1. Allegation 1 is proved, namely that Mr Ferrero engaged in professional misconduct, in that he took part in an indecent act with a person he was treating, who had a cognitive impairment, for which he was convicted under s 51(2) of the Crimes Act 1958.
2. Allegation 2 is proved, namely that Mr Ferrero engaged in unprofessional conduct, in that contrary to s 130 of the Health Practitioner National Law (National Law) he failed to notify the Psychology Board of Australia that he had been charged with an offence punishable by 12 months' imprisonment or more.
3. Mr Ferrero is reprimanded under s 196(2)(a) of the National Law.
4. Mr Ferrero's registration is cancelled under s 196(2)(e) of the National Law.
5. Pursuant to s 196(4)(a) of the National Law, Mr Ferrero is disqualified from applying for registration as a registered health practitioner for a period of two years.
6. Under s 196(4)(b) of the National Law, Mr Ferrero is prohibited from providing, whether as an employee, contractor, manager or volunteer, directly or indirectly, or in any other capacity, any health service, including in the nature of psychological or counselling services, until such time as he is once again granted registration as a health practitioner under the National Law.

1. Mr Antonio Ferrero is a 76-year-old psychologist whose practice has involved a preponderance of South American/Spanish-speaking patients. In 2007, he engaged in a personal relationship with a patient. That patient subsequently made a report to the police. Mr Ferrero was charged, and pleaded guilty to taking part in an indecent act with a person with a cognitive impairment, contrary to s 51(2) of the Crimes Act 1958 (in its then form).
2. Mr Ferrero faces two disciplinary allegations arising out of this. These are brought under s 193 of the Health Practitioner National Law (National Law).[1] One is in relation to the above conviction. The other arises from his failure to report to the applicant, the Psychology Board of Australia (Board), that he had been charged with criminal offences. He accepts he is guilty of unprofessional conduct in relation to that failure to report.
3. Although Mr Ferrero recognises to some degree that he cannot go behind the criminal conviction, his position at base is that the actions described by the sentencing judge did not occur.
4. For the reasons set out below we find that the conduct as described by the judge must be regarded as having occurred, and that it constitutes professional misconduct.
5. We announced those findings at the hearing. Then we heard submissions on the question of what determinations should be made as a consequence.
6. We have determined that Mr Ferrero be reprimanded, his registration be cancelled, and that he be disqualified from applying for registration for two years. We have also determined that he be prohibited from providing any health service, including in the nature of psychological or counselling services, until such time as he is once again granted registration as a health practitioner under the National Law.

1. Mr Ferrero arrived in Australia 47 years ago. He said he has practised as a psychologist for over 25 years.
2. The patient (referred to in documentation and in hearing as Ms XYZ) saw Mr Ferrero for psychological consultations on seven or eight occasions in or around September and October 2007.
3. A personal relationship developed between Mr Ferrero and Ms XYZ from around 19 October 2007. On several occasions over the next week she visited him at his apartment (from which he also conducted his psychology consultations).
4. Disciplinary allegation 1 now brought against Mr Ferrero relates to conduct which occurred on two separate occasions at his apartment during the last two weeks of October 2007. The first occasion concerns Mr Ferrero rubbing Ms XYZ's breasts. The second occasion concerns him rubbing his penis against Ms XYZ's vagina, with no sexual penetration taking place.
5. Mr Ferrero said that on 9 November 2007 they had lunch together at a restaurant 'after she came for an official session in the morning'. She invited him to several family gatherings, and functions with the South American community. Amongst the materials provided to us were a number of letters and cards of a personal nature sent by Mr Ferrero to Ms XYZ during the course of their relationship.
6. On 20 December 2007, Ms XYZ apparently told Mr Ferrero that their friendship was over.
7. In June 2013, Ms XYZ lodged a complaint with the police. Following a police investigation, three charges were laid against Mr Ferrero on 20 October 2015. There was a filing hearing in relation to these charges on or around 20 November 2015.
8. Mr Ferrero failed to advise the Board that the charges had been laid against him. The Board became aware of this on 25 February 2016, when it received notification from the Victoria Police.
9. On 6 April 2016, the Board made an 'Immediate Action' decision, suspending Mr Ferrero's registration, in light of the matters the subject of the criminal charges laid. Mr Ferrero's registration has remained suspended over the three and a half year period since then.
10. Mr Ferrero ultimately pleaded guilty to one 'representative charge'. He was convicted and sentenced by Judge Patrick in the County Court on 17 October 2016.
11. This disciplinary proceeding against Mr Ferrero was commenced by the Board on 14 December 2017. The delay in bringing this matter on after that was caused by Mr Ferrero's multiple health conditions, as well as an eight month delay from the time the Board determined to bring this proceeding until the time it was actually commenced on 14 December 2017.

