1. While these comments were made in relation to a medical practitioner, they apply equally in relation to a psychologist.
2. The jurisdiction is protective and not punitive. As was observed in HCCC v Iskander [2015] NSWCATOD 30, the Tribunal said at paragraph 174:

Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the psychologist is probably currently unfit to practice [sic] and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014) NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56).

1. In Nursing and Midwifery Board v Hogan [2018] TASHPT 3 (Hogan) the Tasmanian Health Practitioners Tribunal surveyed the authorities, and set out a number of relevant considerations as follows (citations omitted):
   1. In determining an appropriate sanction a number of matters require consideration. The matters which follow are inter-related and are not mutually exclusive. There may be others. They are as follows:
      • (a) Any need to protect the public against further misconduct by the psychologist.
      • (b) The need to protect the public from similar conduct, through general deterrence, of other practitioners.
      • (c) The need to protect the public and maintain confidence in the profession by reinforcing high professional standards, denouncing transgressions and thereby articulating the high standards expected of the profession such that even where there may be no need to deter a practitioner for repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval
      • (d) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the psychologist.
      • (e) Whether the psychologist has breached any Act, regulations, guidelines or code of conduct issued by the relevant professional body and whether the psychologist has done so knowingly.
      • (f) Whether the psychologist's conduct demonstrates incompetence, and if so, to what level.
      • (g) Whether or not the conduct was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability in the future.
      • (h) The psychologist's disciplinary history.
      • (i) Whether or not the psychologist understands the error of his or her ways, including an assessment of any remorse and insight (or lack thereof) shown by the psychologist. It has been said a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
      • (j) The desirability of making available to the public any special skills possessed by the psychologist.
      • (k) The psychologist's personal circumstances at the time of the conduct and at the time of imposing the sanction. The weight to be given to personal circumstances cannot, however, override the fundamental obligation of this Tribunal to provide appropriate protection of the public interest in the honesty and integrity of practitioners and in the maintenance of proper standards of such practice.
      • (l) The Tribunal may consider any other matters relevant to the psychologist's fitness to practice and other matters which may be regarded as aggravating or which mitigate its seriousness. Generally speaking, mitigating factors such as no previous misconduct or a practitioner's service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective, not punitive.
2. While the list is not necessarily exhaustive, the factors in Hogan provide a useful guide to the relevant considerations.
3. Of these factors, only (f) and possibly (h) are irrelevant to his case.
4. As to factor (a), the Tribunal considers the psychologist's insight, or lack of it, in greater depth below. In brief, the Tribunal is not convinced that the psychologist either fully understands the gravity of his misconduct or accepts the wrongness of it. Nonetheless, the Tribunal is reasonably satisfied that he is now appreciative of the consequences of ethical breaches for his career, and that as a consequence he will exercise better restraint in the future.
5. In respect of paragraphs (b) and (c), the psychologist's misconduct is of such a nature that the public should be protected through general deterrence. The sanction imposed should be sufficient to act as a deterrent to other psychologists.
6. In relation to paragraph (d), the psychologist's misleading and dishonest behaviour during the initial stages of the investigation, the nature of the misleading information he provided to APHRA, and his willingness to make wrong and scurrilous allegations about complainant when seeking references, cast doubt as to whether either the public or other practitioners can rely upon his word when he is faced with a stressful situation or allegations of wrongdoing. There is, however, no suggestion of other forms of dishonesty.
7. In relation to paragraph (e) the psychologist has admitted to breaching the Code of Ethics. The breaches include both the boundary violation and the failure to cooperate with the APHRA investigation. The psychologist did not deny knowing about the Code, and a lack of knowledge would be no excuse anyway.
8. In relation to paragraph (f), there is no suggestion of clinical incompetence as such, although the manner in which the psychologist willingly entered into a relationship with a patient with the clinical profile of the complainant suggests that his professional judgement on this issue was below the standard reasonably expected of a psychologist of his training and experience.
9. In relation to factor (g), while there is no suggestion that the psychologist engaged in an inappropriate relationship with any other patient, the conduct in issue in this case took place over some months, and therefore could not be considered an isolated event. Additionally, the combination of the manner in which the relationship started (ground 1) and developed (ground 2) and the psychologist's subsequent pattern of deception when it was discovered (ground 3) suggests a troubling pattern of manipulative behaviour by the psychologist.
10. In relation to factor (h), the psychologist has no disciplinary history.
11. In relation to factor (i) the Tribunal is not satisfied that the psychologist truly accepts the error of his ways. His expressed remorse is of a limited nature, and much of it appears self-pitying and self-indulgent. As this factor is a significant one for the Tribunal, it is considered further below.
12. In relation to factor (j), the psychologist appears to be well qualified. His expertise in sports psychology is different to the work he was undertaking at the time of the offending. There is, however, no evidence before the Tribunal of anything unique about his skills that make it a public imperative that he return to work.
13. In relation to (k), the Tribunal acknowledges that the respondent was under considerable personal and professional pressure at the time of the offending, that he had few friends and limited support networks in Australia. Given the significance of this as a mitigating factor, this Tribunal has given the psychologist's personal circumstances additional consideration below. The other mitigating factor is the psychologist's agreement, albeit late in the process, to an agreed statement of facts, which alleviated the need for the Board to call witnesses and prolong the hearing.
14. In relation to factor (l), the other aggravating factors include the patient's clinical profile and particular vulnerability, the power differential between the parties, and the manipulative and violent aspects of the relationship between them.

