(a) the alleged declaration of love by the respondent to the patient (see paragraphs 56 to 69 of the following reasons); and

(b) the respondent's alleged visit to the Patient's home (see paragraphs 131 and 134).

1. Under section 196(1) of the National Law, the Tribunal finds the conduct as proven constitutes professional misconduct under meanings (a) and (c) of the National Law.

1. Under section 196(2) of the National Law, the Tribunal determines that:

(a) The respondent is reprimanded (196(2)(a));

(b) The respondent's registration as a psychologist is cancelled (196(2)(e));

(c) The respondent is disqualified for applying for registration for four years from the date of these orders (196(4)(a)); and

(d) The respondent is prohibited from providing, whether as an employee, contractor, manager or volunteer, any health service (including but not limited to health services as a personal care attendant) any general health services involving the provision of mental health, psychological counselling services until registered again as a psychologist (196(4)(b)).

1. In October 2023, the Psychology Board of Australia ('the Board'), under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the 'National Law'),[1] referred one allegation against Mr Robert Ellery to VCAT concerning his alleged relationship with a patient ('the Patient').
2. After various steps in this proceeding, the final hearing was scheduled over 13 and 14 November 2025. Mr Ellery was legally represented. In mid-October 2025, the Board learned that Mr Elley's solicitors no longer acted for him.[2] By 21 October 2025, Mr Ellery was considering not appearing at the VCAT hearing. VCAT was not informed about an exchange of emails between Mr Ellery and the Board regarding this matter.
3. In an email dated 22 October 2025, Mr Ellery advised the Board that he agreed to a 'Proposed Statement of Agreed and Disputed Facts' prepared by the Board ('Agreed Statement') which we discuss below. This statement had been the subject of discussion between the Board's lawyers and Mr Ellery's previous lawyers.
4. In early November 2025, with Mr Ellery self-represented, the Board sought orders as to the method by which Mr Ellery would be able to cross examine the Patient who was to be called to give evidence. With Mr Ellery not responding to the proposal, on 7 November 2025, to protect the welfare of the Patient, balanced with Mr Ellery's right to cross examine, orders were made including requiring Mr Ellery to provide his intended questions in cross examination in writing, for VCAT to put to the witness.
5. On 12 November 2025, VCAT received an email from Mr Ellery advising that he would not attend the hearing on 13 November 2025.
6. On 13 November 2025 at 10:00 am, the hearing started at 55 King Street Melbourne. The Board's legal representatives attended. Mr Ellery did not attend. After discussion, the Board confirmed its position that it would not, as had been intended, call upon the Patient to give evidence.
7. With Mr Ellery having been previously advised that the purpose of the VCAT hearing was to hear evidence and for the Tribunal to decide whether the facts alleged against him were proven, it was appropriate to limit the scope of the VCAT hearing, and these orders and reasons, to that issue.
8. The Board relied on the Statement, to the broad extent that facts were agreed, and where the facts were not agreed, a 615-page Tribunal Book of documentary evidence.

1. After hearing the Board's submissions, we reserved our decision on whether the facts alleged were proven.
2. On 2 December 2025, we issued orders and reasons, being Order 1 above with the reasons as set out from paragraphs [16] to [138] which follow.
3. We made directions providing the Board and Mr Ellery the opportunity to respond to our findings of fact before we continued the next two stages of designing a referral under the National Law being:
   • characterisation of proven conduct, generally as professional misconduct or unprofessional conduct; and
   • determinations, here, potentially, as we return to this proceeding, reprimand, cancellation of registration as a psychologist, prohibition on application for re-registration and prohibition on provision of 'health services' as defined under the National Law.
4. The Board responded with submissions on the above issues, agreeing that, unless Mr Ellery sought a further hearing in this proceeding, it was appropriate for VCAT to decide the remaining issues, without holding a hearing, under section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
5. Mr Ellery did not respond, consistent with his non-participation in the first stage of hearing and deciding this proceeding.
6. Therefore, we made the characterisation findings and determinations as set out above, for the reasons set out below from paragraphs [139] to [178].
7. These orders finalise this proceeding, apart from the Board potentially making a cost application.

1. The Board alleged that Mr Ellery engaged in professional misconduct meanings (a) and (c) in the National Law in that he failed to maintain the professional boundaries that should, and ordinarily do, exist between a psychologist and their patient by engaging in an inappropriate personal and/or intimate and/or sexual relationship with the Patient:
   • on or about 11 March 2011, when Mr Ellery told the Patient that he loved him; and/or
   • between on or about 14 January 2014 and on or about 10 March 2014, when inappropriate (non-sexual) personal emails were exchanged; and/or
   • between on or about 19 October 2018 and on or about 20 March 2019, when inappropriate texts were exchanged and two instances of a 'sexual relationship' occurred between them. The particulars to this element of the allegation referred to two occasions of 'sexual intercourse and/or intimate physical contact' between them. Unless otherwise required we use the term 'sexual activity'.
2. In particulars to the allegations, the Board detailed the alleged conduct by Mr Ellery with respect to the Patient. The majority of the particulars are mirrored in the Statement which is in substance set out below.
3. A crux issue of dispute between the parties is whether on 12 February and/or 21 February 2019, Mr Ellery and the Patient engaged in sexual activity.

1. In considering whether allegations of fact against Mr Ellery were proven, we applied the standard set out in Karakatsanis & Anor v Racing Victoria Limited[3] [at 38], with reference to Briginshaw v Briginshaw.[4]
2. The question is whether we reach a level of 'comfortable satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes' that the events occurred in the way the Patient alleged.

1. In 1988, Mr Ellery was first registered as a psychologist with general registration. At relevant times he practiced at his home and at a medical centre and a business centre in Melbourne, both in Carnegie, Melbourne.
2. In August 2022, the Australian Health Practitioner Regulation Agency ('Ahpra') received a notification from the Patient's general practitioner about Mr Ellery's conduct.
3. The notifier described suggesting that the Patient be referred to a psychologist. In response, the Patient disclosed to the general practitioner that he had a 'bad experience' with his previous psychologist, Mr Ellery, and that they had, 'ended up in bed'. While the Patient did not want to make a formal complaint to Ahpra, the general practitioner explained that as a general practitioner he had an obligation to report to Ahpra. The Patient told his general practitioner that he would talk to Ahpra investigators.
4. In August 2022, the Board decided to investigate Mr Ellery's conduct.
5. In November 2022, the Board proposed to take immediate action, suspending Mr Ellery's registration on the basis that given the alleged conduct, Mr Ellery posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety.
6. On 23 November 2022, having considered the material provided by Mr Ellery, the Board took immediate action, suspending Mr Ellery's registration. Mr Ellery's registration remained suspended.[5]

1. The following closely paraphrases the facts related to this case as agreed between the parties as set out in the Statement. We have considered these agreed facts in context of the documentary evidence in the Tribunal Book and find these agreed facts proven.
2. Mr Ellery provided psychological treatment to the Patient between:
   • 2 October 2009 and 11 March 2011 (first treatment period);[6]
   • 14 January and 10 February 2014 (second treatment period); and
   • 19 October 2018 and 13 March 2019 (third treatment period).
3. From the first treatment period, Mr Ellery was aware of the Patient's diagnoses of depression and anxiety and his history of suicidal ideation and substance abuse.
4. During the treatment periods, Mr Ellery became aware of the Patient's sexual abuse history. He confirmed that the Patient suffered from a Post-Traumatic Stress Disorder ('PTSD'). He discussed with the Patient issues relating to the Patient's employment, relationship issues and sex life, including the Patient's sex drive, intrusive sexual thoughts, fetishes and sexualisation of father figures and people in authority.
5. On 12 February and 21 February 2019, Mr Ellery engaged in physical contact with the Patient (Mr Ellery admitted physical contact but denied sexual contact).
6. Between 14 January and 11 March 2014 and between 15 October 2018 and 20 March 2019, Mr Ellery exchanged personal emails and text messages with the Patient, including the following emails and text messages.

1. On 20 January 2014 at approximately 11:19 am, Mr Ellery emailed the Patient including, 'I like a real challenge, ... so while I wait for one to come along, can I help you, [the Patient]? (kidding)'.
2. On 26 January 2014, Mr Ellery emailed the Patient including, 'Happy Australia Day [...] It's hot up here today and tomorrow, so after all the chores done this morning, I'm into the pool ... My friends and critics alike applaud this little model, ... But I will risk all of their praise just to know what YOU think [the Patient]?'.

1. On 5 November 2018 at approximately 5:50 pm, Mr Ellery sent a text message to the Patient, including, 'Is the guitar string fixed? It would be great to hear some of your music'.
2. On 12 February 2019 at approximately 4:53 pm, Mr Ellery exchanged the following text messages with the Patient:

Patient: Thank you for your help and company today

Mr Ellery: Was just thinking the same - really was! Lifts me to write some words maybe suited to guitar chords, dunno

Patient: Hey Rob can I stay over tonight? Actually I think I'll just crash here and now. Good night Robert

Mr Ellery [the Patient], you will of course accept a future invitation with warmth when it comes. Good night and I will be "watching" your progress tomorrow. X

1. On 13 February 2019 at approximately 7:40 am, Mr Ellery sent a text message reading:

FYI Looking to spend some time in near future? Well, I can take you to this month's Trentham Gay Group for Sat night (maybe better in March). And/or one night between Fri and Sunday I am doing a roast (beef and gravy, or Lamb and mint, or pork and apple). You choose which one and when if you like this option). You are also invited to stay over when suits. Hope today started well. X

1. On 13 February 2019 at approximately 4:37 pm, Mr Ellery sent a text message, 'Happy Valentines Day for tomorrow'. The Patient responded with two text messages, 'Hehe I'll save your Valentine greeting till then...' and 'Thanks ��'.
2. On 13 February 2019 at approximately 6:40 pm, the Patient sent two text messages to Mr Ellery, 'Thanks for the hugs Robert' and 'Looking forward to seeing you over the weekend'. Mr Ellery responded, 'OK. C U'.
3. On 14 February 2019 at approximately 8:44 am, the Patient sent a text message to Mr Ellery, 'Happy Valentine's day rob', to which Mr Ellery responded, 'Noice! Happy Valentine's Day to you too [the Patient]'.
4. On or about 14 February 2019 at approximately 6:38 pm, Mr Ellery exchanged the following text messages with the Patient:

Patient Doing a heap better today Thank you

Mr Ellery For what? YOU put in the effort mate, YOU made the difference!! I wasn't even there.... he he! Proud of you. X

Sorry, you don't like to hear compliments.

