions or to appear before the Board in person. He wrote back, providing information relevant to the question of penalty, but saying nothing about the proposition that his conduct amounted to professional misconduct at common law. The Board met on 7 October 2008 and made a decision whereby it accepted the findings of the disciplinary committee as to professional misconduct, suspended the appellant's registration for six months, and made other orders as recommended by the disciplinary committee.

14 Under s52(1)(a), once the Board decided what action to take under s50, it was obliged to give the appellant notice of its decision and the reasons for the decision. The reasons that it provided are set out in a letter from the Registrar to the appellant dated 29 October 2008. They were extremely brief. They read as follows:

"DECISION

The Board accepted the findings of the Committee as follows:

1 That you commenced a sexual relationship with the complainant prior to the requisite 2 year period as defined by the Psychologists Code now, and as defined by the Australian Psychological Society's Code of Ethics at the time of the relationship.

2 That you continued a sexual relationship with the complainant prior to the expiration of a 2 year period defined above; and

3 That you failed to seek the advice of a senior colleague before beginning a sexual relationship with a former client.

The Board finds that you engaged in conduct which under common law amounts to professional misconduct in that you engaged in conduct that would reasonably be regarded as disgraceful or dishonest [sic] by members of the psychologists' profession of good repute and competency in relation to the grounds of the complaint.

The Board is conscious that its actions ought be seen as being protective rather than punitive and whilst accepting that the suspension of a practitioner from the Register of Psychologists is a significant step to take the Board considers that a suspension and other measures in this case are necessary to ensure that you fully appreciate the seriousness of your actions and that a repetition of your conduct is not likely to occur again in the future.

In all the circumstances the Board concludes that the following orders are appropriate and necessary ...".

The letter then went on to set out the Board's orders.

15 The appellant's suspension has not yet taken effect. When there is an appeal, a suspension does not take effect until the Board's decision is affirmed or varied by this Court, or the appeal is withdrawn: s52(2)(b).

16 This grounds asserts that the Board erred in law in finding the appellant guilty of professional misconduct by reason of breaches of the Psychologists Code when the code did not exist at the relevant time. The ground is misconceived. The members of the Board realised, by the time of its decision, that the code was not in force at the relevant time. Their findings of professional misconduct were based on the common law, not the code. This ground must fail.

Ground 2 - Professional misconduct at common law

17 Essentially this ground of appeal alleges a denial of natural justice, or in other words a lack of procedural fairness, on the part of the Board because of the way in which it went about considering whether the appellant was guilty of professional misconduct at common law after he had been told that the allegations against him were based on the Psychologists Code. The ground of appeal, as amended, asserts that the Board erred in the following respects:

"(i) It made a finding which was materially different to the charge preferred without prior delivery of fresh particulars or notice of the different basis for preferring the charge;

(ii) It failed to put the different basis for the finding to the Appellant in such a way that allowed the Appellant to comprehend and address by evidence and submission the different basis for the charge; and

(iii) It conducted the hearing on the basis that the breaches of the Code were the basis for the charges."

18 Although the Act expressly requires a disciplinary committee to observe the rules of natural justice, there is no such express requirement in respect of the Board. Since the Act confers power on the Board to destroy or prejudice psychologists' rights and interests, the rules of natural justice must apply to the exercise of such power "unless they are excluded by plain words of necessary intendment": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598. There is nothing in the Act to suggest that Parliament intended the rules of natural justice not to apply when the Board is considering exercising its disciplinary powers under s50. It follows that the Board is obliged to observe the rules of natural justice or procedural fairness before it exercises its disciplinary powers under that section. At the hearing of this appeal, counsel for the Board did not suggest otherwise.

19 However counsel for the Board submitted to me that, despite the disciplinary committee's initial consideration of the Psychologists Code, both the disciplinary committee and the Board had discharged their duties of procedural fairness by adequately acquainting the appellant with allegations that his conduct during the relevant years amounted to professional misconduct at common law. He relied on evidence that, at the hearing by the disciplinary committee, its chairman had read out to the appellant some material relating to professional misconduct at common law. He also relied on the letter that the Registrar wrote to the appellant on 22 August 2008 when she sent him a copy of the disciplinary committee's report.

20 At common law, behaviour on the part of a member of a profession that would reasonably be regarded as disgraceful or dishonourable by members of that profession of good repute and competency amounts to professional misconduct: In re a Solicitor [1912] 1 KB 302 at 311 - 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288 - 289; Re Thom; ex parte the Prothonotary (1963) 80 WN(NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136 at 143; In re Three Solicitors [1949] VicLawRp 13; [1949] VLR 72 at 73; Re a Solicitor [1960] VicRp 96; [1960] VR 617 at 620; Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at 17; Adamson v Pharmacy Board of Tasmania (No 2) [2004] TASSC 82 at par10. The provisions of the Act as to professional misconduct have not affected that common law rule in relation to psychologists. Counsel for the appellant did not make any suggestion that they had. If the conduct of the appellant towards the complainant would reasonably have been regarded as disgraceful or dishonourable by members of his profession of good repute and competency, it amounted to professional misconduct at common law. The question is whether the rules of procedural fairness were observed in the decision-making process.