1. The Tribunal remains concerned that the psychologist does not have true insight into his offending.
2. At no stage in his written submissions, or his oral evidence, did the psychologist express any true compassion or consideration for the patient, or the consequences his actions have had for her. Indeed, in both his written submissions and oral evidence, the psychologist demonstrated a self-involved focus on his story, and the effect these events have had on his life. The Tribunal considers that he showed little concern about the patient's story and the consequences for her life of his offending.
3. For example, the psychologist's witness statement in these proceedings attests, in some detail, to his medical and personal issues and his plans "moving forward in relation to employment". While these are, of course, relevant considerations for the Tribunal, the statement is remarkable in its complete failure to address the substance of the allegations, express any real contrition, or even express any consideration for the patient at all. Even accepting that the statement was carefully crafted so that the psychologist did not express any sentiments that may expose him to criminal sanction, the lack of an expression of any true remorse, or any understanding or empathy for the patient, is suggestive of a significant lack of insight.
4. That continued lack of insight was also evident in his oral evidence to the Tribunal. An example is the following exchange during the hearing in which the psychologist, despite prompting from both the Board's counsel and the Tribunal, struggled to express any understanding of the patient's circumstances:

MR ARCHER: Dr Roychowdhury, in light of the event in the bedroom and on the bed, the statement of facts describes it in a particular way - we won't go there again. I will ask you this question: in relation to the outcomes of that event for [the patient] what effect do you think it had on her?

Dr Roychowdhury: I think, you know, reading the - the ...(inaudible)... I think she was shaken and she was a bit anxious.

SENIOR MEMBER ROBINSON: Dr Roychowdhury, let me ask you this: on the agreed statement of facts before the tribunal, [the patient] was lying face up on the bed. You were kneeling over her with your hands around her neck. As a consequence of that incident, and we don't need to look behind it, but as a consequence of that incident, she suffered bruising and she had difficulty or discomfort eating and drinking. How do you think that incident, and the consequences of it, affected her, if not physically, emotionally? What is the outcome of an event like that?

MR ARCHER: The statement of facts records that as a result of the overall effect of the relationship between you and her, [the patient] suffered short term injury, and the neck incident might be an example of that, psychological harm, including anxiety, hypervigilance, fear, insomnia and possible PTSD, a breakdown of trust in respect of personal relationships and a breakdown of trust in psychologists and other care providers. Do you accept that your conduct may have had those consequences?

Mr Archer: How do you think this particular episode may have fed into those consequences?

Dr Roychowdhury: It may have contributed her - to her anxiety.

1. The psychologist's answer is entirely inadequate. By this stage, the psychologist had admitted to the relationship and to the violent incident described above. No purpose was to be served by minimising his conduct. As a qualified and experienced psychologist, he should be expected to demonstrate a higher ability to empathise with - to put himself in the position of - the patient. At the very least, he should have been able to identify, with more fullness, the likely consequences of the relationship for the patient. His circumspect and reluctant answer suggests a lack of true contrition, and perhaps even understanding, on his part.
2. Given the above, the Tribunal remains concerned that the psychologist lacks true insight into his offending. As long as this is the case, he remains a risk to the public.

