Order amended pursuant to the order of the Hon Associate Justice Mukhtar made on 12 August 2010 in the Supreme Court of Victoria.

1. Having completed a hearing, the Tribunal finds pursuant to s 77(1)(a) of the Health Professions Registration Act 2005 (the HPR Act), that Nicholas Didenkowski (Mr Didenkowski) has engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of the HPR Act.
2. The Tribunal determines pursuant to s 77(4) of the HPR Act to cancel Mr Didenkowski's registration as a psychologist under s 77(4)(h) of the HPR Act and to disqualify him from applying for registration within a period of one year from the date of this decision (namely 1 December 2009) under s 77(4)(o) of the HPR Act.
3. Pursuant to s 101(3) of the Victorian Civil and Administrative Tribunal Act 1998, no information may be published that might enable the identification of the notifier, or the person treated by the respondent and who was the subject of the notification in the hearing before the Tribunal, or the persons who wrote references or testimonials tendered to the Tribunal on behalf of the respondent, or the respondent's home address.

Mr Andrew Clements of counsel instructed by Minter Ellison

Mr Neil Clelland SC instructed by Galbally & O'Bryan

1. The sole issue in this proceeding was the period of time the respondent, Nicholas Didenkowski (Mr Didenkowski), should be disqualified from applying for registration as a psychologist under the Health Professions Registration Act 2005 (the HPR Act).
2. Mr Didenkowski consented to a finding by the Tribunal that he had engaged in professional misconduct and to the cancellation of his registration as a psychologist.

1. Mr Didenkowski is aged 33. He obtained registration as a psychologist in Victoria in 2004, having held probationary registration since 2000. He practised as a psychologist in a regional area of Victoria from December 2002 to April 2008 specialising mainly in paediatric neuropsychology. He held a particular interest in neuropsychological disorders with young people and he had been coordinator for an assessment and intervention neuropsychology service for children. In 2008, at the time of the allegations which are the subject of this hearing, he was in the process of completing his doctorate in clinical neuropsychology.
2. One of Mr Didenkowski's patients was a 17 year old girl, G. He had treated her for just over two months between 5 November 2007 and January 2008, the consultations being approximately on a weekly basis. G had been referred to Mr Didenkowski by her general practitioner for the purpose of neuropsychological assessment of cognitive sequelae suffered from a childhood injury.
3. The history disclosed by G to Mr Didenkowski during their consultations indicated she had suffered major psychological traumas in her life, including rape and other sexual abuse, injuries in a transport accident, and that she was experiencing significant distress and psychological symptoms unrelated to her neurological condition. Mr Didenkowski became increasingly concerned about her mental health which he was not suitably qualified to treat, and it was apparent to him that she required ongoing clinical psychological or psychiatric treatment from a suitably qualified person. He made several unsuccessful attempts to refer her for psychiatric or psychological treatment, ultimately obtaining an appointment for her with a clinical psychologist.
4. On 20 February 2009, G made a statement to Victoria Police in which she made a number of allegations against Mr Didenkowski, including allegations of sexual assault and inappropriate comments of a sexual nature. She claimed these behaviours had occurred during relaxation exercises which he had required her to undertake. On 3 and 20 March 2008, at the request of the police, G attended a police station for the purpose of having pretext telephone conversations with Mr Didenkowski which were recorded by police. During the second conversation, Mr Didenkowski, in response to an assertion by G that he had touched her breasts, said he didn't think he had done so, that he was trying a relaxation strategy with her, and that he touched her chest when he was trying to feel her heart beat. He agreed he had touched her bra and that, on another occasion, he had touched the scar between her breasts to try and get her to produce memories.
5. He said that he was trying to get her to realise she was not fat and he also explained that he was hoping that she would assert herself because she had said she was very vulnerable at times. He said that he was not trying to engage in anything with her that was sexual in nature, that he had "fucked up big time" and that he had "taken it too far". He said he was sorry that the trust was broken, that he hoped she could trust him again, that it would not happen again, that it was not her fault, and that he was really sorry. After some discussions about other matters, G made a further appointment with him which she did not keep.
6. In an interview with police on 7 April 2008, Mr Didenkowski denied a number of the allegations made against him by G but admitted the two offences referred to in paragraphs 12 and 13 of these reasons.
7. On 7 April 2008, Mr Didenkowski was charged with several offences of indecent assault against G. He was granted bail conditional upon an undertaking given by him that he not practise the profession of psychology.
8. On 18 October 2008, he entered a plea of guilty at a Magistrates' Court to one count of assault and one count of indecent assault.
9. On 21 October 2008, he was sentenced by the Magistrates' Court as follows:

Indecent Assault - convicted and sentenced to a term of six months imprisonment, wholly suspended for a period of two years. But for the plea of guilty, the Magistrate would have imposed a sentence of 10 months.

1. The conviction for common assault related to a consultation prior to Christmas 2007 when Mr Didenkowski pressed his finger on a scar between G's breasts. His explanation for doing so was that he was trying to elicit some memory or emotional response in relation to a car accident in which G had suffered injury, and to obtain an indication of the extent of her post-traumatic stress from a transport accident.
2. The conviction for indecent assault related to a consultation that occurred in January 2008 during Mr Didenkowski's last consultation with G. On that occasion, he placed his hand on her stomach and then moved his hand downwards, under her low cut underpants and onto the region of her pelvic bone, close to her vagina. Mr Didenkowski's explanation for his conduct was that G had said to him that she was fat and he was trying to indicate to her that this was not the case.

1. On 9 April 2008, the Board was notified by the police that Mr Didenkowski had been charged with several offences under the Crimes Act 1958. On 21 April 2008, the Board determined to conduct an investigation into his professional conduct under s 47 of the HPR Act but the investigation was delayed pending the outcome of the criminal proceedings. At that time the Board did not exercise its power under s 40(1) of the HPR Act to suspend Mr Didenkowski's registration because of the undertaking given by him to the Court as a condition of his bail that he not practise in the profession of psychology until the criminal proceedings were finalised.
2. On 17 November 2008, following the convictions of Mr Didenkowski in the Magistrates' Court, the Board determined to refer the matter of his professional conduct to the Tribunal for a hearing pursuant to s 59(2)(g) of the HPR Act and to suspend his registration until the investigation and any hearing of the matter was completed.
3. The allegation by the Board was that Mr Didenkowski had engaged in professional misconduct (as defined in paragraphs (b) and/or (c) of the definition of "professional misconduct" in s 3(1) of the HPR Act), or had engaged in unprofessional conduct (as defined in paragraphs (h)(i) and/or h(iii) of the definition of "unprofessional conduct" in s 3(1) of the HPR Act), in that, on or about 21 October 2008 in the Magistrates' Court of Victoria he was found guilty of one count of common assault and one count of indecent assault pursuant to the Crimes Act 1958 (Vic) (relating to his conduct between 5 November 2007 and 15 January 2008).

1. Section 77(1) of the HPR Act states that after it has completed a hearing under Division 1 of the HPR Act in respect of the health practitioner, the Tribunal may make a finding, amongst other things, as to whether or not the health practitioner has engaged in unprofessional conduct or professional misconduct (s 77(1)(a)).
2. "Professional misconduct" is defined relevantly for this proceeding in s 3 of the HPR Act to include :

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession.

1. Under s 77(4) of the HPR Act, the Tribunal may make one or more of a number of determinations including cancelling the registration of a health practitioner (s 77(4)(h)) and disqualifying the health practitioner from applying for registration under s 4 within a specified period (s 77(4)(o)).

