1. The Tribunal finds that, in respect of the matters alleged in Allegation 1 in Appendix A of the Referral Letter dated 30 July 2010, Sezen Ildiri has engaged in unprofessional conduct.
2. The Tribunal finds that, in respect of the matters alleged in Allegation 2 in Appendix A of the Referral Letter dated 30 July 2010, Sezen Ildiri has engaged in unprofessional conduct. Insofar as part of the unprofessional conduct arose prior to 1 July 2007, the Tribunal finds that the unprofessional conduct was not of a serious nature.
3. In relation to the finding of unprofessional conduct for Allegation 1, the Tribunal determines that Sezen Ildiri's registration as a psychologist is cancelled.
4. In relation to the finding of unprofessional conduct for Allegation 2, the Tribunal determines that:
   • (a) Sezen Ildiri is reprimanded; and
   • (b) Within six (6) months after the resumption of her practice as a registered psychologist, Sezen Ildiri must undertake and complete further education and training in client record keeping through a course or program approved by the Victorian Manager of the Australian Health Practitioner Regulation Agency.
5. (per Deputy President Dwyer, as presiding member, pursuant to s101(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998)

By consent, unless the Tribunal or a Court orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any material or information that is given or produced to the Tribunal in this proceeding that identifies, or could reasonably lead to the identification of, the notifier/complainant, any clients of Ms Ildiri, or any witness (other than an expert witness).

1. The order made by SM Davis on 27 July 2010 under s 146 of the Victorian Civil and Administrative Tribunal Act 1998 remains in force. Unless the Tribunal or a Court orders otherwise, no person, other than the parties and their legal representatives, may inspect the Tribunal's file (including the Tribunal Book filed by the parties).

Ms Gabi Crafti of counsel, instructed by Minter Ellison, solicitors.

Mr Ben Ihle of counsel, instructed by Norton Rose, solicitors. Mr Ihle called as an expert witness:

1. The Psychology Board of Australia (as successor to the Psychologists Registration Board of Victoria) (the Board) has referred allegations relating to the professional conduct of a registered psychologist Sezen Ildiri to the Tribunal for a hearing.
2. The particulars of alleged unprofessional conduct are set out in Appendix A of a letter dated 30 July 2010 from the Board's solicitors, titled "Final Referral Letter". There are two allegations - one essentially alleging that Ms Ildiri was found guilty by a court of fraud through a misappropriation of funds from the Victims of Crime Assistance Tribunal (VOCAT), and the other alleging that Ms Ildiri has failed to maintain adequate client notes.
3. The allegations are largely conceded by Ms Ildiri. The Tribunal has nonetheless been required to make formal findings in relation to both allegations, and to provide an overall determination. Whilst there is general consensus between the parties on the findings of 'unprofessional conduct' that should be made by the Tribunal, there is a significant disagreement as to what determination should follow from these findings.
4. Following Ms Ildiri's initial arrest on the fraud charges, the Board had conducted an 'own motion' investigation and, on 22 November 2007, the Board suspended her registration. Ms Ildiri remains suspended pending the determination in this proceeding.
5. Part of the alleged unprofessional conduct arose in the period prior to 1 July 2007. The hearing was conducted under the transitional provisions of the governing legislation now in force[1], having regard (where relevant) to the governing legislation in force at the relevant time[2]. There was no dispute between the parties on this issue.

1. Allegation 1 is set out in the Final Referral Letter as follows:
   1. On or around 27 May 2009, Ms Ildiri was found guilty by the Magistrates Court of Victoria at Melbourne of 46 consolidated charges in breach of the Crimes Act 1958 (Vic).

(a) Between in or around September 2003 to in or around October 2007, Ms Ildiri fraudulently invoiced the Victims of Crime Assistance Tribunal (VOCAT) for counselling sessions that never took place and/or invoiced VOCAT for counselling sessions which were shorter than she claimed and/or lodged false invoices with VOCAT.

1. 16 charges of attempting to obtain a financial advantage by deception in breach of s 82 of the Crimes Act 1958 (Vic);
2. 28 charges of obtaining a financial advantage by deception in breach of s 82 of the Crimes Act 1958 (Vic); and
3. 2 charges of making false documents to the prejudice of others in breach of s 83A of the Crimes Act 1958 (Vic).

(c) Ms Ildiri was ordered to pay $51,675.90 in compensation to VOCAT and sentenced to 9 months' jail to be served in the community by an intensive correction order.