Not sure I know what I'm saying with the strong smell of ammonia in my lungs from bathroom cleaning. Whatever we did that helped, can it happen more, please?

Too much info

Patient Haha I'll take a compliment from you.

Mr Ellery Thx, you just gave one as well. Much appreciated.

Patient Do you have a lot on this weekend Robert?

Mr Ellery Not too many clothes on in summer ... yak yak. Flexible I guess. Hoping to catch up with you.

1. On or about 21 February 2019 at approximately 8:14 am, Mr Ellery exchanged the following text messages with the Patient:

Patient Did you win?

Mr Ellery Third. But loved it. Now you go back to sleep, haha.

Dinner and a cuddle really helped!!!

Oh, almost forgot... Your cuddle helped too!!!! ●

Well, can't be too sure, they just told me to say that! But I guess you might have helped... maybe... just a little. Suppose so, who knows???

Probably would have yo [sic] subject myself to the torture again to more reliably inform you...... dunno!

1. On 22 February 2019 at approximately 8:20 am, Mr Ellery exchanged the following text messages with the Patient:

Mr Ellery Dear [the Patient], I can hardly wait to embrace you for your excessively gentle and kind words which were very touching. I wish today goes well for you in every way. Robert

Patient I decided not to go because u couldn't sleep and then this morning I double dosed my medication because I wasn't thinking. Now I have the runs. I haven't said anything to work yet

Yes I very much enjoy our cuddles Robert

O also nearly burned the house down because Lachlan left a tea towel on the stove and I didn't see it...I don't know how I didn't see it but I got the fright of my life when I saw an orange glow coming from the kitchen moments after I put coffee on. lol

Mr Ellery OK, I see. It suggests you are not calm and settled inside. You know where I am today and always have time in my day/evening for you. I am fine dear boy, and will stop and think of you thru the day. Hope there is no damage.

1. On 11 March 2019 at approximately 8:43 am, Mr Ellery sent a text message to the Patient, 'Hello [the Patient]. How are you and what you doing?'. The Patient did not respond. At 9:46 am, Mr Ellery sent a text, 'Are you away, or are you close by? / Are you up, or in bed you lie? / What will you do with this lovely day? / Share it with others, that's the best way!!'. The Patient did not respond.
2. On 20 March 2019 at approximately 12:57 pm, the following text exchange happened:

Patient Helen told me yesterday in a roundabout way that she doesn't want to see me anymore... So I'm trying to find a new Suboxone doctor. I've never felt as shit about myself as i do now. I probably won't be seeing you for a while as I buggered up the appointment with Evelyn and missed it so I just realized that there's not much any one can do for me. Hope you are well

Mr Ellery I am well [the Patient] and I care. So please share with me. I write from that place and so encourage you to reach out for that which you value. We understand each other, and can share anything. You have much support here.

Patient I just need to be put to sleep

Mr Ellery Well, I can do that, and you know that I can. And it is a little time we share.

Some time together, Japanese, accept a nice gift I brought back and then tell me to my face to back off. To my face please!

Friends do this, they do look out for each other, and you are my friend. Mr friend you are.

Patient I'll be alright... I'm just stressed out man. Thanks for the kind words

Mr Ellery Yes, stress. [the Patient], those kind words, feelings and actions come from a place which says you are respected and appreciated. Really so. Man, you said I would not lose you and I will bloody fight to keep you close. You are valued.

I feel what you feel, trust me

[...]

1. During the third treatment period, Mr Ellery, in November 2018, visited the Patient whilst he was admitted to Delmont Private Hospital.
2. On 13 February 2019, he offered to take the Patient to the Trentham Gay Group, invited the Patient to come to his home for a roast dinner and, on 13 March 2019, accepted the Patient's invitation to meet for brunch.
3. In March 2019, Mr Ellery gave the Patient a substantial steel cat sculpture, a set of industrial objects (a very large spring in the body and the circular saw blade is the face, standing say 30 cm high and 45 cm long).
4. Mr Ellery attended the Patient's house on more than one occasion, including when Mr Ellery delivered the metal cat sculpture.

1. We summarise the Statement as to the disputed facts between the parties and then analyse the evidence and make findings concerning them.
2. The Board alleged and Mr Ellery denied:
   • that on 11 March 2011, Mr Ellery failed to maintain the professional boundaries that should and ordinarily do, exist between a psychologist and patient by engaging in an inappropriate personal relationship with the Patient;
   • on 11 March 2011 during treatment, Mr Ellery told the Patient that Mr Ellery loved the Patient;
   • that the conduct alleged included in 2019, an intimate and sexual relationship, not just an inappropriate personal relationship (noting that Mr Ellery agrees that the relationship was an emotionally intimate relationship);
   • on 12 February and 21 February 2019, Mr Ellery engaged in sexual activity with the Patient; and
   • Mr Ellery sent the Patient Christmas cards for a couple of years after 2019.
3. While the Board alleges that between 14 January and 11 March 2014 and 15 October 2018 and 20 March 2019, Mr Ellery exchanged personal emails and text messages with the Patient, including the sexually suggestive and inappropriate emails and text messages from 20 January 2014 to 20 March 2019,[7] Mr Ellery submits that the emails and text messages, while inappropriate, were not sexually suggestive.
4. While the Board alleges that between 19 November and 22 November 2018, Mr Ellery visited the Patient whilst the Patient was admitted to Delmont Private Hospital, Mr Ellery submits that the proper allegation is that on or about 19 or 22 November 2018, he visited the Patient who was admitted to Delmont Private Hospital.
5. Finally, the Board alleged that Mr Ellery attended the Patient's house on more than one occasion for non-professional purposes, including the first time they engaged in sexual activity and when Mr Ellery delivered the metal cat sculpture.
6. Mr Ellery agrees only that he attended the Patient's house on more than one occasion for non-professional purposes, with sexual activity never occurring, including when Mr Ellery delivered the metal cat sculpture.

Did Mr Ellery in 2011 tell the Patient he loved him? - not proven

1. During the Ahpra investigation, the Patient provided two witness statements, dated 20 October 2022 and 22 November 2023.
2. The following concerns the first treatment period and the Patient's evidence that Mr Ellery told the Patient that he loved him.
3. The Patient described first seeing Mr Ellery for psychological treatment in 2012. He described being depressed due to being bullied in the workplace, having relationship issues and due to his past sexual history, which he described as the biggest problem in his life. The Patient described being diagnosed with depression since he was 16 years old and in 2022, diagnosed with Complex PTSD.
4. He described Mr Ellery working from his home. The sessions with Mr Ellery were first funded under a Mental Health Care Plan and then the Patient paid for subsequent sessions.
5. We quote from the October 2022 witness statement:

I had a bicycle at the time, and sometimes I would ride my bike from work to Robert's home at Hawthorne, for the sessions. It was about 10 kms from where I lived at the time, but only 5kms from where I worked. So, I would ride my bike from work to his place after work.

...

I'd take the backways using the Monash bike path to Hawthorne, or I would drive there.

I can't remember the exact address, but his home was on ... Street ... in Hawthorne. It was an Art Deco style building with four units in it. It was on the right-hand side as you drive south down the street. Robert's unit was on the second floor on the left-hand side. The building had a name, but I can't remember it. It was a pretty cute building.

Robert would have the consultations in his home, in his lounge room. There was a cream leather chair with a sheet over it where I would sit, and Robert would sit in the lounge room with me for appointments. It seemed to me that he used the dining room as a bit of a makeshift office. There were files and folders everywhere because Robert worked from home.

There was a fireplace in the room which was retrofitted with a gas heater. The lounge room was connected to the dining room. There was carpet on the floor, which I think was the original carpet. It didn't look like it had been updated.

I would normally see Robert at his home late in the afternoon. Around 3 to 5pm. I have told him some pretty deep stuff over time. I was usually crying during my appointments and I would leave still crying. I just wanted to tell someone and get it out. Before Robert told me he loved me there was no hint that he had developed feelings for me. He was pretty professional.

At one of our appointments, I don't recall which, Robert and I were talking about my boyfriend who was only two or three years older than me. I said to Robert that I usually go out with people 'your age' not people my own age. I didn't realise that Robert took that to mean I was interested in him in that way.

Around February or March 2012, I was going to break up with my boyfriend because we didn't have the same relationship goals and I didn't think it was going to work out. I had been feeling really depressed and so I made an appointment to see Robert.

That appointment, when Robert told me he loved me, was maybe a week before the 'Golden Plains Festival', that's a music festival at Meredith that I went to with friends. The festival was on 10 and 11 March 2012. Looking forward to going to the festival was part of the reason I was feeling a little bit upbeat when I went to see Robert.

On the day of the appointment, I was feeling really great. I told Robert that I didn't know why I had come because I felt great and that I really didn't have anything to talk about. I told him about a few things that had changed.

But then at the appointment, entirely unprompted, Robert said to me, '[Patient first name] I think I know why you are here'. Robert said to me something like 'have you ever wanted to give yourself over to someone completely and trust that person completely'. Then Robert said, 'I love you ... and I think that's why you are here'.

Robert was really shy about it and he was really flustered. When he stood up, he knocked his chair over. I can't remember the exact phrasing, but he told me he loved me, and I could trust him completely, always, and I believed him when he said this to me.

I rejected his advance at the appointment. But then sometime later he came to my house with a bottle of red wine, and I rejected his advances again, but I kept using him as a psychologist anyway. It was a strange feeling to find out he's not a doctor. I always called him Dr Ellery.

When Robert turned up at my home, I hadn't invited him over. He just turned up. I was on my way out, so I caught him on the driveway. The house is very confusing to get to. It was dark, so it must have been in the evening.

I didn't accept the wine and I just dismissed him. Robert didn't seem angry about it. It seemed to me that Robert had come over with the expectation that he would have a couple of glasses of wine with me, kind of like a date. I took it as a romantic gesture.

I assume Robert got my address and phone number from my records because I didn't give it to him. I had been going to see the same general practitioner for about 10 years and Robert worked out of that practice for a while.

I have two phone numbers for Robert. The first one is ... and the second one is ... One identifies Robert as 'Robert Ellery' and the other identifies him as 'dr Robert ellery'. I've had the same phone number for 20 years.

My boyfriend then decided that he did have the same relationship goals as I did, and he moved in with me one or two months after Robert told me he loved me.

I cut off contact with Robert for a while after he told me he loved me.

