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What happened

The Psychology Board of Australia referred Mark Holmes to the South Australian Civil and Administrative Tribunal (SACAT) under Schedule 2, s 193(1) of the Health Practitioner Regulation National Law (South Australia). The parties signed and submitted a Statement of Agreed Facts dated 4 June 2020. The hearing took place in Adelaide on 28 July 2020, and the decision was made on 11 September 2020.

The judgment says that XY had been Holmes's patient from about October 2010 until 30 October 2015. Between about September and November 2015, Holmes entered into or maintained an inappropriate personal relationship with her. The relationship became sexual at some point around February 2016. The Tribunal recorded that the relationship became known to the Board's investigators, and to Holmes's wife and family, in February 2017.

The misconduct was not confined to the relationship itself. The agreed facts and grounds relied on included attempts to conceal the relationship, including false statements to investigators and the handling of electronic material; wrongful disclosure to Holmes's wife of information about XY's psychological and medical condition; and harm to XY. The decision describes XY as vulnerable and records the Board's reliance on a psychiatrist's opinion that she had suffered severe psychological and emotional harm and an injury to her psyche. The Tribunal's stated findings proceeded from the agreed facts, rather than an independent contested trial of each allegation.

Ground 2 was not relied on at the hearing. Holmes admitted that the conduct in the Statement of Agreed Facts constituted professional misconduct under both paragraphs (a) and (c) of the definition in s 5 of the National Law. The Tribunal agreed. The sanction hearing then focused on the seriousness of the conduct, the respondent's asserted steps since the events, his remorse and insight, and the orders needed to protect the public and maintain professional standards.

SACAT reprimanded Holmes, disqualified him from applying for registration as a psychologist for five years, and prohibited him from providing any health service, including counselling, for seven years. It also restricted publication of the patient's identifying details and ordered Holmes to pay the Board's costs, to be agreed or taxed.

The supplied judgment text does not preserve numbered paragraphs for SACAT's reasons. For that reason, paragraph references to its reasoning cannot reliably be given here. The statutory sections, dates and factual descriptions below are cited by the references reproduced in the decision.

Why the court decided this way

The Tribunal first had to determine whether the admitted conduct met the statutory definition of professional misconduct. Section 5(a) covers unprofessional conduct substantially below the standard reasonably expected of a registered practitioner with equivalent training or experience. Section 5(c) covers conduct, whether or not connected with professional practice, that is inconsistent with being a fit and proper person to hold registration. Holmes admitted both limbs, and the Tribunal was satisfied that both applied.

Sanction was not treated as punishment alone. The Tribunal referred to Craig v Medical Board of Australia [2001] SASC 169 for the purposes of disciplinary sanctions, including public protection, preventing unfit practice, and maintaining proper professional standards. It considered that framework alongside the National Law powers in s 196. Because Holmes no longer held registration, s 196(4) allowed the Tribunal to disqualify him from applying for registration and to prohibit him from providing health services for a stated period.

Several features made the conduct particularly serious in the Tribunal's assessment. The relationship continued over a period of at least 15 months, or up to 19 months if the period of false and misleading conduct was counted. The conduct involved a person Holmes acknowledged was vulnerable. The Tribunal also considered the cover-up: it noted that Holmes had misled the AHPRA investigation for months and had engaged in conduct intended to conceal the relationship. The disclosure of sensitive health information to his wife without XY's consent added a separate aspect to the misconduct.

The Tribunal examined Holmes's submissions that he had voluntarily relinquished registration, stopped clinical services, and was willing to undertake courses. It did not treat time away from practice as enough to resolve the protective concerns. The reasons describe his attempts to attribute aspects of the conduct to XY, his challenge to the psychiatrist's assessment of harm, and his explanation that he and XY had agreed to deceive people to protect XY's privacy. The Tribunal considered the explanations did not demonstrate full acceptance of responsibility.