1. The two disciplinary allegations brought against Mr Ferrero are as follows:

The allegation in respect of Mr Antonio Ferrero (Mr Ferrero) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Psychology Board of Australia (Board) pursuant to section 193(1)(a) of the Health Practitioner National Law (National Law) is:

1. That Mr Ferrero engaged in:
   • (a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 17 August 2016, Mr Ferrero was convicted in the County Court of Victoria of one representative charge of indecent act with a person with a cognitive impairment by a provider of medical or therapeutic services contrary to section 51(2) of the Crimes Act 1958 (Vic).

(i) the conviction was for charge one on indictment number F13655405.1 in case number CR-16-00062, to which Mr Ferrero pleaded guilty; and

(ii) the nature of the conviction is such that it may or does affect Mr Ferrero's suitability to continue to practise psychology.

1. That Mr Ferrero engaged in unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct in section 5 of the National Law in that on and from at least 13 November 2015 (being seven days prior to the filing hearing in relation to the relevant changes) Mr Ferrero failed to give the Board notice in accordance with section 130 of the National Law that he had been charged with an offence punishable by 12 months' imprisonment or more.

(i) on or about 20 October 2015, the following charges were filed with respect to Mr Ferrero in the Magistrates' Court of Victoria:

• (A) one count of sexual penetration of a person with a cognitive impairment by a provider of medical or therapeutic services contrary to section 51(1) of the Crimes Act 1958 (Vic); and
• (B) two counts of indecent act with a person with a cognitive impairment by a provider of medical or therapeutic services contrary to section 51(2) of the Crimes Act 1958 (Vic),

which are crimes punishable by 12 months' imprisonment or more;

(ii) a filing hearing with listed in the Magistrates' Court of Victoria on 20 November 2015;

(iii) section 16(b) of the Criminal Procedure Act 2009 (Vic) provides that a summons to answer a charge for an indictable offence in respect of which a registrar of the Magistrates' Court has fixed a date for a filing hearing must be served personally at least 7 days before the date of the filing hearing; and

(iv) Mr Ferrero failed to give notice to the Board in accordance with section 130 of the National Law that he had been charged with an offence punishable by 12 months' imprisonment or more.

1. The parties did not arrive at an Agreed Statement of Facts. However, the following Outline of Issues for Hearing was signed by both parties in April 2019:

1. Mr Antonio Ferrero (the Respondent) admits that on 17 August 2016, he entered a plea of guilty in the County Court of Victoria to one charge of committing an indecent act with a person with a cognitive impairment by a provider of medical or therapeutic services.
2. The admitted charge referred to two acts of indecency said to have occurred in late 2007 which involved the Respondent:
   • (a) rubbing Ms XYZ's breasts; and
   • (b) rubbing his penis against Ms XYZ's vagina, with no sexual penetration taking place.

2.2 The Respondent admits that Ms XYZ was his client and had been in recept of psychological services from him.

2.3 The Respondent admits that on 17 August 2016, he was convicted and made subject to a Community Corrections Order for 18 months.

2.4 The Respondent admits that he failed to notify AHPRA of the criminal charges against him.

2.5 The Respondent has indicated that he wishes to draw to the attention of the Tribunal that, in his opinion:

• (a) Ms XYZ lied to Victoria Police;

• (b) Ms XYZ did not have a cognitive impairment;

• (c) the relationship he had with Ms XYZ did blur the lines between the professional and personal;

• (d) the superficial intimate contact he had with Ms XYZ was always consensual;

• (e) the allegations made against him by Ms XYZ in the criminal proceeding were either malicious or motivated by a vendetta.

2.6 The Applicant will submit at the final hearing that the matters referred to in paragraph 2.5 are not relevant to proof of the allegations against the Respondent or the findings that the Tribunal may be required to make regarding characterisation of any proven conduct.

3.1 The Applicant submits that:

• (a) the conduct set out in Allegation 1 constitutes professional misconduct within the meaning of paragraph (c) of the definition of misconduct contained in section 5 of the National Law; and
• (b) the conduct set out in Allegation 2 constitutes unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct contained in section 5 of the National Law.