1. At the commencement of the hearing, at the request of the Board, we made an order pursuant to s 101(3) of the Victorian Civil and Administrative Tribunal Act 1998 that any evidence given before the Tribunal, that the contents of any documents produced to the Tribunal and any information that might enable a person who has appeared before the Tribunal to be identified, must not be published except in the manner and to the persons (if any) specified by the Tribunal.
2. The Board did not obtain a transcript of the Magistrates' Court proceedings and we did not therefore have the advantage of reading the Magistrate's findings or sentencing remarks. Handwritten notes taken by the instructing solicitor from Galbally and O'Bryan who attended the Magistrates' Court hearing were tendered in evidence however on behalf of Mr Didenkowski without objection from the Board.
3. The notes indicate that in his sentencing remarks the Magistrate stated that it was not Mr Didenkowski's intention to cause G damage, and that Mr Didenkowski had conveyed his sincere regret and apology to G, which the Magistrate believed was genuine and heartfelt. The Magistrate accepted that Mr Didenkowski was a person of good character, he noted that his references were outstanding and glowing, that he was on the threshold of an outstanding career, and that he had a strong, supportive and loving family.
4. The Magistrate observed that what had occurred was a tragedy for Mr Didenkowski, his family and the community, and that his qualities as a neuropsychologist treating young people had been acknowledged in his references. He noted several references from parents of two autistic children, a reference from a young boy who suffered from Asperger's Syndrome, and a reference from a colleague.
5. The Magistrate noted various traumatic events that had occurred in Mr Didenkowski's life including the witnessing of a very traumatic train accident in which 2 people were killed. The Magistrate said that the decision he had to make was extremely difficult and distressing, that the Court had to be seen to apply the law, and that the Court must denounce the behaviour which involved a breach of trust for which he was solely culpable and responsible.
6. As we indicated earlier, Mr Didenkowski did not admit to all the allegations made by G to police. Appropriately, in our view, neither party sought to call G, and both parties were prepared to rely on the facts which formed a basis for the pleas of guilty by Mr Didenkowski in the Magistrates' Court
7. No evidence was called by the Board. Mr Didenkowski gave oral evidence and he relied on a written statement of evidence. He also relied on two letters from his treating psychiatrist, Dr Kaminski, and the character references provided to the Magistrates' Court by family members, friends and former patients.
8. Dr Kaminski, in a letter dated 13 October 2009, stated that he had been treating Mr Didenkowski for anxiety since 2005. He said that in June 2008 Mr Didenkowski revealed to him details of the criminal charges against him and that it was evident to him that Mr Didenkowski "showed significant insight and was particularly remorseful". Dr Kaminski said further that :

Nicholas has shown considerable motivation and energy to resolve this matter, and given these, I consider that his prognosis is very good. I would expect, that I will continue to work with him in resolving this matter.

1. In a report dated 25 November 2009 to Mr Didenkowski's solicitors, Dr Kaminski said that Mr Didenkowski continued to require treatment with antidepressants and that:

it is clear that his insight and judgment are good. I consider that it is very unlikely that Nicholas will re-offend. I consider his prognosis to be very good

1. The character references provided to the Magistrates Court were of high order. Family members including his wife, her family and his brother spoke of him as a kind, loving and immensely supportive husband, father and family member. Others referred to his dedication to his work and to helping children and adolescents with psychological and behavioural problems. Five former patients or parents of patients spoke of his professionalism, commitment, and the high level of care provided by him. It is apparent from the references that he was committed to his patients who included children with such disabilities as autism.
2. At the conclusion of the hearing, we gave an oral decision in which we found that Mr Didenkowski had engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of the HPR Act, and we made the orders set out in paragraph 64 of these reasons. These written reasons for decision are provided at the request of the Board. Because of the particular circumstances surrounding this matter, we have determined in the interests of justice that the reasons be anonymised.

