In relation to allegations one to five, the Tribunal finds:

1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ("the National Law"), Gregory Asher has behaved in a way that constitutes professional misconduct.

1. Pursuant to section 196(2)(a) of the National Law, Gregory Asher is reprimanded.
2. Pursuant to section 196(2)(e) of the National Law, Gregory Asher's registration as a psychologist is cancelled.
3. Pursuant to section 196(4)(a) of the National Law, Gregory Asher is disqualified from applying for registration as a registered health practitioner for a period of five years from today's date.

1. Having heard evidence in relation to five serious allegations brought by the Psychology Board of Australia ("the Board") against Mr Gregory Asher, on 2 July 2019 in Psychology Board of Australia v Asher (Review and Regulation) [2019] VCAT 759 ("2 July 2019 decision"), we found the following serious allegations proven against Mr Asher:
   • (i) Allegation 1 - that Mr Asher engaged in sexual intercourse with CD;
   • (ii) Allegation 2 - that Mr Asher engaged in inappropriate physical contact during the provision of psychological services by providing CD with massages;
   • (iii) Allegation 3 - that Mr Asher failed to establish, recognise and adhere to the boundaries that should and ordinarily do exist between a psychologist and client;
   • (iv) Allegation 4 - that Mr Asher failed to maintain clear, accurate and comprehensive written records of his treatment and;
   • (v) Allegation 5 - that Mr Asher provided treatment to CD that was inadequate and/or inappropriate.
2. In our 2 July 2019 decision, we made various observations in relation to Mr Asher's conduct. We said at [14] to [30]:
   1. We were mindful of the extremely serious nature of the allegations particularly allegations one and two. We were also mindful that there were no independent witnesses to the allegations. We were however persuaded that each allegation was proven.
   2. We did not reach our decision lightly.
   3. There is no ready formula for credibility assessment. Whether comfortable satisfaction can be reached that an account is accurate and reliable necessarily incorporates an assessment of factors such as the inherent likelihood/unlikelihood of an account; the ability and the preparedness of a witness to tell the truth; whether a witness has been consistent in their accounts of key matters; and whether a witness has made significant errors or been evasive in their accounts.
   4. We were satisfied that CD was a credible witness and a witness of truth.
   5. She made statements and gave clear, cogent evidence consistent with the original notification. She made concessions where appropriate. Some of her seemingly implausible evidence was admitted by Mr Asher.
   6. Unsurprisingly, given the passage of time, CD was not a perfect historian. She was sometimes confused as to the order of events/the precise detail of how/where she was inappropriately touched by Mr Asher or even the number of times certain conduct took place. Nevertheless, on key issues, she was consistent and straightforward. She maintained that she had been massaged by Mr Asher. She maintained that he had sexually penetrated her.
   7. Mr Asher denied any wrongdoing.
   8. We nevertheless comfortably concluded that not only should we rely on CD's evidence about what she said had taken place, but conversely we could not rely on much of Mr Asher's evidence.
   9. Ultimately, we found that in the context of the consultations described in these proceedings, the opportunity for inappropriate conduct of the type described by CD was not inherently unlikely. Indeed, all of the indicators were there to suggest that Mr Asher had created the perfect climate/environment for conduct of the type complained of by CD to occur.
   10. In his evidence before us, Mr Asher made gratuitous, unwarranted, unsubstantiated and demeaning sexualised comments about CD. We found that Mr Asher had objectified and sexualised CD in a manner inconsistent with his professional obligations but consistent with the allegations levelled against him.
   11. We further found that Mr Asher did not give frank evidence as to how CD had presented during consultations. Whilst in his evidence he described her as "difficult" or "defensive and confrontational", this contradicted his own clinical notes which routinely described CD as "open and conversant".
   12. We found that Mr Asher did not give plausible evidence as to the circumstances surrounding his consultations with CD. We did not accept his explanations for moving the consultations from a busy group practice to his unmanned practice in St Kilda. We did not accept his explanations for seeing CD at night, sometimes only commencing consultations at 10pm. We did not accept his explanations for holding multiple consultations within a short time frame seemingly without therapeutic justification. We did not accept his explanations for why he asked CD to allow him to conduct consultations with her at her home.
   13. We found that Mr Asher did not give frank or consistent evidence as to what took place during the consultations, including the circumstances of the hypnotherapy/guided meditation session and flotation tank therapy.
   14. We did not accept Mr Asher's evidence as to the circumstances in which CD fell asleep during a consultation with him and thereafter stayed overnight at St Kilda.
   15. We found that Mr Asher's clinical notes were incomplete and unreliable.
   16. We observed that each of Mr Asher's endeavours to suggest an incident could not have occurred were readily undermined.
   17. Conversely, we found Mr Asher's endeavours to undermine CDs credit were unsuccessful.
3. After we handed down our findings, the Board determined to take immediate action in relation to Mr Asher's registration under section 156 of the Health Practitioner Regulation National Law Act 2009 (Vic) ("the National Law"), and on 12 July 2019 suspended Mr Asher's registration on the grounds that it reasonably believed that immediate action was otherwise in the public interest.
4. On 15 November 2019, we heard comprehensive submissions from the parties in relation to:
   • (a) the proper characterisation of the conduct in respect of each allegation under section 196(1) of the National Law; and
   • (b) the appropriate determinations to be made under section 196(2) of the National Law.