21 At an early stage in the disciplinary committee hearing, counsel assisting the committee handed up a written submission, and the committee's chairman read out the following introductory paragraphs from it to the appellant:

"1.1 This is an investigation pursuant to section 46 of the Psychologists Registration Act 2000 being conducted by a disciplinary committee established pursuant to section 12 and section 46(5) of the Act to investigate a written complaint made by [the complainant] dated 5 June, 2007.

1.2 The complaint made by [the complainant] and other information received have led to an allegation that [the appellant] is guilty of professional misconduct constituted by the two breaches of the Psychologists Code, the particulars of which have been outlined in correspondence forwarded to [the appellant] dated 2 April, 2008.

1.3 From the correspondence provided by [the appellant] dated 16 March, 2008 and the 11 April, 2008 it appears that [the appellant] does not dispute the allegations against him save for count 2 particular of breach 2.1 however it is obviously appropriate for the committee to hear from [the appellant] personally as regards to his response to the particular allegations made against him.

1.4 Prior to that however it is appropriate for the committee to make clear to [the appellant] at the outset that if the committee finds the matters of complaint alleged against him to be substantiated in their entirety or in part then it may:-

i) find him guilty of professional misconduct in that he engaged in conduct that would reasonably be regarded as disgraceful or dishonest [sic] by members of the psychologists [sic] profession of good repute and competency in relation to the grounds of complaint;

ii) find him guilty of professional misconduct in relation to some or all of the matters of complaint in section 43(2)(c) of the Psychologists Registration Act 2000 provides [sic] that a psychologist is guilty of professional misconduct if he is found to have contravened a provision of the Psychologists Code;

iii) Alternatively if the committee finds the matters of complaint substantiated in whole or in part then it may as an alternative to a finding of professional misconduct find him guilty of unprofessional conduct in that he engaged in conduct which falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency."

After reading all this out, the chairman asked the appellant a question to the effect of "Do you understand that?" The appellant replied to the effect that he did.

22 The Board contends that the disciplinary committee's duty of procedural fairness in relation to common law professional misconduct was discharged by the reading out of par 1.4(i). The appellant contends that it was not.

23 As I have said, the Registrar wrote to the appellant on 22 August 2008, sending him a copy of the disciplinary committee's s49 report. That report contained the following paragraphs:

"A further issue raised at the meeting of the 18th of July 2008 was that the Psychologists Code was not in existence at the time of the offence. The Committee is therefore unable to make a finding under the Psychologists Code. Nevertheless [the appellant] has admitted to behaviour, now regulated by the Code and which, at the time of the relationship amounted to professional misconduct, and which falls below the standards of professional behaviour expected of a psychologist.

In essence: [the appellant]:

1 commenced a sexual relationship with the complainant prior to the expiration of the requisite 2 year period as defined by the Psychologists Code now, and as defined by the Australian Psychological Society's Code of Ethics at the time of the relationship.

2 Continued a sexual relationship with the complainant prior to the expiration of a 2 year period defined above; and

3 Failed to seek the advice of a senior colleague before beginning a sexual relationship with a former client.

Further it is the Committee's view that [the appellant] failed to terminate the professional relationship with the complainant when he became aware that he had personal feelings for the complainant and that he failed to be wary of dual personal or professional relationships with clients [sic].

Findings and Recommendation:

The Committee is satisfied that [the appellant] engaged in conduct which under common law amounts to professional misconduct in that he engaged in conduct that would reasonably be regarded a disgraceful or dishonest [sic] by members of the psychologists [sic] profession of good repute and competency in relation to the grounds of the complaint."

24 The letter from the Registrar to the appellant dated 22 August 2008 included the following:

"In accordance with section 49 of the Act the written report produced by the Disciplinary Committee is to be given to the Board for consideration.

After considering the report plus any submissions you may wish to make in relation to the Committee's findings, the Board will make a finding into this matter and take any appropriate actions it deems necessary.

In accordance with section 50 of the Act, the Board may take any of the following actions:

Dismiss the complaint;

Remove the psychologist's name from the register;

Suspend the psychologist's registration totally or partially for a period not exceeding 12 months;

Impose on the defendant a find not exceeding 50 penalty units;

Impose conditions of the psychologist's registration;

Caution or reprimand the psychologist;

If the complaint is substantiated may order the defendant to pay the costs and expenses arising from the investigation.

The Board will meet shortly in order to consider the Disciplinary Committee's report.

You are invited to submit any submissions or other such documents you deem relevant regarding the Committee's findings and recommendations as to penalty to the Board in support of your case."

