plaintiff. VCAT found serious unprofessional conduct and professional misconduct and suspended Mr Pallini’s registration for six months, commencing one month after the orders unless agreed otherwise; it also...
Key principles
Under the transitional provision in s 169 of the Health Professions Registration Act 2005, the Tribunal considered the proceedings under that Act but framed its findings and...
Whether conduct is unprofessional conduct of a serious nature, or professional misconduct, is a matter of degree and judgment assessed in the context of the conduct as a whole....
Taking employment at the same workplace as a current, vulnerable client, without adequately managing the resulting dual relationship, was serious unprofessional conduct. The...
Socialising with the client in the workplace and outside it, against the background of an existing dual relationship, the client's vulnerability and the psychologist's awareness...
Issues before the court
Which statutory regime governed findings and determinations for conduct that occurred before repeal of the Psychologists Registration Act 2000?
Plain English Summary
VCAT found that Mr Pallini seriously breached professional boundaries with a client. Working at her workplace while continuing to treat her was serious unprofessional conduct. Socialising with her in that setting and sending sexualised messages while she remained his client amounted to professional misconduct. Because the Tribunal remained concerned about his insight and risk to clients, it suspended him and imposed education, counselling, supervision and work restrictions.
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Deep Dive
2,224 words · generated 30/09/2026
What happened
The Psychologists Registration Board of Victoria referred Brett Pallini to VCAT after receiving a notification from a former client, identified in the reasons as Ms M. The conduct in question took place between 2003 and 2005, when the Psychologists Registration Act 2000 was in force. The Board referred the matter in May 2008 under s 59(2)(g) of the Health Professions Registration Act 2005.
Did the psychologist's employment at the same workplace as his client amount to serious unprofessional conduct or professional misconduct?
Did socialising with the client breach professional boundaries to the level of professional misconduct?
Did the sexualised text messages constitute professional misconduct?
Cited legislation
No linked legislation citations have been extracted yet.
Ms M began therapy with Mr Pallini in December 2001 and attended 96 sessions, with her last appointment on 14 September 2005. The agreed facts describe her as experiencing anxiety and depression, difficulties with relationships and self-esteem, and concerns about work and assertiveness. The Tribunal also noted that she had been diagnosed with bipolar affective disorder and prescribed medication. Her employment and relationships at work were recurring topics in therapy.
The allegations concerned three kinds of boundary conduct. First, Mr Pallini took a job at W, where Ms M worked, while continuing to treat her. The Tribunal was not satisfied that he knew she worked there when he applied for the position, but found he knew before he began work there. Second, the Tribunal considered his social interactions with her at W and outside work. These included attendance at workplace drinks and a birthday gathering, as well as a joke email. Third, he sent her sexualised text messages in October and November 2005, while she remained his client.
The Tribunal found the workplace dual relationship to be serious unprofessional conduct, but not professional misconduct. It found that socialising with Ms M in the circumstances was professional misconduct. It also found professional misconduct in sending the sexualised messages. It suspended Mr Pallini for six months and imposed a programme of mentoring, counselling, supervision and practice restrictions. The reasons say those determinations were intended to protect the community, assist Mr Pallini to develop appropriate standards and convey the importance of professional boundaries.
Why the court decided this way
The first question was which legislation governed. The Tribunal treated the HPR Act as governing the proceedings because they began after the old Act had been repealed. But s 169(2) of the HPR Act required the hearing outcome to be one that would have been available under the repealed legislation. The conduct occurred while the Psychologists Registration Act 2000 applied, and the Tribunal considered its findings and determinations should therefore be framed under that Act. It observed that the relevant definitions were equivalent for this case, although it considered the distinction between the statutes important in principle.
For the seriousness assessment, the Tribunal said that each allegation had to be evaluated in its circumstances, while also taking account of the relationship between the allegations. It described the task as placing behaviour on a “spectrum of impropriety”. It did not treat the three allegations as automatically one continuing course of conduct, but recognised that later allegations had to be viewed against the earlier boundary problems.
The dual workplace relationship mattered because it added a work-colleague role to an established psychologist-client relationship. The Tribunal accepted that the relationship involved a power imbalance and that dual relationships could impair professional judgement or increase the risk of exploitation. Although it did not find that Mr Pallini knew of Ms M's employment when he applied, he knew before taking up the position. The Tribunal considered that briefly asking whether she would be comfortable did not adequately address the problem. It noted that she was not offered alternatives and was effectively left to “make the best of it”.
The Tribunal considered the employment decision serious unprofessional conduct because Mr Pallini should have foreseen that working alongside Ms M could adversely affect the therapeutic relationship and her psychological wellbeing. It referred to her vulnerabilities and to her history of discussing work-related boundary concerns. In its view, those circumstances called for clear separation between therapeutic and working roles. But it did not classify this allegation alone as professional misconduct, which it associated with a more serious degree of impropriety.
The social interactions were evaluated in light of the existing dual relationship, rather than as isolated, ordinary workplace events. The Tribunal rejected the submission that they were trivial. It considered that mixing socially with a client could send mixed messages and increase the risk of further boundary violations, particularly where the client was vulnerable and the psychologist understood her to be dependent on his approval. The Tribunal also considered relevant her prior experiences of sexualised conduct at work and her discussions with him about workplace boundaries. It said that a client's apparent comfort with a development was not a defence to boundary transgressions.
The sexualised messages were treated more seriously still. The Tribunal described them as a very serious breach of boundaries and said it was wrong to use a therapeutic relationship as a means of establishing a sexual relationship. The messages were sent while Ms M remained a client. The Tribunal considered the trust and vulnerability inherent in that relationship, and the distress and consequences described in the agreed facts. It referred to decisions concerning the unacceptable exploitation of vulnerable patients, but the reasons do not set out the full reasoning of each cited decision.
The final orders reflected the Tribunal's assessment of risk and insight. It found that Mr Pallini had some emerging understanding, but remained troubled by his minimisation of the messages, his account of the relationship as a friendship, and his tendency to attribute responsibility to Ms M. The Tribunal considered that his existing supervision had been mainly directed to containing risk in the interim, rather than fully rehabilitating him in relation to the past conduct. It was not satisfied that his understanding had reached an adequate level.
Before and after state of the law
The judgment addresses a transitional statutory problem, not a general change to the law. The Psychologists Registration Act 2000 was repealed by the Health Professions Registration Act 2005. Mr Pallini's conduct pre-dated the repeal, but the notification and proceedings came later. Section 169 of the HPR Act supplied the transition rule: the new Act applied to proceedings about earlier activities where there had been no proceeding under the repealed provisions, but s 169(2) required the outcome to be one that would have been available under the old provisions.
The Tribunal noted that there was disagreement about whether its findings should be characterised by reference to the old or new Act. It considered the better view was to frame the allegations and findings in the language of the old Act, because the conduct occurred under that statute and the determinations had to be available under it. It also said the practical consequences in this case were the same because the relevant definitions were aligned.
Under the old Act, s 48(1) allowed findings of serious unprofessional conduct, unprofessional conduct that was not serious, or no unprofessional conduct. Section 48(2) authorised determinations including counselling, further education, conditions, suspension and cancellation. VCAT made its orders under that section.
The judgment does not establish a “before and after” change in the substantive boundary rules. Instead, it applies the statutory transition provisions and existing professional standards to the particular facts. Its important distinction is between serious unprofessional conduct and professional misconduct: the employment dual relationship fell into the former category, while socialising and the sexualised messages were characterised as professional misconduct in their circumstances.
The decision also explains the purpose of disciplinary determinations as protective rather than punitive. It adopts that approach from authorities cited in the reasons, particularly Honey v Medical Practitioners Board of Victoria. The orders were designed to protect clients and maintain professional standards, while also addressing the practitioner's identified deficits.
Key passages with plain-English translation
The supplied judgment has repeated local paragraph numbering and some paragraphs without a clear number. To avoid assigning inaccurate paragraph references, the passages below are located by the relevant reasons heading.
Under “Allegation (i)”, the Tribunal said: “Each particular matter has to be viewed in the totality of its circumstances.” In plain English, the Tribunal did not assess boundary conduct in a vacuum. It considered the nature of each event, the existing relationship and relevant surrounding circumstances.
On the same allegation, it said Mr Pallini “should have foreseen that he could be causing adverse consequences to the therapeutic relationship and the psychological well-being of his client.” This explains why the workplace arrangement was serious even though the Tribunal did not find he knew of Ms M's employment when applying for the job. The relevant failure was not simply the application itself, but accepting and managing the overlap once he knew.