1. In January 2023, Mr Ellery's then solicitors wrote to the Board with evidence that the Patient's claim that there was a session between him and Mr Ellery on 31 March 2012 was incorrect, providing proof that the session was on 31 March 2011.
2. In his second witness statement, the Patient corrected his first witness statement to be that the events said to have occurred at the appointment in March 2012, in fact occurred in March 2011. He gave evidence of contacting the medical centre where the appointment occurred which confirmed an appointment in March 2011 but advised there was no appointment in March 2012. The Patient also asked his ex-boyfriend about the date who recalled that the appointment was in 2011. We note that the second statement contradicts the first statement in that the Patient first gave evidence that he saw Mr Ellery at Mr Ellery's home. In the second statement he speaks of seeing Mr Ellery at the medical centre where Mr Ellery practised.

1. The Patient's first statement states that Mr Ellery told him he loved him at Mr Ellery's home in 2012, where Mr Ellery was attending for treatment. The Patient provides significant detail about travelling to Mr Ellery's home and describing the home, presumably to buttress the Patient's credibility as to attending for treatment at Mr Ellery's home and so his credibility with respect to his evidence about Mr Ellery telling him that he loved him.
2. However, and significantly, in his second statement the Patient changes his evidence to that Mr Ellery told him he loved him at the medical centre in 2011 where Mr Ellery worked. It is difficult to understand why, if the Patient recalled Mr Ellery making his declaration of love to the Patient in his home office, the Patient was contacting the medical centre to clarify the date of the appointment.
3. The Patient in part specifies 2012 saying that is when he was thinking of breaking up with his boyfriend. This means the Patient confused the year in which he was thinking of breaking up with his boyfriend, first saying 2012 and then later realising that happened in 2011.
4. This is a significant error and cause for concern as to the reliability of the Patient's evidence about Mr Ellery telling him he loved him.
5. While the Patient's first statement was made in 2022, about 11 years after the claimed statement, and recall fades with the passing of the years, we doubt that the Patient would wrongly and completely confuse a declaration of love in someone's home office from a declaration of love in a treatment room in the medical centre.
6. Our level of doubt does not fall given that the Patient's second statement provides no details as to the events in a treatment room at the medical centre and how it came to be that Mr Ellery declared love in that environment. It does not appear to be a matter of simply 'transplanting' the evidence concerning that declaration from the home environment to an office environment.
7. We are not comfortably satisfied that this element of the allegations is proven.

Did Mr Ellery visit the Patient in Delmont Private Hospital in November 2018 - yes

1. Mr Ellery agrees that during the third treatment period, in November 2018, he visited the Patient whilst he was admitted to Delmont Private Hospital.
2. The following evidence from the Patient's first witness statement is relevant:

Then in November [2018] I was going to be admitted to the Delmont Private Hospital. I couldn't manage my medications and I was having a really hard time in life. I didn't have any skills to manage my symptoms. I saw Robert a few times before I was admitted to hospital.

I was very unwell before I went into hospital. I was having memory loss and was very depressed. I have subsequently been diagnosed with C-PTSD, which apparently, I have been suffering from for years, but it hadn't been diagnosed.

At the time I was having problems with drugs and substance misuse. Robert was aware of this and that I was seeing ... an addiction medicine specialist, for my drug problems.

I knew Robert cared about me because he had told me so years before. So, I asked him to come to the hospital to see me. We had a conversation about him coming to see me. I wasn't inviting him as a friend as such, because I needed professional psychology treatment, but I asked him to come because I knew he cared about me and I wanted someone I could trust. Robert said that he was sure we could keep it professional.

Until Robert came to the hospital, I didn't realise that he wasn't supposed to be there. Robert told me when he came up to see me that he couldn't provide care to me because he didn't practice at the hospital. Robert said that he wasn't charging me for the visit.

The doctors at the hospital wanted me to talk to them about what was upsetting me, but I wasn't comfortable with them and couldn't tell them. I was cut up about the sexual abuse that I experienced as a child. I felt comfortable telling Robert about it. I told Robert things about that abuse that I had never told anyone else about.

The other doctors at the hospital told me that I should just use the doctors at the hospital not Robert. So, Robert didn't come again. I didn't see him then until the new year.

1. The statement in the disputed facts that while the Board alleges that between 19 November and 22 November 2018, Mr Ellery visited the Patient whilst the Patient was admitted to Delmont Private Hospital, Mr Ellery submits that the proper allegation is that on or about 19 or 22 November 2018, he visited the Patient who was admitted to Delmont Private Hospital is immaterial.
2. The evidence establishes one visit by Mr Ellery to the Patient in November 2018.
3. Mr Ellery's treatment notes record[8] the Patient seeing him for 'Session 2' on 26 October 2018, where Mr Ellery records that the Patient 'committed to seeing a Delmont psychiatrist next week'. In a 9 November 2018 note ('non-session'), Mr Ellery records being notified of a possible period of hospitalisation for the Patient.
4. The records contain an entry from 20 November 2018 (non-session) which records Mr Ellery's visit to the Patient at Delmont (there is reference to the Patient being halfway through a Delmont Residency Program). There is no note concerning the treating doctors at the hospital objecting to Mr Ellery visiting the Patient Delmont.
5. In his letter to Ahpra, Mr Ellery explained:[9]

During [the Patient's] Delmont placement, on the 22.11.2018 I spoke with Dr Sanjhvi ... to identify and explain my presence. Dr Sanjhvi briefly explained [the Patient's] program, his goal-setting and participation to date, and possible medications.

My clinical records also document a reflective process dated 22.11.2018 as related to the Delmont visit. This particularly highlighted [the Patient's] expressed concern for his personal safety, and his understanding of the need for consultations between treating practitioners.

As recorded, [the Patient] was urgent and insistent that he have a session in-house. I was most reluctant to attend, and [the Patient] was made aware of the protocols and limitations of my role in attending Delmont; however he remained most insistent.

As recorded in notes of 22.11.2018, [the Patient'] sought my professional support. Those same notes indicate my reasons for acceding to [the Patient's] demands. I made it clear to [the Patient] that I was attending in a professionally supportive way, and was intent on not providing treatment whilst in the care of specialists as an in-patient.

No charge was made due to [the Patient] receiving alternative and specialist treatment/s at the time. As well as attending, despite having strong reservations, I did not want to further compromise either my own professional standards or the current treatment program. However, upon reflection, it could be viewed that I did impart treatment, and without charge. This failure of ethical standards and guidelines were in breach of my professional responsibilities, which I regret.

Did sexual activity occur in February 2019? - proven

1. This section focuses on the question of whether the Tribunal finds that the alleged sexual activity occurred during the third treatment period. It is convenient to set out the Patient's remaining evidence (which is from the Patient's first statement) concerning the second and third treatment periods.

1. This passage concerns the third treatment period:

It was a couple years before I felt comfortable enough to see Robert again after that. I only saw him sporadically because I would lose interest or get distracted by other things.

In October 2018, I contacted Robert because I was depressed and wanted the support of someone I knew. I was also having problems with addiction.

I saw Robert in October and November 2018; he was seeing people at a room at [the Business Centre]. I messaged him to arrange an appointment. ... I wanted to see someone I knew and felt comfortable with. ...

[See above concerning the witness statement and Mr Ellery's visit to the Delmont Private Hospital.]

...

Robert knows a lot about me. Over the years I have told him more than anyone else, more than any of my other doctors. I was emotionally and sexually abused as a child, when I was at boarding school. Robert knew all this. I told Robert everything that had happened to me and what was happening at the time.

So, I didn't see Robert again for a while after the hospital visit. He occasionally offered me lyrics or poetry about my "stolen soul" and abuse. I felt like he knew me in a way no one else did and that he cared about me. Even though I am not worth it Robert wanted to love me. This was a confusing time for me, and I broke up with my boyfriend at Xmas that year.

1. This passage concerns the third treatment period and the alleged sexual intercourse:

But in 2019, I needed a psychologist and I felt that Robert would be OK.

I had an appointment with Robert on 12 February 2019. I didn't feel that I could trust anyone else. I was seeing [the addiction specialist] because I was having problems with heroin at the time, but I didn't feel that she was being fair to me and she was being mean. Robert was just so warm and friendly, and I knew how he felt about me. I felt comfortable with him and safe.

I hit on Robert at the appointment on 12 February 2019. I knew how he felt about me, and he had told me he wanted to have a relationship with me when he told me he loved me, because of what he had said to me, when he said, 'have you ever wanted to give yourself over to someone completely'. For the first few years after he told me he loved me, I cringed at it. But at the time of the appointment in February I didn't cringe, I knew that if I invited him, he would come. At that time, I wanted more than to be friends, I needed someone to care about me.

I don't think Robert was expecting it. But it was clear that his feelings hadn't changed. I asked him what he was doing that night and whether he wanted to come over to my house and have some wine. It was a short conversation. Robert said to me that he didn't think that he could do it and that he could get into a lot of trouble for doing that.

I'm very aware of the fact that treating practitioners aren't supposed to get involved with their patients. I knew that when Robert hit on me in 2012. It was really out of order. Robert obviously knew it too. But I told him not to worry, because I wouldn't tell anyone.

Robert came over to my house that afternoon. He walked in the back way. My room was at the back of the house. We sat in the garden in the courtyard at the back of the house for a while, Robert was stunned at how beautiful the garden was. Then we sent straight to my bedroom.

We both took off our clothes, we were naked. I initiated the sex. I touched Robert on the hip and then kissed him. Robert was willing and responded to me. He was really into it. I recall him calling out 'yes', 'yes' when I ejaculated. He seemed to be happy with me.

Robert is short, about 5'5" tall, he looks after himself and was quite fit. He didn't have much hair on his chest or his back. When I first met him, he had brown hair, but by this time his hair was starting to go grey. He is fair skinned and wasn't tanned at the time. He had a goatee beard. He didn't have any distinguishing marks on his body, no tattoos or anything like that.

I think he was there for about an hour before he left. Afterwards I texted him and asked if I could come over to his home and stay the night. But then I decided not to.

On Wednesday 13 Feb 2019 at 6.40pm, I sent Robert a text message which said, 'Thanks for the hugs Robert'. That is a reference to Robert coming over and having sex the day before at my house. Copies of those text messages are attached to this statement.

Robert should have known how vulnerable I was at that point. I was hospitalised three or more times over the next year or two. When I think back, he probably should have known that I was grasping at anyone who thought I was worth anything. I was at the lowest point in my life.