Characterisation of the conduct under section 196(1) of the National Law

1. Mr Asher conceded that it was appropriate, given our factual findings in relation to allegations one, two and three, that we find that he had behaved in a way that constitutes professional misconduct in relation to each of those allegations.
2. Professional misconduct is defined under the National Law to include:
   • (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Allegation one - that Mr Asher engaged in sexual intercourse with CD;

1. Paragraph C.4.3 of the Code of Ethics (2007) of the Australian Psychological Society prohibits a psychologist from engaging in sexual activity with a client.
2. Mr Asher's conduct in engaging in sexual intercourse with CD was an abuse of the trust placed in him by CD. CD had complex needs and had a known history of sexual abuse. She attended upon Mr Asher, somewhat reluctantly but in good faith, in the hope that he would assist her to resolve those complex issues. Instead, during the course of what was supposed to be a therapeutic relationship, he exploited her.
3. There are unfortunately many cases relating to the formation of romantic liaisons between a health practitioner and their patients/clients. Those cases all emphasise the detrimental impact of sexualised relationships on a patient's/client's health. The cases recognise that health practitioners are often dealing with people at the most vulnerable times in their lives and emphasise the special relationship of trust essential in the health practitioner-patient/client relationship.
4. This case was arguably more serious than many of those cases. CD did not consider herself to be in any form of intimate relationship with Mr Asher. It was Mr Asher and Mr Asher alone who compromised the therapeutic relationship. He should have quickly realised that his own objectivity and capacity to provide appropriate treatment to CD was impaired. He should have quickly terminated the psychologist/client relationship.
5. The community expects that when an individual attends upon a psychologist that the individual will not be sexualised by the psychologist in the manner in which Mr Asher sexualised CD.
6. Engaging in sexual activity with a patient is conduct that falls substantially below the standard reasonably expected of any psychologist. Such conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession of psychology.
7. Mr Asher's conduct constituted a deliberate departure from accepted standards.
8. The integrity of the profession of psychology was significantly undermined by his conduct.
9. Mr Asher's conduct is properly characterised as professional misconduct within the meaning of both paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.

Allegation two - that Mr Asher engaged in inappropriate physical contact during the provision of psychological services by providing CD with massages;

1. Our comments in relation to allegation one are equally applicable to allegation two.
2. We were satisfied that CD allowed herself to be massaged by Mr Asher in the mistaken belief that she was receiving appropriate therapy - the massage having been incorporated into the therapy sessions by Mr Asher.
3. Mr Asher's conduct was in breach of the provisions in paragraphs 3.5 and 3.9 of the APS Ethical Guidelines relating to procedures/assessments that involves psychologist-client physical contact, 8th edition July 2008.
4. We found that CD had normalised the massages as part of "legitimate therapy". We accepted CD's evidence that Mr Asher led her to believe that he would help her through talking therapy and massage.
5. We reiterate our 2 July 2019 decision comments where at [204] we said:

We agree with the observations of Professor Love that engaging in massage with CD undermined the safe therapeutic relationship which required predictable consistency and dependable support for CD. The physical contact involved with massage always has a capacity to leave any psychologist open to mixed messages being given about the level of intimacy between the client and therapist.

