Victorian Civil and Administrative Tribunal|2009-10-30|Before: Dr J

Psychologists Registration Board of Victoria v Schirmer (Occupational and Business Regulation) [2009] VCAT 2349 (30 October 2009)

Occupational and Business Regulation List - psychologist - professional misconduct - cancellation - Psychologists Registration Act 2000 ss 3, 48(1) - Health Professions Registration Act 2005 ss 3, 77

Psychologists Registration Board of Victoria v Schirmer (Occupational and Business Regulation) [2009] VCAT 2349

(a) with respect to the conduct in allegation 1 which occurred prior to 1 July 2007, that pursuant to s 48(1) of the Psychologists Registration Act 2000, Ms Schirmer has engaged in unprofessional conduct of a serious nature, being professional misconduct under s 3(c) of that Act;

(b) with respect to the conduct in allegation 1 which occurred on and after 1 July 2007, that pursuant to s 77(1)(a) of the Health Professions Registration Act 2005, Ms Schirmer has engaged in professional misconduct, as it is defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of that Act;

(c) with respect to the conduct in allegation 2 (but only to the extent conceded by Ms Schirmer) which occurred prior to 1 July 2007, that pursuant to s 48(1) of the Psychologists Registration Act 2000, Ms Schirmer has engaged in unprofessional conduct of a serious nature, being professional misconduct under s 3(c) of that Act;

(d) with respect to the conduct in allegation 2 (but only to the extent conceded by Ms Schirmer) which occurred on or after 1 July 2007, that pursuant to s 77(1)(a) of the Health Professions Registration Act 2005, Ms Schirmer has engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of that Act.

(i) pursuant to s 48(2)(h) of the Psychologists Registration Act 2000, with respect to the conduct prior to 1 July 2007, to cancel Ms Schirmer's registration as a psychologist;

(ii) pursuant to s 77(4) of the Health Professions Registration Act 2005 with respect to the conduct on or after 1 July 2007 to cancel Ms Schirmer's registration as a psychologist under s 77(4)(h) and to disqualify her from applying for registration within a period of 2 years from the date of this decision under s 77(4)(o) of that Act.