1. In his written statement of evidence, Mr Didenkowski said that he was profoundly sorry for the gross breach of trust that G and her parents had placed in him. He said he was conscious of the trauma that his actions had caused G and the stress that would have been placed on both her and her parents by his conduct. He said he accepted total responsibility for his actions. He acknowledged that not only was G in his professional care but that she had a vulnerable disposition. He said that his actions were all the more serious having regard to the therapeutic setting in which he was treating her. He said he was aware that his conduct had fallen far short of the professional standards that the public expected from those practising and treating individuals in a therapeutic setting. He acknowledged that if he was ever allowed to practise as a psychologist again, it was unlikely he would be able to work with young people in an unsupervised environment.
2. At the request of the Tribunal, Mr Didenkowski gave oral evidence in which he responded to questions from the Tribunal. He said that he had received minimal training in clinical therapy for treating anxiety and depression and that the focus of his training had been on clinical neuropsychology
3. He said that he had offered to continue to treat G until she commenced treatment with the clinical psychologist. He agreed that notwithstanding his serious concerns about her presentation as being at risk, he had not sought supervision from, or consulted with, his colleagues in relation to the treatment. He said that his treatment included basic relaxation exercises, although he had not had any formal training in this area.
4. Mr Didenkowski said he was unable to provide any explanation for his actions that resulted in the conviction for the first offence. He said that he knew at the time that his actions were completely inappropriate and unprofessional. In attempting to provide an explanation for the second offence he said he had become overly familiar with G rather than maintaining a therapeutic relationship, that he could not explain his conduct in terms of providing any therapeutic value to G, and that he was a fool for his actions.
5. He said he did not have any concerns about the effect of his actions on G until immediately after the second offence when she became "closed off". He realised that his actions had traumatised her, and that her response was a direct result of his inappropriate actions in having clearly overstepped the mark. When asked by the Tribunal what his thinking at that point he said his thinking was that he had made a very grievous error. He said he quickly ended the session without discussing with her what had occurred, and he did not consult with anyone about his actions as he was ashamed about what he had done. G did not attend the next two sessions scheduled with him and she then commenced sessions with the clinical psychologist to whom he had earlier referred her.
6. In response to a question from the Tribunal as to the steps he had taken since the criminal proceedings to obtain help to understand what it was that led him to behave as he did, Mr Didenkowski said that the main way he had dealt with it was to speak with his treating psychiatrist about how the behaviour had occurred and how it should have been avoided. When asked what professional education he had sought, he responded that the charges and subsequent convictions had isolated him professionally, and he felt ashamed to attend any educational activities. He said he was unclear whether he would practise again and that his emotional capacity and his capacity to provide for his family had been all he could deal with at this time.
7. We found Mr Didenkowski to be an honest witness who was genuinely remorseful for his actions and we accept his evidence.