1. We agree with the submissions of the Board that in circumstances where Mr Asher ultimately had sexual intercourse with CD, his conduct in massaging her under the guise of being part of appropriate therapy should be seen as part of a course of conduct designed to create the circumstances in which the opportunity for sexualised contact with the patient could and did occur.
2. Mr Asher's conduct is properly characterised as professional misconduct within the meaning of both paragraphs (b) and (c) of the definition of professional misconduct in section 5 of the National Law.

Allegation three - that Mr Asher failed to establish, recognise and adhere to the boundaries that should and ordinarily do exist between a psychologist and client;

1. This allegation contained a number of different but intertwined particulars of breaches of professional boundaries, including the scheduling of late-night appointments; conducting counselling sessions for in excess of one hour; making inappropriate comments to CD about her relationships, appearance and personality; picking CD up and carrying her downstairs; communicating with CD out of sessions; making unnecessary and inappropriate personal disclosures to CD; offering to conduct consultations at her home; and allowing CD to sleep at his clinic overnight.
2. We agree with the parties that the conduct the subject of allegation three is properly characterised as professional misconduct within the meaning of paragraphs (b) and (c) of the definition of professional misconduct in section 5 of the National Law.
3. Paragraph B.3.(g) of the Code of Ethics (2007) of the Australian Psychological Society requires a psychologist to provide psychological services in a responsible manner, including by being aware of, and taking steps to establish and maintain proper professional boundaries with clients. Mr Asher failed to do so.
4. We agree with the submission of the Board that each particularised instance of Mr Asher's conduct represented a failure to maintain those proper professional boundaries with CD and (at least) constituted unprofessional conduct. Considered cumulatively, those individual instances of unprofessional conduct comprise conduct substantially below the standard expected of any registered psychologist, and fall within paragraph (b) of the definition of professional misconduct contained in section 5 of the National Law.
5. We agree further with the submissions of the Board that Mr Asher, by repeatedly breaching professional boundaries in his interactions with CD, created circumstances in which CD was variously isolated, and/or undressed and/or vulnerable in a location and at a time where he could not be disturbed. Mr Asher then took advantage of the opportunities he had contrived to both massage her without therapeutic justification and have intercourse with her.
6. We agree that Mr Asher's conduct is inconsistent with him being a fit and proper person to hold registration in the profession of psychology and thus also amounts to professional misconduct within the meaning of paragraph (c) of the definition of professional misconduct contained in section 5 of the National Law.

Allegation four - that Mr Asher failed to maintain clear, accurate and comprehensive written records of his treatment;

1. It was contended on behalf of Mr Asher that it was open to us to conclude that Mr Asher's shortfalls in respect of allegations four and five were more properly categorised as falling within the category of unprofessional conduct. We disagree.
2. Unprofessional conduct is relevantly defined in section 5 of the National Law as professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
3. Insofar as allegation four is concerned, we agree with the submission made on behalf of Mr Asher that one is able to glean from Mr Asher's notes some of what transpired during the course of the various consultations.
4. We found however that Mr Asher never provided formal treatment plans or goals to CD; his notes did not demonstrate how the goals of therapy were derived or modified over the course of therapy, nor track progress in any way; no case was formulated; no diagnosis was recorded; no targeted treatment plan was developed; and no risk assessment was ever recorded.
5. We found that Mr Asher also engaged in therapies not recorded in the notes. Significantly, this included the flotation therapy which required CD to undress.
6. We found that other significant events were not documented.
7. We were very concerned by the selective nature of Mr Asher's notes in the context of this proceeding.
8. If Mr Asher was simply a careless or inadequate notetaker, his conduct arguably may have been categorised as unprofessional conduct.
9. On Mr Asher's own evidence however, not only was his notetaking inadequate, it was deliberately inadequate.
10. He said that he deliberately did not record important serious issues, such as CD's alleged drug taking. He gave evidence that he undertook risk assessments but deliberately kept the results of those risk assessments in his head.
11. Deliberately selective notetaking is not only dangerous from a clinical perspective, but highly misleading as to what has or has not taken place during the consultation.
12. Whilst we were asked on behalf of Mr Asher not to impose a sinister intent to the deficient/selective notetaking, it is difficult given our 2 July 2019 decision findings not to hold grave concerns about why Mr Asher recorded his notes in the selective way in which he did.
13. Whilst we fell short of finding in our 2 July 2019 decision that his notes were fabricated, his professional failings in this regard were not merely inadequate.
14. It is one thing to have poor notes. It is quite another to manipulate those notes by omission to paint a picture different to reality.