25 In the second of the paragraphs I have quoted, the Registrar indicated that the Board would consider any submissions that the appellant might wish to make in relation to the disciplinary committee's findings. The literal meaning of those words is that the Board would consider not only the question of what actions to take under s50, but also anything that was said as to the correctness of the committee's findings. Similarly, the last of the paragraphs I have quoted contains an invitation to the appellant to submit submissions or other documents not just in relation to the disciplinary committee's recommendations as to penalty, but also as to its findings. The Board now contends that its duty of procedural fairness was discharged when the Registrar sent the appellant that letter and a copy of the report. The appellant contends that it was not.

26 Under the Act, Sch3, cl 3(a), a disciplinary committee "must conduct its proceedings with as little formality ... as a proper consideration of the matter before it permits". Particularly in the light of that provision, I think it would be inappropriate for a disciplinary committee or the Board to conduct disciplinary proceedings with the same level of formality as a criminal court. As I have said, under s46(4) a disciplinary committee is required to conduct an investigation. Because of the very nature of an investigation, evidence of additional instances of misconduct might come to light during such a process. That did not happen in this case, but something similar did. The disciplinary committee and the Board began considering a different or new basis for characterising the appellant's conduct as professional misconduct. Once that state of affairs existed, new obligations arose to ensure that the procedures followed were fair to the appellant.

27 The flexible nature of a duty of procedural fairness was discussed by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 in the following passage at 585:

"In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ...

... The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"

28 In Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 513 - 514, Aickin J said:

"The cases show clearly that the principles of natural justice do not comprise rigid rules, but the requirements of compliance with those principles will depend upon the particular circumstances. 'Fairness' may require, or be satisfied by, different procedures even by the same statutory authority in different circumstances."

29 When a disciplinary authority with an obligation of procedural fairness embarks upon a process of deciding whether to make a finding of professional misconduct based upon the common law principle that I have referred to, the practitioner in question must have the right to call witnesses or make submissions with a view to dissuading the decision-makers from concluding that his or her conduct would be regarded as disgraceful or dishonourable. In such cases, a practitioner might wish to pursue such a course only in relation to some of his or her earlier conduct, or some aspect of that conduct. The decision-makers' duty of procedural fairness also requires that the practitioner be given adequate notice of the basis upon which a finding might be made that certain conduct amounted to professional misconduct.

30 In this case, the practitioner was not legally represented. Before he appeared before the disciplinary committee, he had written to the Registrar making admissions that he had breached the Psychologists Code in the years 1999 to 2001. Although he may well be highly intelligent, it would be fanciful in the extreme to think that, on hearing the chairman of the disciplinary committee read out par1.4(i) from counsel's written submission, it would have occurred to him that an alternative basis for a finding of professional misconduct, not dependent upon any provision of the Psychologists Code, was likely to be contemplated. Once the disciplinary committee realised that that code did not exist during the relevant years, and began to consider making findings of professional misconduct on a common law basis, its duty of procedural fairness required it to acquaint the appellant with that new situation and to give him a further opportunity to present evidence and make submissions. As he was not legally represented, it would have been desirable, if not essential, for him to be told that he had the right to contend that some or all of the conduct admitted or alleged, or some aspect or aspects of it, would not have been regarded as disgraceful or dishonourable by members of his profession of good repute and competency.

31 When the disciplinary committee's report reached the Board, the question whether the appellant had engaged in common law professional misconduct had been prejudged, without him having been properly given an opportunity to address that question. In those circumstances, I think the Board's common law duty of procedural fairness obliged it to make it clear to the appellant that it was going to make an independent decision as to whether he was guilty of common law professional misconduct, and that he had the right to present submissions and evidence relating to that issue. The Registrar's letter of 22 August 2008 referred twice to the possibility of the appellant making submissions in relation to "the Committee's findings", but the Registrar certainly did not make it clear that the appellant retained the right to dispute those findings. The letter was ambiguous as to whether the appellant had the right to make submissions disputing those findings, or only to make submissions as to the consequences of those findings. Anyone lacking experience in relation to administrative law might not have realised that he had a right to dispute the findings as to whether his conduct amounted to professional misconduct at common law. Given that he had not been legally represented, and that deregistration or suspension were possibilities, I think the Board's duty of procedural fairness was not discharged by sending him the disciplinary committee's report and the letter of 22 August 2008.

33 Counsel for the Board made a submission to me to the effect that any lack of procedural fairness relating to the common law basis for findings of professional misconduct was inconsequential because the appellant acknowledged his conduct had been unethical, and that was a sufficient basis for the Board to exercise its disciplinary powers. He relied on the following:

•

In a letter to the Registrar dated 16 March 2008, after writing about the kiss that occurred following the appointment of 12 July 1999, the appellant wrote, "I showed her out of my office and commented that what had occurred was very unethical."

•

In a letter to the Registrar dated 11 April 2008, writing in relation to the same conversation, the appellant said, "I told her it was unethical".

•

Later in that letter, when writing about the time when he and the complainant had begun a sexual relationship, but had not commenced to live together, he wrote, "I was conscious of the ethical dilemma".

•

Near the end of that letter, the appellant wrote, "I acknowledge that I commenced an inappropriate relationship with a former client."