We had meant to get together for dinner for a while, but Robert was busy travelling and seeing friends so around the 19th or 21st of February 2019, Robert invited me to his home for a dinner date. I was feeling horny, so I went to Robert's place. When you walk into Robert's home the kitchen is on the right and then you take a left to the hallway and the bedroom is on the right, across from the bathroom. From the kitchen, the dining room and lounge are on the left. I think it's only a one-bedroom apartment.

In Robert's bedroom, the bed was on the left as you walk in and the head of the bed was towards the door. The bedclothes were grey and white. There were cupboards on the far wall, at the foot of the bed. The bed was on the floor, there were no legs on the bed. That struck me as odd, there was a mattress on the bed, but the bed was on the floor. The floor was carpeted. The was a window on the left-hand side of the room

It was late in the day and we skipped dinner and ended up in his bed. We were getting into it and Robert was getting all sweaty and rubbing his body on me. I stopped the sex midway through because I didn't like Robert rubbing his sweaty body all over me. It was awful. I told Robert I didn't like that sort of thing. I got up and got a towel and dried myself off and put my clothes on and then left. Neither of us climaxed because I cut the sex short and then left. I was puzzled as to why Robert would think that I liked that type of sex.

That evening was really unpleasant, it felt wrong, and it was clear that we had nothing in common. So, I didn't intend to pursue the relationship. We may have met up at a café for lunch after that, but I don't recall the details.

On Thursday 21 Feb 2019 at 8.14am, Robert sent me a text message which said, '...Dinner and a cuddle really helped!!!' and '...Your cuddle helped too!!! [devil's face emoji]'.

This text message referred to us having dinner and sex. Especially because of the devil emoji. We knew we were not supposed to be mixing casual sex or "dating" from Robert's perspective, and have him as my psychologist. We discussed this at the appointment before we had sex, when he came to my house.

On Thursday 21 Feb 2019 at 6.13pm, I texted Robert and said, 'Hey I'm just gonna pop around now' and at 9.18pm Robert texted back to me 'Thank you [the Patient] for driving over. Appreciated. X'.

On Friday 22 Feb 2019 at 8.20am, Robert texted me to say, 'Dear [the Patient], I can hardly wait to embrace you for your excessively gentle and kind words which were very touching...' and at 8.22am I replied to him saying, 'Yes I very much enjoy our cuddles Robert'. When I said cuddles, I meant I enjoyed our sex.

On Wednesday 13 March 2019, at 12.08pm I replied to a text sent to me by Robert and said, 'Yes brunch Saturday at Mr bright side café on booran road sound ok to you'. But I don't recall whether we kept the date or not. But the meeting wasn't for an appointment, we never had appointments at restaurants.

At first, I didn't feel bad about what happened. I was infatuated with Robert at the time. But then, over the next few months, I wondered if Robert hadn't taken advantage of me. It made me feel that I couldn't trust people anymore and I didn't want to tell anyone stuff about me anymore because I didn't want this to happen again.

I was alone at the time and just the thought that someone thought that I was nice. I wanted to be cared about. I just felt that no one cared but I felt that Robert did care and that's why I hit on him. I wanted to be loved. I knew Robert wanted it and it was something I could give him to thank him for caring about me. It was one of the things that I was good at and I wanted to give him something back for caring about me. I thought he would enjoy it and I thought I would be fine with it, but over time I realised that I wasn't fine with it.

I wound things down with Robert in text messages, in late March 2019. I didn't have any more appointments with him after that. I cut contact with Robert and my addiction specialist ... on the same day. Then Robert came to my house and when I didn't answer the door, he came down the driveway. He wanted me to break off the relationship, professional and /or personal, to his face. I told him I didn't want to see him again and he left. I think the text messages ended around the time of this encounter as well.

When Robert came around to see me for the last time, he brought me a metal welded cat. Robert bought it when he was in Castlemaine. Robert left the cat in the garden on the shared driveway that also accesses the house behind mine. I just left it where it was and as it's out of view and that area not seen by me much, it was eventually enveloped by plants. When I do see it, I know how foolish I can be. ...

...

Robert sent me some Christmas cards for a couple of years, but I threw them away.

1. The Patient's witness statement explained the circumstances which gave rise to his general practitioner in August 2022 notifying Ahpra:

I was talking to [GP], who is my current treating general practitioner, because my former psychiatrist sent a not so kind email about me to [GP]. The email described me as someone who is unwilling to seek treatment. So, in my defence, I told [GP] that I no longer want to seek psychological treatment because of my experiences with Robert.

I told [GP] that Robert is a prime example of how I am vulnerable and a danger to myself emotionally. I perceive basic human kindness as love. Especially from father figures. And if someone actually says they love me, I become loyal, very loyal, I will trust them even when I shouldn't. I will share my body as a gift if they want it. That's the way I've always been. Once someone knows this, they have power over me. Robert knew it. He knew I would come back to him. And that's how foolish I can be. Hence, I have left the cat as the reminder.

I feel horrible about doing this and Robert will feel betrayed because he cares about me. It would have been hard for Robert to have resisted me because he was charmed by me. He felt bad for me and pitied me too.

I don't want to get in trouble. I practically seduced this man and I feel like I am betraying our trust doing this. It's possible that I pursued him. I told him not to worry because I would never dob him in. I've never dobbed in the people who abused me as a child. He will be shocked when he sees this. It's out of character for me. I don't want to hurt anyone. I don't want him to get hurt.

I never told anyone about what happened with Robert until I told [GP].

1. For completeness we note that in 2022, the Board sought any further information that the notifier may have about the situation. In an undated letter to the Board the notifier said:

All the information the patient gave me is included in the notification

the patient left with me with the impression that it was an ongoing relationship the relationship was for a significant time but I am not unsure of the details the patient did not want to give further details but said he would be happy to speak to an [Ahpra] investigator

I do not know if the patient has copies of the love letters or SMS received.

1. When providing a copy of his treatment file concerning the Patient (as required by the Board under the National Law) the notifier said in a cover letter:

At the time of his disclosure, [the Patient] mentioned obliquely it was only more forthcoming when close to questioning. He appeared to feel guilty about it and was aware was wrong. It was clearly very distressed but when I pointed out that it was wrong and need to report to AHPRA, I felt he had a sense of relief.

The main points he made were that he had been worded by the psychologist and they ended up significant long-term relationship with the exchange of gifts and letters, [the Patient] terminated the relationship psychologist continue to try to make it ongoing.

1. We quote from Mr Ellery's written statements including denials that sexual intercourse occurred.[10]
2. On 21 November 2022, Mr Ellery made a written submission to the Immediate Action Committee that was considering whether to take immediate action against him.
3. He introduced this submission describing the Patient's evidence as:
   • Client sexualised behaviour problems being projected onto the practitioner.
   • Irregular, unnecessary, and not typical commentary for a formal complaint.
   • Signs of obvious psychological distress that could impair reasonable judgement.
   • Inconsistencies in the narrative.
   • Signs of obvious psychological distress that could impair reasonable judgement.
   • Demonstration of manipulative and Cluster B behaviour, drug abuse, and projecting.
   • Vexatious and malicious prosecution.
4. His denials included a denial of any sexual intercourse. He described the Patient as fabricating evidence, vexatious and manipulative noting that the Patient had sought treatment with respect to 'a history of problems with their own sexual behaviour'.[11]
5. To the extent that the Patient gave a detailed account of the first alleged sexual encounter, Mr Ellery described that as reading, 'more like a desired fantasy than the way a person would write a complaint regarding serious psychological trauma from malpractice'. He also described the complaint, including the claim that Mr Ellery told the Patient that he loved him, as 'reading rather like a script you'd see in a movie '.[12]
6. Mr Ellery observed:[13]

A person who has experiences sexual abuse is not likely to consider a person who has made unwanted and unsolicited romantic or sexual advances to be their confidant. Yet this is exactly the narrative painted by the complainant? A simpler explanation would be that the complainant had feelings for Robert due to the support received in context of the sexual abuse. This is commonly referred to as projecting and is a well-documented phenomena.[14]

...

The complainant is painting a picture and providing testimony that they are of not a psychiatric sound mind. They also indicate medication and lacking the capability to manage their own symptoms. Yet this same testimony is being used to damage Robert's career and take away desperately needed clinical care for his patients. This is not only vexatious but is evidence of a condition where the complainant needs psychiatric support, which Rob tried to provide. The complainant also indicates that this psychiatric condition has been ongoing for years. Which further questions the legitimacy of these accusations.[15]

...

The complainant assumes Robert had romantic feelings and exploited this for their own on needs when they were vulnerable or in distress. This is first evidenced when out of the blue Robert allegedly declares his love for a patient exactly when the patient is in emotional distress and isolated after a relationship breakdown. Conveniently, as the complainant describes reengaging their previous relationships they simultaneously no longer need to see Robert for support any longer. As the complainant describes that they cut off connections with Robert. Then again after several years when the complainant is in the Delmont psychiatric facility and he calls on Robert for psychological support but makes sure to note how infatuated Robert was with the complainant even after several years of being 'cut off'. [16]

...

A person who has experiences sexual abuse is not likely to consider a person who has made unwanted and unsolicited romantic or sexual advances to be their confidant. Yet this is exactly the narrative painted by the complainant? A simpler explanation would be that the complainant had feelings for Robert due to the support received in context of the sexual abuse. This is commonly referred to as projecting and is a well-documented phenomena.[17]

...

Give the demonstration of manipulative behaviour, this following comment and associated text message is highly questionable. Another equally reasonable conclusion would be that the complainant was attracted to Robert and wanted a hug after a session. There is no way of determining any certainty around this message. Regardless of whether Robert obliged or not, what is certain is that a message about a hug in no way provides any evidence that can be used to objectively demonstrate any sexual activity or behaviour at all. This is the farthest stretch possible and further supports the vexatious and malicious prosecution argument.[18]

...

This single comment by the complainant demonstrates and completes all the elements needed to show reasonable foundation for malicious and vexatious prosecution. Namely, the complainant admits to personal trying to seduce (hit on - colloquially) Robert in session. The complainant clearly indicates that it was all about them as they 'needed someone to care about them'. The claimant then confesses knowledge of practitioner limitations at the time and thus demonstrating they knew it could be weaponised later. They were not ignorant of the rules themselves. So the complainant is armed with the knowledge, capability and accessibility for this course of action. All that is missing is the typical anger to then commence recourse. The complainant also confess that Robert said he cannot conduct himself in this manner and then immediately admit to trying to convince or lull Robert into a sense of trust and security.