Under “Allegation (ii)”, the Tribunal said: “Assuming that the client is comfortable with the development, which Mr Pallini did, is no defence to boundary transgressions.” In plain English, a client's apparent acceptance does not remove the psychologist's professional responsibility to maintain appropriate boundaries.
Under “Allegation (iii)”, the Tribunal stated: “It is wrong to use a therapeutic relationship as a means of establishing a sexual relationship.” This was the core reason for treating the messages as professional misconduct. The relevant relationship remained therapeutic when the messages were sent.
Under “Determinations”, the reasons state: “The function of a determination is protective, not punitive.” The Tribunal's orders were therefore directed at risk reduction, professional standards and remediation, rather than punishment as an end in itself.
Finally, under “Conclusions”, the Tribunal explained that the orders were intended “to ensure the protection of the community” and to convey the importance of professional boundaries. That purpose is reflected in the combined suspension, mentoring, counselling, supervision and practice restrictions.
What fact patterns trigger this precedent
The decision is most directly relevant to professional discipline cases involving a psychologist who takes on another role in relation to a current client. Here, the additional role was workplace colleague. The Tribunal's concern was not that every overlap automatically amounts to misconduct. It focused on whether the dual relationship was avoidable, whether it was recognised and managed, and what risks arose for the client and the therapeutic relationship.
It may also be relevant where a practitioner treats ordinary workplace or social contact as harmless without considering the client's vulnerability, the power imbalance, the possibility of mixed messages, or the risk of boundary erosion. In Pallini, the social contact occurred against an already established dual relationship and in the context of Ms M's personal and work-related concerns.
The decision is particularly significant for conduct that sexualises an ongoing therapeutic relationship. The messages were not evaluated as private communications separate from treatment: they were sent while Ms M remained a client, following years of therapy and amid an established professional relationship.
The decision should not be read as resolving every possible case involving dual relationships, social contact or messages. The Tribunal assessed this combination of facts, including the client's vulnerabilities, the prior boundary crossings, Mr Pallini's understanding of the relationship and the messages' content. It also distinguished the seriousness of the workplace employment allegation from the professional misconduct findings on socialising and sexualised messages.
How later courts have treated it
The supplied judgment contains no later judicial or tribunal treatment of Psychologists Registration Board of Victoria v Pallini. It therefore does not support a claim about whether later courts or tribunals followed, distinguished, approved or criticised it.
The reasons themselves cite earlier cases and decisions. These include Gertrude Kennedy v Medical Practitioners Board of Victoria on the transitional legislation issue, Vissenga v Medical Practitioners Board of Victoria on the standard of unprofessional conduct, and Honey v Medical Practitioners Board of Victoria on the protective purpose of disciplinary orders. The Tribunal also refers to Wilks v Medical Practitioners' Board of Victoria and Raschid v General Medical Council in discussing trust and sexualisation of professional relationships. Those are authorities considered in the judgment, not evidence of how Pallini was treated later.
Still-open questions
The judgment does not determine how far its approach to workplace dual relationships extends to unavoidable overlaps, such as circumstances where a practitioner has limited professional alternatives. It notes that multiple relationships may be unavoidable in some settings through the ethical material it reproduces, but the facts before it concerned a psychologist accepting work at a client's workplace and continuing treatment.
The reasons also do not establish a general rule that every social interaction with a client amounts to professional misconduct. The classification depended on the existing dual relationship, the client's vulnerability, prior boundary concerns and the risk of further transgression. A different factual setting could require a different assessment.
The judgment does not provide a complete test for when serious unprofessional conduct becomes professional misconduct. It describes the task as one of degree and judgment, and uses professional standards and the circumstances to distinguish the categories. The practical boundary between them remains fact-sensitive in the reasoning presented.
Finally, the decision records a transitional statutory issue where the relevant statutory definitions were materially equivalent on the facts. It does not resolve every situation in which the old and new statutory standards differ. The reasons discuss Gertrude Kennedy as addressing a case where the former and replacement standards were different, but the Pallini Tribunal's own assessment was that little turned on the distinction in its case.
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Judgment (123 paragraphs)
[1]
Psychologists Registration Board of Victoria v Pallini (Occupational and Business Regulation) [2008] VCAT 2632 (19 December 2008)
[2]
Psychologists Registration Board of Victoria v Pallini (Occupational and Business Regulation) [2008] VCAT 2632 (19 December 2008)
[3]
Occupational and Business Regulation List - Psychologist - transitional provisions - findings of a formal hearing - unprofessional conduct - whether of a serious nature or not of a serious nature - whether professional misconduct - suspension - determinations - Psychologists Registration Act 2000 ss 3 and 48, Health Professions Registration Act 2005 ss 3, 163 and 169
[4]
Psychologists Registration Board of Victoria v Pallini (Occupational and Business Regulation) [2008] VCAT 2632
[5]
Pursuant to s 48(2) of the Psychologists Registration Act 2000, the Tribunal having found that Mr Pallini has engaged in unprofessional conduct of a serious nature determines that :
[6]
The registration of Mr Pallini be suspended for a period of six months, beginning one month from the date of these orders, or earlier as agreed between Mr Pallini and the Board. This delay will enable Mr Pallini to conclude current professional activities with his current clients.
Mr Pallini whilst suspended commence as soon as possible further education in the form of mentoring with a mentor approved by the Board, for a period of six months, in relation to boundary issues which might include guidance, through the utilisation of any or all of the following:
(a) review of previous Board determinations involving boundary issues
(b) role plays
(c) discussion of various scenarios
(d) reading of relevant literature
(e) attendance at relevant professional development activities.
Mr Pallini undertake counselling at least monthly for a period of 12 months, from the date of this determination, or such longer period as his counsellor directs, whichever is longer, at his own expense from a mental health professional approved by the Board in relation to the personal factors that contributed toward his boundary transgressions and creation of inappropriate dual relationships.
Mr Pallini take those steps that are reasonably open to him to facilitate the counsellor referred to in Order 3 providing to the Board a brief report at six monthly intervals confirming Mr Pallini's attendances with the counsellor and confirming that issues relating to relevant personal issues have been addressed in the counselling process.
On resumption of his registration, the following conditions apply :
(a) that Mr Pallini obtain supervision of his practice as a psychologist at his own expense from a senior psychologist approved by the Board for a period of at least three years, at least weekly for the first year after resumption and at least fortnightly after that**,** and that the supervisor provide six-monthly reports to the Board, assessing Mr Pallini's progress in each of the areas specified in the initial agreement_;_
[7]
(b) that Mr Pallini refrain from engaging in private practice for at least 24 months from the date of expiration of his suspension or for such period as is recommended to be safe for Mr Pallini's clients and notified to the Board by the approved supervisor, whichever period is longer.
[8]
Mr Pallini refrain from providing supervision to psychologists providing direct counselling services to members of the public for a period of not less than five years.
[9]
Ms K Stynes of counsel instructed by Ebsworth & Ebsworth
[10]
In August 2007, the Psychologists Registration Board received a notification from a young woman, whom we shall refer to in these reasons as "Ms M", about the conduct of Mr Brett Pallini, her treating registered psychologist.
Mr Pallini is 34 years of age. He was registered as a probationary psychologist in March 1998. In December 1998, he commenced private practice on a part-time basis at a medical clinic. As well as conducting a private practice, he had worked at a community clinic and Lifeline during his probationary period. He obtained full registration in May 2000. In December 2001, Ms M attended her first consultation with Mr Pallini. She had her 96th and last consultation with him in September 2005.
After investigating the matter, the Board decided to refer the notification in relation to Mr Pallini's professional conduct to this Tribunal for a hearing. The referral was made on 8 May 2008 pursuant to s 59(2)(g) of the Health Professions Registration Act 2005 (HPR Act).
Following its investigation, on 12 December 2007, the Board instead of suspending Mr Pallini sought and accepted an agreement with him, under s 40(5) of the HPR Act, in summary, to :
undergo weekly supervision with a registered psychologist and to address five specific areas as noted in the agreement
undergo counselling sufficient to address personal issues
cease all operations of private practice.
[11]
The agreement was to remain in force pending the outcome of this proceeding.
[12]
The matter was referred to this Tribunal for the Tribunal to conduct a hearing in relation to the following allegations :
[13]
That Mr Pallini engaged in unprofessional conduct and/or professional misconduct within the meaning of section 3 of the HPR Act, in that :
[14]
(i) between approximately October or November 2003 and March or April 2004, Mr Pallini failed to identify or properly manage a dual relationship with his client Ms M, by seeking and undertaking employment at W, at which institution he was aware from Ms M in the course of therapy that she was employed;
[15]
(ii) between approximately October or November 2003 and March or April 2004, Mr Pallini breached the proper professional boundaries of his therapeutic relationship with his client Ms M, by socialising in her company within and outside the workplace;
[16]
(iii) between approximately 25 October and 9 November 2005, Mr Pallini breached professional boundaries that ordinarily do and should delineate the psychologist client relationship by sending her salacious and sexualised text messages.