Allegation five - that Mr Asher provided treatment to CD that was inadequate and/or inappropriate.

1. Mr Asher contended that we should have regard when considering this aspect of his conduct to the fact that Mr Asher was inexperienced and that CD was not a straightforward client.
2. Mr Asher stressed that whilst recognising his failings, he made a bona fide attempt to provide appropriate and adequate treatment to a difficult patient.
3. We did not however find that Mr Asher was simply out of his depth with CD.
4. We found that he manufactured the relationship in a manner completely inconsistent with the therapeutic relationship. Because of this, he neglected CD's critical care across the spectrum.
5. We found that Mr Asher failed in his treatment of CD to address formulations, diagnosis, risk assessments, management strategies and assessments. He failed to provide CD with formal treatment plans or goals. He failed to address CD's presenting complaints for which the referral was made. We found that he failed comprehensively to manage CD when she spoke to him about drug and risk-taking behaviours and suicidal ideation.
6. We found that he failed to appropriately manage CD when she made disclosures of sexual abuse. We found that his failure to appropriately manage CD was demonstrated by his ongoing inability to understand the gravity of the disclosures made to him. We found that Mr Asher administered hypnotherapy to CD in circumstances where it was not clinically justified and where her history and presenting complaints indicated the method was contraindicated. We found that Mr Asher administered flotation tank therapy to CD in circumstances where it was not clinically justified and where her history and presenting complaints indicated the method may well have been contraindicated in CD's case.
7. We are satisfied that his conduct amounted to professional misconduct within the meaning of paragraph (b) of the definition of misconduct contained in section 5 of the National Law.

What are the appropriate determinations under section 196(2) of the National Law?

1. Section 196(2) of the National Law gives great breadth to the decision maker(s) as to the appropriate determination(s) to be imposed in any given case.
2. It is well established[1] that the primary purpose when imposing determinations under the National Law is to protect the public and maintain confidence in the profession in the eyes of the public. Determinations are not punitive or retributive in their nature. The Tribunal should use the minimum regulatory force necessary to achieve the protection of the public.
3. In order to achieve the protection of the public, preserve the standards of the profession and maintain public confidence in those standards, the Tribunal will consider factors such as whether there is an ongoing need to deter an individual practitioner from repeating the misconduct; or deter other practitioners from engaging in similar conduct or whether the objectives can be achieved through the facilitation of rehabilitation of the practitioner involved. The Tribunal may also consider any mitigating factors.
4. In Stirling v Legal Services Commissioner [2013] VSCA 374 at [75] the Court of Appeal, whilst confirming that ordinarily a court or tribunal should stipulate a separate penalty for each separate allegation or charge, noted that in some disciplinary proceedings:

the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied.

1. The parties agreed and jointly submitted that it would be appropriate in the circumstances of this case for us to impose a global determination in respect of all allegations.
2. The conduct is appropriately described as comprising a course of conduct rather than a set of separate events. We agree a global penalty is appropriate.
3. The Board contended that we should impose the following determinations:
   • (a) reprimand Mr Asher (under s. 196(2)(a) of the National Law)
   • (b) cancel Mr Asher's registration as a psychologist (under s. 196(2)(e) of the National Law)
   • (c) disqualify Mr Asher from applying for registration as a psychologist for 10 years (under s. 196(4)(a) of the National Law) and
   • (d) prohibit (under s. 196(4)(b) of the National Law) Mr Asher for 10 years from:
     • (i) providing directly or indirectly and in any capacity, any health service, including in the nature of psychological, counselling or psychoanalysis services, until such time as he is once again granted registration as a psychologist; and
     • (ii) using any title, until such time as he is once again granted registration as a psychologist.
4. Mr Asher submitted that if there were to be any interference with his registration (either by way of suspension or cancellation), that we should only impose a short disqualification period in the vicinity of two years. He submitted that this would satisfy the need for both protection of the community and provide a robust response to the conduct that we found Mr Asher to have engaged in.
5. It was submitted on behalf of Mr Asher that this would prevent the determinations from being crushing and would permit the prospect of re-registration, subject to any conditions stipulated by the Board.
6. It was submitted on behalf of Mr Asher that the imposition of a prohibition order under section 196(4)(b) of the National Law would be inappropriate and out of proportion to the allegations we found proven against Mr Asher.