Mr A Clements of counsel instructed by Minter Ellison

Ms Margaret Schirmer who is aged 40, obtained registration as a psychologist in 2005. She immediately commenced private practice. She also commenced working for Windemere Child and Family Services on a part-time basis. The balance of her time was spent building up her private practice.
Part of her work for Windemere, involved providing services under the Victims Assistance and Counselling Program, funded through the Victims of Crime Assistance Tribunal (VOCAT). A client of Windemere, whom we shall refer to as Mr RA in these reasons, was referred to Ms Schirmer for psychological counselling following an assault. He had his first session with Ms Schirmer on 3 October 2005, and subsequent sessions on 18 October 2005 and 3 November 2005. Mr RA is 4 years younger than Ms Schirmer.
On 6 December 2005, Ms Schirmer prepared a report for VOCAT supporting Mr RA's claim for assistance and seeking support for a further 7 counselling sessions, with a further 15 sessions to be awarded once intensive intervention was no longer required.
The report accompanying the request reveals that Mr RA was a very troubled individual. It reported he was complaining, amongst other things, of loss of confidence and self-esteem, persistent sadness, suicidal thoughts, poor sleeping patterns, no apetite, intrusive thoughts, flashbacks, constant worry and increased startle responses. Such was the concern about him that the Frankston Crisis Assessment and Treatment Team became involved in his management and were monitoring him as a suicide risk. He was placed on Zoloft by his general practitioner.
Approval for the further counselling sessions was obtained and thereafter Ms Schirmer directly invoiced VOCAT for those sessions. They were interrupted by a trip she had away and a trip Mr RA had interstate, organised by Ms Schirmer, through Windemere.
After Mr RA returned from his trip Ms Schirmer noticed that he presented as being considerably better in his overall wellbeing and mental state. She saw him weekly, apart from a 3 week period in February 2006 when she was again away. Before she left for that trip Ms Schirmer says that she became aware she was attracted to him and began to think about him.
She said nothing about this to Mr RA or anyone else. Emails from him started to arrive and she describes them as being subtly seductive in nature. Whilst there is some debate about exactly when it was, certainly by mid-March, he actually left letters for her in the counselling room. They were of the same nature. Despite the ongoing consultations these emails and letters remained undiscussed. Text messages followed. Ms Schirmer did not respond to the texts at this time and thus this issue remained "the elephant in the room" in subsequent consultations.
Throughout this period Ms Schirmer was under the supervision of another psychologist at Windemere. She says she made a deliberate decision not to mention these matters or to inform her supervisor of the text messages.
On 31 March 2006, faced with her own personal problems, she decided to separate from her husband and rang Mr RA to get support. She met up with him at a pub.
On that day, she commenced living with him. Whilst both she and Mr RA agreed that they shared a bed that night, they both agreed that no sexual relationship commenced at that point. Ms Schirmer acknowledged the enormity of this initial transgression but said she felt paralysed and decided to do nothing. In fact she went on to escalate the transgression to a new level. It was some time in April that they began a sexual relationship, with each having a different recollection of when this occurred.
When the relationship started, Mr RA was still a client. Ms Schirmer concedes she failed completely and flagrantly in her professional responsibilities with respect to a very vulnerable client. Not only had she very seriously crossed professional boundaries and created a dual relationship, counselling simply ceased. Ms Schirmer made no attempt to refer Mr RA to another professional in circumstances where he was still emotionally very fragile.
From what Ms Schirmer says, the relationship was an emotionally very intense one. That is supported by Mr RA's account of it. The couple, at the very least, smoked marijuana fortnightly, although Mr RA's account suggests more frequent consumption together with the use of speed and heroin which he claims were supplied by her. Ms Schirmer also had problems with alcohol which further exacerbated the situation.
As the relationship continued they rented premises together. Some 18 months later, on 17 October 2007 it ended when Ms Schirmer went to the police alleging, among other things, she had been assaulted by Mr RA. There was further contact between them during the following year, which we accept was probably initiated by Mr RA, but during which Ms Schirmer corresponded with him in an effort to understand for herself what had happened between them.
On 26 November 2007 the Board received a complaint or notification as it is called, from Mr RA about Ms Schirmer's conduct. He attached to the complaint a very lengthy handwritten account of his version of what had occurred over the preceding two years. It can be seen from this and it was evident from the way he gave his evidence during the hearing that he has been greatly affected by what happened, particularly so given his difficult background and apparent vulnerabilities.
Following receipt of these very serious allegations on 18 December 2007 the Board wrote to Ms Schirmer advising her that it proposed to refer the allegations to this Tribunal and that it was proposing to suspend her registration until the hearing at this Tribunal was completed. She was invited to respond to the proposal to suspend her, by appearing before the Board in person on 21 December 2007. Ms Schirmer did not appear apparently believing a request to adjourn the Board's consideration would be granted.
On 21 December 2007 the Board suspended her registration.
For reasons beyond Ms Schirmer's control it was not until 18 March 2009 that the Board finally referred the following allegations in relation to Ms Schirmer's conduct, to this Tribunal.
The allegations are that:
1. From on or about a date between February and April 2006 until on or about 6 October 2007, during the course of Ms Margaret Schirmer's professional relationship with her client, Mr RA and/or within an inappropriate time thereafter, Ms Schirmer engaged in conduct which transgressed professional boundaries that should, and ordinarily do, delineate the professional relationship between a psychologist and her client, in that Ms Schirmer engaged in a personal relationship with Mr RA including a sexual relationship.
2. From on or about a date between February and April 2006 until on or about 6 October 2007, during the course of Ms Schirmer's professional relationship with Mr RA and/or within an inappropriate time thereafter, Ms Schirmer consumed illicit drugs in the company of Mr RA.