1. The Tribunal has taken into account the psychologist's evidence about his personal circumstances, including his medical challenges, work pressures and his general isolation from friends and family.
2. There is no need to set out the details of the psychologist's medical issues, particularly in a public decision. Briefly stated in 2016 the psychologist suffered a number of gastric issues, as well as "...strong intercurrent stress relating to the investigation conducted by ARPHA and the subsequent suspension of [his] registration."[20]
3. Medical evidence filed by the psychologist largely confirms these assertions. That medical evidence does not link those conditions to the practitioner's offending conduct, and there is no suggestion by either party that this is an impairment case.
4. The Tribunal is satisfied that the psychologist experienced a period of stress in 2016, contributed to by isolation from his friends and family. By the psychologist's own admission, he did not manage this period of his life very effectively. The practitioner appears to have taken steps to improve his 'mindfulness' and resilience since. He has engaged in some degree of self-reflection, and has commenced therapy sessions to work through concerns about his behaviours.
5. In his statement, the psychologist said that:

I know I am not the same person I was five years ago. I tried to learn the past and move forward in a constructive way as recommended by my psychologist. During my therapy sessions with my psychologist we discussed about self-identity, learning from the past, and moving forward positively in the future. I now want to work in my field and contribute positively to the society.

While there is minimal evidence before the Tribunal that suggests he would be better able to manage stressors now, but he does appear to be in a better position to recognise them.

1. The practitioner goes on to outline his plans for his career which include employment and research opportunities. He notes that he was offered a PhD program but due to the Tribunal proceedings and his health and financial constraints he could not take the offer. The practitioner has worked hard to achieve what was a promising career. He is well aware that his conduct, the subject of this case, will have a detrimental effect on his career. He is motivated to study and improve his prospects, and there are prospects of the psychologist maintaining a successful and useful career in the future. The Tribunal is conscious that any sanction imposed should not crush that possibility - but at the same time, the possibility of reformation must be balanced against any risk to the public.