The decision also scrutinised the respondent's unsent apology. It noted that the draft asked XY to respect the privacy of Holmes's home and family. The Tribunal regarded that request, together with other material placed before it, as consistent with its concern that Holmes had not fully taken responsibility for the effects of his conduct. It found that he had not taken adequate steps to reflect on what happened or prevent recurrence. It considered further academic study inadequate, particularly given his existing academic qualifications, and did not order a course.

The Tribunal rejected Holmes's reliance on Psychology Board of Australia v Freeman, an unreported Western Australian decision in which the practitioner had been disqualified from applying for registration for 18 months. It noted that Freeman did not involve the same degree of false and misleading conduct. SACAT concluded that an 18-month disqualification would not adequately assure the public or secure professional standards in Holmes's case. It ordered a five-year registration disqualification and a seven-year health-service prohibition. Those periods differ because the Tribunal made separate orders under separate statutory powers.

Before and after state of the law

The judgment applies, rather than announces a replacement for, the statutory framework. Before this decision, the National Law already defined professional misconduct in s 5, provided disciplinary powers in s 196, and permitted orders against a person who no longer held registration. The decision's contribution is its application of those provisions to these facts, particularly the combined circumstances of a boundary violation, a sexual relationship with a former patient, serious harm, concealment, and unauthorised disclosure.

For a registered practitioner, the Tribunal listed powers under s 196(2), including reprimand, conditions, fines, suspension and cancellation. For a person who did not hold registration, s 196(4) provided the relevant powers in this case: disqualification from applying for registration for a specified period and prohibition from providing a health service for a stated period. The Tribunal relied on the latter provision to make orders despite Holmes no longer being registered.

A specific interpretive point concerned counselling. The Tribunal considered the National Law's definition of “health service” in s 5. That definition includes a range of health services and “welfare services necessary to implement” specified services. SACAT concluded that counselling could fall within that definition when connected with the relevant services, including mental health services. It therefore held that a prohibition order under s 196(4)(b) could extend to counselling. This is the Tribunal's application of the statutory definition in this case; the supplied reasons do not set out a broader test for every form of counselling.

The judgment also applies Craig's account of disciplinary purposes. The Tribunal's emphasis was protective: it asked whether the proposed orders would protect the public and maintain professional standards, rather than treating the orders as criminal punishment. Its comparison with Freeman illustrates that sanction comparisons are fact-sensitive in the Tribunal's reasoning. The difference in concealment and misleading conduct was expressly material to its decision not to adopt the shorter period used there.

The decision does not purport to alter the definition of professional misconduct or create a general tariff for these forms of conduct. The outcome is tied to the agreed facts and to the Tribunal's evaluation of Holmes's response and the available protections. The provided text does not include subsequent authorities or legislative amendments, so it does not establish the present status of the decision within later case law or any later statutory development.

Key passages with plain-English translation

Professional misconduct under two statutory limbs. The Tribunal found that the conduct came within both s 5(a) and s 5(c) of the National Law. In plain English, it considered the conduct both substantially below the expected professional standard and incompatible with being fit and proper to hold registration. Holmes admitted both limbs, and the Tribunal recorded that there was no contention that s 5(c) did not apply.

Purposes of discipline. The Tribunal referred to Craig v Medical Board of Australia when identifying the purposes of disciplinary orders. The cited passages describe protection of the public and maintenance of professional standards as central. In plain English, the Tribunal was not deciding what punishment Holmes deserved in a criminal-law sense; it was selecting orders it considered protective and capable of maintaining confidence in professional standards.

Assessment of remorse and reflection. The Tribunal stated that it was not satisfied Holmes had demonstrated full remorse or taken adequate steps to reflect on his misconduct and prevent recurrence. In plain English, his departure from practice and willingness to study did not, on the material the Tribunal considered, establish that the underlying risks had been adequately addressed.

Vulnerability and seriousness. The Tribunal emphasised that the misconduct was directed at a person Holmes acknowledged to be vulnerable. In plain English, the patient's vulnerability was not a peripheral fact: it formed part of the Tribunal's explanation for why the misconduct was serious and why a substantial protective response was needed.