Throughout this application the complainant conflates hugs with sex and various other inconsistencies. A pattern of the complainant calling on Robert, Robert implying boundaries and then the complainant receiving unsolicited adoration or being able to convince Robert to have sex as if succeeding in a conquest. The final element of this is always that the complainant somehow succeeds in rejecting Robert in some form or another and then leave him.[19]

...

At this stage the complainant goes into detail about more sexual encounters that lead to the typical and eventual rejection of Robert. Despite this incident being rather odd in its description and detail of how much sweat that it needed a towel remaining consistent with the theatrics. [20]

...

At most this evidence only implies that Robert was familiar with this patient out of his best intentions for their wellbeing. Robert asserts that when this person was denied the relationship they were seeking they then took this familiarity and have misleadingly represented it as something malicious. This has then been taken to AHPRA and used to cause detriment and disproportionate outcomes against Mr. Ellery. This is the very definition of vexatious ...

...

The complainant then goes onto describe how several medical and registered practitioners have all done wrong by them. How another sent and unpleasant message but they are still the abused person. This is despite their own narrative describing how they pursued Robert despite his reluctance and boundaries. Throughout this application the arguments presented are logically incoherent and inconsistent. There is considerable information included with no relevance, at times it sounds like a movie, and the evidence submitted is frequently contradictory. The complainant is also not a credible person for a witness testimony given the frequency of drug use, psychiatric diagnoses and inpatient psychiatric admissions. The complainant was seeing Robert and other therapists for complex comorbid issues that stem from trauma and sexual behavioural issues. This testimony is being considered by AHPRA as potentially valid enough to end a senior clinician's career. This is being justified based on a single separate issue that was found to have no substantiated evidence. This means it cannot be proven and yet something that was not proven is being used to prove a separate incident. This is legally precarious at best.[21]

1. On 21 November 2022, Mr Ellery sent the following email to the Board:

I write to apologize for this late notice, but in the lateness of last evening I overlooked including this letter in my response to the Board.

The complainant has indicated that I had an improper relationship with him of a sexual nature. I categorically deny having any type of sexual relationship with the complainant.

1. In February 2023, the Board put a set of detailed questions to Mr Ellery's lawyers. By letter dated 20 April 2023, Mr Ellery responded directly to the Board (i.e. not via his lawyers).[22] We focus on his statements with respect to the disputed issues.
2. The questions are from the Board; the answers from Mr Ellery:[23]

Q: An explanation of [the Patient's] Cluster B and manipulative behaviours; and how [the Patient] demonstrated these behaviours during treatment periods (with references to clinical notes to support the description of these behaviours)

A: Rather than described as Cluster B behaviours, upon reflection I recognize that [the Patient's] behaviour could have been manipulative and indicative of a Borderline Personality Disorder (BPD). [The Patient] reported a pervasive pattern of instability of interpersonal relationships, a low self-image, instability of affect, impulsivity in relation to sexual activity and substance use, chronic feelings of emptiness and recurring references to suicidal ideation.

...

... [The Patient] assumes I had romantic feelings for him. As [The Patient] describes when re-engaging with his previous relationships, [The Patient] "cuts off the treatment connection." However, after more than four years, including hospitalizations, [The Patient] continued to prevail upon myself for further psychological support - following a common pattern associated with this condition: dramatic, unpredictable, highly dependent upon and manipulative of the current "favourite".

...

Q: A description of how [the Patient] intended to seduce me

A: From WebMD and as expressed in my response of 21.11.2022: "A person who has experienced sexual abuse is not likely to consider a person who has made unwanted and unsolicited romantic or sexual advances to be their confidant. Yet this is exactly [the Patient's] behaviour.

In Item 38 of his witness statement, [the Patient] discloses that in Session 15 (12.02.2019) he "hit upon the practitioner' and "I knew how he felt about me' and "I knew he would come' (12.02.2019) and as previously detailed elsewhere.

In his witness statement [the Patient] reported how he misinterprets basic care for love;' and further on "Gifting his body as giving something back and in appreciation for this basic care from myself."

This intention is clearly set out in in [the Patient's] statement, but was unknown to me prior to this notification being made. It was therefore not required to be managed within treatment.

...

Q: Why [the Patient's] complaint may be vexatious

A: In his witness statement, [the Patient] admits to trying to seduce (hit on - colloquially) me in session 15 (12 February 2019), indicating he "needed someone to care about him.'

In 2022, a further four years from previous treatment, [the Patient] alleges harm from myself on the basis of a lengthy personal and romantic relationship originating from statements allegedly made to him in 2011. Evidence from clinical notes of this and previous sessions give no indication of these statements being made; nor any awareness of [the Patient's] agenda.

As the Board will appreciate, I was upset, as well as very concerned, when AHPRA unexpectedly informed me about this notification and invited me to prepare a submission to the Immediate Action Committee. I maintain that I did not engage in a romantic or sexual relationship with [the Patient]. However, it is ultimately a matter for the Board, and/or the Tribunal, whether they characterise his allegations about me as vexatious.

Q: Text messages

A: General Comment

The majority of my text messages, including messages both initiated and as responses were intended to be highly encouraging for [the Patient] to attain greater confidence and ability to manage and enhance his own level of capacity. However, I acknowledge that the level of enthusiasm expressed by me on occasion was ignorant of the power imbalance and the rights of the Patient to respect and independence.

...

Q: 12 February 2019, [the Patient] to Mr Ellery, "Thank you for your help and company today'. Mr Ellery to [the Patient], "Was just thinking the same - really was! Lifts me to write some words maybe suited to guitar chords, dunno'. [the Patient] to Mr Ellery, "[Smiley face emoji] Hey Rob can I stay over to night...?' Mr Ellery to [the Patient], "[the Patient], you will of course accept a future invitation with warmth when it comes. Good night and I will be "watching' your progress tomorrow. X'

...

A: This text expressed gratitude for my guidance and planning in session 16 (12.02.2019) in which he showed considerable distress and extreme difficulty with focus and application. The request by [the Patient] to stay over was recognized as aloneness and a lack of strength, but was not agreed to by me. I responded with a text as a statement of care: through modelling a mood effect on ourselves to likewise strongly encourage a lift in [the Patient's] mood. However, I acknowledge the text breaches the Code in relation to Respect (A2.1a), Professional boundaries (B1.2b, c) and Integrity (C1.1 and C4).)

...

Q: 13 February 2019, Mr Ellery to [the Patient], "FYI Locking to spend some time in near future? Well, I can take you to this month's Trentham Gay Group for Sat night...And/or one night between Fri and Sunday I am doing a roast ...You choose which one and when if you like this option. You are also invited to stay over when suits. Hope all started well today. X'

...

A: This text showed attempts to relate to [the Patient] in order to provide motivation and encouragement for persisting with treatment goals, though with no intention to be followed through on a personal level. The message's deeper intent was to assist [the Patient] to determine some independent positive actions that he could take independently within his own personal network. However, I acknowledge that the text is a breach of professional boundaries as referred to in the Code of Ethics (C3.1); and disrespectful of the rights and dignity of [the Patient] (A2 and A2.1a-d).

...

Q: 13 February 2019, at 4.37pm Mr Ellery to [the Patient], "Happy Valentines Day for tomorrow". [the Patient] to Mr Ellery, "Hehe I'll save your Valentine greeting till then..."

...

A: This text was further modelling the type of basic social skills training useful for positive interpersonal connections**. However, this text is a further breach of boundaries as per (l) above and earlier in this section.**

...

Q: 13 February 2019, at 6.40pm, [the Patient] to Mr Ellery, "Thanks for the hugs Robert. Looking forward to seeing you over the weekend."

...

A: This text was an unsolicited and unsupported message. [the Patient] was reaching out for support. I do not recall any hugging, which could only have occurred at or around the time of professional consultations. Physical contact is further identified as below (see Item "s').

...

Q: 14 February 2019 at 8.44am, [the Patient] to Mr Ellery, "Happy Valentine's day rob'. Mr Ellery to [the Patient], "Noice! Happy Valentine's Day to you too [the Patient].'

...

A: See [13 February 2019, at 4.37pm] above. I acknowledge the text exchanges are in breach of professional boundaries (Code Items B1.2 (service within professional boundaries); B3g (professional responsibility) and both C3 and C4 (in a position of power and trust; a conflict of interest; and exploitation of clients).

...

Q: 14 February 2019, Mr Ellery to [the Patient], "For what? YOU put in the effort mate, YOU made the difference!! I wasn't even there... he heh! Proud of you. X' "Sorry, you don't like to hear compliments.' "... Whatever we did that helped, can it happen more, please? Too much information".

...

A: This text was sent as reinforcement of efforts to self-help.

...

Q: 14 February 2019, [the Patient] to Mr Ellery, "Do you have a lot on this weekend Robert?'. Mr Ellery to [the Patient], "Not too many clothes on in summer... yak yak. Flexible I guess. Hoping to catch up with you. Tell me."

...

A: This text was [the Patient] again reaching out for support at a time when desperate for help and likely under severe pressure from substance use difficulties (management, withdrawal or unavailability). The text in reply was inappropriate, and failed in its attempt to provide either light humour or show respect.

...

Q: 19 February 2019, [the Patient] to Mr Ellery, "... What are you doing for dinner?' Mr Ellery to [the Patient], "The roast and veges smelling notice......mmmmmmmmm! You can come to ... at 4pm, cleared it with Lin. I have to be in Hughesdale after that anyhow. Is that OK!. Whoops...?"

...

A: This was [the Patient] again reaching out. An appointment during business hours was offered. The reference to a roast dinner was designed to identify with his difficulties at the time and to motivate him towards activities that would promote socializing and self-care. My further comments were inappropriate, disrespectful and promoted a conflict of interest.

...

Q: 21 Feb 2019 at 8.14am, Mr Ellery to [the Patient], '...Dinner and a cuddle really helped!!!' and '...Your cuddle helped too!!! [devil's face emoji]'.[24] "Well, can't be too sure, they just told me to say that! But I guess you might have helped... Maybe... Just a little. Suppose so, who knows??? Probably would have you subject myself to the torture again to more reliably inform you.....dunno! [smoking cigarette emoji]"

...

A: This text was a further attempt at humour as in sub-paragraph #q above. Dinner did not occur. "Cuddles" and "hugs" were handshakes with either a gentle stroke or shoulder taps (prescribed by [the Patient] as his way of conveying genuine appreciation for support).

...

Q: 21 Feb 2019 at 6.13pm, [the Patient] to Mr Ellery and said, 'Hey I'm just gonna pop around now' and at 9.18pm Mr Ellery's response to [the Patient], 'Thank you [the Patient] for driving over. Appreciated. X'.