[17]
Dr Freckelton SC appeared for the Board and Ms Stynes for Mr Pallini.
By the commencement of the hearing on 22 October 2008, the parties had prepared a "statement of agreed facts". In those circumstances, the parties proposed, and the Tribunal agreed, to conduct the hearing in two parts. The first part consisted of the Tribunal hearing submissions concerning the level of severity of the stipulated conduct contained in the allegations. It was agreed that the Tribunal would make specific findings followed by the second part, in which the issue of determination would be addressed.
[18]
Mr Pallini's conduct occurred between October 2003 and November 2005, whilst the Psychologists Registration Act 2000 was in force (the old Act). However, the notification was received in August 2007 after the Health Professions Registration Act 2005 (the HPR Act) came into force which, by s 163, repealed the old Act.
In these circumstances, s 169 of the HPR Act applies. Relevantly, s 169(1) and (2) state :
What if no proceedings started beforecommencement of this Act?
[19]
(1) In the case of activities of a person who is deemed by section 170 to be a health practitioner or student registered under this Act which occurred before the commencement of section 163 and in respect of which no investigation, inquiry, hearing or other proceeding have been commenced under the repealed provision, this Act applies to the extent that there was power to conduct an investigation, inquiry, hearing or other proceeding under the repealed provision into those activities.
[20]
(2) Any determination or outcome of a hearing into those activities must be one that would have been available as a finding or decision in an investigation, inquiry, hearing or other proceeding by the responsible board under the repealed provision.
[21]
It is clear that the HPR Act applies if there was power to conduct any of the proceedings under the repealed Act and that such proceedings should be conducted in accordance with the provisions of the HPR Act. Neither party disputed that.
Where counsel differed was in how the conduct should be characterised; whether our findings were an "outcome" that should be made with reference to the old Act rather than the HPR Act. Counsel agreed that any determination, following the findings, must be made with reference to the old Act.
These are difficult issues, but counsel both assured us that not much flows from their differences because the definitions or the common law which applied under the old Act and the definitions in the HPR Act are closely aligned. Dr Freckelton assured us that if we made findings of "unprofessional conduct" or "professional misconduct" and did not refer to any particular legislation, the Board would be content.
Under the old Act, s 48(1) sets out the findings that can be made after submissions at a formal hearing. They are that -
[22]
(a) the psychologist has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or
[23]
(b) the psychologist has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or
[24]
(c) the psychologist has not engaged in unprofessional conduct.
[25]
Ms Stynes did not dispute that under the old Act all three allegations amounted to "unprofessional conduct". That is defined in s 3 of the old Act to mean, relevantly for these proceedings, all or any of the following -
[26]
(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered psychologist; or
[27]
(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered psychologist by his or her peers; or
[28]
In the HPR Act there is but one step. S 3(1) has definitions of both "professional misconduct" and "unprofessional conduct". "Professional misconduct" is defined to include-
[29]
(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
[30]
(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
[31]
(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;
[32]
The definition for "unprofessional conduct" relevantly includes -
[33]
(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;
[34]
(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;
[35]
It will be seen then, that the conduct in the HPR Act is equivalent to the conduct in the old Act. "Unprofessional conduct" for the purposes of this hearing is the same whether you look at (a) and (b) together in the old Act or its definition in (a) in the HPR Act; and "professional misconduct" at common law equates to definitions (a) and (b) in the HPR Act.
The allegations were referred to this Tribunal by the Board under s 59(2)(g) of the new Act for the Tribunal to conduct a hearing in relation to them. The allegations were framed by reference to the HPR Act, and were that Mr Pallini had engaged in unprofessional conduct and/or professional misconduct within the meaning of s 3 of the HPR Act.
As we understand Ms Stynes' submissions, they are that the allegations as well as any findings we make should be framed with reference to the old Act.
We accept that whichever approach is taken, the practical consequences in this case would be the same. For the avoidance of doubt, we made findings on the day of "unprofessional conduct" and "professional misconduct" without specific reference to either Act.
The Supreme Court of Victoria has had occasion to consider similar difficulties in a number of cases.
These are McGrath v Medical Practitioners Board of Victoria[1960] 10 VAR 454; Qx v The Medical Practitioners Board of Victoria, unreported, 11 June 1997 and Chen v Chiropractors Registration Board of Victoria[2000] VSC 480. The approach taken however has not been uniform. More recently, and since submissions were made, our attention has been drawn to a decision of Kaye J in Gertrude Kennedy v Medical Practitioners Board of Victoria[2008] VSC 507 delivered on 26 November 2008. We understand the parties are aware of this decision.
The case was about what provisions the Medical Practitioners Board was bound to apply, the provisions of the 1970 Act or the 1994 Act when the conduct occurred before the 1994 Act commenced. Critically, in that case, the standard of conduct in the 1970 Act and the 1994 Act was , a matter of real substance, unlike this case.
[36]
The statement is very comprehensive, but we reproduce here those parts relevant to our considerations. In what is reproduced below, we have changed the names and references to matters that might tend to identify Ms M.
[37]
By letter dated 17 December 2001, Ms M was referred to Mr Pallini by Dr B, her general practitioner.
Towards the end of 2001, Ms M was experiencing significant problems with anxiety and depression and had discussed these issues with Dr B. In treating Ms M, Dr B prescribed anti-depressant medication and referred her to Mr Pallini for counselling. Dr B and Mr Pallini both practised at the .... Medical Centre.
A copy of Mr Pallini's clinical file in respect of Ms M is attached.
In a 'Pre-intake Form for Therapy with Brett Pallini', Ms M stated on 19 December 2001: 'I feel that life in general is getting on top of me and my stress levels are rapidly increasing. I am also experiencing periods when I have mood swings, feel depressed and lack motivation to do anything' .
Ms M attended her first consultation with Mr Pallini on 19 December 2001. At her sixth session with Mr Pallini on 13 February 2002, Ms M said amongst other things, that in late 2001, she had experienced very explicit sexual comments from a work colleague but did not take action about it.
Mr Pallini treated Ms M with cognitive behavioural therapy and psychodynamic therapy. From January 2001 to October 2003, Ms M saw Mr Pallini on a weekly basis. Thereafter he saw her fortnightly. Mr Pallini saw Ms M on 96 occasions, with his last consultation with Ms M being on 14 September 2005.
Throughout the period in which Mr Pallini provided counselling to Ms M, a number of issues and concerns were identified by Ms M. These issues included:
[38]
(a) issues at work experienced by Ms M, including concerns about anxiety and/or depression connected to feelings at work. This was a consistent theme throughout the counselling relationship, including when Ms M started working for W, and when there was overlap between Mr Pallini's and Ms M's employment at W. In respect of W, Ms M discussed with Mr Pallini her feelings about her boss breaching confidentiality in relation to her 'emotional disorder' and 'personal problems', as well as an intimate relationship with a male colleague;
[39]
(b) issues in respect of Ms M's difficulty in forming intimate relationships;
[40]
(c) issues in respect of Ms M's self-esteem in connection with and related to her relationships with men;
[41]
(d) issues in respect of Ms M's lack of assertiveness in both her work and personal relationships;
[42]
(e) issues in respect of fear of rejection, devaluation, disapproval and abandonment; and
[43]
In late 2002, after seeing Mr Pallini for approximately 12 months, Mr Pallini formed a view that Ms M may suffer from bi-polar affective disorder. Dr B provided Ms M with a referral to Dr T, a psychiatrist. After Dr B referred Ms M to Dr T, she continued to see Mr Pallini.
During Ms M's first consultation with Dr T, Dr T confirmed a diagnosis of bipolar affective disorder and prescribed her Lithium. Ms M ceased seeing Dr T after approximately five to six sessions. After Ms M ceased seeing Dr T, she continued the Lithium treatment and obtained prescriptions from general practitioners at E Clinic, ....
[44]
In May 2003, Ms M commenced employment at W as an administrative assistant.
Ms M says that as part of her role at W, she was responsible for receiving the mail and job applications sent to W via email. Ms M says that in approximately October 2003, around six months after she commenced employment with W, she became aware that Mr Pallini had applied for a position at W, as a psychologist. Ms M says that she first became aware of this when she received Mr Pallini's job application via email at W. Mr Pallini does not accept that he sent his application via email. Mr Pallini says that he sent his application by ordinary post to Ms J.