The conduct occurred between March 2006 and October 2007, either side of 1 July 2007 which is the commencement date of the Health Professions Registration Act 2005 (the HPR Act). It therefore spans two periods, one when the Psychologists Registration Act 2000 applied (the old Act) and another when the HPR Act applied.
The notification was received in November 2007. As no proceedings were started s 169 of the HPR Act applies to the conduct in the earlier period so that there is power to conduct any proceedings under the repealed Act in accordance with the provisions of the HPR Act.
However, the characterisation of the conduct in the earlier period, and the determinations we make with respect to it, need to be framed with reference to the old Act.
Similarly the characterisation of the conduct after 1 July 2007 and the determinations we make with respect to it, of course need to be framed with reference to the HPR Act.
In reality not much flows from those differences because the definitions or the common law which applied under the old Act and the definitions in the HPR Act are closely aligned.
In relation to Ms Schirmer's conduct from March 2006 until 30 June 2007, s 48(1) of the old Act sets out the findings we can make after submissions at a formal hearing. They are that -

(a) the psychologist has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the psychologist has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

"Unprofessional conduct" is defined in s 3 of the old Act relevantly for this proceeding, to mean all or any of the following:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered psychologist; or

(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

The determinations we can make under the old Act are set out in s 48(2) of the old Act. We will return to those later.
Under the HPR Act, s 77(1) sets out the findings we can make. S 77(1)(a) relevantly for this proceeding, says we can find that:

(a) the health practitioner has engaged in unprofessional conduct or professional misconduct;

Section 3(1) of the HPR Act contains definitions of both "professional misconduct" and "unprofessional conduct". "Professional misconduct" is defined relevantly for this proceeding to include:

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

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise then 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;

The definition of "unprofessional conduct" includes:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health professions 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;

The determinations we can make under the HPR Act are set out in s 77(4), and we will return to those.

Mr Clements appeared for the Board and Ms Hartley for Ms Schirmer. The Board called Mr RA to give evidence. He had prepared a statement, gave evidence and was cross-examined. The Board tendered a quantity of additional material.
After the Board had called its evidence Ms Schirmer tendered a written statement, gave evidence and was cross-examined. She also called her current treating psychiatrist Dr Shirley Prager. Dr Prager had prepared a report gave evidence and was cross-examined. A family friend also gave evidence. Other reports and material were tendered in evidence, including a report from Mr Thornton a psychologist, whom Ms Schirmer had consulted from October 2007 to September 2008 and Dr Selvendra a psychiatrist, who Ms Schirmer consulted on one occasion in February 2009.
Both parties made submissions.

There are two allegations. The first relates to an inappropriate personal relationship, including a sexual relationship between Ms Schirmer and Mr RA. This is admitted by Ms Schirmer.