...

A: [the Patient] sent a message earlier in the evening about him driving over, but had not arrived by my text in response. This response was a prompt to check his wellbeing. [the Patient] did not turn up.

...

Q: 2 February 2019 at 8.20am, Mr Ellery to [the Patient], 'Dear [the Patient], I can hardly wait to embrace you for your excessively gentle and kind words which were very touching...' and at 8.22am, the Patient responded to Mr Ellery saying, 'Yes I very much enjoy our cuddles Robert'.

...

A: [the Patient] had given positive feedback in relation to my support and encouragement for him to sustain focus and effort to change. I acknowledge that my response to this perceived compliment was excessive and inappropriate in professional terms.

...

Q: 22 February 2019, Mr Ellery to [the Patient], "_...You know where I am today and always have time in my day/evening for you. I am fine dear boy, and will stop and think of you thru the day..." [_the Patient] to Mr Ellery, "Take (sic) really nice being able to chat with you...cool if we chat this arvo?' Mr Ellery to [the Patient], "... Cool this arvo, I-2 is my lunchtime break."

...

A: This text contained wording for the strongest encouragement possible to remain focussed upon progress towards his stated goals.

...

Q: 23 February 2019, Mr Ellery to [the Patient], "...It's far from home, high peaceful and unspoilt.....a bit like yourself really!!..."

...

A: This text was a joke which fell very flat. The text should never have been sent. x. This text was an encouraging rhyme. I acknowledge that it was inappropriate.

...

Q: 11 March 2019, Mr Ellery to [the Patient], 8.43am "Hello [the Patient]. How are you and what you doing?' 9.46am "Are you away, or are you close by? / Are you up, or in bed you lie?// What will you do with this lovely day? / Share it with others, that's the best way!!"

...

A: This text was an encouraging rhyme. I acknowledge that it was inappropriate.

...

Q: 12 March 2019 at 12.17pm, Mr Ellery to the Patient, "Hello [the Patient]. :)"

...

A: A text from myself to [the Patient] as a greeting. The basis and purpose remain unclear, but I acknowledge that it was inappropriate.

...

Q: 13 March 2019, at 12.08pm, [the Patient] to Mr Ellery, 'Yes brunch Saturday at Mr bright side café on booran road sound ok to you...' Mr Ellery to [the Patient] at 12.09pm "Yes, thank you kindly.'

...

A: This text related to an informal health check catch up of his choice. I acknowledge that it was inappropriate for me to meet [the Patient] at a café.

...

Q: 13 March 2019, Mr Ellery to [the Patient] at or about 6.44pm, "Well, your wish gave me a weird but wonder day. Truly, your wish helped me do a couple of sheer magical things of benefit to others. I mean it. I wanted to give you the ;- ) and :) for helping me do even better today. You have genuinely helped me. Thank you soooo much man!..."

...

A: This text was simply motivational in purpose: work went well, returning the same generic wish for [the Patient].

...

Q: 20 March 2019, Mr Ellery to [the Patient], "Hello [the Patient]. Thinking of you and hope your day and week is travelling OK. OK, boy?' "...and I care. So please share with me. I write from that place and so encourage you to reach out for that which you value. We understand each other, and can share anything. You have much support here. [the Patient] to Mr Ellery, "I just need to be put to sleep'] "Well I can do that, and you know that I can. And it is a little time we share. Some time together, Japanese, accept a nice gift I brought back and then tell me to my face to back off. To my face please!' "Friends do this, they do look out for each other, and you are my friend. My friend you are.' "Yes, stress [the Patient], those kind words, feelings and actions come from a place which says you are respected and appreciated. Really so. Man, you said I would not lose you and I will bloody fight to keep you close. You are valued. I feel what you feel, trust me'. "You must not have had any permanency or stability around you. You have now mate. Throw and show whatever shit you have to me. Whatever states or cycles you go through, you know we are solid. Solid. Solid solid."

...

A: This text was a strong effort to retain contact with [the Patient] if he required assistance whilst likely experiencing severe health difficulties. At that time I did not seek professional guidance as to how to assist [the Patient]'s distress. I acknowledge that the narrative was inappropriate in both content and context. I expect that I caused distress and anxiety to [the Patient] by this message. It represents a breach of multiple aspects of the Code of Ethics.

...

Q: Provide an explanation for the metal cat ornament [the Patient] states you gifted to him.

...

A: [the Patient] indicated his closeness to a Recently deceased; and sought something to assist his grieving. However, I acknowledge it was a boundary violation to attend his private home and to offer an unsolicited gift in sympathy for his loss.

...

Q: Provide an explanation for your using the "X" at the end of some of your messages to [the Patient].

...

A: X was employed simply a sign of signature (on reflection and overly familiar sign).

1. Mr's Ellery's letter of 20 April 2023, concluded with general comments which we quote:[25]

In 2009, I was became employed as a part-time generalist psychologist with Carnegie Malvern Medical Centre. In 2010 I subsequently resigned from the Victorian Department of Education and Early Childhood Development (DEECD). [the Patient] was one of the very first patients that was referred to me in 2009. Looking back on that time, I believe I was in a period of transition, and not sufficiently trained or experienced to deal with client presentations as chronic and complex as [the Patient] presented. This would also indicate that the best course of action would have been for me to produce a case formulation which recognized the clear need at an early point to refer him on to more specialist treatment.

In the first set of sessions, between 2009 and 2011, I did not adopt a formal treatment plan as such; allowing both the initial referral reasons (anxiety and depression) and [the Patient] to identify and express his needs as foci and priorities for treatment. I reported upon my treatment approaches and outcomes in my MHCP review report (11.03.2011).

Since being informed of the Complaint made against myself in the role of psychologist, approximately five months have passed. During this time I have undertaken the following actions:

• Accepted all materials and correspondence from AHPRA.
• Provided all information to AHPRA as required.
• Ceased to practice as a psychologist.
• Ceased to use the protected title of psychologist.
• Complied with all undertakings required
  • The provision of clinical records, electronic data, Medicare claims.
• Complied within all timelines indicated.
• [I have] reflected upon all matters [including]:
  • Collated material and evidence relevant to the circumstances
  • Considered the principles of psychological practice as contained within:
    • The APS Code of Ethics
    • The Psychology Board of Australia publications
    • The Guidelines therein relating to Ethical Considerations pertinent to a range of clientele/circumstances
      • Relating to men and boys
      • Relating to the prohibition of sexual activities with clients
      • Relating to physical contact between therapists and clients
      • Relating to members of gender diverse and varying sexual identification communities
• [I have] provided Responses to AHPRA as invited and timely.
• [I have] consulted with a range of other professionals including:
  • peer colleagues
  • senior colleagues, both as experienced practitioners and experienced with PBA panels and procedures relating to investigations
  • indemnity Lawyers
  • AHPRA Compliance Officer and other officers
  • AHPRA Investigator
  • Occupational Health consultants
  • Medical personnel

My notes and treatment approaches document and suggest change to my best intentions for [the Patient's] autonomy, wellbeing, care and treatment. I acknowledge that boundaries of professional practice were not fully or appropriately maintained through:

• The failure to maintain, review and reinforce appropriate expectations throughout the length of the treatment relationship
• The loss of role clarity over time
• The failure to show assertiveness of and adherence to clear professional boundaries
• A failure to practice regular critical reflection
• A level of impairment to professional objectivity and competence
• Risking harm and/or exploitation of a client (maleficence)

Arising from the failures and limitations listed above, I acknowledge that [the Patient] did not, unfortunately, always receive the level of care that he was entitled to expect. This may have compromised his health, wellbeing and integrity during periods when he was most vulnerable. I very much regret this.

1. We have found that the two alleged incidents of sexual activity occurred, on 12 February 2019 and either 19 or 20 February 2019. We prefer the Patient's evidence to Mr Ellery's denials.
2. We do not accept that there is evidence to establish, or to suspect, that the Patient fabricated the allegation.
3. It is significant that there is no indication that the Patient sets out to initiate the disclosure of the allegation. The notifying general practitioner is clear that he was challenging the Patient about the Patient not wanting to receive psychological treatment. The general practitioner records the Patient explained his reluctance to disclose the alleged relationship, including the sexual relationship. The general practitioner, not the Patient, made the notification, with the Patient telling the practitioner he would cooperate with Ahpra.
4. On the allegation of sexual activity, the Patient's witness statement is comprehensive and persuasive, noting that it was drafted by an Ahpra investigator.
5. The Statement is corroborated by the texts both as to the admitted breaches of professional boundaries and by the references to cuddles.
6. Such is the strength of this evidence that we do not on the basis of not having found that Mr Ellery declared love to the Patient in 2011, doubt the credibility of the Patient with respect to his evidence of sexual activity in 2019.
7. To recap, the Patient described the first sexual activity occurring on the afternoon of 12 February 2019, with them together for about an hour.
8. On 12 February 2019 at approximately 4:53 pm, Mr Ellery exchanged the following text messages with the Patient:

Patient: Thank you for your help and company today

Mr Ellery: Was just thinking the same - really was! Lifts me to write some words maybe suited to guitar chords, dunno

Patient: Hey Rob can I stay over tonight? Actually I think I'll just crash here and now. Good night Robert

Mr Ellery [the Patient], you will of course accept a future invitation with warmth when it comes. Good night and I will be "watching' your progress tomorrow. X

1. On 13 February 2019 at approximately 7:40 am, Mr Ellery sent a text message reading:

FYI Looking to spend some time in near future? Well, I can take you to this month's Trentham Gay Group for Sat night (maybe better in March). And/or one night between Fri and Sunday I am doing a roast (beef and gravy, or Lamb and mint, or pork and apple). You choose which one and when if you like this option). You are also invited to stay over when suits. Hope today started well. X

1. On 13 February 2019 at approximately 4:37 pm, Mr Ellery sent a text message, 'Happy Valentines Day for tomorrow'. The Patient responded with two text messages, 'Hehe I'll save your Valentine greeting till then...' and 'Thanks ��'.
2. On 13 February 2019 at approximately 6:40 pm, the Patient sent two text messages to Mr Ellery, 'Thanks for the hugs Robert' and 'Looking forward to seeing you over the weekend'. Mr Ellery responded 'OK. C U'.
3. On 14 February 2019 at approximately 8:44 am, the Patient sent a text message to Mr Ellery, 'Happy Valentine's day rob', to which Mr Ellery responded, 'Noice! Happy Valentine's Day to you too [the Patient]'.
4. On or about 14 February 2019 at approximately 6:38 pm, Mr Ellery exchanged the following text messages with the Patient:

Patient Doing a heap better today Thank you

Mr Ellery For what? YOU put in the effort mate, YOU made the difference!! I wasn't even there..... he he! Proud of you. X

Sorry, you don't like to hear compliments.

