1. The respondent is found guilty of professional misconduct in the period from March 2012 to March 214 as defined in sub-paragraph (a) of the definition of that term in section 5 of the National Law in that she has engaged in an inappropriate non-professional relationship and/or sexual relationship with a former client within two years of terminating the professional relationship.
2. The respondent is found guilty of unprofessional conduct as defined by section 5 of the National Law in that she failed to disclose to Robert Mackinnon that she had engaged in or was engaged in an inappropriate non-professional relationship with her former client DS when she referred DS to Mr Mackinnon or at any time prior to 23 July 2012.
3. Ms Garcia is reprimanded.
4. Ms Garcia's registration as a psychologist is suspended for six months from the date of this order.
5. During the period of suspension, Ms Garcia is to undertake a minimum of 10 hours of further mentoring and/or education to the satisfaction of the Psychology Board of Australia. Such mentoring and/or education is to be provided by a psychologist or mentor nominated by the Psychology Board of Australia and is to be at the expense of Ms Garcia. The mentoring and/or education is to include the areas of boundaries and multiple relationships, including how power imbalances may manifest and the dynamics of transference and counter-transference in therapeutic relationships.
6. Ms Garcia and the psychologist/mentor are each to report to the Psychology Board of Australia in writing on the mentoring and/or education undertaken and what has been learnt at three months and six months.
7. Following resumption of registration, Ms Garcia is to undertake professional supervision for a period of 12 months at fortnightly intervals. The supervision is to include the dynamics of transference and counter-transference in therapeutic relationships. Ms Garcia and the supervisor, who is to be approved by the Psychology Board of Australia, are each to report to the Psychology Board of Australia on the supervision undertaken and Ms Garcia's development of skills and further understanding at six months and 12 months.

1. Claudina Garcia has been a registered psychologist since September 2002.
2. Between September 2010 and August 2012 Ms Garcia worked as a psychologist.
3. At all relevant times Ms Garcia conducted her psychology services business at Life Resolutions Point Cook Suites at 305-308, Level 1, 2 Main Street, Point Cook, Victoria.
4. Ms Garcia engaged Robert Mackinnon as a psychologist on a contract basis to provide psychological services to clients referred to the business by Life Resolutions between about October 2011 and October 2013. During this engagement:

1. Mr Mackinnon reported to Ms Garcia; 2. Ms Garcia provided supervision to Mr Mackinnon;

1. Ms Garcia had access to the treatment records of Mr Mackinnon's clients.
2. Ms Garcia provided psychological services to DS between 21 September 2010 and 3 March 2012.
3. During February 2012 Ms Garcia encountered the client in a park near her residence on two or three occasions. Following these encounters a casual friendship formed and, if Ms Garcia and DS saw each other, they would walk together.
4. Sometime between 3 and 19 March 2012 Ms Garcia provided DS with information in relation to other psychologists. DS chose to transfer his case to Mr Mackinnon because of his availability after hours and location. Accordingly, Ms Garcia referred DS to Mr Mackinnon to provide a psychological service.

1. Ms Garcia informed Mr Mackinnon that DS had been a client of hers but a new psychologist may provide some new perspective as she had been treating him since September 2010. 2. Ms Garcia said that she had achieved a lot with DS but felt that he needed a different perspective and that a change of treating psychologists would assist DS to continue his progress.

1. Ms Garcia said that she would not be able to provide supervision about DS as she did not want to influence their work together.