From the outset Ms Hartley made it clear Ms Schirmer accepted that she undertook an inappropriate relationship with Mr RA, and accepted that the conduct was at the most serious level of inappropriate conduct. Further Ms Hartley submitted that whilst there might be some fine legal argument about whether the conduct amounted to infamous conduct in a professional respect, a finding available under the old Act, Ms Schirmer admitted her conduct was so serious it was infamous conduct in a professional respect a term which was now embraced by the definition of professional misconduct.
Mr Clements submitted that in respect of this allegation as it related to conduct before 1 July 2007, the only real question was whether the conduct was infamous conduct in a professional respect, rather than professional misconduct. Counsel submitted that there were a number of aggravating factors that would make it infamous, particularly the degree of Mr RA's vulnerability and Ms Schirmer's total failure to take any steps to arrange alternate therapy once she ceased providing it, when the personal relationship commenced. He submitted she had totally abandoned her professional responsibilities and had focussed on her own personal needs and desires, which shifted her conduct into the infamous category.
There is no doubt that her conduct before 1 July 2007 was professional misconduct. It falls at the most serious end of impropriety according to the evaluation of one's professional peers. The rule broken is one where there is no suggestion of doubt or difference of opinion in the profession.[1] The conduct was in 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"[2]. It is conduct which would be regarded as disgraceful or dishonourable by peers of good repute and competency[3].
It is conduct which 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[4].
We accept there were the aggravating features as described. The conduct was at the very serious end of the spectrum and was disgraceful and dishonourable. Whilst Ms Schirmer agreed that these boundary violations amounted to infamous conduct in a professional respect, we cannot be satisfied she understood the full significance of the concession. Hence we place minor weight on the concession. The term "infamous conduct" used in the statute is a phrase long used and understood in the professions to encompass conduct that would reasonably incur the strong reprobation of professional peers of good repute and competence, and is conduct accompanied by some element of moral turpitude[5]. It is a concept now absorbed into the definition of professional misconduct. In any event, the determinations we can make are the same whether the finding is one of infamous conduct in a professional respect or professional misconduct. In all the circumstances we find her conduct falls short of being infamous conduct in a professional respect. We find pursuant to s 48(1) of the old Act that Ms Schirmer has engaged in unprofessional conduct of a serious nature, being professional misconduct under s 3(c) of that Act.
With respect to the conduct in the period after 1 July 2007, we find pursuant to s 77(1)(a) of the HPR Act Ms Schirmer has engaged in professional misconduct, as it is defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of the HPR Act, to mean:

(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;

This relates to illicit drug use. Ms Schirmer admits to using marijuana regularly while she lived with Mr RA. She does not admit to drug use in the way Mr RA described his statement and evidence. She admits to sharing a joint with him perhaps once a fortnight, with a period of several months when she did not smoke marijuana at all. She says she has not used marijuana since October 2007. As matters transpired, Mr Clements in his submissions for the Board did not press that we make any findings with respect to this allegation beyond what Ms Schirmer had admitted to, and we accept that concession.
We are satisfied that the conduct amounts to professional misconduct. Whilst marijuana use is unlawful, what makes it particularly serious in this case, is that Ms Schirmer knew that Mr RA had a history of drug dependency problems, yet was prepared to ignore that and to take these drugs with him.
For the period before 1 July 2007 we find pursuant to s 48(2) of the old Act that Ms Schirmer has engaged in unprofessional conduct of a serious nature, being professional misconduct under s 3(c) of that Act.
In the period after 1 July 2007, we find pursuant to s 77(1)(a) of the HPR Act that Ms Schirmer has engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in s 3(1) of the HPR Act.

For the conduct before 1 July 2007, the determinations available where we have found the psychologist has engaged in unprofessional conduct of a serious nature, are set out in s 48(2) of the old Act. They include the imposition of conditions on the registration of the psychologist, suspension or cancellation of the psychologist's registration.
For the conduct on or after 1 July 2007, the determinations available are set out in s 77(4) of the HPR Act. They include the imposition of conditions on the registration of the psychologist, suspension or cancellation of the registration of the psychologist and where cancelled, disqualification of the psychologist from applying for registration for a specified period.
The principles that are relevant to our consideration of what determinations should be imposed are well established. As this Tribunal has said before in Psychologists Registration Board of Victoria v Brett Pallini [2008] VCAT 2632 at paragraphs 63 and 64:
- 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 practise 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).

An aspect of the maintenance of professional standards involves an imposition of a determination that will deter both the particular practitioner and others from like conduct (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 [14]- [16]; Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439 at [128]).

[64] 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

Paragraph 1(a) of the Act provides that the main purpose of the Medical Practice Act is:-

"(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."

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.

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.

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.

We accept that cancellation sends a clear message of unsuitability to practise while suspension may be thought to indicate confidence in the future ability to practise once a period of suspension has been served.
The differences between suspension and cancellation are well articulated in Honey's case. At paragraphs 42 and 43, the Tribunal said -

[42] The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration set out in section 7 of the Medical Practice Act.