Not sure I know what I'm saying with the strong smell of ammonia in my lungs from bathroom cleaning. Whatever we did that helped, can it happen more, please?

Too much info

Patient Haha I'll take a compliment from you.

Mr Ellery Thx, you just gave one as well. Much appreciated.

Patient Do you have a lot on this weekend Robert?

Mr Ellery Not too many clothes on in summer ... yak yak. Flexible I guess. Hoping to catch up with you.

Q: 12 February 2019, [the Patient] to Mr Ellery, "Thank you for your help and company today'. Mr Ellery to [the Patient], "Was just thinking the same - really was! Lifts me to write some words maybe suited to guitar chords, dunno'. [the Patient] to Mr Ellery, "[Smiley face emoji] Hey Rob can I stay over to night...?' Mr Ellery to [the Patient], "[the Patient], you will of course accept a future invitation with warmth when it comes. Good night and I will be "watching' your progress tomorrow. X'

...

A: This text expressed gratitude for my guidance and planning in session 16 (12.02.2019) in which he showed considerable distress and extreme difficulty with focus and application. The request by [the Patient] to stay over was recognized as aloneness and a lack of strength, but was not agreed to by me. I responded with a text as a statement of care: through modelling a mood effect on ourselves to likewise strongly encourage a lift in [the Patient's] mood. However, I acknowledge the text breaches the Code in relation to Respect (A2.1a), Professional boundaries (B1.2b, c) and Integrity (C1.1 and C4).)

...

Q: 13 February 2019, Mr Ellery to [the Patient], "FYI Locking to spend some time in near future? Well, I can take you to this month's Trentham Gay Group for Sat night...And/or one night between Fri and Sunday I am doing a roast ...You choose which one and when if you like this option. You are also invited to stay over when suits. Hope all started well today. X'

...

A: This text showed attempts to relate to [the Patient] in order to provide motivation and encouragement for persisting with treatment goals, though with no intention to be followed through on a personal level. The message's deeper intent was to assist [the Patient] to determine some independent positive actions that he could take independently within his own personal network. However, I acknowledge that the text is a breach of professional boundaries as referred to in the Code of Ethics (C3.1); and disrespectful of the rights and dignity of [the Patient] (A2 and A2.1a-d).

...

Q: 13 February 2019, at 4.37pm Mr Ellery to [the Patient], "Happy Valentines Day for tomorrow". [the Patient] to Mr Ellery, "Hehe I'll save your Valentine greeting till then..."

...

A: This text was further modelling the type of basic social skills training useful for positive interpersonal connections**. However, this text is a further breach of boundaries as per (l) above and earlier in this section.**

...

Q: 13 February 2019, at 6.40pm, [the Patient] to Mr Ellery, "Thanks for the hugs Robert. Looking forward to seeing you over the weekend."

...

A: This text was an unsolicited and unsupported message. [the Patient] was reaching out for support. I do not recall any hugging, which could only have occurred at or around the time of professional consultations. Physical contact is further identified as below (see Item "s').

...

Q: 14 February 2019 at 8.44am, [the Patient] to Mr Ellery, "Happy Valentine's day rob'. Mr Ellery to [the Patient], "Noice! Happy Valentine's Day to you too [the Patient].'

...

A: See [13 February 2019, at 4.37pm] above. I acknowledge the text exchanges are in breach of professional boundaries (Code Items B1.2 (service within professional boundaries); B3g (professional responsibility) and both C3 and C4 (in a position of power and trust; a conflict of interest; and exploitation of clients).

...

Q: 14 February 2019, Mr Ellery to [the Patient], "For what? YOU put in the effort mate, YOU made the difference!! I wasn't even there... he heh! Proud of you. X' "Sorry, you don't like to hear compliments.' "... Whatever we did that helped, can it happen more, please? Too much information".

...

A: This text was sent as reinforcement of efforts to self-help.

...

Q: 14 February 2019, [the Patient] to Mr Ellery, "Do you have a lot on this weekend Robert?'. Mr Ellery to [the Patient], "Not too many clothes on in summer... yak yak. Flexible I guess. Hoping to catch up with you. Tell me."

...

A: This text was [the Patient] again reaching out for support at a time when desperate for help and likely under severe pressure from substance use difficulties (management, withdrawal or unavailability). The text in reply was inappropriate, and failed in its attempt to provide either light humour or show respect.

...

Q: 19 February 2019, [the Patient] to Mr Ellery, "... What are you doing for dinner?' Mr Ellery to [the Patient], "The roast and veges smelling notice......mmmmmmmmm! You can come to koornang Rd at 4pm, cleared it with Lin. I have to be in Hughesdale after that anyhow. Is that OK!. Whoops...?"

...

A: This was [the Patient] again reaching out. An appointment during business hours was offered. The reference to a roast dinner was designed to identify with his difficulties at the time and to motivate him towards activities that would promote socializing and self-care. My further comments were inappropriate, disrespectful and promoted a conflict of interest.

1. These exchanges, in our view, strongly corroborate the Patient's evidence. They are more than the admitted boundary crossing. They are extraordinary.
2. The Patient's request to 'stay over' reads as, in context of the Patient's evidence, a message following the first sexual activity, most likely considering and then dismissing the concept of further sexual activity later in the day, not some form of 'aloneness and a lack of strength'. Mr Ellery did not need to decline because the Patient in one sentence suggested and then withdrew the suggestion.
3. Mr Ellery's words, about accepting 'a future invitation with warmth when it comes', seems to relate to a future invitation to 'stay over'. He ends the message with, 'X'. This appears to be a kiss to the Patient (repeated in various texts). Mr Ellery's explanation that 'X was employed simply as a sign of a signature (on reflection and overly familiar sign)' is unpersuasive.
4. In the 13 February 2019 text, Mr Ellery suggesting that they attend a gay group, inviting the Patient for a roast dinner and inviting the Patient to 'stay over when suits' is far more than 'providing motivation and encouragement for persisting with treatment goals'.
5. Wishing each other happy Valentine's Day, with Mr Ellery taking the initiative, is more consistent with affectionate communication following sex than 'further modelling the type of basic social skills training useful for positive interpersonal connections'.
6. Referring to 'hugs', while perhaps otherwise explainable, does not contradict the Patient's evidence as to the first sexual interaction.
7. Mr Ellery's response to the Patient asking about whether he had much on this weekend (already well into the territory of inappropriate communications) with a reference to not having too many clothes on in some 'yak yak' and hoping to catch up with the Patient, appears somewhat sexualised and supportive of the allegation of the previous sexual activity.
8. Mr Ellery's explanation that the Patient was reaching out to him for support when the Patient was desperate and likely under severe pressure from substance use is contradicted by the text of the message, which has no discernible basis in clinical practice.
9. The 19 February 2019 text exchange about a roast dinner was inappropriate, not explainable, as Mr Ellery proposed, as Mr Ellery identifying with the Patient's difficulties and motivating him towards activities that would promote socialising and self-care.
10. The Patient described the second sexual interaction, around the 19 or 21 February 2019.
11. We have found that the second sexual interaction occurred on 19 or 20 February 2019, based on the Patient's first statement, corroborated by the following evidence.
12. On 21 February 2019 at approximately 8:14 am, Mr Ellery exchanged the following text messages with the Patient:

Patient Did you win?

Mr Ellery Third. But loved it. Now you go back to sleep, haha.

Dinner and a cuddle really helped!!!

Oh, almost forgot..... Your cuddle helped too!!!! ●

Well, can't be too sure, they just told me to say that! But I guess you might have helped... maybe... just a little. Suppose so, who knows???

Probably would have yo [sic] subject myself to the torture again to more reliably inform you...... dunno!

1. On 22 February 2019 at approximately 8:20 am, Mr Ellery exchanged the following text messages with the Patient:

Mr Ellery Dear [the Patient], I can hardly wait to embrace you for your excessively gentle and kind words which were very touching. I wish today goes well for you in every way. Robert

Patient I decided not to go because u couldn't sleep and then this morning I double dosed my medication because I wasn't thinking. Now I have the runs. I haven't said anything to work yet

Yes I very much enjoy our cuddles Robert

O also nearly burned the house down because Lachlan left a tea towel on the stove and I didn't see it...I don't know how I didn't see it but I got the fright of my life when I saw an orange glow coming from the kitchen moments after I put coffee on. lol

Mr Ellery OK, I see. It suggests you are not calm and settled inside. You know where I am today and always have time in my day/evening for you. I am fine dear boy, and will stop and think of you thru the day. Hope there is no damage.

1. The reference to cuddles together with a devil emoji corroborates the evidence as to the second sexual activity. It appears to be code for sexual activity, with an acknowledgement that there is something devilish involved.
2. However, it seems peculiar that this, from the Patient's perspective, highly unsatisfactory interaction, which the Patient cut short, dressed and left is followed by Mr Ellery's seemingly positive description of the events, acknowledged by the Patient.
3. That said, this contradiction seems readily explained by the power imbalance between a psychologist and patient. The patient may have felt uncomfortable raising difficulty with sexual activity between him and Mr Ellery because of the power imbalance.
4. The reference in the 22 February 2019 text where Mr Ellery says, 'I can hardly wait to embrace you for your excessively gentle and kind words which were very touching' is striking in its affection and familiarity, in no way adequately explained by Mr Ellery as 'encouragement for him to sustain focus and effort to change'.
5. Turning to Mr Ellery's broader attacks on the Patient's credibility, in our view, there is nothing to indicate that the Patient is making a vexatious complaint or engaging in manipulative behaviour.
6. As noted above, it appears that, but for the general practitioner confronting the Patient about his reluctance to be treated by a psychologist, allegations concerning Mr Ellery's conduct would never have been made.
7. Mr Ellery's opinions that the Patient's evidence stems from mental illness (according to Mr Ellery, indicative of borderline personality disorder, abuse of medication, recreational drug abuse, experiences of sexual abuse, projection of the Patient's feelings for Mr Ellery, impulsivity in relation to sexual activity) does not appear to be based on evidence.
8. Mr Ellery challenges the Patient's conduct on the basis that the Patient admits he 'practically seduced' Mr Ellery. While such a scenario would be highly confronting, and at times tempting, for a health professional, the responsibility rests with the health professional to ensure that boundary violations by the professional does not occur.
9. We do not agree with Mr Ellery that the Patient's evidence as to the sexual encounters can be dismissed on the basis that it is clearly theatrical, sounding like a movie. The descriptions are short and largely avoid explicit description.
10. To the extent that Mr Ellery acknowledges his professional shortcomings, as evidenced in his 20 April 2023 letter and the agreed statement of facts, those acknowledgements do not somehow limit the credibility of the Patient's evidence. In fact, we regard those acknowledgements as falling short of what was required, given our view of the conduct that occurred.