•

Between the disciplinary committee hearing and the finalisation of its report, the Registrar wrote to the appellant at the request of the committee, requesting further information as to the state of his own mental health when he commenced his sexual relationship with the complainant. In response, his wrote a letter dated 28 June 2008, in which he stated, "I knew it was not an ethical decision to respond to [the complainant] but she threw me a 'lifeline' emotionally."

34 Not all unethical conduct is serious enough to amount to professional misconduct. The appellant's comments in relation to his kissing the complainant at the end of a professional consultation cannot be regarded as admissions relating to the status of his conduct after their professional relationship ended. Any admissions of unethical conduct made after the appellant received the Registrar's letter of 2 April 2008, in which breaches of the Psychologists Code were asserted, could well have been based on a mistaken belief that that code was in force during the years 1999 to 2001.

35 Counsel for the Board pointed out that the Board does not need to characterise a psychologist's conduct as professional misconduct, unprofessional conduct, or anything else before making disciplinary orders under s50(1). That is true, but the status of improper conduct must be relevant, or potentially relevant, to the action taken under s50. Generally speaking, the more serious the category into which improper conduct falls, the more serious the action taken under s50 should be. It follows that the duties of the disciplinary committee and the Board to provide procedural fairness extended to require them to give the appellant reasonable notice as to the alleged status of any alleged or admitted improper conduct.

Ground 3 - Findings without evidence as to status of admitted conduct

36 This ground asserts that the disciplinary committee and the Board erred by making findings that the appellant's admitted conduct amounted at common law to professional misconduct, when there was no evidence before the disciplinary committee or the Board that his conduct would be regarded as disgraceful by experienced practitioners of good standing.

37 The disciplinary committee included two psychologists. Under s4(1), the Board consists of three registered psychologists and two person who are not psychologists. Under Sch2, cl 2(1), three members form a quorum at any duly convened meeting of the Board. It follows that the Board's decision was made at a meeting at which at least one of the members present was a psychologist.

38 Under the Act, Sch3, cl 3(b) and (c), a disciplinary committee is not bound by the rules of evidence, and may inform itself on any matter in any way it considers appropriate. Under Sch2, cl 7(1), the procedure for the conduct of business of meetings of the Board is as determined by the Board. There is nothing in the Act that prohibits psychologists who are members of a disciplinary committee or the Board from using their professional expertise in determining questions that arise in disciplinary proceedings.

39 The question whether expert evidence was needed in proceedings before a professional disciplinary tribunal was considered by the New South Wales Court of Appeal in Kalil v Bray [1977] 1 NSWLR 256, a case that concerned a veterinary surgeon. At 261 Street CJ, with whom Moffitt P and Glass JA agreed, said the following:

"It would be unreal to expect the members of the tribunal, being professionally qualified veterinary surgeons and occupying seats on the tribunal by virtue of that very qualification, to fail to use their expert knowledge in resolving any matter of veterinary science arising in proceedings before the tribunal. The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairmanship. As such, there seems to me to be no greater warrant for requiring the tendering to it of evidence of matters of veterinary science than there is before an ordinary lay tribunal for requiring the tendering of evidence on matters of common human experience."

40 In Medical Board of Queensland v Cooke [1992] 1 Qd R 608 at 616, Thomas J said:

"In appreciating the standard of professional conduct that is to be expected in a particular matter it is appropriate for the Tribunal to take advantage of such advice as the two medical assessors can provide ..., and this may include matters of professional standards and expectations. Ultimately the acceptable level of professional conduct and whether it has been transgressed are questions of fact. It is also permissible, although not always essential, to call evidence from members of the profession of good repute and competency to give evidence of their perception of the prevailing standard."

41 A contrary view was suggested by Samuels JA in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 210.

42 In Jager v Medical Complaints Tribunal [2004] TASSC 58; (2004) 12 Tas R 446 at 457, I held that it was open to the Medical Complaints Tribunal to make full use of the expertise of its medically qualified members in determining whether particular conduct would incur the strong reprobation of medical practitioners of good repute and competence. In that case there were applicable statutory provisions like those applying to the disciplinary committee in this case, whereby the Tribunal was not bound by the rules of evidence and was entitled to inform itself on any matter in any way it considered appropriate. The position of the disciplinary committee is not distinguishable from the position of the Medical Complaints Tribunal. Having regard to the applicable statutory provisions and the authorities that I have referred to, I think it was open to the disciplinary committee to make use of the expert knowledge of its psychologist members to decide whether particular conduct amounted to professional misconduct.

43 The Act gives the primary role of conducting investigations and making findings in disciplinary matters to a disciplinary committee. The role of the Board, under s50, is to decide whether to adopt and act upon findings and recommendations of the disciplinary committee and, if so, what action or actions to take. When legislation requires or permits fact-finding to be undertaken by one or more individuals who must then report to a superior decision-making body with recommendations, it is open to that body simply to adopt the original findings of fact as its own: Taylor v Public Service Board [1976] HCA 36; (1976) 137 CLR 208; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 369 - 370. There is no reason why that principle should not apply to proceedings under the Act when a disciplinary committee makes findings of fact and reports to the Board. It must follow that the Board is entitled, without receiving further evidence, to adopt a finding made by a disciplinary committee that particular conduct amounted to professional misconduct at common law. Alternatively, I think it would be open to the Board not to adopt a recommendation of a disciplinary committee on such a question of fact, but to substitute its own finding based solely on the expertise of its psychologist members.