(a) Should we reprimand Mr Asher under section 196(2)(a) of the National Law?

1. Mr Asher did not resist a determination reprimanding him.
2. We agree that it is appropriate that we reprimand Mr Asher thereby censuring the conduct of Mr Asher.

(b) Should we cancel Mr Asher's registration as a psychologist under section 196(2)(e) of the National Law?

1. The Board contended that we needed to ensure that Mr Asher was deterred from repeating the conduct. The Board contended that we could have no confidence that Mr Asher would be fit to practice once a period of suspension was served. The Board submitted that the only appropriate determination was cancellation of his registration. The Board contended that this would send a clear message of Mr Asher's unsuitability to practice and protect the public from him.
2. In support of its contentions, the Board stressed that CD did not consent to sexual intercourse with Mr Asher nor did Mr Asher seek her consent. The Board stressed CD's vulnerability and the concurrency of the sexual and therapeutic relationship. The Board emphasised that the therapeutic relationship was exploited by Mr Asher to enable his pursuit of the sexual relationship.
3. The Board placed emphasis on Mr Asher's failure to accept the allegations and the lack of insight or remorse demonstrated by him during the hearing. The Board emphasised the need to deter other members of the profession from engaging in such serious conduct and submitted that the way to do so was through a significant outcome.
4. We were implored on behalf of Mr Asher to find that the ongoing risk posed by Mr Asher was minimal.
5. Mr Asher contended that he does have positive qualities such as a strong commitment to work and preparedness to study in order to acquire extra skills. He provided many very positive character references. It was submitted that, with appropriate guidance, he has a real prospect of contributing to the profession of psychology in the future.
6. It was contended on behalf of Mr Asher that our determinations should be fashioned to maximise his reintegration into the profession, to build upon his strengths and to address his errors and weaknesses constructively.

1. In Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526 at [42] to [44], the following observations were made:
   1. 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.
   2. 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.
   3. There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.
2. We agree with the submissions of the Board.
3. We consider that the circumstances of this case allow for no other option than the cancellation of Mr Asher's registration as a psychologist.
4. Vulnerable patients/clients such as CD need to be protected from individuals willing to exploit their vulnerabilities.
5. Our findings were of extremely serious transgressions of practitioner-client boundaries in the form of practitioner/client sex and the use of inappropriate modalities of treatment (albeit within a limited timeframe in 2012).
6. In Psychology Board of Australia v Ferrero (Review and Regulation) [2019] VCAT 1648 at [35], the Tribunal observed:

Engaging in an intimate or sexual relationship with the patient is one of the most serious violations of professional boundaries which can occur. It fundamentally undermines the patient/psychologist relationship. It introduces an element of the practitioner's own personal needs and desires into what should be just a therapeutic, objective, professional relationship. It undermines the trust inherent in the relationship. Such conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. Mr Asher's conduct demonstrated a lack of the essential qualities required by a psychologist.
2. Mr Asher's conduct had the strong potential to have an adverse impact on the public perception of the profession's reputation.
3. We are not confident at this stage that we could positively conclude that Mr Asher will not engage in like conduct in the future. We are not confident that he is a fit and proper person to practice as a psychologist. We remain concerned about Mr Asher's ability to make appropriate decisions about the appropriate care of his clients.
4. We have no evidence that Mr Asher has acquired insight into the seriousness of his conduct and/or given consideration to why it occurred and/or demonstrated remorse/shame and taken steps to ensure it will not be repeated.
5. These are relevant factors to consider when determining any continuing risk posed by him. At this point in time we do not know what his prospects of rehabilitation are. We do not know whether, in due course, he will be able to persuade the Board that he is rehabilitated and a fit and proper person to practice as a psychologist.
6. Public standards need to be maintained so that vulnerable members of the community can have confidence that they can attend health practitioners without risk that they will be exploited.
7. General deterrence and the maintenance of professional standards are also of importance. All psychologists need to appreciate that having a sexual relationship with a client will have significant impacts on their registration.
8. Cancellation of Mr Asher's registration protects the public in a number of ways.
9. It prevents Mr Asher from engaging in the same conduct again during any cancellation period. It may deter him from doing so again if reregistered.
10. Cancellation is necessary to deter other practitioners from engaging in like conduct.
11. It provides the sternest condemnation of the conduct.
12. We consider that anything short of cancellation would be ineffective to maintain public confidence in the profession. Professional standards must be seen to be jealously guarded, and breaches of those standards not tolerated.
13. We are satisfied that the least restrictive means of achieving these objectives is by way of an order cancelling Mr Asher's registration.

(c) Should we disqualify Mr Asher from applying for registration as a psychologist for 10 years under section 196(4)(a) of the National Law?

1. Under section 196(4)(a) of the National Law, if we decide to cancel a person's registration we may also decide to:

disqualify the person from applying for registration as a registered health practitioner for a specified period ...