1. The Board had initially sought that a finding be made of either 'professional misconduct' or 'unprofessional conduct', as defined and relevant to the period within which the conduct arose. However, counsel for Ms Ildiri contended that the allegation framed by the Board was based upon a finding of guilt by a court, which fell within the statutory definition of 'unprofessional conduct'. The Board was not intending to separately prove to the Tribunal the particular misconduct upon which the court finding was based. He therefore argued that a finding of 'professional misconduct' was not open to the Tribunal.
2. It is unnecessary to finally decide this issue, as the Board agreed to proceed only on the basis of a finding of 'unprofessional conduct' within the meaning of s 3(1)(h)(i) or (iii) of the Health Professions Regulation Act 2005, namely:

(i) an offence where the health practitioner's suitability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the health practitioner to continue to practise because of the finding of guilt; or

(iii) an offence as a health practitioner under any other Act or regulations;

1. Through her counsel, Ms Ildiri admits this allegation of unprofessional conduct.
2. Given that the court's finding of guilt occurred after 1 July 2007, the Health Professions Regulation Act 2005 applies to the finding of unprofessional conduct. We have accepted the joint contention of the parties that it is therefore unnecessary to rely upon the transitional provisions or earlier legislation relating to conduct prior to that date[3].
3. Although the admitted allegation is one of 'unprofessional conduct', rather than 'professional misconduct', counsel for Ms Ildiri conceded that the underlying conduct should not be regarded as being of a lesser seriousness because of this. It was simply an outcome of the legislative definitions. The Tribunal notes that the relevant part of the definition of 'unprofessional conduct' in s (3)(1)(h)(i) squarely raises the issue of the health practitioner's suitability to continue to practise as a consequence of the finding of guilt by a court. Depending on the nature of the offence, this potentially elevates a finding of guilt to a very high level of seriousness.
4. As indicated, the Board did not seek to separately prove the particulars of Ms Ildiri's conduct before us. We were referred to the Tribunal Book which contains details of the offences (in the Crown's written submission to the court), as well as a transcript of the Magistrates Court proceeding over four days, and the Magistrate's comments on sentencing.
5. The finding of guilt by the court relates to multiple charges of fraud. As part of her practice as a registered psychologist, Ms Ildiri counselled victims of crime receiving assistance through VOCAT. As the Magistrates Court records note, Ms Ildiri made numerous fraudulent claims to VOCAT for counselling sessions that did not occur, and she received $51,675.90 through this process to which she was not entitled. She used part of the money to feed a gambling addiction.
6. The fraudulent claims continued over a four-year period. They included claims for over 430 counselling sessions that did not take place, and claims were filed through some 240 invoices where Ms Ildiri falsified the signatures of applicants. Ms Ildiri also falsified signatures on some 40 counselling request and/or acknowledgment forms. The fraud related to some 50 VOCAT applicants, some from the same family. These VOCAT applicants therefore missed out on counselling sessions to which they were entitled and, in several cases it appears, genuinely needed.
7. The Magistrate found the offending to be unusual because it involved a gross betrayal of trust on numerous occasions. Ms Ildiri was sentenced to 9 months imprisonment to be served by way of an intensive corrections order.
8. The material before us clearly supports the finding that the Board and counsel for Ms Ildiri agreed we should make. There is clearly a finding of guilt for an offence that stems from Ms Ildiri's position as a health practitioner, for the purpose of the definition of 'unprofessional conduct' under the definition in s 3(1)(h)(iii) of the Health Professions Regulation Act 2005. We also consider that this is a finding of guilt for offences where the health practitioner's suitability to continue to practise is likely to be affected because of the finding of guilt, and where it may not in the public interest to allow the health practitioner to continue to practise because of the finding of guilt. Whilst this is, in part, a matter for determination, we are of the opinion that the finding of guilt by the court here also meets the definition of 'unprofessional conduct' under the definition in s 3(1)(h)(i) of the Act.
9. In relation to Allegation 1, we therefore find that the allegation is made out, and that Ms Ildiri has engaged in 'unprofessional conduct' within the meaning of s 3(1)(h)(i) and (iii) of the Health Professions Regulation Act 2005.

1. Allegation 2 is set out in the Final Referral Letter as follows:
   1. Between in or around September 2003 to in or around October 2007, Ms Ildiri failed to maintain adequate notes of her sessions with various clients.

(a) Ms Ildiri admitted in her police interview on 13 November 2007 that her 'filing system is horrendous', she is 'not very good with note taking', there were times that she did not document sessions and she does not keep records 'all the time', that sometimes she forgets to takes notes and that her notes are 'not chronological at all'.

(b) Ms Ildiri admitted in her submissions to the Board on 4 February 2009 that her record keeping has been 'less than adequate and not up to the required standard'.

1. For the period of conduct after 1 July 2007, the Board sought that we make a finding of 'unprofessional conduct' within the meaning of s 3(1)(a) of the definition in the Health Professions Regulation Act 2005, namely:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

1. For the period of conduct prior to 1 July 2007, the Board sought that we make a finding of 'unprofessional conduct' within the meaning of s 3(a) and (b) of the definition in the Psychologist Regulation Act 2005, namely:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered psychologist; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered psychologist by his or her peers;