44 In short, there is nothing inherently unfair or improper in a disciplinary committee or the Board making a finding that certain conduct amounts to professional misconduct without expert evidence to that effect. Ground 3 must fail.

45 This ground asserts that during or before the hearing, the members of the disciplinary committee formed the view that the appellant's conduct amounted to professional misconduct at common law, but did not make that view known to him. However the evidence indicates that the committee did not address that question until 18 July 2008, months after the hearing. This ground must fail on that basis.

Ground 5 - Relevant matters and the weight given to them

46 This ground asserts that the Board erred in law in failing to take four matters into account sufficiently or at all. I will deal separately with ground 5(iv), which relates to the marriage between the complainant and the appellant. The other matters listed in ground 5 are as follows:

"(i) That the sexual relationship between the Complainant and the Appellant commenced after treatment had ceased;

(ii) In considering penalty, the financial consequences of a 6 month suspension to the Appellant; and

(iii) In considering penalty, the excellent and long professional record of the Appellant in his practice as a psychologist of 33 years".

47 It is clear from the reference in its reasons to the appellant "beginning a sexual relationship with a former client" that the Board was well aware that the sexual relationship commenced after the professional relationship ceased. It is clear from the reference to suspension being "a significant step to take" that the Board must have been well aware of the financial consequences of a six-month suspension. Grounds 5(i) and (ii) can therefore only succeed if it is established that the factors referred to in those grounds were given insufficient weight by the Board. There is nothing in the Board's reasons that reveals how much or how little weight was given by it to each of those factors. I am therefore not in a position to conclude that either of them was given insufficient weight. Even if the penalties imposed on the appellant were regarded as excessive or unreasonably harsh, and there is no ground of appeal making any such assertion, it would still not follow that any individual factor must have been given insufficient weight.

48 As to ground 5(iii), the Board said nothing at all as to the appellant's "excellent and long professional record". The disciplinary committee included a paragraph in its report that outlined the appellant's career and referred to the size of his practice. There was nothing in that paragraph as to the quality of his work. However the appellant placed very little information before the disciplinary committee or the Board about the quality of his work. He happened to mention in an early letter that he regularly appeared in courts as an expert witness. There was controversy as to whether he had correctly diagnosed the complainant's condition. In his final letter to the Registrar dated 8 September 2008 he outlined his career, said that there had not been any previous complaints against him except once when he called a colleague to account for what he considered to be professional dishonesty, and mentioned that he had been dedicated to his profession. The appellant did not provide the disciplinary committee or the Board with letters praising his work, as people facing professional disciplinary proceedings often do.

49 The Board's reasons were so brief that I do not think it would be appropriate to infer that the only matters that its members took into account are matters that were mentioned in those reasons. It follows that it is impossible to tell whether the Board erred by ignoring the appellant's professional record, or giving it insufficient weight.

The appellant's marriage to the complainant - Grounds 5(iv), 6 and 8

51 The grounds of appeal raise three contentions as to the appellant's marriage to the complainant, which can be summarised as follows:

•

That the Board, in considering penalty "and generally", failed to take into account sufficiently, or at all, the fact that the appellant and the complainant "had entered a bona fide marriage": ground 5(iv).

•

That the Board failed to provide adequate reasons, or any reasons, for its decision that related to the fact that the couple had entered into a bona fide marriage: ground 6.

•

That the Board erred in law in concluding that the appellant's conduct amounted to professional misconduct at common law "without considering the nature and circumstances of the relationship between the Complainant and the Appellant": ground 8.

52 The written material submitted by the complainant suggested that the sexual relationship between her and the appellant had caused her psychological harm, and that he had been cruel to her and tormented her. The appellant's case during the disciplinary proceedings was that the relationship had caused her no harm, and that love had been his only motive for his conduct towards her during the years in question.

53 The disciplinary committee was required to investigate the appellant's conduct during the two-year period that commenced upon the termination of the professional or therapeutic relationship between him and the complainant on 12 July 1999. The nature of the emotional relationship between the appellant and the complainant during that period was relevant to questions that the committee had to consider as to (a) whether the appellant's conduct amounted to professional misconduct; (b) whether his conduct amounted to some less serious form of improper conduct that warranted the exercise of the Board's disciplinary powers; and (c) what orders, if any, the Board should make. It was relevant, but not necessarily decisive, that The Australian Psychological Society Ltd adopted a code of ethics in 1997 that contained the following paragraph (Section B, par10):

"No psychologist may engage in a sexual relationship with a former client when less than two years have expired since the ending or termination of the professional relationship."