[43] Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

Mr Clements submitted that cancellation was the appropriate determination for three reasons. First, it is a case of very serious misconduct, and only cancellation will adequately reflect the gravity of the professional misconduct involved. Secondly, the professional misconduct in this case is very damaging to the reputation of the profession of psychology. Thirdly, the Tribunal could not have confidence Ms Schirmer would not perpetrate further boundary violations in the future.
Counsel elaborated on these submissions and submitted that we should disqualify Ms Schirmer from applying for registration for a period of at least two years and no longer than five years, irrespective of the period of time she has been suspended.
Ms Hartley conceded that for general deterrence purposes an order for cancellation for a fixed period should be made, and that although it is not a required sanction in the case of a boundary violation it is a common one, and accepted as not unreasonable in the current circumstances for that penalty to be imposed. Yet she submitted that in this case, given Ms Schirmer's
- ready acknowledgement of the wrongful and serious nature of her boundary violation;
- efforts to seek psychotherapeutic treatment partly to understand what happened and partly to restore her equilibrium after the emotional breakdown she suffered in connection with her marriage breakdown and the humiliation connected with her relationship with Mr RA;
- willingness to practise as an employee and subject to strict conditions;
- love of her profession and grief at its loss, suggesting the likelihood of repetition would be low;
- willingness to work under close supervision;
- willingness to have ongoing psychotherapy;

there was no public interest to be served in her remaining out of practice indefinitely.