1. Ms Garcia gave Mr Mackinnon the file to read.
2. Mr Mackinnon provided psychological services to DS from 19 March 2012 until about 2 August 2012.
3. Ms Garcia saw DS on further occasions between March and April 2012. They saw each other at the park and went to the circus. The friendship developed into a romantic relationship from about the end of April 2012.
4. In August 2012 Ms Garcia and DS commenced living together and commenced a sexual relationship.
5. DS did not inform Mr Mackinnon that DS was in a relationship with Ms Garcia between 19 March 2012 and 23 July 2012.
6. DS informed Mr Mackinnon that he was in a new relationship on 2 June 2012 and when discussing it on 21 July 2012 he referred to Claudina by name as the person he was in a relationship with but then changed her name to Sarah.
7. Ms Garcia did not inform Mr Mackinnon about her relationship with DS until about 23 July 2012 when she informed him that she and DS were in a romantic relationship. Ms Garcia informed Mr Mackinnon about the relationship.
8. Mr Mackinnon and Ms Garcia spoke on various occasions about this disclosure between 24 July 2012 and 7 August 2012 during which he gave her the opportunity to notify the Psychology Board of Australia ('Board') about the relationship. Ms Garcia contacted her professional indemnity insurer broker and requested assistance. She was advised on 31 July 2012 that she should let Mr Mackinnon complete the notification and respond to it in due course. She was also advised that her policy required that she make no admission of liability.
9. Mr Mackinnon notified the Board about the relationship between Ms Garcia and DS which was received by AHPRA on 13 August 2012.
10. In letters dated 13 September 2012 and 17 December 2012 from Ms Garcia to AHPRA she admitted that she engaged in a non-professional relationship with DS that progressed from socialising to friendship and then from a romantic relationship to a sexual relationship. Ms Garcia admitted that she did not inform Mr Mackinnon about the relationship with DS until July 2012. Ms Garcia accepted that she breached the Australian Psychological Society Code of Ethics.
11. On 8 October 2012 the Board determined to conduct an investigation into the professional conduct of Ms Garcia pursuant to s 160(1)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ('National Law').
12. On 12 August 2013 the Board determined under s 193(1)(a)(i) of the National Law to refer the matter to VCAT as the Board reasonably believes that Ms Garcia has behaved in a way that constitutes professional misconduct.
13. Ms Garcia and DS remain in a committed relationship together and they got married on 22 November 2014.

1. In the period from March 2012 to a date to be determined by the Tribunal Claudina Garcia has while working as a psychologist behaved in a way that constitutes 'professional misconduct' as defined in sub-paragraph (a) of the definition of that term in section 5 of the National Law in that she has engaged in an inappropriate non-professional relationship and/or sexual relationship with a former client within two years of terminating the professional relationship.
2. Between March and July 2012 Claudina Garcia has while working as a psychologist behaved in a way that constitutes 'unprofessional conduct' as defined by section 5 of the National Law in that she failed to disclose to Robert Mackinnon that she had engaged in or was engaged in an inappropriate non-professional relationship with her former client DS when she referred DS to Mr Mackinnon or at any time prior to 23 July 2012.

1. The Tribunal finds that 'the date to be determined by the Tribunal' referred to in paragraph 20 is March 2014, being the end of the two year period after Ms Garcia ceased to provide psychological services to DS. Accordingly, on this basis and on the basis of the agreed facts, the Tribunal finds:
2. In the period from March 2012 to March 2014 Claudina Garcia has while working as a psychologist behaved in a way that constitutes 'professional misconduct' as defined in sub-paragraph (a) of the definition of that term in section 5 of the National Law in that she has engaged in an inappropriate non-professional relationship and/or sexual relationship with a former client within two years of terminating the professional relationship.
3. Between March and July 2012 Claudina Garcia has while working as a psychologist behaved in a way that constitutes 'unprofessional conduct' as defined by section 5 of the National Law in that she failed to disclose to Robert Mackinnon that she had engaged in or was engaged in an inappropriate non-professional relationship with her former client DS when she referred DS to Mr Mackinnon or at any time prior to 23 July 2012.