However the seriousness or otherwise of the appellant's conduct, and therefore the appropriate course to recommend to the Board as to the exercise of its disciplinary powers, depended, at least in part, on what harm, if any, was done or likely to be done as a result of the commencement and continuation of the sexual relationship, and on the appellant's attitude towards the complainant over the relevant two years.

54 The relevant considerations were discussed by Harper J in Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997, BC9707354. At BC15 - 17, his Honour said the following as to the question of whether a psychologist's conduct amounted to misconduct:

"In my opinion the fact that the professional relationship had ended at the time the sexual relationship commenced is not of itself determinative. The appropriate test must be whether a sexual relationship would exploit the client or put the health of the client at risk. ...

In my opinion to confine the concept of exploitation to duress, manipulation, coercion or pressure would be to abrogate the therapist's responsibility to make a professional decision to refrain from submitting to the wishes of the client or even a former client. A member of a profession who for purely personal reasons accedes to a client's request, and thereby obtains a personal benefit, knowing that to do so will jeopardise the client's objectively and professionally ascertained interests, exploits the professional relationship, and therefore exploits the client: on this hypothesis, the opportunity to obtain the personal benefit arises from the fact of the professional relationship. A psychologist who enters into a sexual relationship with a client or former client at that person's request, and who does so when he knows or ought to know that he is thereby putting the other's health (mental or otherwise) at risk, acts unprofessionally. This is particularly so where transference may still operate so as to induce the client to seek the intimacy. It seems to me that consent in these circumstances cannot be an answer to an allegation of misconduct."

55 There are a number of relevant Australian cases concerning relationships between medical practitioners and former patients. The medical profession does not have a firm rule prohibiting all sexual relationships with former patients, nor does it have anything like the inflexible two-year rule now applicable to psychologists. I know of no other profession that has such a rule, and I suspect that only the priesthood has a stricter rule.

56 In Re a Medical Practitioner [1995] 2 Qd R 154 at 162, Dowsett J, constituting Queensland's Medical Assessment Tribunal, referred to a number of factors relevant to the evaluation of impropriety when there is a complaint about a sexual relationship between a doctor and a patient. His Honour said that "modern concepts of egalitarianism militate against assessing impropriety upon the assumption that the medical practitioner is automatically in a superior social or economic position", and that "it is inappropriate to assess impropriety upon the assumption that a woman is socially, morally or intellectually less well-equipped to deal with the emotional aspects of life than is a man." At 163 - 164, his Honour listed "a number of themes running through the traditional approach to misconduct of this kind by medical practitioners", including the following:

"1 The practice of medicine involves intimate access to the body and psyche of the patient.

3 A medical practitioner is therefore in a position of special trust toward and power over a patient.

4 The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.

6 A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such susceptibility, and that there is no abuse of the practitioner's special position.

7 A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment. Normally, the doctor and patient relationships should be terminated.

8 A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.

9 Where the romantic attachment is solely on the patient's side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.

10 Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy. Each case must be considered on its merits. The considerations referred to in paragraph 9 will again be relevant.

11 It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.

12 It is professional misconduct to exploit a discontinued professional relationship. Thus a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship.

18 The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct."

57 In A Practitioner v The Medical Board of Western Australia [2005] WASC 198, Commissioner K Martin QC said the following at pars28 - 30:

"28 ... a former patient's interests are as well capable of being inappropriately jeopardised, if a medical practitioner in some way exploits the professional credibility established by a prior therapeutic relationship in order to pursue personal ends or objectives, to the prejudice of the former patient. Moreover, it would be intolerable if a medical practitioner were able to cynically terminate an existing therapeutic relationship with an eye to the future, so as to pursue a personal objective with a patient, once the shackles of the professional relationship had been removed.

29 A second general observation I make is that many of the disciplinary cases which have gone on further to be decided by courts, concern sexual relationships developed consensually as between a practitioner and a patient, or, as between a medical practitioner and a former patient. In those sexual relationship cases, there is an obvious concern that a patient's interests may have been compromised arising out of the imbalance of power between the medical practitioner and the patient. The potential for the will of the patient in that situation to be unwittingly overborne as a result of undue influence, is great.

30 Observations have been made concerning a particular susceptibility of patients of medical practitioners in the fields of gynaecology and psychiatry, where the intimacy of the professional relationship is such that there is grave risk that a patient's interests may be compromised, if the professional relationship develops towards a personal relationship. A patient may not realise for many years after the establishment of a personal relationship, that in fact they have been subjected to influences which have compromised their ability to actually make a free choice concerning the entry into and maintenance of the personal relationship. The term 'exploitation' is frequently used in this context to indicate that the practitioner has taken advantage of a power imbalance arising as a result of the professional relationship, to the detriment of the patient's interests, either short term or long term."

58 In RJT v Nurses' Board of Victoria [2000] VSC 498, Nathan J said at par44:

"There is no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour. A medical practitioner may abuse his or her professional position by exploiting the relationship for the purposes of sexual gratification and thus act unprofessionally."