Did Mr Ellery visit the Patient's home on more than one occasion?

1. The Patient gives evidence that Mr Ellery came to the Patient's home with a bottle of wine shortly after the declaration of love intending that they have a date at the Patient's home.
2. We are not comfortably satisfied as to the evidence of Mr Ellery in 2011 arriving unannounced at the Patient's home with a bottle of wine for a date, which the Patient described as a romantic gesture. Reaching the required level of satisfaction concerning this, requires the context of the declaration of love, which we have not found proven.
3. We have found that Mr Ellery visited the Patient's home for the purpose of sexual activity in 2019. Mr Ellery agrees that he visited on the occasion and that he delivered the metal sculpture to the Patient.
4. While Mr Ellery has agreed to more than one visit to the Patient's home, the evidence is unclear on any further visits. We make no finding with respect to further visits.

Did Mr Ellery send Christmas cards to the Patient for a couple of years after 2019?

1. As noted above, the Patient's first witness statement included, 'Robert sent me some Christmas cards for a couple of years, but I threw them away'.
2. While Mr Ellery does not, in his earlier responses to the Board, address this issue, in the statement of agreed and disputed facts, it is recorded that he denies sending Christmas cards.
3. With the Patient not required to be cross examined by Mr Ellery, we have no reason to doubt the Patient's evidence, which we accept, noting that this misconduct is marginal to the issues in this case.
4. We now turn to our characterisation findings and determinations made on 9 April 2026.

1. The second step in this proceeding is for VCAT to make findings, under section 196(1) of the National Law, as to whether the proven conduct constitutes professional misconduct or unprofessional conduct. That involves analysing the proven conduct with respect to professional standards such as the applicable code of conduct, as referred to in the allegations and to an extent acknowledged by Mr Ellery.
2. Section 5 of the National Law defines professional misconduct as:

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; > > 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.

3. The Board submitted that meanings (a) and (c) apply. In the Statement of Agreed and Disputed Facts dated 4 October 2025, The Board advised that Mr Ellery agreed to that position in the Agreed Statement.
4. Irrespective of the parties' positions, on any view, the proven conduct is professional misconduct under meanings (a) and (c).
5. We accept the Board's submissions to that effect, which we summarise.

1. Mr Ellery's conduct, entirely connected to his practice of psychology, is objectively serious. It involved an inappropriate personal, intimate, and sexual relationship with a vulnerable patient, during a professional relationship. There is no need to repeat the details set out above.
2. The seriousness of his conduct is aggravated by the patient's long-term history of poor mental health, sexual abuse history, history of suicidal ideation and substance abuse, of which Mr Ellery was aware.
3. Mr Ellery's conduct breached multiple standards in the Australian Psychological Society Code of Ethics 2007.
4. By way of the Agreed Statement, Mr Ellery acknowledged he breached General Principles B and C and ethical standards B.3, C.3.1 and C.3.2 of the Code.
5. On our analysis, his professional misconduct breached an array of other principles and standards which the Code provides.
6. However, it is enough to quote VCAT in Psychology Board of Australia v Ferrero:[26]

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 that relationship. Such conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. Mr Ellery had ample opportunity to reflect on and not continue his conduct as the relationship progressed.
2. His conduct undermines the psychological profession's good standing and the inherent trust that exists between the public and the profession. It undermines the credibility of the profession, members of which are required to maintain professional relationships, to appropriately treat their patients, objectively and professionally.
3. The community has every right to be appalled where a psychologist engages in an intimate and sexual relationship with a patient.

1. The third step is for the Tribunal to make 'determinations', under section 196(2) of the National Law, with respect to the findings.
2. The available determinations include reprimanding the health practitioner, suspending registration, cancelling registration, prohibiting the person who does not hold registration or whose registration is cancelled from applying for reregistration for a given time and prohibit such person from providing health services while not registered.
3. VCAT's role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of:
   • specific deterrence (to deter the individual from repeating the misconduct);
   • general deterrence (to warn others in the profession against such misconduct); and
   • to uphold the medical profession's reputation and the confidence of the public in the regulation of the profession.
4. One of the important factors in deciding determinations is the degree of insight of the health practitioner concerning the professional misconduct involved.
5. In this case, that insight is, as the Board submitted, severely lacking.
6. As we set out from paragraph [84] above, in responding to the Board taking immediate action, in November 2022 Mr Ellery asserted that his patient was projecting sexualised behaviour onto him. Mr Ellery described the Patient as manipulative, vexatious and destructive. In his evidence he said the patient's judgement was impaired due to psychological distress.
7. From paragraph [92] above, we note that Mr Ellery in April 2023 while continuing to deny the sexual allegation, conceded breaches of professional boundaries between him and the patient concerning text exchanges between them.
8. At paragraph [93] we quote Mr Ellery's 20 April 2023 letter to Ahpra. He gives his opinion that in 2009 he did not have appropriate training or experience to deal with, 'Client presentations as chronic and complex as the patient presented.' He described steps he had taken concerning his ongoing conduct and further conceded his professional failures.
9. That said, Mr Ellery continued to deny the sexual nature of the relationship, now found proven.
10. He disengaged with this proceeding, indicating a lack of acceptance of responsibility and insight into the seriousness of his conduct.
11. It is clearly appropriate to reprimand Mr Ellery for his professional misconduct. The Tribunal regularly observes, a reprimand under the National Law is a serious matter in the context of a person's professional life.
12. The next issue is to consider whether to suspend or cancel Mr Ellery's registration as a psychologist.

1. Where misconduct is at the level proven in this case, these options should be considered. A crucial consideration is that under the National Law restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[27]
2. Suspension is appropriate where the Tribunal can be satisfied that at the end of a suspension, the health practitioner will be a fit and proper person to return to practice. Cancellation is appropriate if not so satisfied.
3. Applying that test, we have cancelled Mr Ellery's registration with a four year prohibition on applying for reregistration.
4. Mr Ellery's conduct showed that at the time of the conduct he was not of fit and proper character to be registered as a psychologist.
5. Taking into account Mr Ellery's concessions in late 2022 and early 2023, given the lack of relevant evidence available to us from him, we are not satisfied that after a time of suspension, he would be of fit and proper character to return to the profession. His lack of insight is a significant indicator against that satisfaction. There is no sufficient basis to conclude that Mr Ellery would not be at risk of repeating such conduct if reregistered. We do not have current evidence as to remorse and or rehabilitation of Mr Ellery.
6. A further basis for cancelling Mr Ellery's registration is to achieve general deterrence, a strong message to the profession concerning the professional consequences of the professional misconduct in which he engaged.
7. In the circumstances of this case, as the Board submitted, a four year disqualification period (before Mr Ellery would be able to apply for reregistration) is appropriate.
8. This is consistent with the, too many, reported VCAT decisions, where in the context of sexual relationships between health practitioner and patient, disqualifications from 18 months to six years were imposed;
   • Psychology Board of Australia v Saxone[28] - four year disqualification and prohibited from providing mental health, psychological or counselling services for four years;
   • Medical Board of Australia v Foroughi[29] - six year disqualification and prohibited from providing any health service until he obtained registration;
   • Psychology Board of Australia v Walker[30] - five year disqualification and prohibited from providing any health services until he obtained registration;
   • Psychology Board of Australia v Joubert[31] - three year disqualification and prohibited from providing any health service for three years; and
   • Psychology Board of Australia v Tunstall[32] - 18 month disqualification having not practised for four and a half years before VCAT's determinations.
9. As the Board submitted, it was also appropriate in the circumstances of this case to make a health services prohibition order under section 196(4)(b) of the National Law, such that Mr Ellery is prohibited from providing any health services, working for example as a counsellor in a role that does not require registration as a psychologist.
10. This is because working in such a role has the potential to see a health provider/patient relationship develop, with the inherent power imbalance that accompanies such relationships, where the same risk of misconduct in pursuing a sexual relationship could arise.
11. Results from the VCAT decisions quoted above show that while perhaps prohibition orders are the exception rather than the rule,[33] there are too many examples of situations where, as here, such an order is appropriate.
12. On this issue, once again, given Mr Ellery's non-participation, we are left without any helpful evidence where we may have assessed this risk as insufficient to make a health services prohibition order.

1. In its submissions, the Board raised the issue that Mr Ellery's registration has been suspended since November 2022. While noting that in such a situation, VCAT will usually have regard to periods out of practice when deciding determinations, the Board submitted that given Mr Ellery's non-participation, and lack of evidence as to his current situation, the protective purposes of the National Law take precedence.
2. We accept that submission. There is no basis for us to assume reformation of character on Mr Ellery's part. As observed in the case law,[34] reformation of character can occur but it is not usual. It is, 'the exceptional thing.'

1. Through the Board's submissions, it has reserved its position as to whether VCAT should order Mr Ellery pay some or all of the Board's legal costs in this proceeding.

1. It is for the Board to decide, with VCAT having made final orders in this proceeding, whether it will apply for such cost orders.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] On 5 November 2025, VCAT received the solicitors notice that they ceased to act.

[3] [2013] VSCA 305.

[4] [1938] HCA 34.

[5] In our orders of 22 December 2025, provided to the parties, we stated that in April 2023, Mr Ellery suspended his registration as a psychologist. Given that a search of the online register of psychologists shows him currently registered and the Board's closing submissions state that he is currently registered, we were mistaken.

[6] Agreed dates in the statement literally say 'on or about' and should, unless otherwise indicated in the text in this decision, be read accordingly.

[10] Quotes replace the name of the patient with 'the Patient'.

[23] Q&A format used here was not used in the email.

[26] [2019] VCAT 1648 at [35].

[28] [2023] VCAT 453 & [2023] VCAT 1395.

[29] [2024] VCAT 575.

[30] [2024] VCAT 969.

[31] [2025] VCAT 1080.

[32] [2016] VCAT 1263.

[33] Medical Board of Australia v Lee [2020] VCAT 568 at [108].

[34] Ex parte Tziniolis 67 SR (NSW) 448 at [12].