Ms M says that prior to applying for a position at W, Mr Pallini was aware that she worked there. Ms M says that she had spoken to Mr Pallini during numerous clinical sessions about working at W. Mr Pallini says that he applied for the position at W in August 2003, after he had returned from overseas where he had been travelling since May 2003.
Mr Pallini says that he did not know that Ms M worked at W when he applied for the position. However, prior to accepting the position, he did know. He found out when he told Ms M, as he did his other clients, that he had applied for a job and that if he got it, it may impact on the days he would be available at the .... Medical Centre. He says that Ms M asked him where he had applied and he told her he had applied to W. At that time she told him that she worked at W.
Ms M says that after she had seen Mr Pallini's application for a position at W, Mr Pallini discussed his application with Ms M at her next therapeutic session.
Mr Pallini says that he did not know that Ms M had seen his application. However, he agrees that it was during a counselling session that they discussed how they would manage their relationship in the workplace.
Mr Pallini asked Ms M whether she would feel comfortable working with him. Ms M told Mr Pallini that she did not have a problem working with him at W. The conversation between Mr Pallini and Ms M regarding Mr Pallini's employment at W was quite brief.
Mr Pallini commenced employment with W in September 2003, working two to three days per week. Ms M was employed full-time. No other employees at W were aware that Mr Pallini was Ms M's treating psychologist.
In general, Ms M's administration role at W did not require a significant amount of interpersonal contact with the psychologists. Ms M says her role did involve making bookings for the psychologists and speaking with their clients. She says that as part of her role, she was responsible for managing Mr Pallini's diary and was also required to contact Mr Pallini to manage his appointments and put telephone calls through to him. Mr Pallini says that Ms M did not manage his diary or his appointments. He says he managed an electronic diary. If someone wanted to make an entry in his diary they sent him an email notifying him of an appointment. Most appointments came from reception. He says Ms M did spend some time on reception and that he may have received a small number of appointment notifications from her. He says she may have also put some calls through to him but not very often.
[45]
During the period in which Mr Pallini and Ms M were both employed at W, W provided drinks evenings for employees once a month. This was a social occasion for all W employees. Mr Pallini attended them infrequently, perhaps once every three months. On one, perhaps two occasions, Ms M and Mr Pallini attended on the same evening. Neither Mr Pallini nor Ms M approached each other on these occasions.
Prior to Christmas 2003, W also arranged an office Christmas party. Ms M did not attend it and instead went out with friends for birthday drinks. Ms M invited a group of W employees (including Mr Pallini) to join her for drinks after the Christmas party. Ms M says that following the Christmas party, Mr Pallini sent Ms M a text message asking whether she was out and where she was. Mr Pallini cannot remember whether he sent a text message or whether it was another employee whom he was with. However, he agrees that a text message was sent and that Ms M replied with details of where she was. Mr Pallini and a number of W employees then attended the club that Ms M was at. Mr Pallini says that at the club, he wished Ms M a happy birthday, had a drink in her company, and left the venue after approximately 30 minutes. Ms M says that she left the club at the same time as Mr Pallini and one of his friends. Ms M says that this was after Mr Pallini had been at the club for at least an hour.
During their employment at W, Mr Pallini also sent Ms M a small number of 'joke' emails. Ms M says that on one occasion, Mr Pallini sent her an email of a cartoon of a semi-naked man with a joke attached. Ms M says that this was a generic type of email likely to be sent amongst friends. However, Ms M says that she thought it was inappropriate given the nature of her relationship with Mr Pallini. Mr Pallini says that the email is likely to have been sent as a group email.
In around April 2004, Ms M ceased employment with W. She says she decided to leave partly because she felt uncomfortable working with Mr Pallini, but also because she was ready for a change and was experiencing a number of other issues working at W.
[46]
Throughout the course of the therapeutic relationship between Mr Pallini and Ms M, communication was often via text message. Mr Pallini and Ms M would use text messages to arrange appointments or to make alternative arrangements if an appointment was cancelled. From time to time, Ms M would send to Mr Pallini a text message raising issues she wished to discuss in the context of their therapeutic relationship. On a few occasions, these text messages included details of Ms M's relationships with other men.
Over the years, the text messages between Mr Pallini and Ms M became more casual. Comments such as 'How are you going?' or 'Have a nice weekend' would sometimes be included in the text message. However, the primary purpose of the text messages was to arrange appointments.
On 25 October 2005, Mr Pallini and Ms M exchanged a number of text messages. They arose in the context of arranging an appointment. On this occasion, Ms M considered that at least one of the text messages became inappropriate. This message stated:
[47]
'Your like a used car sales rep. out with the old in with the new. i have some good talents but the list might work'
[48]
This text message related to the fact that Ms M had recently broken up with a man she had been dating.
After this exchange of text messages, Ms M and Mr Pallini had no further contact until Mr Pallini sent Ms M a series of text messages on 3 November 2005, some of a sexually suggestive and inappropriate nature. Ms M says that she received so many text messages that the limited memory in her mobile phone was filled, with the result that she had to delete a number of the text messages she received.
Prior to sending the sexually suggestive messages, Mr Pallini had never made any similar comments to Ms M in person during her counselling sessions, or while they were both employed at W
Ms M responded to some but not all the text messages. However, when she did respond to the sexually suggestive messages, she indicated that they were inappropriate and that she was not going to participate in such behaviour.
The first sexually suggestive text message that Ms M received from Mr Pallini implied that if she wore a 'tit top' to her next session, she would get a reduced fee. Following this text message, she received a text message from Mr Pallini stating:
[49]
'i reckon if i had ten minutes to satisfy you without penetration you might enjoy the gratification and want more'
[50]
A transcript of the text messages that remain on Ms M's mobile phone is included behind Tab 13.
Ms M says she was extremely upset by Mr Pallini's text messages and went to see her general practitioner, who by this stage was Dr W. Dr W recommended that Ms M take two weeks off from work on stress leave. Ms M took two weeks off work on stress leave.
After the series of inappropriate text messages on 3 November 2005, Mr Pallini later sent Ms M a text message on 9 November 2005, seeking to confirm a time for their next counselling session. The text message is listed as number 10 behind Tab 13. It stated:
[51]
'have you cancelled your appointment tonight? if so do you want to reschedule'
[52]
In response to this text message, Ms M sent Mr Pallini a text message containing words to the effect of 'No, absolutely not'. After Ms M's response, Ms M received a number of apologetic text messages from Mr Pallini. The text messages listed as numbers 6 and 7 behind Tab 13 state:
[53]
'i understand your probably angry and disappointed, however i wonder if you can find it in yourself to put... this behind us, and reconsider'
[54]
Following this text message, Mr Pallini then sent another text message stating:
[55]
'Your decision to move on. im more than happy to discuss. I'm not a bad man just human'.
[56]
54. This text message is listed as number 5 behind Tab 13.
[57]
Since receiving this series of text messages from Mr Pallini, which occurred while she was his client, Ms M concluded her therapeutic relationship with Mr Pallini.
Ms M is now receiving therapy from another female psychologist, Ms S.
[58]
In respect of the allegations outlined above, Mr Pallini says that during the period in which he provided counselling to Ms M:
[59]
(a) he did accept an offer of employment from W at a time when he knew Ms M was employed by W, Mr Pallini says he did not know of her employment at the time that he applied for a position at W (although Ms M says otherwise). From around October 2003 to April 2004, both he and Ms M were employed by W.
[60]
(b) he did socialise in Ms M's company within and outside the workplace. Specifically:
[61]
(i) Mr Pallini attended one or two office drink nights which Ms M also attended, although neither he nor Ms M approached each other on these occasions; and
[62]
(ii) Mr Pallini, together with a small group of colleagues, met with Ms M at a nightclub following W office Christmas party. Ms M had informed this group that she was meeting some friends to celebrate her 30th birthday. She invited them to join her. Mr Pallini says that he wished Ms M a happy birthday, had one drink in her company and left after around 30 minutes. (Ms M says that she left the club at the same time as Mr Pallini and one of his friends. Ms M says that this was after Mr Pallini had been at the club for at least an hour.)
[63]
(c) he did send the text messages described in paragraphs 43, 48, 51, 52 and 53 above and as set out in the document behind Tab 13 and numbered 5, 6, 7, 8, 10 and 11.
[64]
Mr Pallini accepts that his conduct has been of a lower standard than is to be expected of a registered health practitioner.
He accepts that in relation to allegation 3(a)(iii) his conduct is properly characterised as 'professional misconduct', specifically 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.