1. The Board did not produce any of Ms Ildiri's client records, and relied solely upon her admissions[4]. This creates some difficulty for the Tribunal, as it is unable to assess the nature or seriousness of the allegation in order to make an objective finding and determination. The Tribunal does not consider that the interests of client confidentiality, whilst important, negate the obligation of the Board to provide proper material to the Tribunal support its allegations. At least some examples of the poor record keeping would have been helpful.
2. For the period before 1 July 2007, under the Psychologists Registration Act 2000, the Tribunal must make a finding whether the 'unprofessional conduct' is of a serious nature. In the absence of other material, the Tribunal cannot make any other finding than that the unprofessional conduct for Allegation 2 is not of a serious nature.
3. Through her counsel, Ms Ildiri admits this allegation of unprofessional conduct on this basis, and the Board did not contest this position.
4. In relation to Allegation 2, we therefore find that the allegation is made out, based on Ms Ildiri's admissions, and that Ms Ildiri has engaged in 'unprofessional conduct' within the meaning of s 3(1)(a) of the definition in the Health Professions Regulation Act 2005 (for the period after 1 July 2007), and within the meaning of s 3(a) and (b) of the definition in the Psychologist Regulation Act 2005 (for the period before 1 July 2007). For the period before 1 July 2007, to the extent we are required to do so, we find that the 'unprofessional conduct' for Allegation 2 was not of a serious nature.

1. Having found that Ms Ildiri has engaged in unprofessional conduct in relation to Allegations 1 and 2, we must now consider an appropriate determination. Given the very different nature of the two allegations, we consider it appropriate to deal with them separately.

Determination in respect of finding on Allegation 1

1. Section 77(4) of the Health Professions Regulation Act 2005 sets out the options available to the Tribunal by way of determination. The determinations include a requirement that the psychologist undergo counselling, a caution or reprimand, a fine, suspension or cancellation of the psychologist's registration, or further education or the imposing of a condition or restriction on the psychologist's registration. The Tribunal can make one or more of these determinations.
2. Although the legislative definitions lead us to a finding of 'unprofessional conduct' rather than 'professional misconduct' in this case, a similar range of determinations applies to both under the Act. There is nothing in the Act to suggest that the higher-order determinations are reserved only for 'professional misconduct'. Each matter turns on its own facts and circumstances. Common sense and common practice would simply suggest that, save for any mitigating factors, more serious misconduct or a more serious breach of professional standards would more commonly lead to a more serious determination. We have earlier noted that counsel for Ms Ildiri conceded that her underlying conduct should not be regarded as being of a lesser seriousness simply because the finding was one of 'unprofessional conduct'.
3. In Morris v Psychologists Registration Board[5], the Supreme Court rejected an argument that the gravest disposition (i.e. cancellation of registration) should be reserved only for the most serious form of conduct, and stated that the most appropriate determination must be a matter of discretion depending on all the circumstances.
4. Moreover, we have also earlier noted that 'unprofessional conduct' under the definition in s 3(1)(h)(i) of the Health Professions Regulation Act 2005 (which we have found) expressly covers a finding of guilt of for an offence where the health practitioner's suitability to continue to practise is likely to be affected because of the finding of guilt, or where it is not in the public interest to allow the health practitioner to continue to practise because of the finding of guilt. The nature of the finding of 'unprofessional conduct' in Allegation 1 therefore expressly requires us to consider Ms Ildiri's suitability to practise and/or the public interest in her continuing to practise, arising from the court's finding of guilt.
5. We therefore consider that, in relation to Allegation 1, the cancellation of Ms Ildiri's registration, or a longer-term suspension, are very much open to us. Indeed, the Board urged us to cancel Ms Ildiri's registration.
6. Counsel for Ms Ildiri contended that she had been suspended since November 2007, and that she had thus effectively served a 3½ year suspension already, which was longer than comparative determinations for other health professionals that had engaged, for example, in Medicare fraud. He urged us to allow Ms Ildiri's reinstatement to practise, subject to conditions for further education, ongoing therapy and supervision.
7. Ms Ildiri's counsel also expressed concern at the length of time it had taken for the Board to bring this matter before the Tribunal given her continuing suspension during this time. We think the situation quite regrettable. However, although Ms Ildiri unsuccessfully sought that the Board stay the suspension pending the hearing, it is not apparent to us that Ms Ildiri sought any review or stay by the Tribunal, as was open to her. We note that the Magistrates' Court proceedings were not resolved until 2009, and at least one adjournment in the Tribunal proceedings was sought at Ms Ildiri's behest. Having said this, we agree that the Board could have dealt with this matter more expeditiously, and should have done so in circumstances where it had imposed an 'own motion' suspension pending a hearing, and refused a stay. This is a relevant mitigating factor, and we have taken the existing 3½ year suspension into account in forming our views although, in the circumstances and for practical purposes, it does not alter our ultimate determination.
8. Counsel for Ms Ildiri also raised the Charter of Human Rights and Responsibilities Act 2006. He argued that s 26 of the Charter prevented Ms Ildiri from being punished twice for the same offence, and that s 38 required the Tribunal to act compatibly with the Charter and therefore, where a range of options was open to it, to apply the least punitive option. We consider this argument to be misconceived.
9. The Tribunal has consistently stated, and the appellate courts have consistently held, that the purpose of disciplinary proceedings is primarily to protect the public, and not to punish the practitioner. In Ha v Pharmacy Board of Victoria[6], it was stated:

[90] The appellant has committed breaches of the criminal law, and has been dealt with by the courts and punished accordingly.

[91] The Board, when imposing a penalty after a finding of professional misconduct, is not concerned with punishment. The penalty powers are there primarily for the protection of the public and to protect the reputation of the profession itself.