4.1 The Applicant submits that the appropriate determinations in this matter are as follows:

• (a) that Mr Ferrero be reprimanded under section 196(2)(a) of the National Law; and

• (b) that Mr Ferrero's registration be cancelled under section 196(2)(e) of the National Law; and

• (c) pursuant to section 196(4)(a) of the National Law, that Mr Ferrero be disqualified from applying for registration as a registered health practitioner for a period of at least four years.

4.2 The Respondent submits that the appropriate determination in this matter is a disqualification period, back-dated to commence on 6 April 2016, being the date that his registration as a psychologist was suspended by the Immediate Action Committee of the Applicant.

4.3 The Applicant will submit that it is not open to the Tribunal to back-date the orders that it makes and that any determinations should be made prospectively from the date of [the] Tribunal's orders.

1. Additionally, at the hearing, the Board raised for the Tribunal's consideration, the question whether an order should be made under s 196(4)(b) of the National Law prohibiting Mr Ferrero from providing a health service of a type which might be able to be provided by a person who does not hold registration as a psychologist, for example, counselling.

1. The Board made it clear that the allegations put are confined to the conduct giving rise to the criminal conviction, and the failure to report. That is, they do not extend to the boundary violations which might be said to have occurred in the conduct of the personal relationship with Ms XYZ, to the extent of matters falling outside the scope of the proved criminal charge.
2. That proved criminal conduct was referred to by Judge Patrick in her Reasons for Sentence of 17 August 2016 as a 'representative charge', which encompassed two occasions. At paragraphs [6] and [8], her Honour described that conduct as follows:
   • [6] The complainant recalls that after the conference[2] she was very upset and she drove you back to your apartment, which is also your office, at your request. You invited her inside to help her relax and offered her a drink, which she accepted. The complainant said her neck was sore and you offered to give her a massage. You put a mattress on the floor and told her to lay face down. The complainant was wearing a long white dress and had to remove her overgarments for the massage. You then began massaging her neck. During the course of the massage you moved your hands over the front of her shoulder and began rubbing her breasts. That is the first occasion. The complainant says that at the time of this incident she did not feel she was in a position to say no to you because of her mental health condition.

[8] The second incident occurred on an occasion when the complainant was very upset and emotional because she had had an argument with her brother. The complainant went to your apartment because she was very upset and needed your assistance. On this occasion you were standing behind her, holding her, and began touching her. You pulled up her dress and pulled down her underwear. You removed your clothing. You could not get a full erection and, as a result, no sexual penetration could take place but you rubbed your penis against her vagina. That is the second occasion and that incident and action is the subject matter on which you will be sentenced in respect of Charge 1.

1. Mr Ferrero's contentions, as described in this decision, reflect the things said on his behalf by Mr Luby, who helpfully assisted Mr Ferrero in the presentation of his case, but more significantly, the things said by Mr Ferrero himself in his own written submissions, and oral statements made during the hearing.
2. Mr Ferrero contended Ms XYZ did not have a 'cognitive impairment'. However, we note that the prosecution brief contained a psychiatrist's report which indicated that she was experiencing a 'Major Depressive Episode, Recurrent, Severe' at the time. It is apparent the Court was satisfied this fell within the definition of 'cognitive impairment' in the Crimes Act 1958.
3. At base, while it was said Mr Ferrero understood that he could not go behind the criminal conviction, his position really was that he did not engage in the acts described in the Judge's Reasons for Sentence. In effect, he says, he was not guilty, and he should not have pleaded guilty. He said he was pressured into doing so, and he could not afford to pay legal fees for a defence.
4. Applicable authority provides that the Tribunal is not able to review 'the essential factual basis of the conviction', although the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself.[3]
5. Here, the sole basis for allegation 1 is that Mr Ferrero had engaged in acts for which he had been convicted under s 51(2) of the Crimes Act 1958. That is, the acts forming the basis of the criminal conviction, and the present disciplinary allegation 1, are the same.
6. So the Tribunal is not able to consider the question whether or not Mr Ferrero engaged in the acts described in the Reasons for Sentence. Nor is it able to revisit the question of whether Ms XYZ had a 'cognitive impairment', as this was an element of the criminal charge.
7. It is noted that Mr Ferrero had the benefit of the lesser sentence which comes with a plea of guilty, and that he did not appeal against this decision.
8. Thus, we proceed on the basis that Mr Ferrero did engage in the acts described in the Reasons for Sentence.
9. Accordingly, we find that the conduct occurred, as described by Judge Patrick. We find allegation 1 proved.
10. The next question is how this conduct should be characterised, in terms of the definition of professional misconduct and unprofessional conduct set out in the National Law.
11. These definitions are as follows:

unprofessional conduct, of a registered practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. In our view, the conduct which gave rise to the criminal conviction clearly constitutes professional misconduct within the meaning of (a) of that phrase in the National Law. Engaging in sexual activity with a patient is obviously substantially below the standard of conduct expected of a psychologist of Mr Ferrero's level of training and experience.
2. In addition, in our view, it also clearly falls within (c) of the definition of professional misconduct set out above. 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.
3. For these reasons, we find in relation to allegation 1, Mr Ferrero has engaged in professional misconduct within the meaning of subparagraphs (a) and (c) of the definition of that term in the National Law.

1. In relation to allegation 2, the failure to report was admitted by Mr Ferrero. It is clearly important that when criminal charges are brought against a practitioner of this nature, the Board is informed immediately, so that it may consider what steps are necessary to be taken to protect the public. In this instance, such action was delayed by about three months as a result of Mr Ferrero's failure to report.
2. Hence we find allegation 2 proved, and that the failure to report constituted unprofessional conduct, in that it was in breach of the reporting obligation in s 130 of the National Law.

1. The Board's submissions as to determinations included the following:
   1. The Board submits that Mr Ferrero's conduct in respect of each allegation is objectively serious such that it calls for both specific and general deterrence, as well as determinations that ensure the protection of the public, and the maintenance of public confidence in the profession.
   2. The Board submits that the appropriate determinations in the matter are as follows:
      • (a) that Mr Ferrero be reprimanded under section 196(2)(a) of the National Law; and
      • (b) that Mr Ferrero's registration be cancelled under section 196(2)(e) of the National Law; and
      • (c) pursuant to section 196(4)(a) of the National Law, that Mr Ferrero be disqualified from applying for registration as a registered health practitioner for a period of at least four years.
   3. Mr Ferrero's registration as a psychologist is currently suspended as a result of the Board's decision to take immediate action under section 156 of the National Law. Mr Ferrero has been suspended since 6 April 2016.
   4. In relation to Allegation 1, the Board submits that a period of removal from practice is warranted for the following reasons:
      • (a) Seriousness and extent of criminality - Mr Ferrero entered a plea of guilty to one representative count of committing and indecent act with a person with a cognitive impairment by a provider of medical or therapeutic services. The offences involved serious breaches of the criminal law directly connected to the practitioner's practice, which is at odds with the need for the public to repose trust in registered health professionals;
      • (b) Breach of trust - Mr Ferrero's offending involved offending against a vulnerable patient insofar as she was experiencing significant mental health difficulties, which he was aware of, and providing treatment for;
      • (c) Connection to practice - the connection is clear. Mr Ferrero committed the offences against a person who he acknowledges was a patient of his at the relevant times.
      • (d) Patient welfare - Mr Ferrero's actions placed Ms XYZ at risk with the contents of the annexure to the Victim Impact Statement from Ms XYZ's treating psychologist confirming that 'the events surrounding [Mr Fererro's] offending caused a worsening of the complainant's conditions and symptoms of depression and anxiety. I note the psychologist's option that the impact of your behaviour was to compound and prolong her suffering. As a result of your actions, according to the second psychologist, the complainant did not seek treatment for a period of seven years, during which her illness went untreated, and she was unsupported';[4]
      • (e) Insight into conduct - notwithstanding that Mr Ferrero has admitted the conduct the subject of the Allegations, he has demonstrated a lack of complete insight into the nature of his conduct including continuing to maintain that:
        • (i) Ms XYZ lied to Victoria Police;
        • (ii) Ms XYZ did not have a cognitive impairment;
        • (iii) The superficial intimate contact he had with Ms XYZ was always consensual; and
        • (iv) The allegations made against him by Ms XYZ in the criminal proceeding were either malicious or motivated by a vendetta;
      • (f) Contravention of professional standards - the conduct contravenes the APS Code of Ethics, which provides that:
        • (i) psychologists refrain from engaging in multiple relationships that may:
          • (A) impair their competence, effectiveness, objectivity, or ability to render a psychological service;
          • (B) harm clients or other parties to a psychological service; or
          • (C) lead to the exploitation of clients or other parties to a psychological service; and
        • (ii) psychologists do not engage in sexual activity with a client or anybody who is closely related to one of their clients.
   5. The Board acknowledges that the Respondent has already been the subject of criminal sanction for the conduct alleged in Allegation 1. Despite this, it submitted that a disqualification period is appropriate. In circumstances where a Respondent faces disciplinary action for conduct for which they have already been punished under criminal law, Holmes CJ, Philippides and McMurdo JJA in Nursing and Midwifery Board of Australia v Faulkner stated:

In general, the practitioner's punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public. It is recognised that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. There is a deterrent element involved in the protection of the public in this context. In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant. But its relative importance will obviously depend upon the facts and circumstances of the particular case.

1. A similar view as expressed by Horneman-Wren J in Nursing and Midwifery Board of Australia v Dibbs, in which His Honour stated that:

The nature of proceedings such as these is not to punish, or further punish, Mr Dibbs for his criminal conduct. Their purpose is protective. They are intended, through the sanction imposed, to protect the public, uphold the standards of the profession and maintain the public's confidence in the profession.

1. Balanced against this, the Board acknowledges that:
   • (a) the sexual offending is not of the highest order of seriousness, as was reflected in the non-custodial sentencing disposition ultimately imposed by the County Court;
   • (b) no further notifications have been received by AHPRA (albeit that Mr Ferrero has been suspended); and
   • (c) lengthier periods of disqualification have been imposed in cases involving arguably more egregious conduct (for example Health Care Complaints Commission v Talmadge [2016] NSWCATOD 16).[5]
2. The [Board] refer[s] to the following cases by way of assistance. While all cases turn on their own facts, each of the below concerns similar offending and/or mitigating circumstances:
   • (a) Psychology Board of Australia v King [2016] QCAT 140. Mr King engaged in a sexual relationship with a patient during the course of the therapeutic relationship, which continued for approximately six months. Mr King was aware that the patient was a vulnerable person who had been sexually abused as a child. The relationship had a severe impact on the patient's PTSD symptoms. Amongst other things, Mr King was disqualified from applying for registration for a period of four years.
   • (b) Honey v Medical [Practitioners] Board of Victoria [2007] VCAT 526. Dr Honey transgressed professional boundaries by commencing a relationship with a former patient and entered into an agreement to pay a sum of $100,000 in part for her undertaking not to lodge a complaint with the Board. On review, Dr Honey was reprimanded and suspended from practice for a period of one year.
   • (c) Medical Board of Queensland v Alroe [2005] QHPT 004. On four occasions the Respondent engaged in acts of sexual intercourse with a former patient. Although the relationship had ended, there was a significant power imbalance in that the complainant was lonely and vulnerable. The practitioner's registration was cancelled for a period of four years, and the cancellation was recorded on the practitioner's registration for six years.
3. It was suggested for Mr Ferrero that his denial that he engaged in the conduct the subject of allegation 1 (that is, taking part in an indecent act with a patient having a severe depressive condition) should not be regarded as demonstrating a lack of insight.
4. In our view, in circumstances where we cannot go behind the criminal conviction, Mr Ferrero's denial that the acts took place must be seen as showing a lack of remorse.
5. Additionally, in our view, Mr Ferrero showed only partial insight into the significance of his conduct. He did impliedly acknowledge that engaging in sexual acts with a patient was wrong. But in his written submissions, and when asked several times during the hearing what he had learnt from this experience, he focused on matters concerning himself. He said he was working very hard (including as a waiter, three days a week) and hardly making enough money to get by. He was 'burnt out'. He acknowledged he was looking for a wife, but said it was an error of judgement to seek a relationship with a patient. He implied that she had let him down by ending the relationship.
6. Mr Ferrero did not acknowledge the harm which could be caused to patients - and was caused to his patient in this case, according to the psychiatric assessment of Ms XYZ presented at the criminal trial (although disputed by Mr Ferrero) - from indecent acts engaged in with a vulnerable patient. There was no acknowledgement of the power imbalance, or the abuse of trust which his conduct entailed. Mr Ferrero emphasised that the relationship was consensual. However, this submission itself underscores Mr Ferrero's lack of insight as to the harm which can come from an intimate relationship with a patient, whether consensual or not.
7. It was emphasised on behalf of Mr Ferrero that he has already been suspended from practice for three and a half years (since the decision of the Board to take 'Immediate Action' on 6 April 2016). The major contributor to the delays has been his various health conditions, which are still unresolved, and this should not be counted against him. It was also said that he is in a precarious financial position, due to his inability to practise. He said he wishes to resume practice.
8. We agree with the Board's submission that personal matters, such as financial difficulty, are of little relevance, save insofar as they contribute to the specific deterrence of the practitioner.
9. We accept that Mr Ferrero's suspension for the last three and a half years should be taken into account. But in view of the fact that Mr Ferrero shows no remorse, in the sense that he still denies the conduct proved against him occurred, and that he has demonstrated something well short of complete insight into the seriousness of his conduct, we believe a further period of disqualification is required, in order to serve the ends of specific and general deterrence.
10. We have had regard to the periods of disqualification imposed in the cases referred to us by the Board in its submissions, and in other cases.[6] Of course each matter turns on its own unique facts, and there is no such thing as a 'standard' example of a psychologist/patient sexual relationship case, but we accept the submission of the Board that there are worse examples of sexual offending amongst the reported cases. Nevertheless Mr Ferrero's conduct did involve a vulnerable patient, whose condition was worsened as a consequence of the relationship.
11. We received little by way of submissions in relation to allegation 2. Mr Ferrero's failure to report that he had been charged with serious criminal offences involving sexual activities with his patient must be regarded as demonstrating a lack of candour. As a result of his breach of his obligation to report, the Board was delayed by about three months in taking steps to protect the public.
12. We have taken into account the three references provided for Mr Ferrero. The first is from former patients, husband and wife, expressing gratitude and admiration for the assistance Mr Ferrero gave them in around 2011 in coming to terms with a bereavement. The second was from a medical general practitioner, who had been referring patients to Mr Ferrero for 20 years, stating that everyone has been happy with his services, and no one has ever complained about him. We also received a third reference, on the day of the hearing, but forwarded by email after the hearing was completed. Again, it was from a former patient expressing gratitude and admiration for assistance Mr Ferrero provided some years ago in helping him come to terms with a bereavement.
13. These references indicate Mr Ferrero has made a positive contribution to the lives of patients. However, they have only a limited ameliorating effect on the determinations we make, given the profound nature of the issues referred to above concerning his criminal conviction arising out of his sexual relationship with a vulnerable female patient, and lack of insight.