Scope of the health-service prohibition. The Tribunal reasoned that counselling could be a health service under s 5 and therefore within the scope of s 196(4)(b). In plain English, the prohibition was not limited to work performed under the title of psychologist. It covered providing any health service, including counselling, for the period ordered.

Comparison with Freeman. The Tribunal noted that the conduct in Freeman lacked the same degree of false and misleading conduct, and it was not persuaded that Freeman's 18-month disqualification would suffice here. In plain English, the Tribunal did not treat another case's period as a fixed benchmark; it distinguished the cases by reference to a material difference it identified.

What fact patterns trigger this precedent

The decision is most directly relevant to disciplinary proceedings involving a practitioner who enters or maintains an inappropriate personal or sexual relationship with a patient, particularly where the patient is vulnerable and the relationship causes serious harm. It also addresses the additional seriousness attributed to conduct after the relationship became known: concealment, false or misleading statements to investigators, and destruction or alteration of relevant material.

The confidentiality issue is also part of the fact pattern. The agreed facts included disclosure to the practitioner's spouse of information about the patient's treatment and psychological or medical condition without the patient's consent. The case therefore demonstrates that boundary violations, investigation conduct, and confidentiality breaches may be considered together when the Tribunal assesses professional misconduct and sanction.

For the specific statutory power discussed, the matter is relevant where a person no longer holds registration but the Tribunal is considering orders under s 196(4). It addresses disqualification from applying for registration and prohibition from providing health services, including counselling. Its reasoning on counselling is connected to the wording of the National Law definition and the Tribunal's view that counselling may be a welfare service necessary to implement listed services.

The case should not be read as establishing that every former-patient relationship, disclosure, or inaccurate response produces the same sanction. The decision turned on the agreed facts and the Tribunal's assessment of seriousness, duration, harm, vulnerability, concealment, remorse, and future safeguards. Nor does it establish a universal five-year or seven-year sanction. The Tribunal expressly distinguished Freeman because of differences in the conduct, and its orders followed its assessment of this particular record.

How later courts have treated it

The supplied material contains no later judgments or tribunal decisions discussing Psychology Board of Australia v Holmes. It therefore does not support a conclusion about whether later courts or tribunals have followed, distinguished, applied, or criticised it.

The decision itself considered two authorities. It referred to Craig v Medical Board of Australia [2001] SASC 169 for the purposes of disciplinary sanctions. It also considered Psychology Board of Australia v Freeman, an unreported State Administrative Tribunal of Western Australia decision. SACAT distinguished Freeman on the basis that the false and misleading conduct in Holmes was more serious or extensive, and rejected the respondent's submission that the 18-month period there was an adequate comparison.

A researcher using this decision as precedent would need to check later decisions and the current statutory text independently. That later treatment and any subsequent statutory developments are not included in the judgment material supplied here.

Still-open questions

The supplied decision leaves several matters outside its express reasoning. First, it does not establish a general boundary between permissible counselling and a “health service” for every statutory context. It concludes that counselling can qualify under the definition when it is a welfare service necessary to implement services listed in s 5. The application may depend on the service and context.

Second, the decision does not set out a formula for converting findings about remorse, insight, or time away from practice into a particular sanction period. It explains why the Tribunal was not satisfied with Holmes's evidence and submissions, but it does not provide a numerical method applicable to other cases.

Third, although the Tribunal identifies concealment and misleading conduct as important, the supplied text does not state a general rule about the weight to be given to post-misconduct dishonesty in every disciplinary case. Its conclusion is grounded in the duration and circumstances of this respondent's conduct and the Tribunal's overall protective assessment.

Fourth, the source provided does not include a later-treatment history. It cannot answer how subsequent tribunals have used the decision, whether they have adopted its approach to counselling, or whether its sanction reasoning has been distinguished on different facts.

Finally, this copy does not show numbered paragraphs for the Tribunal's reasons, although it refers to paragraph numbers in submissions and to paragraph numbers in Craig. Those references should not be mistaken for paragraph numbering in the SACAT reasons themselves. This limits precise paragraph-level citation from the supplied text.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.