1. Having regard to the above considerations, the Tribunal is satisfied that the psychologist is currently not fit to practise as a psychologist.
2. Cancellation of registration involves a judgement that, at that time of the cancellation, the practitioner is not suitable for registration, and if he or she seeks to return to the profession, that must involve applying for registration afresh. Suspension involves a judgement that at the time of the period of suspension the person will be fit for re-registration.[21]
3. The Tribunal is not in a position to assess how long it will take for the psychologist to regain his fitness to practise. It will certainly be a substantial period of time, and it will certainly be some years.
4. Accordingly, the only appropriate disciplinary action is cancellation of the practitioner's registration, as well as a period of disqualification.
5. Upon the expiration of the period of disqualification, the psychologist will need to satisfy the Board that he is, at that time, a fit and proper person to be registered as a psychologist. As part of that process, he will need to satisfy the Board of his awareness of his ethical obligations, particularly in relation to professional boundaries. He will also need to demonstrate genuine insight into his wrongdoing, and the affect it has had upon the patient. This will likely require the provision of an expert report, by an independent psychologist, and the period of disqualification should be sufficient to allow this to happen.
6. The remaining question is: how long should the period of disqualification be?
7. These proceedings are not intended to punish the psychologist. The principle purpose is to protect the public from practitioners who fail to maintain the high standards necessary to treat patients safely. A further purpose is to demonstrate both to the public and to the members of the profession that significant breaches of the obligations of a practitioner are not acceptable, and that to ensure the confidence of the public in professionals that those breaches have consequences.[22] Consequently, the period of disqualification must be sufficient to ensure the protection of the public, and to act as a general deterrent, but it should not be unduly crushing, nor veer into punitive punishment.
8. While each case must be considered on its facts, other health professional cases involving similar boundary violations can provide some guidance as to how long the period of disqualification should be.
9. In Psychology Board of Australia v King [2016] QCAT 140 (King), the Queensland Civil and Administrative Tribunal undertook a useful review of cancellation periods imposed for boundary violation cases. The Tribunal has had regard to the information in that case, although we do not intend to quote the relevant parts in full here.
10. In King, Mr King, engaged in a six month sexual relationship with a patient during the course of a therapeutic relationship. The patient was a vulnerable person who had suffered sexual abuse as a child. During the investigation, Mr King attributed the relationship to the patient and showed a lack of insight. He had had a previous sexual relationship with a patient that was considered an aggravating factor. The Tribunal determined that King's conduct fell within the higher end of the spectrum of misconduct, but not the most serious. He was disqualified for applying for registration for a period of four years.
11. The psychologist is less experienced than Mr King and has not had a previous disciplinary offence. While the Tribunal is concerned about a similar lack of insight, he does appear to have some prospects for rehabilitation.
12. Also at the higher end of the scale is the case of Psychology Board of Australia v Shahinper [2016] QCAT 259. Mr Shahinper also engaged in an inappropriate relationship with a patient, and the case involved a range of aggravating circumstances, including prior disciplinary proceedings involving a vulnerable patient, a breach of undertaking and subsequent lying to colleagues (which was treated as an aggravating factor, rather than a separate ground of misconduct). There was, however, no suggestion that Mr Shahinper's conduct was predatory or grooming. Mr Shahinper was disqualified for a period of three years.
13. A significantly lighter sanction was imposed on the psychologist in Psychology Board of Australia v Wakelin [2014] QCAT 516. Wakelin involved a psychologist who entered into a sexual relationship with a former patient immediately after the termination of the therapeutic relationship. She falsely denied the allegations and mislead APHRA during the investigation. By agreement, the parties proposed that QCAT impose a sanction of 18 months suspension. The Tribunal imposed the sanction, but expressed some concern that it was too light, particularly given the deception involved. Significantly, Wakelin had voluntarily ceased practice, complied with undertakings, and entered into counselling. The professional relationship, as here, had lasted only a few sessions, but Ms Wakelin had clearly terminated it before entering into the sexual relationship.
14. Also on the lower end was Psychology Board of Australia v Tunstall [2016] VCAT 1263. Tunstall entered into a sexual relationship with a patient. In treating the patient, he practiced outside his expertise, failed to seek appropriate supervision and failed to disclose the relationship to other health professionals. The Victorian Civil and Administrative Tribunal (VCAT) took into account Mr Tunstall's admissions, the changes in his life, and the time that has elapsed since the offending behaviour. He was disqualified for a period of 18 months. Although satisfied he was no longer practising, and hence presented little risk to the public, VCAT determined that any lesser period of disqualification would not convey to the profession the Tribunal's strong disapproval of his conduct.[23]
15. In Medical Board of Australia v Arvid Herbert Gunnar Lind (VR165/2016) the Western Australian State Administrative Tribunal appears to have accepted that a period of 15 months suspension may have been appropriate in the case of a medical practitioner who engaged a sexual relationship with a patient, but who, at the time of the hearing, had developed insight into his conduct, admitted the allegations, and was genuinely contrite. The respondent had, however, already surrendered his registration.
16. The psychologist's conduct is more serious than that of the psychologist in Tunstall, and his situation lacks many of the mitigating factors that apparently weighed in favour of Wakelin and Lind. It is not, however, as serious as King or Shahinper, as the therapeutic relationship did not continue alongside the relationship and the psychologist has no prior history of offending.
17. The Tribunal is satisfied, having had regard to a range of cases, that it is appropriate to cancel the psychologist's registration and prohibit him from applying for registration for a period of three years.
18. The Tribunal is aware that this is a lengthy period of time for the psychologist to be out of practice. However, the psychologist has a lot of work to do, in terms of self-reflection and self-development. If he is to return to practice, he will need to address the stressors that led him to down the path to misconduct evident in this case. He will need to gain insight into his conduct, so as not to offend again. Moreover, he will need to ensure that, if he does obtain re-registration, he is in a position to earn back the back the trust of his colleagues.
19. The cancellation and disqualification will be backdated, to commence from the date this decision was reserved, being 6 February 2019.

1. Section 201 of the National Law gives the tribunal an apparently unfettered costs power, exercisable in relation to proceedings for review brought pursuant to the National Law.
2. The Tribunal's position is that the principle that "costs follow the event" should be applied when exercising the costs discretion under section 201 of the National Law.[24] The established qualifications to that principle are also applicable.[25]
3. The Board has successfully sought sanctions against the psychologist. The usual position in such circumstances is that the psychologist would pay the Board's costs.
4. While the Tribunal is cognisant of the crippling burden a costs order may impose upon the psychologist, that alone is not a reason not to make the usual order. The respondent provided no other persuasive reason why the usual rule should not apply.
5. The Board undoubtedly incurred significant costs in investigating this matter, and ultimately preparing for hearing. Those costs were increased by the psychologist's misleading conduct during the investigation and delayed admissions during the hearing. The psychologist deserves some credit for agreeing to an agreed a statement of facts, but as this was done on the first day of the hearing it is unlikely to have significantly reduced the costs.
6. In the circumstances, the Tribunal is satisfied that the psychologist should pay the Board's costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal.