Further, counsel submitted it would be contrary to the public interest for more public funds to be spent on further consideration of an appropriate framework for any resumed practice. In those circumstances, Ms Hartley proposed that we should cancel her registration until the date of the hearing, suspend her registration for a period we deemed appropriate and impose a set of conditions to apply to her registration at the end of the period of suspension.
We have deliberated very carefully about what determinations we should make, conscious that our role is not to punish Ms Schirmer but to protect the public and maintain the trust and confidence that the public has in the profession of psychology by ensuring that standards of conduct are upheld and seen to be upheld, in the profession of psychology.
As we said, Ms Schirmer gave evidence and was cross-examined. We accept that Ms Schirmer believed she had fallen in love with Mr RA. In cross-examination in answer to questions about why she had done certain things and not others, like ringing a friend and not a client, when faced with her personal problems, her responses were simply that she had not done so because she was making a series of bad decisions. She agreed that matters were initiated by her and that she had put her own needs above those of her client. She readily admitted that what she did was very wrong and we accept that she is remorseful.
Ms Schirmer made poor judgments sequentially, seemingly driven by her emotional state at the time. She has demonstrated a history of continuing to make poor judgments, for example, not going out of her way to attend the Board hearing when requested to. Further, she recontacted Mr RA after her registration was suspended, continuing a relationship with the client for 5-6 months after her registration was cancelled, even when alerted to the seriousness of her behaviour and the possible consequences.
We accept that so far as her own personal history is concerned, Ms Schirmer is to be commended for the efforts she has made overcoming troubled teenage years, being addicted to drugs and having the responsibility of motherhood at a young age. Despite those problems, Ms Schirmer reformed her life, educated herself, and obtained her tertiary qualifications.
Apart from Ms Schirmer's own assertions that she will not transgress professional boundaries again, there was very little material before us that inspired confidence that were she in a stressful situation in the future, she would not do the same.
One of the reasons these things happened was because Ms Schirmer totally lacked any knowledge or understanding of such matters as transference and counter-transference in the therapeutic relationship.
We accept that through her psychiatrist, she has since been directed to some learning about these matters and has made an effort to inform herself. She said herself, she did not doubt her skill base and believes that were she to recommence practice, what she needs is to know are her own internal processes. Whilst she has read the texts, her evidence during the hearing showed that what had emerged for her, were revelations about herself and her own situation rather than demonstrating any in-depth understanding of the relationship between therapist and client.
We are not satisfied that at least at the time of hearing she fully understood the concept of counter-transference and would be able to apply those concepts in complex presentations. This is a matter of great concern to us because the counselling setting is an intimate one, where the most personal confidences are given by clients. Clients need to be confident the practitioner will at all times behave in a professional manner.
Dr Prager gave evidence and was cross-examined. According to Dr Prager who has been treating Ms Schirmer since May 2009, since she has been treating her, Ms Schirmer has gained a deeper understanding of the psychodynamics of her boundary violation and why it happened. In her opinion, Ms Schirmer's boundary violation occurred in the context of a marital breakdown, lack of understanding of transference and counter-transference and inadequate insight into her own psychodynamics and vulnerability. According to Dr Prager, it also occurred in the context of a person with a significant history of very serious personal issues which Dr Prager referred to, the details of which we do not need to spell out in these reasons.
We accept that the events occurred against such a background, but we do not agree with Dr Prager's further observations that they occurred because there was also a lack of supervision of Ms Schirmer. She had a supervisor at Windemere yet made a deliberate decision not to raise with her supervisor what was happening, when that is precisely what she should have done. We are not confident she would not make the same choice again, were she to find herself in stressful personal circumstances, and wanting to satisfy her own needs and desires.
We are mindful of Dr Prager's evidence about Ms Schirmer's serious ongoing issues including issues with alcohol and addiction, suggesting a very vulnerable person with an ongoing need for therapy for several years to come and Dr Prager's opinion that Ms Schirmer was not ready to practise a least until 2010.
Significantly, Dr Prager when questioned could rightly not give an opinion about Ms Schirmer's level of competence as a psychologist nor as to the likelihood of her being a competent practitioner. So far as to whether she would be a safe practitioner, Dr Prager's evidence was that, in her opinion, Ms Schirmer was one of those in the safer category because these events had happened in the context of a marriage breakdown after a 17 year relationship where she was a single offender and admitted her guilt.
Whilst Ms Schirmer may be a single offender as described by Dr Prager, the offending is recent, not in the distant past, and commenced at the outset of her practice. Whilst she was a newly registered practitioner, she was by no means a young person without much life experience. Also, her situation is difficult to compare with a practitioner, for example, who has a long and well-regarded history of professional practice who may have transgressed once in the distant past. Further, there would be any number of practitioners who have marriage breakdowns who do not behave as Ms Schirmer has.
Ms Schirmer called no other evidence to support her claims that she was safe to practise and should be allowed to continue to practice. For example, she did not call her original supervisor, Dr Simon Kennedy, or her supervisor at Windemere.
