Administrative and Disciplinary - Psychology Board of Australia - Professional Misconduct - Improper relationship with patient - Engaging in consensual intimate physical and sexual conduct with patient - Failure to keep contemporaneous notes - Disclosure of personal details to patient - Respondent has limited insight into the risks arising out of the misconduct - Respondent reprimanded - Registration is cancelled - Disqualification from applying for registration imposed for a period of three years - Respondent to pay the complainant's costs

Health Practitioner Regulation National Law ss 193, 196

Health Practitioner Regulation National Law (South Australia) Act 2010 s 4

Psychology Board of Australia v Shahinper [2016] QCAT 259

Shahinper v Psychology Board of Australia [2017] QCA 96

Medical Board of Australia v Alroe [2016] QCA 120

Psychologists Board of Queensland v Meredith [2004] QHPT 5

Psychology Board of Australia v Cook [2014] QCAT 162

Psychology Board of Australia v Bakjac [2016] SAHPT 3

The Tribunal made an order under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the name of the patient AB or any information tending to identify her.

1. Mr John Maroulis (the respondent) was registered as a psychologist pursuant to the provisions of the Health Practitioner Regulation National Law (the National Law).[1] He first obtained registration under the previous State legislation in 1989 and remained registered from then until the date of this hearing.
2. Pursuant to s 193 of the National Law, the complainant (the Board) formed the view that the respondent had behaved in a way that constituted professional misconduct. The allegations related to conduct in March-April 2016 and concerned an improper relationship with a patient. The Board referred the allegations to the former SA Health Practitioners Tribunal. The matter was subsequently transferred to this Tribunal in August 2019 when the former Tribunal was dissolved and its jurisdiction conferred on SACAT.[2]
3. The Tribunal received a Statement of Agreed Facts and an agreed Book of Documents. The respondent admitted that his behaviour constituted professional misconduct. At the conclusion of the hearing on 16 December 2019 (and after retiring to consider the matter), the Tribunal made a finding to this effect. It imposed disciplinary action pursuant to s 196 of the National Law as follows:
   • (a) The respondent is reprimanded.
   • (b) The respondent's registration is cancelled, effective forthwith.
   • (c) The respondent is disqualified from applying for registration as a registered health practitioner for a period of three years.
4. The Tribunal also ordered that the respondent pay the complainant's costs of the proceedings.
5. The Tribunal now explains its reasons for the decision.