The decision to hold a private hearing and make non-publication orders

1. The final issue is whether the Tribunal should make a non-publication order.
2. The Tribunal's power to make non-publication orders in occupational discipline proceedings was discussed at some length in Psychology Board of Australia v Sullivan [2017] ACAT 104 (Sullivan). In that case, the Tribunal observed that:

Proceedings before the Tribunal are required to be public,[26] unless legislation provides otherwise[27] or the Tribunal orders otherwise. In the usual course of events any member of the public can attend an occupational discipline hearing, and the written reasons for the decision will be published online. As a concomitant of the obligation to provide a public hearing, documents which were before the Tribunal for the hearing are usually able to be viewed by the public should a request be made to inspect the Tribunal's file. With limited exception[28], the names of parties to an occupational discipline matter are also available to the public through the daily lists, the reasons for decision, or upon inspecting a file.

Although there is an important public interest served by this transparency, competing private and public interests can in some cases outweigh the public interest served by a public hearing. Section 39 of the ACAT Act provides the mechanism by which specified competing interests are weighed up, and gives the Tribunal power in appropriate cases to make orders for a private hearing or restricting publication of information in relation to the hearing:

(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.

Note See s (5) in relation to competing interests.

(2) The tribunal may, by order, do 1 or more of the following:

(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;

(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.

(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.

(4) A person must not contravene an order under subsection (2) (b) or (c).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

_(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private - _

(a) to protect morals, public order or national security in a democratic society; or

(b) because the interest of the private lives of the parties require the privacy; or

(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

The non-publication and private hearing orders were precipitated because the vast majority of the information contained in the documents before the Tribunal consisted of personal health information of the client, interspersed with personal information relating to the practitioner and the notifiers. Most of the personal health information, in particular, fell within the operation of the Health Records (Privacy and Access) Act 1997 which would oblige a person in possession of that information to maintain its confidentiality except in specified circumstances.

Subsection 39(5) of the ACAT Act does not expressly provide for the private interests of third parties such as the client to be taken into account as outweighing the public interest served by a public hearing.

In this case, the Tribunal was satisfied that the right to a public hearing, and specifically the interest served by public access to the documents filed with the Tribunal and public attendance during the hearing, was outweighed by the prejudicial effect that public access to the information contained in those documents and discussed during the hearing would have on the interests of justice. The Tribunal was satisfied that it was contrary to the interests of justice for private health information relating to named third parties, normally subject to statutory confidentiality obligations, to become publicly available as an incident of the bringing of disciplinary proceedings against a practitioner. Not only does such an approach undermine the objectives of the Health Records (Privacy and Access) Act 1997, the inevitable consequence of such disclosure routinely occurring would be a reluctance on the part of clients to notify regulatory bodies of inappropriate conduct, or to participate in subsequent disciplinary proceedings.[29] Conducting the hearing publically, but with adjustments to de-identify the client or minimise the amount of personal health information being openly discussed, would be cumbersome, lengthen the hearing and become administratively inefficient, contrary to the objectives set out in section 7 of the ACAT Act.

1. The same principles apply here. Accordingly, in advance of the hearing a differently constituted Tribunal ordered that there be no public access to the file pending further orders, that the hearing of the disciplinary application take place in private, and that there be no public access to the transcript or audio recording of the hearing. By agreement of the parties, those orders remained in effect during the hearing.
2. The psychologist sought to extend those orders indefinitely. The psychologist also sought a continuation of the non-access and non-publication orders, and also sought that there be no publication of the reasons for decision other than to the parties. The Board opposed that application.
3. The Tribunal in Sullivan discussed the approach to be taken after the conclusion of the hearing as follows:

After an occupational discipline hearing, in the ordinary course of events, a decision would be made with written reasons provided to the parties and also published. The written reasons would ordinarily name the practitioner, and witnesses, and set out findings of fact together with the evidence on which those findings were made.[30] The Board would then, in accordance with its obligations under the National Law[31], record in the public register outcomes such as any reprimand issued by the Tribunal, suspension of practice or conditions imposed upon the practitioner's registration.