1. Mr Asher submitted that any disqualification period should be contained to the vicinity of two years. He submitted that this would satisfy the need for both protection of the community and provide a robust response to the conduct that we found Mr Asher to have engaged in.
2. It was submitted on behalf of Mr Asher that this would prevent the determinations from being crushing and would permit the prospect of re-registration, subject to any conditions stipulated by the Board.
3. The Board submitted that because we did not find the relationship to be a consensual one, that we should be guided by cases where practitioners had been subject to criminal convictions for serious sexual offences.
4. The Board contended that those cases were the most analogous to the conduct in this case. In many of those cases, the practitioner was disqualified from applying for registration for 10 years. The Board contended that we should disqualify Mr Asher for a period consistent with those cases.
5. Mr Asher emphasised that there have never been any findings of a criminal nature against him. Mr Asher implored us not to lose perspective. It was submitted on behalf of Mr Asher that we should not "throw away the key", but that we should accept that he still has something to offer.
6. We were not particularly assisted by reference to other cases. Each case must be determined on its own merits. We are mindful that Mr Asher has never been charged, let alone convicted of any offences arising from these matters.
7. Whilst it is important to be consistent, all cases require determinations reflective of their own unique circumstances. There were no cases to which we were referred that provided an applicable range to which we should have specific regard.
8. The cases we were referred to by the Board were not analogous. They had significant aggravating factors such as multiple victims (Medical Board of Australia v Sze-Tho (Review and Regulation) [2019] VCAT 244) or multiple criminal charges (Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241 and Nursing and Midwifery Board of Australia v Augustine (Review and Regulation) [2018] VCAT 1526).
9. Cases involving patients/clients with acquired brain injuries or conduct spanning a significant time duration or involving multiple victims and/or criminal findings of guilt may lead to the conclusion that a practitioner should never practice again.
10. We also did not consider his conduct analogous to those cases where criminal convictions had been recorded.
11. Conversely, we do not consider that Mr Asher's conduct was analogous to cases in which a health practitioner had formed a consensual relationship with a patient/client based on mutual affection.
12. We carefully weighed the following factors in reaching an appropriate time within which we considered Mr Asher should be disqualified from reapplying for registration as a psychologist.
13. We are mindful of the fact that there have not, for many years now, been any complaints of further sexualised transgressions. Furthermore, there was no prior history of such transgressions. The Board accepted that where investigations or proceedings take a long period of time to finalise, the Tribunal has on occasion imposed a lesser penalty on the basis that there is some form of punishment leading to specific deterrence in an individual having the stress of unresolved proceedings hanging over their heads.
14. Mr Asher pointed to his limited time as a psychologist. Whilst we take this into account and accept that Mr Asher was a relatively new psychologist having only obtained general registration in 2012, we note that he was not particularly young. Nor was he inexperienced in the true sense. He had worked in general counselling for many years.
15. We accept that Mr Asher has undoubtedly suffered a degree of personal ordeal and financial difficulty as a result of our findings which are relevant to Mr Asher's specific deterrence.
16. We accept that Mr Asher wishes to return to the profession of psychology and that his character references speak highly of him.
17. We are also mindful of the disbelief expressed by many of Mr Asher's character witnesses in our findings. Several of Mr Asher's character witnesses simply cannot, based on their experience of Mr Asher, accept our findings. Others are taken by surprise or astonished by the findings. One way or the other, we accept that Mr Asher's character witnesses have observed in Mr Asher, on a regular basis, a very different individual from the one against whom we made our findings. This could give us some confidence that the transgressions were "one-off" in their nature and will not be repeated.
18. We accept that Mr Asher is hard working and has suffered a significant personal impact because of the allegations and subsequent findings which may assist in him being deterred from engaging in like conduct in the future.
19. We understand that he has apparently also been shunned by some of his former colleagues and others with whom he has been professionally and socially associated as a result of these matters, which also may deter him from engaging in like conduct in the future.
20. We understand Mr Asher has continued to further his professional development.
21. We accept he has suffered the intrusion of the media into his life, which once again may bring with it elements of both specific and general deterrence. All of the factors combine to reduce the period of disqualification we would otherwise have considered appropriate.
22. Conversely however, Mr Asher demonstrated a complete failure to understand professional boundaries and abused the practitioner/client relationship in the most serious of ways. He provided inadequate treatment. His notetaking was deficient and/or misleading. He displayed bewildering arrogance in relation to his practice - preferring ill-advisedly to trust his own judgement rather than seek supervision.
23. We consider that the specific deterrence of Mr Asher remains a very relevant and live factor in this proceeding.
24. Whilst we agree with the submissions of Mr Asher that it is not an aggravating feature that he disputed the allegations and that he has not expressed remorse or exhibited insight or expressed sympathy for the consequences of his conduct, his failure to do so prevented us from forming a positive view as to the future likelihood of its non-recurrence.
25. We have no evidence before us of any willingness on Mr Asher's behalf to take measures to identify risk factors and do that which is necessary to avoid future transgressions. Mr Asher has demonstrated no remorse or insight into his conduct. Mr Asher has proffered no explanation for why he engaged in the conduct. He has shown no empathy for the consequences of his conduct - either for CD or the reputation of the profession.
26. The way he gave his evidence was not indicative of any insight gained during the subsequent investigation and proceedings. He was prepared to victim blame and denigrate that victim during the hearing.
27. These latter factors make it very difficult to determine when if ever Mr Asher will be suitable to return to practice.
28. Mr Asher contended that our findings in relation to his failure to recognise proper boundaries were unusual and indicative of a psychologist/client relationship that became dysfunctional. Indeed, the relationship did become highly dysfunctional. However, we concluded that it was Mr Asher who was solely responsible for this. This is relevant to our findings as to the appropriate disqualification period.
29. The findings made by us were that he engaged in sexual intercourse and massaged a vulnerable client within his professional clinic.
30. We simply do not know why Mr Asher engaged in the conduct or where Mr Asher is currently placed.
31. We were alarmed, no doubt as was Mr Asher's counsel, to learn that even after our 2 July 2019 decision findings were published, that the Australian Health Practitioner Regulation Agency received two notifications of complaint in relation to the manner in which Mr Asher was advertising and providing health services. Mr Asher has seemingly, through a series of advertisements for his St Kilda clinic, spoken of his ongoing willingness to take selective notes for his clientele. The advertisements say he will "negotiate in sessions which disclosures are recorded in the notes". He seemingly makes a promotional tool of the fact that he is now "free from any mandatory regulatory body oversight, so he permits you the absolute peace of mind to discuss any topic in complete safety."
32. This was even though it was contended on behalf of Mr Asher in closing submissions that "He has accepted most of the criticisms made by the Board of his records and committed to doing better".
33. We will not here provide the full detail of Mr Asher's promotional material. Suffice to say, we were not persuaded that Mr Asher is a completely changed or driven man with much to offer who is ready to learn. We heard no evidence from him to this effect. To the contrary, we consider his ongoing conduct, even after we made our findings, demonstrates that he maintains and will continue to maintain a contemptuous attitude towards the requirements expected of a registered psychologist.
34. We do not know whether Mr Asher should or will ever practice as a psychologist again. Mr Asher will be required to reapply to the Board after the period specified. There is no guarantee even then that he will be registered. He will need to satisfy the Board that he should be.
35. The question for us then is how long it should be before he is able to apply for re-registration.
36. Mr Asher submitted that our determination should not be a crushing one.
37. He submitted that it is rare for a cancellation imposed by a Tribunal to be a "lifetime" penalty with the practitioner never being permitted by the Tribunal to practice again.
38. We do not intend to impose a lifetime prohibition.
39. We consider however, given the seriousness of our findings, that a significant period within which Mr Asher should be disqualified from reapplying for registration is appropriate. We balance this primarily against the fact that there has been a lengthy period without any further allegations of sexual impropriety.
40. We have determined that five years from the date of this order is an appropriate time frame within which to disqualify Mr Asher from applying for registration as a psychologist.
41. We consider this to be the least restrictive determination to achieve the objective of the protection of the public.