1. Mr Clelland SC, who appeared for Mr Didenkowski, indicated that his client did not oppose a finding of professional misconduct and that cancellation of his practising certificate was appropriate. The only issue, he said, was the period of time Mr Didenkowski should be disqualified from reapplying for registration. Mr Clelland sought that his client be entitled to reapply for registration within one year from the date of the Tribunal hearing, and that any order for cancellation of his registration should commence from the date of Mr Didenkowski's suspension, namely, 7 April 2008. He submitted that the Tribunal might also wish to consider the imposition of conditions that might be imposed on Mr Didenkowski if he was re-registered.
2. Mr Clelland submitted further that the pretext telephone call transcript suggested that Mr Didenkowski's behaviour was spontaneous rather than predatory, and the by-product of the counselling and therapy he was providing to G. He said it was apparent from the record of interview with police that Mr Didenkowski's explanation for his behaviour indicated inexperience, immaturity and an absence of training to understand that his behaviour was "getting too close".
3. Mr Clelland submitted that the Tribunal should have regard to the fact that at the time of the offences Mr Didenkowski was inexperienced and had limited training in clinical practice and counselling. Mr Didenkowski did, however, attempt to refer G to other health professionals who were better able to treat her psychological problems. To this extent, Mr Didenkowski was not unmindful of her circumstances and he endeavoured to obtain the best professional assistance for her.
4. Mr Clements, who appeared for the Board, submitted that Mr Didenkowski's registration should be cancelled and he should be disqualified from applying for a period of two years commencing from the date of the hearing before the Tribunal. He argued that the two year disqualification period was appropriate because of the very serious nature of the professional conduct, which was sexualised conduct. He argued that there were three aggravating factors in this case.
5. First, G was a minor at the time of the offences and therefore the power imbalance that always exists between a psychologist and a client was even greater because of the adult/child dynamic.
6. Secondly, Mr Didenkowski was aware from his therapeutic relationship with G that she had a range of psychological or psychiatric symptoms and/or conditions and that she was suffering a significant amount of distress and low self-esteem. This should have made him even more mindful that it was important he not commit boundary transgressions with G, or engage in any behaviour that might increase her distress or aggravate one or more of her psychological or psychiatric symptoms or behaviour, or which might compromise the efficacy of any other treatment that she was receiving.
7. Thirdly, Mr Clements argued that Mr Didenkowski had a specific history from G of sexual abuse and that in the previous 18 months she had been the victim of a rape. This, he said, made it even more unacceptable that he engage in any misconduct with G, and that he must have known it carried with a risk that she would perceive it as being unwelcome sexual conduct.
8. Mr Clements submitted that Mr Didenkowski's conduct was damaging to the reputation of psychology and it should be dealt with in a manner that adequately reflected its seriousness. He submitted it could be fairly assumed by the Tribunal that members of the public would consider it grossly inappropriate for a psychologist to behave as Mr Didenkowski did, and that the conduct should be met with an appropriately serious response by the Tribunal.
9. Mr Clements submitted that it was appropriate that there be a two year period of disqualification because the Tribunal could not be confident that there would not be further inappropriate conduct in the future. Whilst Mr Didenkowski was very remorseful about his behaviour, he was unable to provide any therapeutic rationale for his conduct, and he could not really offer any explanation as to why the offences occurred. In those circumstances, it would be hard for the Tribunal to be confident that the conduct would not occur in the future.
10. In addition, Mr Clements contended, Mr Didenkowski was relatively early in his career, he had been registered for about four years when the incident occurred, and the Tribunal did not have the comfort of knowing that he had many years of blemish-free practice. The mere fact that Mr Didenkowski committed the acts with a 17 year old client itself raised real concerns about his ability to control his own behaviour, and also concerns about whether he had an adequate appreciation of and regard for the importance of the maintenance of professional boundaries.
11. Mr Clements submitted that the two year period of disqualification should commence from the date of the hearing before the Tribunal and that the period of suspension of his registration which commenced in October 2008 should not be taken into account. He argued that this was not a case where during the period of suspension that had already been served by Mr Didenkowski, he had been engaged in professional education or an examination of literature in relation to boundary issues and similar matters.
12. Mr Clements submitted that the Tribunal could consider expressing a view about any future conditions that the Board may wish to impose if Mr Didenkowski applied for re-registration.
13. Both counsel referred us to a number of decisions including Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349, Psychologists Registration Board of Victoria v Pallini [2008] VCAT 2632, HA v Pharmacy Board of Victoria [2002] VSC 322, Papps v Medical Board of South Australia [2005] SASC 435, Morris v Psychologists Registration Board, Supreme Court of Victoria, Harper J 19 December 1997 (unreported), Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784 and a decision of the Supreme Court of Victoria Court of Appeal, Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755.

1. The principles that can be elucidated from the cases referred to above when considering what determination is appropriate can be summarised as follows :
   • The function of a determination is not punitive but to protect the public by preventing persons who are unfit to practise as a psychologist from practising, and by maintaining proper professional standards.
   • An aspect of the maintenance of professional standards involves an imposition of a determination that will deter both the particular practitioner and others from like conduct.
   • The exhibition of insight can be relevant.
   • In determining whether it is or is not in the public interest to allow a practitioner to practise, an assessment of all the circumstances of the offence, including moral culpability is required, including the extent to which a practitioner's moral culpability is mitigated by, for example, any mental illness from which he was suffering.
   • The public interest in the practitioner's continuing to practise must be weighed against the public interest in protecting clients from any repetition of the conduct exhibited.