1. The Tribunal makes findings in accordance with the Statement of Agreed Facts. The Tribunal also has regard to the further material contained in the agreed Book of Documents and will indicate where further findings are based on that material and on inferences drawn from the agreed facts.
2. In summary, the patient (whom we will call AB) was referred by her general practitioner to the respondent for psychological assessment and treatment. She had consultations with the respondent at his rooms on 29 February 2016 and 7 March 2016. The respondent's notes of these consultations appear in the Book of Documents and are annexed to the Statement of Agreed Facts.
3. During the initial consultation the respondent was made aware that AB was 36 years of age, and that her daughter had a developmental disability. AB had herself experienced learning difficulties, and there was a history of mental health disorders in her family. AB was engaged in family law proceedings with her former husband and had serious difficulties in her relationship with her present partner. The extent of such difficulties is apparent from the respondent's notes.[3]
4. At the second consultation the respondent made a "tentative" diagnosis of "chronic major depression disorder with anxiety disorder".
5. The Tribunal agrees with the submission of the complainant that AB had "laid bare" her life history and personal circumstances to the respondent in the course of the two consultations. This is of course a common feature of psychological consultations and it is one reason why patients are especially vulnerable within the context of such therapeutic relationships. The existence of the psychologist / patient relationship gave rise to an imbalance of power. The disclosure of highly personal confidential information heightened that imbalance. The suggested presence of depression and anxiety was another indicator of potential vulnerability and the sharing of information about relationship difficulties with her current partner was even more significant in that regard.
6. In addition, the complainant drew attention to what the respondent did not know about AB. The evidence suggests that AB had failed to bring to either appointment the referring document from the GP which took the form of a "GP Mental Health Treatment Plan".[4] This would have provided further information concerning her psychiatric history. The Tribunal accepts that the respondent was not in a position after two appointments to have a clear understanding of the patient's condition.
7. Be that as it may, this was a vulnerable patient and the respondent ought to have been well aware of that fact. It was a situation in which the psychologist was required to be particularly vigilant to observe and maintain appropriate boundaries in the relationship.
8. On 18 March 2016 AB was staying at a caravan park. At about 9.30pm that night the respondent, by arrangement with AB, attended at AB's cabin at the caravan park. Such attendance was not as a result of any emergency situation and it ought not to have occurred. When the respondent arrived, AB's partner was not present and her children were asleep. The respondent should have left immediately, but he entered the cabin and remained for an hour or so.
9. During this time the respondent engaged, "for a not insignificant time", in consensual intimate physical and sexual conduct with AB. This included kissing, his touching of her vagina and her of his penis. It did not include sexual intercourse.
10. The respondent made no contemporaneous clinical or other note concerning his attendance at the caravan park or his interaction with AB. There is nothing to suggest that there was any therapeutic content to his visit.
11. On 20 March 2016 the respondent, at the request of AB, picked her up in his car at about 7.30pm near her home and drove her to the caravan park to collect a pillow she had left behind when booking out that morning. Clearly it was inappropriate for him to do this. They were together for about one hour on this occasion.
12. During this time, whilst in the respondent's motor vehicle, the respondent engaged with AB in consensual intimate physical and sexual contact, including her touching his penis while he was clothed.
13. The respondent made no contemporaneous clinical or other notes about his interaction with AB on 20 March 2016. There is nothing to suggest that there was any therapeutic content to this interaction.
14. AB made a disclosure to a third party on 14 April 2016 as to the respondent's conduct and the third party made a notification.
15. The agreed facts also indicate that the respondent had during his involvement with AB divulged to her various personal details about himself, but it is unclear when such disclosures were made. The disclosure of these personal details was inconsistent with the maintenance of proper boundaries within the professional relationship.
16. The description of events on 18 and 20 March 2016 is that the conduct was consensual. The Tribunal understands this to mean, and fully accepts, that AB (as well as the respondent) willingly participated in such conduct. The Tribunal emphasises, however, that AB was a vulnerable patient. Her ability to make wise choices about her involvement was compromised by her vulnerability. This should have been obvious to the respondent as an experienced psychologist.
17. The agreed facts do not canvass why the respondent attended the caravan park on 18 March 2016. He did not give evidence before the Tribunal. There is reason to suspect that he went there in the hope of pursuing a personal relationship. Subsequent events give support to that theory.
18. The other possibility, raised in pleadings but not supported by any evidence from the respondent, is that he went there to provide "couples counselling" to AB and her partner, albeit that the partner had previously been described as completely opposed to any such counselling.[5] If so, the respondent should have left as soon as he realised the partner was not present.[6]
19. The Tribunal does not make a finding as to why the respondent went to the caravan park on 18 March, but when he decided to stay (and remained for an hour or so) we find that he at very least succumbed to the opportunity to pursue an inappropriate relationship with a vulnerable patient.
20. The Tribunal further finds that the respondent's decision to return to the park with AB on 20 March 2016 must have been taken in the hope and expectation that further intimate conduct might occur between them. He must surely have identified that as a strong possibility when AB requested his attendance and he appears to have been quite willing to participate in further improper conduct.
21. This decision to further pursue the improper relationship on 20 March was taken after an opportunity to reflect on the inappropriateness of what had occurred two days earlier. The Tribunal finds that the respondent chose to pursue his own gratification in disregard of the vulnerability of AB and the damage that might potentially be caused to her.
22. In this regard the Tribunal finds that the improper relationship had the clear potential to not only destroy the patient's professional relationship with the respondent, but also to damage the patient's emotional well-being and to compromise her ability to trust other health practitioners in the future. These potential risks should have been foremost in the respondent's mind. He appears to have paid them scant regard.
23. To the contrary, the respondent chose to exploit the professional relationship for the purposes of his own gratification. AB came to him for professional help and he took advantage of her vulnerability.

1. An important part of the task of this Tribunal is to assess the degree of insight and contrition shown by the respondent and the risk of further misconduct in the future.
2. The respondent filed his initial Response to the complaint on 3 October 2019. This was of course some years after the conduct occurred and following the investigation processes of the Board. In the response dated 3 October 2019 the respondent denied engaging in any consensual intimate physical or sexual contact with AB.
3. He admitted attending the caravan park on 18 March 2016, allegedly to provide counselling to AB and her partner.[7] He asserted that AB attempted to instigate physical contact but he attempted to resist such "unsolicited and unexpected physical advances". He "denies that there was consensual intimate physical and/or sexual contact" other than AB kissing him one or more times. He further denied that he "engaged in any consensual intimate physical and/or sexual contact' with AB on 20 March 2016.
4. These denials were false. They are inconsistent with the facts as now agreed and found by the Tribunal. Thus, as recently as October 2019 the respondent has falsely denied his professional misconduct. Even more significantly, he has sought to lay the blame on a vulnerable patient, whilst falsely maintaining that he had sought to resist her advances.
5. An Amended Response was dated 12 November 2019. In this response the respondent admits the sexual contact between AB and himself on 18 March but again claims that it was instigated by AB and that he attempted to resist it.
6. A Further Amended Response was filed by the respondent on 28 November 2019 in which the respondent eventually admitted that consensual sexual conduct occurred on 18 March. This response no longer sought to blame the patient as the instigator of unwanted intimacy.
7. Thus there has been a staged movement to the position where the basic misconduct was admitted. That progression has the hallmarks of the respondent at each stage seeking to minimise his culpability but eventually being forced by the weight of evidence to admit what has occurred. The Tribunal remains concerned that the eventual admissions may well have been compelled by pragmatic considerations rather than true insight, acknowledgement and contrition.
8. Further, the Further Amended Response also raises issues which cause concern to the Tribunal.
9. In this Further Amended Response the respondent specifically denied that his conduct involved the pursuit of sexual gratification in disregard of the interests of AB. The Tribunal has made findings on these matters as indicated above. Our findings call into question the degree to which the respondent really understands and acknowledges the gravamen of his misconduct. It appears to the Tribunal that the respondent's insight remains limited. The Tribunal is not satisfied that the respondent has any real appreciation of the risks to the patient as a result of his misconduct. We are not satisfied that he fully understands or acknowledges that he put his personal interests before those of the patient.
10. These factors are of importance in assessing the degree of risk that the respondent presents in the future.