[92] The principles are well established by high authority. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201, the High Court said -

"Although it is sometimes referred to as the `penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." (Emphasis added).

[93] In the later case of New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183, the Court said -

"The power of the Court to discipline a barrister is ... entirely protective and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." (Emphasis added).

[94] Although these principles were stated in relation to a barrister, they are of general application in respect to professional bodies.

1. Given that our determination is not punitive, and is not intended to be punitive, the Charter's protection against being 'punished' twice for the same offence is not engaged here. We must simply make an appropriate determination under the Health Professions Regulation Act 2005 having regard to our finding, and having regard to the usual principles applicable to determinations for disciplinary offences.
2. As to the 'usual' principles applicable to determinations for disciplinary offences, these have been variously described in the case law, but are generally considered to include the following[7]:
   • (a) the protection of the public;
   • (b) the maintenance of professional standards in the eyes of the public;
   • (c) a weighing of the public interest in the practitioner continuing to practise against the public interest in protecting clients from any repetition of the conduct exhibited;
   • (d) evidence of insight and/or remorse, where relevant;
   • (e) the role of general and specific deterrence.

The first two principles are commonly regarded as being of primary importance. Some of these principles may overlap, and there may be relevant mitigating factors to consider. Whilst a degree of parity in determinations for like matters is desirable, the most appropriate determination is a matter of discretion for the Tribunal, after considering the principles holistically, and in the particular circumstances of the case before it.

1. It is worth noting that, although we have had regard to the Magistrate's comments in sentencing Ms Ildiri, we have not given over-riding weight to them - particularly insofar as they deal with punishment.
2. There is an additional complicating factor in this case. Ms Ildiri suffers from myasthenia gravis, a chronic neuromuscular disease characterized by episodic muscular weakness. In Ms Ildiri's case, her condition appears to be triggered by anxiety and stress, and she did not give evidence at the hearing before us because of this, based on a letter from her GP[8]. Her condition is commented upon by the Magistrate, and in a number of reports and submissions before us, and the Board placed some emphasis on it. We will comment on this further below, but an issue of principle arises as to the extent that we should consider her medical condition in this case. We have taken the view that:
   • Ms Ildiri's myasthenia gravis is a potential mitigating factor;
   • the myasthenia gravis is relevant to our determination insofar as there is a potential nexus between it and the unprofessional conduct;
   • we should not consider Ms Ildiri's myasthenia gravis insofar as it may impair her future practice as a psychologist in any manner unrelated to her unprofessional conduct. We agree with counsel for Ms Ildiri that to do so would be to go beyond the complaint formulated against her, and to go beyond a proper determination appropriate to the finding on that complaint[9]. It would involve a broader-based inquiry into her fitness to practise beyond the scope of this proceeding. If the Board has concerns about Ms Ildiri's potential impairment from future practice, that is a separate matter for the Board under other provisions of the Health Professions Regulation Act 2005;
3. Given that Ms Ildiri's failure to be called to give oral evidence in relation to the determination is 'explained' by her GP's letter, we do not draw any adverse inference on factual matters that we are unable to ascertain by reason of this failure[10]. We note nonetheless that counsel for Ms Ildiri did not seek any adjournment of the hearing on determination to a time when she may be better able to give evidence on her behalf, nor was any statement or affidavit from Ms Ildiri filed in lieu of oral evidence, nor was direct medical evidence called on her myasthenia gravis. Dr David List (to whom we will refer later) expressed an opinion that there were no psychological or emotional impediments to Ms Ildiri giving evidence[11]. Ms Ildiri is certainly not required to give evidence in her own cause, but the absence of positive evidence from her on important matters such as insight and remorse is problematic given the limited other evidence led in her favour.
4. We turn then to a consideration of the submissions and evidence before us on the question of determination.
5. Counsel for Ms Ildiri argued that the Board had focused solely on the past actions of Ms Ildiri or 'historical matters', but that we should take a contextual approach to those matters and also look at more contemporary material and her 'intrinsic qualities' as they subsist today. We agree, but we are not convinced that this overall material supports Ms Ildiri's cause in the manner contended. To the extent Ms Ildiri's counsel argued that some of the material he produced is 'uncontested in any way', it must be noted that he did not call the authors of reports and references upon which he relied (other than Dr List), and much of his material is in our view untested rather than uncontested.
6. Ms Ildiri's primary material in relation to the determination relies upon the report and evidence of Dr David List, a consultant clinical psychologist[12]. Dr List's written report is based upon a single medico-legal consultation in March 2011, which he acknowledged was primarily interview-based and did not utilise any diagnostic tools. Dr List had subsequently taken on a role as Ms Ildiri's treating psychologist, and he indicated the conclusions in his report had not changed (and had indeed been reinforced) by three further consultations with Ms Ildiri prior to the hearing. In our view, these factors provide some shortcomings in Dr List's assessment, but it is nonetheless useful to our deliberations.
7. Counsel for Ms Ildiri drew from Dr List's report material that indicated she was 'intelligent and articulate', 'understands that her actions were seriously unprofessional', that she had expressed 'credible and consistent insight into her professional failings', and that she had made 'subsequent efforts to rehabilitate herself through counselling, further training and decisions to finally establish her functional independence'. Dr List's conclusion is that Ms Ildiri presents 'a very low risk to the community of committing future offences and/or conducting herself unprofessionally'.
8. These matters (which we have taken as quotes from counsel's written submissions) are, however, quite selective. Whilst Dr List spoke to these positive attributes and others, he also quite properly conceded many other issues. In particular:
   • although Ms Ildiri did not attempt to minimise her actions, she struggled to genuinely comprehend how she had come to commit the offences[13].
   • Ms Ildiri's unprofessional conduct has its genesis in unresolved family dynamics[14]. Those family issues remain unresolved.
   • although Ms Ildiri has decided to establish her functional independence, she has not yet done so. She has until now been unable to extricate herself from an untenable position within her family, with the professional consequences being self-evident and tragic, and their causes not fully addressed.
9. Dr List bases his opinion that Ms Ildiri is 'low risk' on a number of factors including the impact of her suspension, the criminal conviction, her repayment of the money acquired fraudulently, her 'reportedly successful' withdrawal from gambling, and her 'emerging' understanding of the causes of her behaviour. He notes her 'preparedness' to pursue therapy and further training. We will comment on some of these factors further, below, as we are not entirely convinced by Dr List's optimism. Dr List would not be drawn on whether he would recommend her immediate return to practise as a psychologist, and his report contains recommendations for therapy and supervision 'if and when' she returns to practise. In particular, despite his opinion that Ms Ildiri is 'low risk', this opinion is somewhat hedged by the comments that immediately follow in his report:

At the same time, she presents a work in progress in relation to the substantial issues confronting her. Even three years after the fact, she struggles to understand, pursue, and achieve the developmental milestones of adulthood regarding her mother and sister, and has made limited inroads into the insights required for substantial and genuine psychological change[15].

1. Dr List reiterated on several occasions in his oral testimony that Ms Ildiri was a 'work in progress'. Given that Dr List's report was the only directly tested evidence before us, we do not consider it provides us with the overall confidence, or a sufficient base, to satisfy us that a lower-level determination is appropriate, by reference to the principles applicable to determinations for disciplinary offences that we have outlined above. It certainly does not satisfy us that a more contemporary view of Ms Ildiri's intrinsic qualities supports her cause, or that a determination by way of cancellation or longer-term suspension is inappropriate in this case. Indeed, we have concerns that Ms Ildiri's psychological condition, and the underlying causes of her unprofessional conduct, remain unresolved and we consider that protection of the public, maintenance of professional standards, and the public interest necessitate a higher-order determination in this case. Indeed, as indicated below, we consider that these factors warrant a cancellation of her registration in the particular circumstances of this case.
2. We reach a similar view in relation to the other material and submissions provided on Ms Ildiri's behalf.
3. As Ms Ildiri's counsel points out, she pleaded guilty at the Magistrates Court, at an early stage in the proceedings, and satisfactorily completed her Intensive Corrections Order. She also repaid the monies she misappropriated. These are perhaps indicators that she accepted responsibility for her actions. However, the sentencing remarks of the Magistrate were far from favourable. He noted the evidence of the psychiatrist Dr Jeuniewic that Ms Ildiri (two years after the offences) still tried to justify and rationalise her offending. The Magistrate considered it 'inevitable' that Ms Ildiri would have to plead guilty given the case against her. He thought Ms Ildiri could have voluntarily repaid the defrauded amount as a genuine sign of remorse, rather than adopting a cavalier attitude and lending money instead to family and friends. She only repaid the money after being ordered by the court to do so. The Magistrate commented that Ms Ildiri's attitude 'tended to suggest her remorse was convenient rather than genuine'.
4. Dr List refers to Ms Ildiri's remorse now being 'palpable'. Her counsel tendered two written references[16] and a letter from a problem gambling counsellor (referred to below) that also refer to her remorse, although the authors of these documents were not called and there are limitations in this material. One of the references was from a woman who had not seen Ms Ildiri for three years prior to the date she wrote the reference, and with whom she had a talk over a coffee. The other is from a woman for whom Ms Ildiri has recently worked as a nanny, and her comments about Ms Ildiri's 'innate honesty and integrity', and that 'she can be fully trusted in every avenue of her life', seem at odds with the multiple counts of fraud committed. We were unable to test the level of knowledge of the referees or the basis for these views.
5. Despite the limitations in this material, there is at least some evidence to indicate an emergence of remorse, which counts in Ms Ildiri's favour, although it appears from the written material as a remorse borne more of shame and embarrassment than clear insight and acceptance. A degree of remorse alone is insufficient to dissuade us from our determination.
6. Ms Ildiri's counsel also contends that she has completed counselling to deal with her gambling issues, and has successfully withdrawn her interest in gambling. To the extent he relies in part on Dr List for this, Dr List does no more than note 'her reportedly successful withdrawal from interest in gambling'. He has no verification of this. The Magistrate had, in May 2009, commented that the optimism that she was in control of the problem was misplaced, as her gambling 'seems to have an addictive quality' and was continuing earlier that same year, over a year after her arrest and despite initial counselling. Moreover, the offences themselves had commenced in 2003, a year after Ms Ildiri had been receiving counselling through Gamblers Anonymous.
7. The more contemporary evidence before us is a letter from Ms Stolevska, a problem gambling counsellor[17]. In our view, there are limitations in this letter, and Ms Stolevska was not called to give evidence. She refers to six sessions with Ms Ildiri over two years, with only two sessions in the last year, on 30 August 2010 and 28 March 2011 - the latter presumably as a basis for her letter dated 29 March. This is at odds with, and casts doubt upon, Ms Ildiri's account to Dr List, where Ms Ildiri is quoted as having stated: "I have also been seeing a gambling counsellor since 2008. I was seeing her monthly. I stopped gambling a good two years ago. Now I don't think about it."[18]
8. Ms Stolevska notes that Ms Ildiri's gambling was an escape from stress and anxiety (although there is no indication that these causal factors are under control, and Dr List's evidence would suggest otherwise). She notes the 'limited number of counselling sessions', and that 'Ms Ildiri reports that she had not gambled on electronic gaming machines in the last twenty months'. Ms Stolevska believes that the shame and embarrassment of Ms Ildiri's court appearance 'will be a strong deterrent for her to gamble in a controlled manner in the future'. These are qualified statements, and there is no real verification of Ms Ildiri's current behaviour. In our view, Ms Stolevska's letter is inconclusive as primary evidence on this issue.