In respect of allegations 3(a)(i) and 3(a)(ii), submissions will be made by each party at the Tribunal Hearing as to the findings that should be made. In respect of these allegations:
[65]
(a) Mr Pallini will submit that his conduct is properly characterised as `unprofessional conduct', specifically, conduct occurring in connection with his practice that was of a lesser standard than a member of the public or his peers are entitled to expect of a reasonably competent psychologist; and
[66]
(b) the Board will submit that his conduct is properly characterised as `professional misconduct', specifically 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, by reason of the dual relationship.
[67]
Given that position, and accepting the consensual position that the conduct set out in allegation (iii) is properly characterised as "professional misconduct", both counsel made submissions on how the conduct in respect of the allegations (i) and (ii) should be characterised. In his submissions, Dr Freckelton drew our attention to a report by Professor Anthony Love filed in the proceeding by the Board. That report referred to a number of standards and guidelines produced by the Australian Psychological Society for psychologists.
Having considered the agreed statement of facts and having had regard to the material filed and the submissions made by counsel on the day, we made the findings that follow. We set out the reasons for those findings.
[68]
Between approximately October or November 2003 and March or April 2004, Mr Pallini failed to identify or properly manage a dual relationship with his client Ms M, by seeking and undertaking employment at W, at which institution he was aware from Ms M in the course of therapy that she was employed
[69]
On the day we made a finding that this conduct was "unprofessional conduct". We were satisfied that the conduct was unprofessional conduct of a serious nature (s 48(1)(a) of the old Act) being professional conduct of a lesser standard than that which might reasonably be expected by his peers and the public (s3(a) and (b) of the old Act).
Dr Freckelton had submitted that Mr Pallini's conduct constituted a sequence of unprofessional conduct of a sufficient order of seriousness to all be classified as "professional misconduct".
He referred to the definition of "professional misconduct" in s 3 of the HPR Act, which is defined to include :
[70]
(a) professional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
[71]
(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
[72]
(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;
[73]
Dr Freckelton highlighted a number of cases which had considered the test to be applied at common law to determine what conduct might amount to "professional misconduct". He submitted that the essence of "professional misconduct" is assessment of serious impropriety by reference to the evaluation of professional peers. In summary, those cases, he submitted, would indicate the test is :
whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence (see Qidwai v Brown[1984] 1 NSWLR 100);
whether it is conduct which would reasonably be regarded as disgraceful or dishonourable by peers (in this case solicitors) of good repute and competency (see Myers v Eman[1940] AC 282 at 288-289 citing Re a Solicitor; Ex parte Law Society[1912] 1 KB 302);
whether the conduct would encompass conduct which included a 'deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner' per Kirby P in Pillai v Messiter (No 2)[1989] 16 NSWLR 197 at 200 (see McGrath v Medical Practitioners Board, unreported, Supreme Court of Victoria, Eames J, 1 November 1996);
whether the conduct violates or 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 (see Mandie J in Campbell v The Dental Board of Victoria[1999] VSC 113 at - .
[74]
I wish to revisit the words of paragraphs (a) and (b) of the definition of 'unprofessional conduct'. In both of these paragraphs attention is directed at professional conduct which is of a lesser standard than that which might 'reasonably' be expected of a registered medical practitioner by the public or by the peers of the practitioner. In my opinion, neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.
[75]
In the words Dr Freckelton used, our task was to decide "where in the spectrum of impropriety" Mr Pallini's behaviour falls. Put another way, as Ms Stynes submitted, "whether unprofessional conduct is of a serious kind is a matter of degree and judgment".
Whilst there are three separate allegations, that does not necessarily mean that there is an ongoing course of conduct, such that all the conduct should be viewed in the same way.
Each particular matter has to be viewed in the totality of its circumstances. The allegations did not occur in a vacuum. It would follow for example that the second and third allegations would have to be seen in light of the first. It is difficult to see however, that the first allegation can be characterised by reference to events in the future, where there is no suggestion of the first incident being part of "a plot" by the psychologist to inveigle his client, rather than the first step on "the slippery slope" as the first allegation proved to be.
Ms M was a client of Mr Pallini. In that context, taking the position at W created a dual relationship. The psychologist-client relationship, which by then had been of reasonably long standing, took on an additional dimension. Mr Pallini was no longer just Ms M's treating psychologist; he also became a work colleague.
The Australian Psychological Society's (APS) Code of Ethics specifically cautions about dual relationships. Those Guidelines in clause 7, section B of the Code of Ethics say :
[76]
Members must avoid dual relationships that could impair their professional judgement or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to provision of psychological services to employees, students, supervisees, close friends or relatives.
[77]
The rationale for this caution is explained in the APS Ethical Guidelines for managing professional boundaries and multiple relationships, thus
[78]
Dual or multiple relationships are those in which the psychologist is acting in at least one other role with a client or ex-client. For example, the psychologist may have a client with whom he/she also has another personal, scientific, professional, financial or other relationship. Boundary issues are frequently ambiguous. Furthermore, multiple relationships may be unavoidable in certain settings, for example, where psychologists practise in a small community. Nevertheless, multiple relationships are potentially exploitative and/or harmful and may impair the judgement of the psychologist. Psychologists need to consider these issues carefully because in practice major boundary violations are frequently preceded by lack of attention to minor boundary transgressions. When boundaries gradually erode this is sometimes referred to as the 'slippery slope' phenomenon. For example, the psychologist could move to lunchtime sessions with a client, to dinner, to sexual intimacy. The Code of Ethics views all dual/multiple relationships as having the risk of impairing the psychologist's objectivity and judgement. The psychologist should be mindful of this, and of the fact that professional relationships have different goals from those of personal, social or work relationships.
[79]
If a psychologist finds that a potentially harmful dual or multiple relationship has arisen, the psychologist should attempt to resolve it with due regard for the best interests of the client and maximal compliance with the Code of Ethics.
[80]
It was not agreed that Mr Pallini knew Ms M was employed at W when he applied for a position there. He maintains he did not. Ms Stynes took us through a chronology of events. At the end of April 2003, Mr Pallini took a three month holiday overseas. It was several weeks before he left, that Ms M started work at W. Mr Pallini's clinical notes only refer to the fact she had got a new job and was excited and saw it as a challenge. The company offering the new job was not identified, nor indeed was it ever nominated in the notes. Ms M apparently started there in May 2003. The next consultation occurred on 27 August 2003. Mr Pallini told the Tribunal he applied for the position at W in August after returning from overseas and commenced there in September. Given that chronology, Mr Pallini's version of events is more likely to be correct compared with Ms M's recollections which refer to October. In those circumstances, we were not satisfied that the allegation that he applied for the position, knowing Ms M worked there, is proven. However, he conceded he was aware of her employment prior to his commencement at the same employer.
Mr Pallini agreed he discussed with Ms M "how they would manage their relationship in the workplace". He agreed he asked her "whether she would feel comfortable working with him" and that they should keep their psychologist/client relationship confidential. He agreed these were brief conversations. Mr Pallini accepted that his conduct was unprofessional. We are fortified in our conclusion, by evidence which emerged during the determination phase of the hearing to the effect that Mr Pallini conceded that he had only discussed his employment with Ms M following the commencement of his employment, that they had a very brief conversation, and that she was not offered alternatives and effectively had to "make the best of it".
As Ms Stynes conceded, in any therapeutic relationship there is a power imbalance between the parties exposing the client to potential exploitation. She conceded that dual relationships should be avoided because they can impair the psychologist's professional judgment or increase the risk of exploitation.
In our view, this conduct in the spectrum of impropriety falls short of being disgraceful or dishonourable such as to constitute professional misconduct. We agree with Ms Stynes that it is unprofessional conduct of a serious nature; conduct of a lesser standard than the public or peers would expect.
[81]
Between approximately October or November 2003 and March or April 2004, Mr Pallini breached the proper professional boundaries of his therapeutic relationship with his client Ms M, by socialising in her company within and outside the workplace
[82]
On the day we made a finding that this conduct was "professional misconduct". We were satisfied that the conduct was unprofessional conduct of a serious nature (s 48(1) of the old Act) being professional misconduct (s3(c) of the old Act).
The socialisation involved attending office drinks; attending a nightclub to celebrate Ms M's birthday, responding to her invitation; sending a tasteless joke email to work colleagues and including Ms M.
Dr Freckelton submitted that this allegation amounted to professional misconduct.
Ms Stynes submitted that it was unprofessional conduct but not of a serious nature. She referred to the matters as being trivial in nature. She submitted that such interactions as sending a cartoon or conducting a brief visit to a nightclub were matters that should not be tainted in any way by the subsequent text messaging.
We did not agree with Ms Stynes that we should find the behaviour to be unprofessional conduct not of a serious nature.