1. Counsel for the applicant submitted that the relevant principles are as follows:
2. The purpose of the imposition of determinations in disciplinary matters is to maintain proper ethical and professional standards so as to:
   1. protect the public[1]; and
   2. protect the profession[2], in the sense of maintaining its status and integrity in the eyes of the public.[3]
3. As Doyle CJ expressed it in Craig v Medical Practitioners Board[4]:

A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

1. As Cosgrove J put in Dickens v Law Society[5]:

There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character and no element of punishment is involved ... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and applicable departure from the practitioner's own high standards. The Committee's task is to uphold the dignity and standards of the profession. ... The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct.

A distinction is to be drawn between disciplinary action which is corporate and self-respecting, and punishment, which is personal and retributive.[7]

1. Determinations imposed by the Tribunal can protect the public and the standards of the profession by:

1. deterring the person concerned from further inappropriate conduct (specific deterrence)[8]; 2. deterring other practitioners minded to conduct themselves as the person concerned has done (general deterrence)[9], and

1. facilitating rehabilitation[10] on the part of the practitioner.
2. The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination.[11]
3. Personal matters such as shame[12], personal ordeal[13], and financial difficulty[14] likely to be occasioned by a determination are of little relevance except insofar as they contribute to the specific deterrence of the practitioner.
4. The degree to which the practitioner has acquired insight into his or her conduct is of potential relevance to the determination in that it goes to the continuing risk posed by the practitioner[15].
5. 'Insight' might be reflected in a variety of ways, such as

1. an understanding of the nature of the conduct; 2. an acceptance that the conduct was wrong;

1. an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or

1. a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
2. The Tribunal accepts these submissions as an accurate exposition of the relevant principles.

1. Ms Garcia allowed a 'casual friendship' to develop from chance encounters with DS while he was a client. Although therapy ceased early in the development of the friendship, she allowed these encounters to occur and to grow into a romantic and sexual relationship leading to cohabitation within a few months. The sexual relationship between Ms Garcia and DS commenced shortly after the therapeutic relationship was terminated. This was in direct contravention of the Australian Psychological Society's Code of Ethics (2007) which is the recognised statement of standards of professional behaviour for the psychology profession.
2. At no time did Ms Garcia consult a supervisor or senior member of the profession for advice as to the appropriateness of her actions or for guidance as to the risks that the relationship may have for her (former) client.
3. In particular, Ms Garcia's behaviour contravenes standard C.4.5(b) of the Australian Psychological Society's Code of Ethics which states:

Psychologists do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client.

1. Ms Garcia failed adequately to protect the interests of DS by not informing the psychologist to whom he was transferred of the precipitant for the referral, namely the development of a personal relationship, which is a matter directly pertinent to the ongoing treatment of DS. It should be remembered that DS had initially consulted Ms Garcia concerning relationship issues. This failure had the potential to limit what DS might feel free to discuss in therapy with his subsequent psychologist and to limit the benefit he may derive from the therapy. Significantly, the use by DS of a false name for Ms Garcia when referring to his new relationship in therapy suggests that he was aware that disclosure of her identity would lead to difficulties.
2. DS was vulnerable, particularly in the area of relationships. This is illustrated in the case notes taken by Ms Garcia. It can reasonably be concluded that Ms Garcia was aware of this vulnerability. However, Ms Garcia persisted with the relationship despite knowing that it was inappropriate. This had potential for harm to DS.
3. The notification occurred some two years before the Tribunal hearing of this matter. The making of the notification gave Ms Garcia the opportunity to seek counselling and supervision. However, this did not occur until the Tribunal was imminent.
4. The Tribunal accepts that Ms Garcia herself was in a position of vulnerability given the proximity of her bereavement. There is no evidence of predatory behaviour.
5. There is no suggestion of any prior or further indications of any lack of professionalism on the part of Ms Garcia. The Tribunal accepts that she is otherwise a respected member of the profession. This is confirmed by the views of professional colleagues.