_Should we (d) prohibit Mr Asher for five years from:

(i) providing directly or indirectly and in any capacity, any health service, including in the nature of psychological, counselling or psychoanalysis services, until such time as he is once again granted registration as a psychologist; or

(ii) using any title, until such time as he is once again granted registration as a psychologist?_

1. Under section 196(4) of the National Law, if we decide to cancel a person's registration we may also decide to:
   • (b) prohibit the person, either permanently or for a stated period, from -
     • (i) providing any health service or a specified health service; or
     • (ii) using any title or a specified title.
2. We determined as discussed above to disqualify Mr Asher from applying for registration as a registered health practitioner for five years.
3. Discussion ensued before us as to whether we could impose both or only one of the options set out in section 196(4) . The discussion centred around whether the use of the conjunctive meant that we were limited in our options.
4. This is not the first time the question has arisen. Unfortunately, it has been answered differently on several different occasions.[2] We do not need to add to the jurisprudence in this area.
5. We have determined, despite compelling submissions made by the Board, not to exercise any discretion we may have to impose a prohibition on Mr Asher under section 196(4)(b) of the National Law.
6. We were urged by the Board to give consideration to the fact that:
   • (a) Mr Asher's registration is now suspended, and
   • (b) that the Board has received two further notifications in relation to Mr Asher.
7. Cancellation of Mr Asher's registration means he will have to persuade the Board in due course that he is suitable and safe to practice again as a psychologist. This is a meaningful and potent check. It will be rigorous and may yet still spell the end to his career as a psychologist.
8. We are mindful however that the allegations upon which we made our findings related to specific allegations referable to a discrete period some years ago.
9. We were ultimately not persuaded that it would be appropriate (if we found it were open to us to do so) in this case to impose the prohibition order sought which would be more referable to Mr Asher's more recent (alleged) conduct.
10. We understand that a notification in relation to Mr Asher's recent conduct has been made to the Health Services Commissioner. We consider that to be the appropriate mechanism with which to deal with the matters drawn to our attention at the determinations hearing, rather than conflating those issues with these proceedings.
11. The Health Services Commissioner exercises jurisdiction where necessary through the mechanism of immediate prohibition orders.

1. We will make the following findings and determinations:

In relation to allegations one to five, the Tribunal finds:

1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ("the National Law"), Gregory Asher has behaved in a way that constitutes professional misconduct.

1. Pursuant to section 196(2)(a) of the National Law, Gregory Asher is reprimanded.
2. Pursuant to section 196(2)(e) of the National Law, Gregory Asher's registration as a psychologist is cancelled.
3. Pursuant to section 196(4)(a) of the National Law, Gregory Asher is disqualified from applying for registration as a registered health practitioner for a period of five years from today's date.

[1] See for example Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97]; Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026 at [358] to [373]; Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526.

[2] See for example Psychology Board of Australia v King [2016] QCAT 140 followed in Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099 compared with Dental Board of Australia v BYX (Review and Regulation) [2019] VCAT 1739.