1. It was not in issue that the protection of the public, which is a key aspect of public interest, required a finding that Mr Didenkowski has engaged in professional misconduct requiring the cancellation of his practising certificate. Whilst we were not addressed specifically as to whether the finding should be made under the definition of professional misconduct in subsection (b) or (c) of section 3 we consider subsection (b) to be appropriate. The maintenance of appropriate professional boundaries is a cornerstone of the profession of psychiatry and the betrayal of trust by the practitioner can have a profound impact upon the victim.
2. We accept Mr Clement's submissions as to the serious nature of the offences and that Mr Didenkowski's conduct was all the more reprehensible given that G was a minor who had been receiving treatment from him for serious psychological and psychiatric symptoms. Having regard to the principles to be taken into account we consider however that a period of cancellation for one year from the date of the hearing is an appropriate period of cancellation.
3. Mr Didenkowski has shown genuine remorse for his actions as expressed in his evidence before the Tribunal, in the Magistrates Court proceedings, and in the telephone conversations with G recorded by police.
4. Whilst Mr Didenkowski had not sought to rehabilitate himself by further reading or professional development, this is to some extent understandable given his evidence as to his limited emotional capacity in the period since he was charged, and his isolation from his profession. He has, however, continued psychiatric treatment with Dr Kaminski and consulted him specifically in relation to the behaviour which was the subject of the offences.
5. We accept that we cannot be confident that Mr Didenkowski will not re-offend if he is granted re-registration. However, the high character references indicate that prior to the offences Mr Didenkowski was an exemplary member of the community and that his conduct in relation to G was totally out of character. The references also indicated that Mr Didenkowski is fortunate in receiving stalwart support from his wife and family which is likely to assist him considerably in rehabilitating himself.
6. It is of some concern that notwithstanding the elapse of some 18 months between the notification by Victoria Police and this hearing, during which Mr Didenkowski obtained psychiatric treatment, he was unable to assist the Tribunal in relation to the context and/ or motivation for his behaviour.
7. This has caused us some concern in relation to what were acknowledged as sexualised behaviours, and the Tribunal cannot avoid the presumption that Mr Didenkowski's sexual impulses had been translated into sexual behaviour. In this regard we are unable to accept Mr Clelland's submission to the effect that Mr Didenkowski's immaturity, lack of experience and inadequate training led to his behaviour, and was a by-product of the counselling and therapy he was providing.
8. We take some comfort however from the opinion expressed by Dr Kaminski that Mr Didenkowski showed significant insight and considerable motivation and energy to resolve the matter and that his prognosis was very good.
9. At the same time, his reported insight in the 18 months since these matters were first dealt with in the Magistrates' Court, was not amplified by an explanation from Mr Didenkowski for the impulses or behaviours, on two separate occasions, that produced his misconduct. In our view, any explanation would have been preferable to an appearance of remorse without an accompanying capacity for self-examination. It should go without saying that a lack of capacity, or willingness, to explain his comprehension of his actions was very troubling to the Tribunal in relation to the question of specific deterrence.
10. Mr Didenkowski's lack of development in this area was compounded by his failure to seek appropriate supervision in the almost two year period since the misconduct occurred. Effectively, he committed two criminal actions that were also unprofessional, and he sought no assistance in addressing these issues on a professional basis any more than he demonstrated on a personal basis.
11. Mr Didenkowski's actions give ground for the gravest concern as to his suitability to be a member of the psychologist profession. However, the particular wrongdoing was not of the most serious kind.
12. He has not practised as a psychologist since 17 April 2008 when he was granted bail conditional upon his undertaking not to practise the profession of psychology. At the end of the 12 month period from the hearing date, it will be for Mr Didenkowski to convince the Board that he is a fit and proper person for re-registration. Further, we recommend to the Board that his capacity for self-examination and introspection be a critical factor in informing the Board in relation to his entitlement to re-registration. In the event that Mr Didenkowski is successful in obtaining re-registration, the Board may also wish to consider the imposition of appropriate conditions in relation to supervision and professional development.
13. We find that Mr Didenkowski has engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of the HPR Act. Pursuant to s 77(4) of that Act we determine to cancel Mr Didenkowski's registration as a psychologist under s 77(4)(h) and to disqualify him from applying for registration within a period of one year from the date of this decision, 1 December 2009, under s 77(4)(o) of that Act.