In addition to what we have said above about boundary violations, a psychologist should not be mixing socially with their client. What makes the conduct more heinous is that it happened where there were already boundary issues crossed, and, more disturbingly, where the psychologist had assessed his client as vulnerable and dependent upon his approval. In addition, she had raised issues about their joint workplace where boundaries had been crossed, and had a history of previous unresolved issues about sexualised behaviour in the workplace.
We agree with Professor Love that any reasonable psychologist would, referring to the socialising within and outside the workplace, on reflection, consider this behaviour to be a boundary crossing that in itself was a violation of the appropriate relationship between psychologist and client and that it would severely increase the risk of possible further boundary violation in the future.
The vice in the behaviour is that the client may receive mixed messages and might misconstrue the nature of the relationship. Assuming that the client is comfortable with the development, which Mr Pallini did, is no defence to boundary transgressions.
Again, we are fortified in our conclusion by evidence which emerged in the determination phase, that satisfied us that Mr Pallini appeared oblivious to the risks of such transgressions, and did not consult, seek supervision, or in any other way act in a manner consistent with appropriate self-examination.
[83]
Between approximately 25 October and 9 November 2005, Mr Pallini breached professional boundaries that ordinarily do and should delineate the psychologist client relationship by sending her salacious and sexualised text messages.
[84]
On the day we made a finding that this was "professional misconduct". We were satisfied that the conduct was unprofessional conduct of a serious nature (s 48(1) of the old Act) being professional misconduct (s3(c) of the old Act).
Mr Pallini had conceded that sending the sexualised text messages was unprofessional conduct and amounted to professional misconduct.
Mr Pallini sexualised his relationship with Ms M while she was his therapy client. Such conduct is a very serious breach of the professional boundaries within a therapeutic relationship. It is wrong to use a therapeutic relationship as a means of establishing a sexual relationship. We agreed with Professor Love's opinion that the conduct "amounts to a significant and egregious departure from the standards which might be reasonably expected of a psychologist by his or her peers in the circumstances described".
Our finding is consistent with the approach taken in a number of cases involving health professionals to which Dr Freckelton referred, in his submissions. Those cases make clear the standards, and rationale for such standards, that apply to these professionals. There is no need here to set out all the cases referred to. It is sufficient to refer to the following points :
A series of modern judgments of appellate courts, including in the United Kingdom, has emphasised the complete unacceptability of exploitation of vulnerable persons for sexual reasons and the risk that sexualisation of the therapeutic relationship will abuse the trust of the client or patient.[1] Moreover, the professional has an obligation too to guard against perceptions of sexual interest on the part of a practitioner toward a client or patient.
The observations of Collins J in Raschid v General Medical Council[2006] EWHC 886 at [39]
[85]
Patients of psychiatrists must know that they can have complete faith in their doctors and that they will not be treated in a manner which is inappropriate and liable to be damaging to them, and that there will be no attempt to engage in a relationship which goes beyond the proper doctor-patient relationship.
[86]
The observations of this Tribunal in Wilks v Medical Practitioners' Board of Victoria[2007] VCAT 2439 at [156]- [157]
[87]
Sexual relationships between patients and doctors are always inappropriate. Medical practitioners are placed in a position of trust in the community and have available to them intimate knowledge of their patients' physical and psychological well being. This places the practitioner in a position to exploit the trust that has been given to them.
[88]
The community expect that when they attend a medical practitioner, they will not be regarded as potential sexual parties nor that their relationship with the doctor will be sexualised. Likewise, the profession expects its members to refrain from using the consulting room as a means of establishing sexual relationships with patients. To do otherwise brings the profession into disrepute by reducing the trust that the community has in the profession.
[89]
There was no dispute between the parties that s 48(2) of the Psychologists Registration Act 2000 sets out the determinations we can make. Where our findings are that the psychologist has engaged in unprofessional conduct of a serious nature, s 48(2) says that the panel, and it therefore follows that this Tribunal, may make one or more of the following determinations -
[90]
(a) require the psychologist to undergo counselling;
[91]
(d) require the psychologist to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;
[92]
(e) impose conditions, limitations or restrictions on the registration of the psychologist;
[93]
(f) impose a fine on the psychologist of not more than $2000;
[94]
(g) suspend the registration of the psychologist for the period specified in the determination;
[95]
The following principles are relevant to our considerations of what determinations should be made.
The function of a determination is protective, not punitive (see Ms V v Psychologists' Registration Board of Victoria [2001]). There are two objectives in making a determination. They are the protection of the public and the maintenance of the professional standards of the profession in the eyes of the public.
The public interest in the practitioner's continuing to practice must be weighed against the public interest in protecting clients from any repetition of the conduct exhibited (see Buttsworth v Walton (unreported NSW Court of Appeal 19 December 1991 at p 15 per Samuels JA).
The exhibition of insight can be relevant.
An aspect of the maintenance of professional standards and involves an imposition of a determination that will deter both the particular practitioner and others from like conduct (see eg Craig v Medical Practitioners Board of South Australia[2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997; Skinner v Beaumont(1974) 2 NSWLR 106 at 109 per Hutley JA and Buttsworth v Walton (Court of Appeal of NSW, 19 December 1991 at 15); Health Care Complaints Commission (HCCC) v Cox-May (No 1)[2007] NSWPST 6; Morris v Psychologists Registration Board Supreme Court of Victoria (unreported) 19 December 1997; Honey v Medical Practitioners Board of Victoria[2007] VCAT 526 at - ; ) at ).
[96]
Paragraph 1(a) of the Act provides that the main purpose of the Medical Practice Act is:-
[97]
"(a) To protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners."
[98]
It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Honey. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards.
[99]
This principle is referred to in cases such as Craig v Medical Board of South Australia[2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997 and Morris v Psychologists Registration Board Supreme Court of Victoria (unreported ) 19 December 1997.
[100]
Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.
[101]
In relation to the determinations that should be made, Mr Pallini gave evidence and was cross-examined. He also called Dr John Farhall, his nominated supervisor appointed by the Board, to give evidence. Dr Farhall had prepared a report. He gave evidence and was cross-examined.
Mr Pallini also filed a brief letter from his treating psychologist. The psychologist's letter confirmed he was having ongoing counselling and attending to issues related to the complaint made against him. A friend and a work colleague provided personal references for him and they were tendered in evidence.
Both parties made submissions on the determinations we should make. We considered those submissions, the evidence given at the hearing and all the material filed in the proceeding in making our determinations.
Ms Stynes submitted that the most appropriate sanction was a reprimand, in conjunction with the 10 months (now 11 months) restriction on practice he had already had. It will be recalled he agreed to cease all private practice. Counsel submitted that it was also appropriate for there to be ongoing supervision at first on a weekly basis with Dr Farhall for a further six to twelve months.
Counsel emphasised that we should concentrate on whether Mr Pallini would pose a risk to the public. She pointed out that Mr Pallini had now had a period of time to reflect on his conduct and was remorseful and shameful about the text messages sent. She referred to the progress reported by Dr Farhall who had reported improvement in his understanding, though there was still work to be done, and to his opinion expressed in his report that there is little likelihood of Mr Pallini repeating the conduct.
Dr Freckelton proposed the following determinations :
That the registration of Mr Pallini be suspended for such period as is deemed appropriate by the Tribunal.
That upon resumption of registration of Mr Pallini the following conditions apply :
[102]
(a) that Mr Pallini obtain supervision of his practice as a psychologist at his own expense from a senior psychologist approved by the Board for a period of at least three years, at least weekly for the first year after resumption and at least fortnightly after that;
[103]
(b) that Mr Pallini refrain from engaging in private practice for at least 12 months from the date of expiration of his suspension or for such period as is recommended to be safe for Mr Pallini's clients and notified to the Board by the supervisor referred to in Order 2(a), whichever period is longer;
[104]
That Mr Pallini undertake counselling at least monthly for a further period of 12 months, or such longer period as his counsellor recommends, whichever is longer, at his own expense from a mental health professional approved by the Board in relation to the personal factors that contributed toward his boundary transgressions and creation of inappropriate dual relationships.
That Mr Pallini take those steps that are reasonably open to him to facilitate the counsellor referred to in Order 4 providing to the Board a brief report at six monthly intervals confirming Mr Pallini's attendances with the counsellor and confirming that issues relating to counter-transference and relevant personal issues have been addressed in the counselling process.
That Mr Pallini refrain from providing supervision to psychologists providing direct counselling services to members of the public for a period of not less than three years.
Counsel submitted that :
[105]
The combination of these determinations enables the protection of the public by upholding the standing and trustworthiness of the profession of psychology, provides effective deterrence to Mr Pallini and others minded to emulate him from engaging in comparable conduct, and provides for protection of future clients of Mr Pallini by consolidating the safeguards already put in place by mandating further counselling and supervision.