1. First, Mr Ferrero should receive a reprimand. This is a formal statement denouncing his conduct in taking part in indecent acts with a patient who had a cognitive impairment (in the form of a major depressive condition), and in failing to inform the Board as soon as he had been charged with serious criminal acts.
2. Additionally, in light of the above matters, and in particular the seriousness of the conduct and his lack of full understanding of its significance, Mr Ferrero's registration should be cancelled, and he should be disqualified from applying for registration for a further period.
3. In determining this period, we also take into account Mr Ferrero's age, the positive references received, and the fact he has been suspended for three and a half years already. In this context, we believe that disqualification for four more years would not demonstrate parity with other relevant decisions.
4. In the light of all the above matters, we determine that Mr Ferrero is to be disqualified from applying for registration for a further two years.
5. We emphasise that our decision does not mean that Mr Ferrero will be able to achieve registration automatically in two years' time. If, at any point after those two years have elapsed, he makes an application to be registered again, that will be a matter for the Board to consider in the light of the criteria set out in the National Law, at that time.
6. We also determine that, for the protection of the public, an order should be made under s 196(4)(b) of the National Law, which has the effect of prohibiting Mr Ferrero from providing psychological, counselling or like services until such time as he is once again granted registration as a health practitioner under the National Law.

[1] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] This was a conference for cancer survivors.

[3] Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 at [42]; Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500, per Richards J, at [51] - [53]; Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276, 281 - 3, per Spender, Gummow and Lee JJ.

[4] Reasons for Sentence by Judge Patrick, 17 August 2016, at [16].

[5] In that case, a psychologist who had a sexual relationship with a patient was disqualified from applying for registration for five years.

[6] In particular Psychology Board of Australia v Popovski [2019] VCAT 155, Psychology Board of Australia v van Megchelen [2013] VCAT 395, Psychologists Registration Board of Victoria v Mair [2010] VCAT 534 and Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349.