She has provided a good reference from the Chief Executive Officer of WAYSS Ltd for whom she worked for six years, until 2005, but the focus of her role there was as a co-ordinator of a Drug Court Assistance Program from May 2002 until her resignation. It cannot be compared with a one to one counselling role.
Ms Schirmer says that her education and training as a psychologist when she became registered were minimal. She denied there were any gaps in her knowledge now. Yet, apart from reading (not completely) one text, she had done nothing else to improve her knowledge. We accept though that practical opportunities to have done so would have been scarce, almost non-existent, because she has not been in practice nor able to take advantage of further education through a professional organisation.
We were not satisfied that she has a sufficient understanding at this point in time of a number of basic ethical issues. For example, during the hearing, she was asked about her clinical notes for Mr RA from the time she started seeing him privately. She said she sent them to Windemere, justifying to herself that if they were not in her practice, it was not such an issue. Whilst she agreed they were confidential notes, when asked what business Windemere would have having them, she responded that she had never thought about that issue. It turns out that Windemere does not have these notes despite Ms Schirmer claiming she sent them, without being able to recall how she sent them and believes they were received by Windemere without being able to recall why she believed that; all of which we found unconvincing.
We were also troubled by the representations she made about her qualifications. In the report to VOCAT she lists her qualifications in an incomplete way and includes as a qualification "M. Cognitive Behavioural Therapy". It turns out she was only enrolled in such a course through Flinders University. She could not explain why it was listed, excusing herself because the copy of the report we had was not on letterhead. Again unconvincing.
We accept that Ms Schirmer's initial actions in treating Mr RA, referring him to the CAT team and assisting him to spend Christmas in Tasmania with family were likely to have been reasonable in the context of the crisis presentation, but neither her report to VOCAT nor her evidence during the hearing indicated that she had an adequate formulation and case plan for the post-crisis phase of his treatment that took into account Mr RA's pre-morbid vulnerability arising from his family situation or his apparent post traumatic stress disorder.
Her evidence during the hearing was that she had a "treatment plan" and "anxiety related goals", but she gave no details of what her treatment plan actually involved and conceded that she had no clear formulation. Mr RA had reported an increase in his anxiety around this time that does not appear to have been addressed.
Whilst these matters raise concerns about her professional competence, and would not necessarily indicate an unsafe practitioner, they complete the picture of a practitioner who has lacked respect for the reputation of the profession and who had scant regard for maintaining the confidences of her clients.
There are many psychologists who would have qualifications equivalent to Ms Schirmer who practise in a competent and responsible way, who do not violate basic professional boundaries nor form inappropriate dual relationships. The public should and does expect no less. In addition to our concerns expressed above, about whether we are satisfied that she is safe to practise, the transgressions were so serious, the degree of abandonment of her professional responsibility in contacting her client, living with him immediately and paying no attention to his mental health needs so marked, that it suggests that cancellation of her registration for a significant period would be expected by the public and the profession and would give her the opportunity to rehabilitate herself.
We are not satisfied that a period of suspension and resumption of practice with supervision is appropriate in this case. Supervision can never deal with every practice issue that confronts the practitioner. Ms Schirmer needs to be in a better place personally to realistically give a reliable service even with supervision.
We therefore determine to cancel her registration.
Under s 77(4) of the HPR Act we can specify a period of time during which a health professional is disqualified from applying for registration.
Mr Clements suggested a period of at least 2 years and no longer than 5 years and that we should have no regard to the period of time she had been suspended. Ms Hartley had suggested cancellation until the date of the hearing.
Whether or not it is possible to cancel until the date of the hearing, given our findings, a period beyond that is warranted. We are also mindful that she has been suspended since December 2007.
Since May 2009 when Ms Schirmer returned to live in Victoria, she has started psychiatric treatment, obtained stable housing and employment. Her life is now back on track with progress still to be made according to her treating psychiatrist.
We recognise that at the present time Ms Schirmer has had little time to rehabilitate herself and to demonstrate that she is safe to practise. She is still to demonstrate stability in her own personal life and in her mental state, that her addiction to alcohol has sufficiently resolved and that she has come to terms with her actions.
Doing the best we can, we impose a period of 2 years from the date of this decision, during which Ms Schirmer is disqualified from applying for registration.
Were she then to apply for registration, it would be a matter for the Board to determine whether or not she should be registered.

[1] See Meehan, Exparte; Re Medical Practitioners Act [1965] NSWR 30

[2] See Qidwai v Brown [1984] 1 NSWLR 100

[3] See Myers v Eman [1940] AC 282 at 288-289 citing Re a Solicitor; Ex parte Law Society [1912] 1 KB 302

[4] See Mandie J in Campbell v The Dental Board of Victoria [1999] VSC 113 at [23]- [24] and see also Psychologists Registration Board of Victoria - Code of Behaviour for Psychologists

[5] See Ex Parte Meehan Re Medical Practitioners Act [1965] NSWR 30

Psychologists Registration Board of Victoria v Schirmer

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Psychologists Registration Board of Victoria v Schirmer (Occupational and Business Regulation) [2009] VCAT 2349 (30 October 2009)

Parties

Cases Cited (2)