[106]
Dr Freckelton made extensive submissions about Mr Pallini's and Dr Farhall's evidence in support of his submissions as to the determinations we should make.
As indicated, Mr Pallini gave evidence and was cross-examined. He also answered questions put to him by the Tribunal.
In his evidence in chief, Mr Pallini gave us to understand that he now well understood that his conduct was unprofessional and inappropriate and that he understood the risks associated with dual relationships. We viewed such assertions as superficial and of questionable substance.
What struck us about his evidence in chief was that he used phrases like "we hoped", "we discussed", when referring to conversations he and Ms M had had. It was clear to us that even in retrospect he still regarded that therapeutic relationship as a "friendship". We accepted that the proven imbalance in the therapeutic relationship is one of the matters that he was beginning to work through with Dr Farhall.
The general tenor of his evidence about his embarrassment about his conduct sending the text messages, his expressed guilt since, and his reflections on the difficulty and hurt to Ms M gave us the impression that he was embarrassed particularly because of the position he now found himself in, rather than for what he had done to Ms M.
Repeatedly, he referred to the fact that his reflection since and his work with Dr Farhall has given him a better understanding of the impact of his behaviour, and his ability not to find himself in the same situation again.
We accept that Mr Pallini thinks that he is a good practitioner in that he genuinely cares for his clients. He accepts that one of his key difficulties is that he tries to fix up all his clients' issues himself, without seeking assistance elsewhere as he should, and it is of some reassurance that Mr Pallini accepts the necessity for him to learn the skills of consultation and supervision for himself as a practitioner.
Therefore, having heard Mr Pallini's evidence and Dr Farhall's evidence, we accept that Mr Pallini has gained some understanding of the seriousness of his conduct and the effects it has had on Ms M. But what was also clear is that Mr Pallini was starting from a very low base. As Dr Farhall made clear in his evidence, in his opinion, Mr Pallini still has some way to go.
[107]
At times to enhance the therapeutic relationship, I would also disclose elements of my personal life. We developed a very strong rapport while working together through her various issues.
[108]
I try to be friendly, genuine, warm and positive with clients. I dislike being distant and 'cold' in my approach. I prefer to demonstrate a human element; therefore self-disclosure is used. I hope to make my clients feel as though I am a real person and to try to build a strong rapport. Many clients have commented on my pleasant nature and their ability to feel comfortable to open up and share their issues.
[109]
Talking about taking the position at W, he says
[110]
We had actually mentioned this in our counselling that I had applied for the role, and Ms M gave me some insight into the company. I feel this is where the relationship changed significantly.
[111]
It was quite difficult for both of us initially, knowing that Ms M was a client of mine and that I worked with her closely in our team three days per week. I acknowledge that it would have been uncomfortable for Ms M. However, we discussed this and agreed to continue the counselling relationship, but to adhere to strict confidentiality and not disclose our professional relationship.
[112]
Ms M was often unhappy at work and with her role and during our sessions she would discuss these concerns and it was beneficial in a way that I worked with her, as I gained a better understanding of those concerns. Again, this was unique. Many of our future sessions centred on her conflict at work and we continued to develop strategies to assist with them.
[113]
After some time, we became more comfortable with the working relationship. We would 'act' as normal colleagues sharing our lives openly along with other colleagues. This developed a closer friendship at work and it helped to alleviate the pressure of hiding our professional relationship.
[114]
I believe the warmth, genuineness and rapport that I provided during the sessions gradually developed a level of dependency for Ms M, which began to blur the client/therapist relationship, more than it had already been blurred due to the unique working relationship.
[115]
The distinct and very unique nature of our therapeutic relationship had a profound impact on me. We obviously developed a very strong rapport over the five years she attended as my client. Over time we became closer and the professional relationship became somewhat blurred. Our sessions included more social content as time progressed. We genuinely enjoyed each other's company and Ms M was a pleasant client to work with. However, I began to believe Ms M was attracted to me and I often felt she was attempting to lure me like she did other men in her past. Having prior knowledge that she enjoyed chasing men, I began to feel as if I was one of those men.
[116]
Ms M had a particular level of 'charm' in her presentation during our sessions. Her manner, dress, body language and description of various topics allowed me to lose focus on our boundaries and be 'lured' by her. I believe this led me to 'flirtatious' behaviour, which manifested in my messages.
[117]
Overall, I have made many personal and professional changes since the incident of Ms M's complaint. I believe I have enhanced my professional skills and addressed many issues that contributed to my error in judgment. However, I was surprised that it has taken Ms M two years to lodge her complaint and did reflect on her intentions and possible outcomes.
[118]
We agree with Dr Freckelton that these views display a very primitive understanding of a psychologist's professional obligations, the nature of transference and counter-transference, the issues of boundary transgressions and multiple relationships and the need to place the client's interests ahead of one's own, as well as of the repercussions to clients and the profession if ethical obligations are not adhered to.
Dr Farhall's supervisory role has been limited to protecting the community from risks in the period leading to the hearing, and not rehabilitative in nature. In that context he made it clear to us that his focus had been on assisting Mr Pallini with issues arising with current clients and in the limited context of Mr Pallini's current role. He provided supervision, support and learning with Mr Pallini's current clientele. As he said himself, he was appointed to "protect the public in the interim". For that reason, not all issues relevant to Mr Pallini's past conduct had been fully explored. Despite that limited role, it emerged Dr Farhall was conscious there were still many gaps in Mr Pallini's level of true understanding and insight. He thought Mr Pallini had some understanding of the problem with dual relationships but still had some way to go. For example, Dr Farhall thought that Mr Pallini did not see socialising with clients as particularly risky or problematic. He considered that Mr Pallini was "on the way" to having a competent understanding of why his conduct was wrongful but did not have a full understanding; that his understanding had grown significantly but that there were many aspects they had not yet discussed.
It was of considerable concern to us that Dr Farhall viewed Mr Pallini, virtually one year following the imposition of supervision, as still significantly removed from an appropriate understanding of boundary issues, and that he could not be assured that Mr Pallini would, even with continuing supervision, achieve the requisite understanding.
In addition, Dr Farhall described his role as "containing", rather than rehabilitative, in nature. He acknowledged, in that context, that he did not have a full understanding of the dynamics of treatment through its course, and that there had been limited discussion with Mr Pallini about the relevant professional standards.
Dr Farhall agreed, when it was put to him, there were many things still to be followed up; that Mr Pallini had rationalised and minimised things and was very self-centred; had no understanding of the fundamental dynamics of a power relationship and continued to rationalise and minimise the sexual relationship with Ms M.
[119]
On the basis of these considerations and having found that Mr Pallini has engaged in unprofessional conduct of a serious nature, we determine to suspend Mr Pallini's registration, to require him to undergo counselling and to impose conditions on his registration. We makes these determinations to ensure the protection of the community, to give him time to contemplate and receive assistance in the development of appropriate professional standards, and to convey to the profession and the public the importance of maintaining appropriate professional boundaries.
We therefore order pursuant to s 48(2) of the Psychologists Registration Act 2000 that
The registration of Mr Pallini be suspended for a period of six months, beginning one month from the date of these orders, or earlier as agreed between Mr Pallini and the Board. This delay will enable Mr Pallini to conclude current professional activities with his current clients.
Mr Pallini whilst suspended commence as soon as possible further education in the form of mentoring with a mentor approved by the Board, for a period of six months, in relation to boundary issues which might include guidance, through the utilisation of any or all of the following:
(a) review of previous Board determinations involving boundary issues
(b) role plays
(c) discussion of various scenarios
(d) reading of relevant literature
(e) attendance at relevant professional development activities.
Mr Pallini undertake counselling at least monthly for a period of 12 months, from the date of this determination, or such longer period as his counsellor directs, whichever is longer, at his own expense from a mental health professional approved by the Board in relation to the personal factors that contributed toward his boundary transgressions and creation of inappropriate dual relationships.
Mr Pallini take those steps that are reasonably open to him to facilitate the counsellor referred to in Order 3 providing to the Board a brief report at six monthly intervals confirming Mr Pallini's attendances with the counsellor and confirming that issues relating to relevant personal issues have been addressed in the counselling process.
On resumption of his registration, the following conditions apply :
[120]
(a) that Mr Pallini obtain supervision of his practice as a psychologist at his own expense from a senior psychologist approved by the Board for a period of at least three years, at least weekly for the first year after resumption and at least fortnightly after that**,** and that the supervisor provide six-monthly reports to the Board, assessing Mr Pallini's progress in each of the areas specified in the initial agreement_;_
[121]
(b) that Mr Pallini refrain from engaging in private practice for at least 24 months from the date of expiration of his suspension or for such period as is recommended to be safe for Mr Pallini's clients and notified to the Board by the approved supervisor, whichever period is longer.