1. The respondent tendered a medical report from a psychiatrist, Dr Marco Giardini dated 13 December 2019.[8]
2. The respondent had been referred to Dr Giardini for psychiatric assessment in October 2016. Dr Giardini indicated that the report was based on subsequent clinical interviews, as well as professional interactions over the last 16 years concerning mutual patients. To that extent the report was in part a reference concerning observations of the respondent's professional performance generally. Dr Giardini expressed the view that the respondent carried out his duties in a professional and carefully deliberate manner. He found the respondent to be "highly conscientious, polite and willing to do what he can to assist patients in an ethical manner". If the respondent had a weakness, it might "lie in a tendency to too strongly empathise with his patients".
3. Dr Giardini indicated that (in relation to the complaint) he had had detailed discussions with the respondent concerning the subject of boundary transgressions and violations with patients. He found the respondent to "display a keen interest to learn about these concepts and challenges, and he seems to have learned important lessons from this whole experience".
4. After discussing general principles relevant to such issues, Dr Giardini appears to express the view that the respondent's conduct was more likely due to a combination of naivety, personal stress and anxiety, and a degree of social isolation. No view is expressed as to the degree of risk of the respondent repeating conduct of this nature in the future.
5. Counsel for the complainant pointed out that Dr Giardini had apparently been provided with the Amended Response, but not the Further Amended Response. This was significant as at that stage the respondent was still claiming that he attempted to resist unwanted advances by AB. It was not clear whether Dr Giardini was aware of the ultimate agreed facts. Counsel submitted that this diminished the value of any reference from Dr Giardini as well as the value of his expert opinion. There is force in this submission.
6. The respondent tendered eight further character references.[9] We have considered these references and give them such weight as is appropriate. However, most of the referees appear to be aware only of the allegations against the respondent and not the fact of his ultimate admissions. It is in that context that many of the referees state that the allegations are "out of character". It leaves open the clear possibility that these referees believe the allegations to be untrue, which of course diminishes any weight that can be given to the reference. Nonetheless, we accept that the referees generally regard the respondent as a good and caring person.
7. In a different category is a reference from Dr Rick Montiadis which does make reference to (unspecified) "allegations made against and admitted by" the respondent and suggests that the allegations are "out of character".

1. The respondent admitted in the Further Amended Response that his conduct was "inconsistent with him being a fit and proper person to be a registered psychologist".[10]
2. The Tribunal considers that this remains the case. The belated admissions by the respondent do not convince the Tribunal that the respondent truly understands or acknowledges the gravamen of his conduct or its potential effects on AB. The evidence before the Tribunal falls short of providing any assurance that the respondent can now be relied upon to practise in a manner consistent with appropriate ethical requirements.
3. Thus it was appropriate to cancel the respondent's registration. Indeed, this was not opposed by the respondent.
4. The disqualification for a period of three years was necessary, in the opinion of the Tribunal, to protect the public, to bring home to the respondent the seriousness of the conduct, and to make clear that such conduct will not be tolerated. The disciplinary action imposed will assure the public that proper standards will be maintained within the profession and that vulnerable patients will be protected. In determining the period of disqualification, the Tribunal was referred to various comparative cases which have provided guidance.[11] In the end, however, our task was to settle upon a period which reflected our assessment of what was required to secure the protection of the public in the circumstances of this case.
5. Following the period of disqualification, the respondent will need to persuade the Psychology Board of Australia of his fitness and propriety before he can be re-registered.

[1] The Health Practitioner Regulation National Law (South Australia) is incorporated as part of the law of this State by s 4 of the Health Practitioner Regulation National Law (South Australia) Act 2010. The National Law is found in Schedule 2 to that Act.

[2] Statutes Amendment (SACAT) Act 2019 s 112.

[5] Book of Documents page 34; but note also pages 38-39.

[6] We also make clear that attendance at the park would have been most unwise, even if it was for this purpose.

[7] An allegation not accepted by the Board.

[8] Exhibit R 2. The report had been redacted by agreement between the parties.

[10] Paragraph 3.1, Book of documents page 16.

[11] Psychology Board v Shahinper [2016] QCAT 259; Shahinper v Psychology Board [2017] QCA 96; Medical Board v Alroe [2016] QCA 120; Psychologists Board v Meredith [2004] QHPT 5; Psychology Board v Cook [2014] QCAT 162; Psychology Board v Bakjac [2016] SAHPT 3.