9. At the Magistrates Court hearing, Ms Ildiri had relied on an assessment by Dr Jeuniewic, a psychiatrist[19], who also gave evidence to that court. His report was not relied upon by Ms Ildiri before us, but was provided in the Board's material. We find the situation with Dr Jeuniewic problematic. In particular:
   • According to Dr Jeuniewic's report, he first started treating Ms Ildiri in 2002. He dealt with some family issues then. He also dealt with her then gambling habit and referred her to Gamblers Anonymous, and thought she had got control of this problem. (This was however before the offences committed from 2003 to 2007, which would suggest otherwise).
   • Dr Jeuniewic did not see Ms Ildiri again until March 2008, following her arrest. He then noted that she 'strenuously and consistently denied that she claimed for work she had not done in one way or another'. (The Magistrate had cause to comment on Ms Ildiri's rationalisation of her behaviour). Dr Jeuniewic also commented on her propensity as a psychologist to become enmeshed in issues of the Turkish community 'and thus lose her clinical judgement'.
   • Dr List's report quotes Ms Ildiri as stating in March 2011: "I started seeing [her psychiatrist] Dr Nick in 2001. ... He's been very good. I see him every month or two for 30-45 minutes."[20]
10. There is thus a therapeutic relationship between Dr Jeuniewic and Ms Ildiri, albeit intermittent in the early phase, but one that appears to have continued positively in very recent times according to Ms Ildiri's own account to Dr List. We would have thought Dr Jeuniewic would therefore be well-placed, indeed probably the best-placed, to comment on her personal development and insights relevant to our determination, and whether she has progressed from the concerns he had earlier expressed. We agree with the Board that the absence of a report or evidence from Dr Jeuniewic is surprising and disturbing. Upon questioning, Ms Ildiri's counsel indicated his instructions were that Ms Ildiri had recently ceased seeing Dr Jeuniewic as a result of her commencing therapy with Dr List, but that Dr Jeuniewic may not yet be aware of this. We find this explanation quite unsatisfactory.
11. In his evidence, Dr List alluded to a breakdown in the relationship with Dr Jeuniewic given the lack of progress through his treatment. This raises more questions than it answers, given Ms Ildiri's reported comment to Dr List that the relationship was good, and given Dr List's opinion that Ms Ildiri is still a work in progress and has made limited inroads into the insights required for substantial and genuine psychological change.
12. Although Ms Ildiri's counsel did not rely upon Dr Jeuniewic's report and evidence before the Magistrate, he did rely upon the report and evidence before the Magistrate of Dr King, a neurologist[21]. As we understand it, the report was used to confirm Ms Ildiri's diagnosis with myasthenia gravis as a potentially mitigating factor, and his indication that the illness is made worse by emotional stress and she had frequent relapses due to this. Dr King's letter suggests that her anxiety from her myasthenia gravis, or the treatment for it, could affect her ability to think clearly and reasonably.
13. In addition, we have the letter from Dr Renzaho[22], referred to earlier, recommending that she not give evidence at the hearing before us because of this condition. She notes a further episode brought on by stress and triggered on 29 March 2011, from which Ms Ildiri is still recovering. Although Dr Renzaho does not make the link, we note that the 29 March date matches up with the time Ms Ildiri was obtaining references, seeing the gambling counsellor to obtain a letter, and first seeing Dr List.
14. We accept that Ms Ildiri's myasthenia gravis is a relevant mitigating factor and that, by all accounts, she still suffers materially from this condition. Dr Jeuniewic had said her unprofessional conduct 'could not be fully explained' by her myasthenia gravis (and the Magistrate appeared to accept this), but this comment and Dr King's evidence at least raise the prospect that there may be at least some causal link between her medical condition, or its treatment through steroids, and her conduct. If so, that causal link is continuing and unresolved. Unfortunately, neither Dr King nor Dr Renzaho were called before us, and Dr List indicated that he was not expert on myasthenia gravis. We are therefore unable to resolve this issue as part of our determination. This is again unsatisfactory.
15. To the extent Dr List considers Ms Ildiri to be at 'low risk' of reoffending in the same manner, we think this likely to be the case on the limited material before us. However, a low risk of reoffending is not, of itself, sufficient to dispose of the issue of protection of the public. The underlying causes of her emotional stress and anxiety, and the causal links to her unprofessional conduct, appear to remain unresolved over an extended period. In terms of the protection of the public and the maintenance of professional standards, we consider that the public interest militates against an immediate return to practise - particularly given the very nature of her intended practice as a psychologist and counsellor to others who may be vulnerable.
16. We also have a concern that much of the so-called 'evidence' that Ms Ildiri has placed before us is merely a reporting by the authors of letters and reports of things she has told them, and that are neither verified or tested. This is certainly the case with the referees and Ms Stolevska. Much of Dr List's report also reflects things he was told, and he conceded he had not employed any diagnostic tools in his medico-legal assessment. Moreover, there is a pattern in the material of events timed to assist her cause in legal proceedings, but without clear and enduring follow-through. For example:
    • the initial counselling with Gamblers Anonymous, discontinued with a relapse leading to the unprofessional conduct, and a claimed monthly attendance at further counselling, not supported by the problem gambling counsellor, with contact re-established only a month before the hearing.
    • a renewed interest in pursuing therapy and supervision, commencing only after the medico-legal consultation with Dr List a month before the hearing.
    • reliance on references and reports from people with whom she has only had intermittent or recent contact, rather than anyone that can comment on her progression over an extended period.
    • reliance on further training, and advising others that she was undertaking further training. The only evidence of this are two courses, in 'ethical dilemmas' and 'boundaries' completed as a one or two hour on-line course with self-printed certificates on the Thursday and Saturday before the Monday hearing before us (and these at a time when Dr Renzaho is recommending she avoid stress).
17. We do not place great weight on these individual examples. However, there is an element of 'convenience' in the timing of these matters. We share some of the misgivings of the Magistrate about the optimism shown by others in her genuine rehabilitation to date.
18. In terms of general and specific deterrence, we consider a higher-level determination is justified. Although we were referred to older cases before the Psychology Board of Victoria where reprimands and fines had occasionally been used in cases of fraud, there needs to be a clear message that this form of unprofessional conduct is reprehensible and not to be tolerated. Public monies were defrauded, and client signatures forged. More particularly, this was not an isolated incident. There was a gross betrayal of trust in the psychologist-client relationship borne of continuing dishonesty over an extended period. Potential harm was caused to clients who missed out on counselling sessions that they were entitled to, and needed. Mitigating factors, and the demonstration of remorse and insight, may often lead to a reduced determination. They are not sufficiently evident here.
19. For all of these reasons, we have come to the view that the cancellation of Ms Ildiri's registration is warranted. Whilst we have seriously considered the option of suspension, we believe that cancellation is the preferable and correct determination in this case. This should be apparent from the foregoing reasons, but we emphasise the following:
    • an order for suspension carries with it an automatic right to recommence practice upon expiry of the period of suspension, and must therefore be based on a view that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise[23]. After 3½ years, there is still little positive sign evident to us that Ms Ildiri has sufficiently overcome the underlying causes that led to the commission of the offences, and the evidence is that she is still a work-in-progress. On the limited evidence before us, we find it difficult to form any view on when Ms Ildiri may be fit to practise. The period of any suspension we might impose would therefore be somewhat arbitrary. In any event, a longer-term suspension, or the imposing of significant conditions upon her return to practice, would be tantamount to a cancellation of her registration by default.
    • we are not at all persuaded, on the limited evidence before us, that the underlying causes of the unprofessional conduct have been genuinely addressed, or that Ms Ildiri yet shows genuine insight into her wrongdoing or its causes - certainly not in a manner that manifests itself in any appreciation of how she might practise effectively and responsibly as a psychologist in the future. The case on behalf of Ms Ildiri was more suggestive than substantive, and did not provide any real demonstration of her readiness to resume practice. At best, there are recommendations from Dr List for future therapy, supervision or training that might resolve these issues. Given her record in counselling to date, and the case presented to us, we do not see our role in the protection of the public as simply taking her 'on trust' on such important matters.
    • on the evidence before us, we consider that the protection of the public and the public interest both warrant a cancellation of Ms Ildiri's registration, and that she be required to re-apply for registration and satisfy the Board of her fitness to practise. This will also enable the Board to deal with many of the gaps in the material before us, to form a longer-term view, and to impose conditions on her re-registration (if any) that may then be appropriate. Ms Ildiri has a right of review if her application for registration is not approved.
20. The cancellation of Ms Ildiri's registration provides her with the opportunity to re-apply for registration as soon as she is ready. In saying this, we are not minded to impose any specific period within which she is disqualified from reapplying for registration. In the circumstances of this case, the timing of any application for re-registration should be determined by sustained and demonstrable progress in her personal development and professional rehabilitation, rather than an arbitrary time limit (and in this case may thus prove a better option for Ms Ildiri than a longer-term suspension). Whether any application for re-registration is just a couple of months away, or some longer period, is a matter for Ms Ildiri and those counselling and advising her.