59 Cato v Medical Board of Victoria, unreported, Supreme Court of Victoria, 21 June 1985, BC8500201 is an example of a case in which sexual activity with a former patient was held not to amount to "infamous conduct". An allegation that the doctor had had sexual intercourse with a patient during a home visit was not proven. Although the sexual relationship had commenced within days after the home visit, Beach J regarded the making of arrangements to meet socially as terminating the doctor/patient relationship. There was no suggestion that the doctor had taken advantage of a power imbalance or anything of that nature. He was a general practitioner, who had met the patient when she had a brief viral illness.

60 In the light of these authorities, it is clear that the psychological consequences of the appellant's relationship with the complainant and his attitude in relation to such consequences were relevant matters for the disciplinary committee and the Board to take into account when evaluating the appellant's conduct and considering what disciplinary orders, if any, should be made. However the disciplinary committee found out very little about those aspects of the couple's relationship during its investigation, and was absolutely silent as to those subjects in its report to the Board.

61 The complainant, who lives on the north coast of New South Wales, did not attend the disciplinary committee hearing. The committee had her letter of complaint, in which she said a little about the psychological aspects of her relationship with the appellant. In that letter she said that the appellant was cruel to her, and that "he played dreadful mind games", but she gave no details of those allegations. She said she was sending a copy of a report by a psychiatrist dated September 2005 that dealt with what happened in relation to the appellant, but no such document is in the material before me, and I have no idea whether it reached the disciplinary committee or the Board.

62 It seems that the disciplinary committee also had a report from the complainant's general practitioner, written in December 2007, which included the following:

"... she has frequently mentioned the problems she had with her ex-husband [sic]. She felt violated that he started a relationship with her when he was her treating psychologist. She has also mentioned many times the manipulative relationship they had and how controlling her ex-husband was. She has described how vulnerable she felt during their time together and how she would have frequent excebations [sic] of her IBS [irritable bowel syndrome]."

63 As far as I know the appellant was not invited to respond to any of those assertions. The assertion that the appellant "started a relationship" when he was still the complainant's treating psychologist is inconsistent with what the complainant said in her letter of complaint. It is possible that the general practitioner has not accurately reported what the complainant told her. It is also possible that the complainant lied to her general practitioner about the sequence of events.

64 The only other material before the committee and the Board relevant to this issue came from the appellant. He wrote quite a lot in one of his letters to the Registrar about the complainant's psychological state from time to time during their relationship, but generally maintained that he was a loving and supportive partner and husband. As to the allegations of cruelty and dreadful mind games, he wrote, "My recollection is that I turned myself inside out and spent a great of time and money trying to make her happy. I felt quite desperate about that failure, particularly in view of ... the hopes which built up in the early days ...". He made oral submissions to the disciplinary committee to the effect that his marriage to the complainant was "a genuine one".

65 The Board said nothing in its very brief reasons about the appellant's marriage to the complainant, the nature of the consequences of their sexual and marital relationship, or the attitude of the appellant towards the sexual and marital relationship and its psychological consequences. Once again, its reasons are so brief that it would not be appropriate to infer that it ignored, or gave insufficient weight to, any relevant factor that it did not mention. Ground 5(iv) must therefore fail. Similarly, it would be inappropriate to infer from the Board's silence on the point that it did not consider "the nature and circumstances of the relationship between the Complainant and the Appellant". Ground 8 must therefore fail.

66 However, ground 6 must succeed. The Board failed to say anything in its reasons about the appellant's contention that he and the complainant "had entered a bona fide marriage". In my view that ground raises the question of the adequacy of the Board's reasons in relation to the issues of the psychological consequences of the sexual and marital relationship, and the appellant's attitude towards the relationship and its psychological consequences. Those were very important matters for the Board to consider in determining whether to make any disciplinary orders at all and, if so, what orders were appropriate. One could reasonably infer that the Board was alert to the risks of psychological harm inherent in a sexual relationship with a former patient. But one simply cannot tell what attitude the Board took to the allegations of cruelty, manipulation, controlling behaviour, and so forth. It is not clear what findings, if any, the Board made and acted on. The six-month suspension suggests that the Board might have taken the view that this was not just a case involving a theoretical possibility of psychological harm. One cannot tell whether one or more of the Board members with expertise in psychology drew inferences adverse to the appellant from the written material. One cannot tell whether the Board based its orders on findings or on guesswork or speculation.

67 The Board was obliged by s52(1)(a) to give the appellant notice of "the decision and the reasons for the decision". Its statement of reasons was so inadequate that, in my view, it did not discharge its duty to give reasons. What s52(1)(a) required was a statement recording why the Board made the orders it did, that is to say the mental process by which its members actually decided upon the orders that were made: Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at par17 (Heerey, Stone and Edmonds JJ); Aronson, Dyer and Groves_, Judicial Review of Administrative Action_, 4th ed, par8.480. For the purpose of determining what orders to make, the Board must have undertaken some evaluation of the seriousness of the conduct it had categorised as professional misconduct, and some evaluation of the consequences or possible consequences of that conduct. Statutory decision-makers are commonly required to give reasons for their decisions so that, amongst other things, individuals affected by their decisions will know why they were made and, when there are rights of appeal and/or judicial review as there are in this case, will be able to have any errors corrected. The Board's statement of reasons in this case fell far short of satisfying those objectives.