[122]
Mr Pallini refrain from providing supervision to psychologists providing direct counselling services to members of the public for a period of not less than five years.
[123]
[1] See eg Marinovich v General Medical Council[2002] UKPC 36 at [19]; Dare v General Medical Council[2002] UKPC 54; Council for the Regulation of Healthcare Professionals v General Medical Council [2004] UKHC 1850; Council for the Regulation of Healthcare Professionals v General Medical Council [2004] UKHC 944 (Admin); Wentzel v General Medical Council[2004] EWHC 381; Razak v General Medical Council[2004] EWHC 205 (Admin); Giele v General Medical Council[2005] EWHC 2143; Bevan v General Medical Council [2005] EWAC 174 (Admin).
Parties
Applicant/Plaintiff:
Psychologists Registration Board of Victoria
Respondent/Defendant:
Pallini
Cases Cited (2)
(2001) 79 SASR 545
(1974) 2 NSWLR 106
AI Analysis
Outcomeplaintiff
Disposition:
VCAT found serious unprofessional conduct and professional misconduct and suspended Mr Pallini’s registration for six months, commencing one month after the orders unless agreed otherwise; it also ordered six months of mentoring during suspension, counselling for at least 12 months with six-monthly reports, at least three years of supervised practice after resumption, no private practice for at least 24 months after suspension or longer if recommended as safe, and no supervision of psychologists providing direct public counselling for at least five years.
different
The conclusion reached by the Court was that the proper construction of s 102A(1) of the 1994 Act (which is in similar terms to s 169(2) of the HPR Act in the current case) militated against the implication of any legislative intention that the Act operate retrospectively in the absence of any clear legislative intention expressed to the contrary.
Ms Stynes stressed similar points in her submissions to us about which legislative regime to apply to the findings we should make. The better view, even though the findings in this case under both Acts are equivalent, is that they should be findings under the old Act. Given that determinations must be in accordance with the old Act, it would be preferable, if not essential, to frame allegations and findings in accordance with the language of the old Act.
Although Ms M and Mr Pallini did not have constant contact at work, their contact was reasonably frequent.
Mr Pallini and Ms M were both employed at W for approximately five months. Throughout this period, Mr Pallini and Ms M remained professional at the work place. They continued to have fortnightly counselling sessions.
During counselling sessions with Mr Pallini, Ms M often discussed work issues. This included during the period that both Mr Pallini and Ms M were working at W. As a result, there were a number of occasions when Ms M spoke to Mr Pallini about issues that she had with work colleagues, who were also work colleagues of Mr Pallini.
During the period that Ms M was employed at W, she also dated a male colleague from the company. Whilst Mr Pallini was employed with W, Ms M spoke to Mr Pallini about this during sessions. Ms M says that during one of her counselling sessions with Mr Pallini, while discussing her relationship with the male colleague at W, Mr Pallini suggested that she should point him out while at work. Mr Pallini says that Ms M did inform him who she was dating at W, but denies that he suggested that she should point him out.
Ms Stynes, in her submissions, essentially referred to the same cases. Additionally, she drew our attention to the fact that there was not a substantial body of law dealing with the notion of "unprofessional conduct". She referred to the following paragraph in Vissenga v Medical Practitioners Board of Victoria[2004] VCAT 1044 at paragraph 33 in which President Morris said :
The problem with the conduct was that whilst he was counselling Ms M, he took a job in the same workplace as his client. What makes it unprofessional is that he should have foreseen that he could be causing adverse consequences to the therapeutic relationship and the psychological well-being of his client.
It is conduct which violates proper professional boundaries that should exist between a psychologist and their client. It created an unnecessary and counter-therapeutic dual relationship.
Mr Pallini placed his own needs before those of his particularly vulnerable client. He was aware when he took the job that (as he described her) Ms M had a range of depressive symptoms, amounting to major depression; constant mood swings; irritability; anger; dependency; low self-esteem and attachment and abandonment concerns. From the outset of counselling, she was being prescribed anti-depressant medication. A year into the counselling, she had been diagnosed with bipolar disorder and prescribed a mood stabiliser.
In addition, and a critical aspect of her presentation, was that Mr Pallini reported that Ms M has complained to him of previous employment in which sexual boundaries had been breached by a male co-worker.
These vulnerabilities should have clearly signalled to Mr Pallini that clear boundary demarcation was required. He should never have mixed his therapeutic and working roles as he did when he commenced work at W.
As this Tribunal has observed before, the principles to be taken into account when considering what determination is appropriate are succinctly put in a decision of this Tribunal in Honey v Medical Practitioners Board of Victoria[2007] VCAT 526. Whilst that proceeding involved a medical practitioner, the same principles apply in this case. Quoting from that decision
How low a base Mr Pallini started from is apparent from the response he made to the Board about the complaint in October 2007.
The following extracts speak for themselves :
In his opinion, Mr Pallini needed to continue with his own counselling for some time and to maintain a supervisor for a considerable period of time.
These observations were reinforced by much of what emerged in cross-examination of Mr Pallini.
Mr Pallini, in contrast to his supervisor, reported having made considerable inroads into the lacunae impairing his professional judgment. In that context, we were not satisfied that Mr Pallini had achieved the results he claimed. In that regard, we viewed Mr Pallini's evidence as self-serving and lacking credit.
In general terms, while he acknowledged and expressed substantial contrition for his misdeeds in general terms, he continued to minimise and deny his culpability in specific terms.
For example, what greatly troubled us was Mr Pallini's persistent categorisation of the text messages he sent as something other than what they plainly were, a sexual proposition to Ms M. He did not seem to be able to accept that. He described it as the "banter of friends about life events".
In addition, notwithstanding repeated questioning about it, he refused to acknowledge that in his letter to the Board of October 2007, he was blaming Ms M for having "lured" him with her charms; nor, would he acknowledge that he was blaming his client, when he appeared to question her motives in taking two years to complain.
In so doing, he showed little insight into his responsibilities as a treating professional, and the way in which his own emotions and impulses had acted to corrode those responsibilities. In that light, he showed little understanding of the concepts of transference and counter-transference as directly applicable to the therapeutic dynamic.
In the larger sense, in defining his therapeutic approach as a combination of cognitive behavioural therapy and psychodynamic therapy in the statement of agreed facts, Mr Pallini showed little understanding of the basic theory base of the latter, and instead indicated that his "therapy" consisted of the establishment of rapport and non-directive counselling.
In so doing, he exaggerated the nature of his professional competencies and the nature of his professional authority, beyond the scope of either his training or experience. As a result, he overstated the treatment provided to Ms M in the statement of agreed facts for the Tribunal.
It was apparent to us that he had not perceived his shortcomings at several critical points. These include when the issue of employment became live, when he began socialising with his client, when he submitted the text message, when she discontinued therapy, and when the complaint was made. He could not explain why he had done nothing to pursue supervision himself at any time point during and after the debacle with his client. He only commenced supervision as part of the agreement with the Board in order to avoid suspension.
These matters reinforce, in our view, his abject lack of insight into his conduct or reflectiveness on that professional relationship. Our impression was that Mr Pallini was conceding, but not actually comprehending to an acceptable standard, his culpability and poor judgement.
The need for psychologists to have a full and proper understanding of their ethical obligations is fundamental to the practice of the profession. It is imperative that psychologists know the basic steps that a psychologist in a position such as Mr Pallini must take to safeguard the interests of the client and to ensure no harm or exploitation occurs. The knowledge of these basic steps we found abjectly lacking in Mr Pallini.
In so saying, we found that Mr Pallini continued to demonstrate a troubling low level of insight into his own behaviour or the impact of his actions upon his vulnerable client.
On that basis, we received little comfort from Mr Pallini's remorse, and could not be satisfied that the community's safety could be ensured without substantial improvement in his understanding of the relevant standards.
In our view, Mr Pallini developed a continuing, escalating pattern of errant conduct rather than a number of connected but discrete incidents, comprising "bad behaviour"; it is about fundamental lacunae in his capacities not only to maintain appropriate boundaries but to recognise and respond effectively to the challenges and risks posed to the integrity of the professional relationship by the dynamics of that relationship and his own internal impulses; we do not view him as having made meaningful (even within the narrow confines of the evidence of Dr Farhall) progress in addressing that pattern.
In so saying, it is our intention to respond to that pattern with a coherent framework of determinative orders designed to address Mr Pallini's deficits and assist him towards the construction and maintenance of appropriate professional standards.