Determination in respect of finding on Allegation 2

1. At the hearing, there was little discussion about Allegation 2 or the determination that should follow from our finding.
2. Given the marked difference between Allegations 1 and 2, we do not consider that the determination for Allegation 2 should simply be subsumed into the determination we have imposed for Allegation 1.
3. For the period after 1 July 2007, the full range of determinations in s 77(4) of the Health Professions Regulation Act 2005 is open to us. However, in the absence of the Board seeking a higher-level determination, based upon more detailed evidence of breach, we consider that the application of the usual principles applicable to determinations for disciplinary offences (i.e. as set out earlier in these reasons) would lead us to a determination at the lower end of the range. For the period before 1 July 2007, having found that Ms Ildiri's poor record keeping is unprofessional conduct that is not of a serious nature, the range of determinations that would apply under the Psychologists Registration Act 2000 are more limited.
4. In all the circumstances, for the conduct in Allegation 2, we consider a reprimand to be appropriate in respect of both periods. As has been stated in other cases, a reprimand should not be considered a 'slap over the wrist', nor trivialise a serious lapse of professional standards[24]. This is a serious infringement. Good clinical practice has, at its heart, the keeping of clear, accurate and contemporaneous client records. This is important for a client's treatment and well-being, for cases where a client transfer or reporting is required, and for the practitioner's benefit and protection if particular therapy or conduct is later called into question.
5. Having particular regard to the protection of the public and the maintenance of professional standards, we also consider that Ms Ildiri should undertake further training in proper client record keeping if and when she returns to practise as a psychologist.

[1] s 289 of the Health Practitioner National Regulation Law (Victoria) Act 2009, and s 169 of the Health Professions Registration Act 2005.

[2] Psychologists Registration Act 2000

[3] For the record, had we needed to do so, we would have found that, for the purposes of the Psychologists Registration Act 2000, the conduct prior to 1 July 2007 amounted to unprofessional conduct of a serious nature.

[4] A partly redacted copy of the record of police interview of 13 November 2007 (referred to in the particulars to Allegation 2) was tendered at the hearing (Exhibit B1).

[5] Unreported decision of the Supreme Court of Victoria (No. 6208 of 1997), Harper J. (BC9707354 at 24-25), included in the Board's folder of authorities.

[6] [2002] VSC 322 per Gillard J. at [90]-[94]

[7] In the context of a psychologist, see for example Psychologists Registration Board of Victoria v Pallini [2008] VCAT 2632 at [63], and Psychologists Registration Board of Victoria v Didenkowski [2010] VCAT 183 at [51], both included in the Board's folder of authorities.

[8] letter from Dr Renzaho to Ms Ildiri dated 19 May 2011 (Exhibit R4)

[9] following Walsh v Law Society of NSW [1999] HCA 33 (High Court), particularly in the joint judgement of McHugh, Kirby and Callinan JJ at [67].

[10] in any event, the evidentiary rule in Jones v Dunkel does not directly apply in this proceeding.

[11] Medico-legal report of Dr David List, consultant clinical psychologist, dated 29 March 2011, provided on behalf of Ms Ildiri (Exhibit R2) at p14.

[12] ibid. It is also worth noting, for the record, that Dr List is a former president of the Psychologists Registration Board of Victoria and member of the Disciplinary Appeal Board, and he is a sessional member of this Tribunal and occasionally sits in Health Professions disciplinary proceedings.

[14] These matters are set out in Dr List's report. Given their sensitive nature involving other people, we do not detail them in these 'public' reasons.

[15] Dr List's report (Exhibit R2), ibid, at p13

[16] These references are included in Exhibit R1. Given the suppression order made in relation to the identity of non-expert witnesses, they are not named in these reasons.

[17] Letter dated 29 March 2011 from Violetta Stolevska, Problem Gambling Counsellor, Gamblers Help Northern/Banyule Community Health. The letter is included in Exhibit R1.

[18] Dr List's report (Exhibit R2), ibid, at p8

[19] Letter/report dated 24 March 2009 from Dr Nikolai Jeuniewic (Exhibit B2).

[20] Dr List's report (Exhibit R2), ibid, at p8

[21] Letter/report dated 15 May 2009 from Dr John King (Exhibit R3)

[22] Letter from Dr Renzaho to Ms Ildiri dated 19 May 2011 (Exhibit R4)

[23] Medical Practitioners Board v White [2011] VCAT 592 at [52]- [53], following Mellifont v Queensland Law Society Inc [1981] QldR 17 at 31 and Law Society of NSW v McNamara (unreported, Court of Appeal NSW (CA 160 of 1979), per Reynolds JA)

[24] see, for example, Psychology Board of Australia v Love [2011] VCAT 2040 at [53], applying Peeke v Medical Board of Victoria (unreported, Supreme Court).