1. When contacted by AHPRA, Ms Garcia's response was quick and open. Before the Tribunal, Ms Garcia accepted that her behaviour constituted professional misconduct. The Tribunal accepts that she has insight into the inappropriateness of her behaviour.
2. The Tribunal considers that the likelihood of any repetition of this behaviour is minimal. Therefore, specific deterrence is not an important factor in determining the disposition.
3. General deterrence is a more important factor in the case. Psychologists treat vulnerable people. There is an inherent imbalance in the professional relationship. If this is allowed to transfer into a personal relationship, the potential exists for damage to the client. This is why there are rules designed to prevent such occurrences. These rules are fundamental to the regulation of the psychologist/client relationship. The disposition must reflect the Tribunal's support of this regulation and the requirement to illustrate that failing to meet the standard has disciplinary consequences.
4. Overall, it is necessary for the Tribunal's determination to have the purpose of protection of the public and maintenance of the standards of the profession. In this case, as already stated, the more important factor is general deterrence which serves as a warning to other practitioners to consider their conduct in a careful manner.
5. There is another important factor in reaching the appropriate determination. This is one of a therapeutic nature which facilitates rehabilitation on the part of the practitioner. It should also be borne in mind that determinations are not designed to be punitive.

1. Having regard to the principles and to the facts of this matter, the Tribunal considers it appropriate to make the following disposition.

1. Ms Garcia is reprimanded. 2. Ms Garcia's registration as a psychologist is suspended for six months from the date of this order.

1. During the period of suspension, Ms Garcia is to undertake a minimum of 10 hours of further mentoring and/or education to the satisfaction of the Psychology Board of Australia. Such mentoring and/or education is to be provided by a psychologist or mentor nominated by the Psychology Board of Australia and is to be at the expense of Ms Garcia. The mentoring and/or education is to include the areas of boundaries and multiple relationships, including how power imbalances may manifest and the dynamics of transference and counter-transference in therapeutic relationships.

1. Ms Garcia and the psychologist/mentor are each to report to the Psychology Board of Australia in writing on the mentoring and/or education undertaken and what has been learnt at three months and six months.
2. Following resumption of registration, Ms Garcia is to undertake professional supervision for a period of 12 months at fortnightly intervals. The supervision is to include the dynamics of transference and counter-transference in therapeutic relationships. Ms Garcia and the supervisor, who is to be approved by the Psychology Board of Australia, are each to report to the Psychology Board of Australia on the supervision undertaken and Ms Garcia's development of skills and further understanding at six months and 12 months.

[1] Ha v Pharmacy Board of Victoria [2002] VSC 233 at [91].

[2] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

[3] Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97].

[4] [2001] SASC 169 at [41] (Williams and Martin JJ agreeing).

[5] Unreported, Supreme Court of Tasmania, unreported 42, 1981 at pp 15-16.

[6] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183;

[7] Adamson v Pharmacy Board of Tasmania (No. 3) [2004] TASSC 88 at [2] per Evans J.

[8] See eg Law Society of New South Wales v Bannister, unreported, NSW Court of Appeal, 27 August 1993 per Sheller JA; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471.

[9] Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 at [128]; Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 at [45]; Von Schrenk v Dental Practice Board of Victoria [2008] VCAT 2302 at [100]; Chinese Medicine Registration Board v Woo [2010] VCAT 753 at [44]; Dental Board of Australia v Gardner [2011] VCAT 1483 at [27].

[10] Kotowicz v Law Society of NSW, unreported NSW Court of Appeal, 7 August 1987. See too Psychology Board of Australia v Mair [2010] VSC 628.

[11] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J at p13.

[12] Buttsworth v Walton [1991] NSWCA 40 at p 8 per Samuels JA.

[13] Buttsworth v Walton [1991] NSWCA 50 at p 8 per Samuels JA.

[14] Varnavides v Dental Board of Victoria, unreported, Vic Sup Ct, 1 May 1998 per Mandie J.

[15] See eg Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 at [45]; Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 at [8]; Williams v Medical Board of Victoria [2008] VCAT 1784 at [99].