The Board's reasons - Financial consequences of suspension

68 Ground 6 also asserts that the Board failed to provide any reasons, or any adequate reasons, in relation to the financial consequences of the appellant's six-month suspension. However, the Board mentioned that "the suspension of a practitioner ... is a significant step to take". I do not think it was necessary for the Board to say more than that. The consequences of a suspension in relation to a psychologist's income and reputation are so obvious that they go without saying. The Board's reasons should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; (1996) 185 CLR 259 at 272. This part of ground 6 must fail.

69 This ground alleges four errors on the part of the Board, as follows:

"(i) Failing to consider at all or sufficiently whether the Appellant was guilty of the less serious finding of unprofessional conduct;

(ii) Making a finding of professional misconduct without considering whether the less serious finding should be made;

(iii) In the alternative to (i) and (ii) hereof, failing to give any reasons as to why the less serious finding was not considered appropriate;

(iv) Failing to invite the Appellant to make submissions or lead evidence in support of the less serious finding."

70 At the hearing of the appeal, counsel for both the appellant and the Board accepted that improper conduct falling short of professional misconduct could be characterised as "unprofessional conduct". However the Act does not mention "unprofessional conduct". It simply empowers the Board to make disciplinary orders under s50 "in its discretion", without requiring that the conduct of a psychologist first be characterised as professional misconduct or given any label at all.

71 When a disciplinary committee provides the Board with a report containing a finding that a psychologist has been guilty of professional misconduct, its seems to me that the only logical course for the Board to take is first to consider whether to adopt that finding, and only to consider whether to characterise the conduct as unprofessional conduct if it decides that it does not amount to professional misconduct. Because of the structure of the Act, and the absence of any reference to "unprofessional conduct", I do not think the Board is ever under a duty to consider whether that label should be applied to particular conduct. It follows that ground 7 must fail.

72 The appeal must succeed because the Board failed to afford the appellant procedural fairness in relation to the proposition that he was guilty of common law professional misconduct, and because the reasons it gave for its decision were inadequate. It may have made other errors that were not raised by the notice of appeal. For example, the Board appears to have treated as professional misconduct the appellant's failure to seek the advice of a senior colleague before beginning a sexual relationship with his former client, when there was no such requirement or suggestion in the 1997 code of ethics of The Australian Psychological Society Ltd. No ground of appeal raised the question of what adverse findings the Board could properly make about the appellant's conduct, given that the appellant's written assertions differed from those of the complainant and her general practitioner on important points, as to which there had been no cross-examination before the disciplinary committee. No ground of appeal raised any contention that the penalties imposed by the Board were manifestly excessive, unreasonable, or plainly unjust, by reason of the staleness of the complaint or otherwise.

73 Because of the errors identified by the grounds of appeal, the decision of the Board must be quashed. The powers that the Court may exercise when it quashes a decision of the Board are set out in s59(2) and (3), which read as follows:

"(2) If the Court quashes the decision it may, according to the circumstances of the case -

(a) substitute for the decision it has quashed any decision that the Board would have had jurisdiction to make in those circumstances; or

(b) remit the matter to the Board, with or without directions, for further hearing or consideration or for rehearing or reconsideration.

(3) The Court may make any further order that it considers just in the circumstances of the case and, without limiting the generality of this, may order the Board to take or refrain from taking any action in respect of the appellant."

74 Counsel for the appellant submitted that, if the appeal succeeded, the matter should be sent back to a differently constituted disciplinary committee. It would certainly be inappropriate for me to re-determine the matter under s59(2)(a). Since the disciplinary proceedings went wrong initially as a result of a failure of procedural fairness at disciplinary committee level, I think it is appropriate that orders be made that will have the effect of sending the matter back to a differently constituted disciplinary committee.

2 That the decision of the Psychologists Registration Board of Tasmania notified to the appellant by letter dated 29 October 2008 be quashed.

3 That the matter of the complaint dated 5 June 2007 be remitted to that Board for rehearing with the following directions:

(a) The Board is to have the complaint re-investigated by a disciplinary committee.

(b) That disciplinary committee is not to include any persons who were members of the disciplinary committee that previously investigated the complaint, or were members of the Board who participated in the decision that has been quashed.

(c) The disciplinary committee is to afford the appellant an opportunity to give and adduce evidence, and to make submissions, as to whether any of his conduct constituted professional misconduct at common law.

(d) If the Board decides to make any orders in respect of the complaint under the Psychologists Registration Act 2000, s50(1), it is to provide reasons for its decision in which it sets out the findings relied upon on material questions of fact, refers to the evidence or other material on which those findings were based, and states why those findings were considered to warrant the orders made.