While de-identification of the client in published reasons might be one way to address the issue of sensitive personal health information, it was submitted by the practitioner that because of the unique medical information and the circumstances of the case, including the facts that the practitioner and client continued to have a personal relationship, the outcome would be recorded against the practitioner on the public register, and the small number of practitioners in the ACT, the use of a pseudonym in relation to the client was unlikely to prevent a member of one sector of the public identifying the client, and thus his personal health information.

1. Many of the same arguments as those made in Sullivan were advanced by the psychologist in this case, although obviously, as the psychologist and the patient in this case are no longer in a relationship, identification by means of their continuing relationship was not suggested. Additionally, while Dr Roychowdhury's solicitor phrased much of her argument in terms of protecting the patient, there was an acknowledgment that he wished to ensure his anonymity so as to better protect his prospects of rehabilitation and the advancement of his career in the future.
2. The Board, also, took a similar position in this case to that which it took in Sullivan. While the Board agreed that the orders preventing public access to the file and record of proceedings should be continued, it opposed orders restricting publication of the reasons for decision, on the basis that the public interest in reasons for the decision being made publically available outweighed the other interests, which it submitted could be addressed by de-identification. The Board noted the legislated requirement that hearings be public, referred the Tribunal to the open justice principle, and the approach to section 39 of the ACAT Act established in previous cases.[32] The Board was also concerned to ensure information about offending practitioners be publically available, so as to protect the public and enhance confidence in the disciplinary process.
3. While the Tribunal is sympathetic to the Board's position, it is also very concerned about the welfare of the patient. Her sensitive personal health information is integral to this case, but the publication of that information is likely to have a further detrimental effect on her health and peace of mind. In our view, there is little public interest served by the disclosure of such information to the public, and any which exists is outweighed by the potential harm to the patient likely to arise from its release.
4. Details of the patient's condition, and particular vulnerabilities, are contained in the agreed statement of facts. This should not be published to any person other than the parties.
5. While the Tribunal has carefully avoided referring to the details of the patient's records in these reasons, the Tribunal remains concerned that, in a small jurisdiction such as the present one, any release of the detail of the allegations has some potential to identify the patient, and cause her further harm. The Tribunal is most reluctant to do this. Nonetheless, we have had regard to the submissions of the Board, and particularly the submissions made about the public interest in ensuring information about professionals is available for the public protection. The only way to completely protect the patient would be to anonymise these proceedings, and hence protect the name of the psychologist as well. We have given serious consideration to doing this.
6. Although it is not an easy decision, we have ultimately decided that these reasons, and the name of the practitioner, should be published in order to protect the public. However, orders prohibiting public access to the file pending further order, that the hearing of the disciplinary application take place in private, and that there be no public access to the transcript or audio recording should remain in effect.

1. The Tribunal orders that:
   1. Pursuant to section 196(1)(b)(iii) of the National Law the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
   2. Pursuant to section 196(2)(e) of the National Law, the respondent's registration is cancelled.
   3. Pursuant to section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration for a period of three years, from 6 February 2019.
   4. The respondent is pay the costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal.
   5. Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:
      • (a) These reasons are to be published, with the name of the patients, witnesses and third parties anonymised; and
      • (b) There is to be no public access to the file for this proceeding.

[1] A reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the member who heard the application

[2] Transcript of proceedings 6 February 2019 at page 34, lines 13-15

[3] Letter of Respondent re patient dated 16 September 2014

[4] Australian Federal Police Incident Report dated 10 October 2016 (date reported 28 June 2015)

[5] Initial Notification (complaint) dated 10 October 2016 at page 6

[7] See discussion in Xu v Council of the Law Society of NSW [2009] NSWCA 430

[8] Xu v Council of the Law Society of NSW [2009] NSWCA 430

[9] Transcript of proceedings 6 February 2019 at page 9 lines 20-22

[10] Transcript of proceedings 6 February 2019 at page 9, line 29

[12] See discussion about sanction at paragraphs 92 to 109 below

[14] Transcript of proceedings 6 February 2019 at page 27

[15] Transcript of proceedings 6 February 2019 at page 28

[16] Statement of fact at [27]-[28]

[17] See discussion of cases below under 'sanction'

[18]19 See Psychology Board of Australia v Shahinper [2016] QCAT 259 at [52]

[21] Psychology Board v Tunstall, [68]; See also Honey v Medical Practitioners Board of Victoria [2007] VCAT 526, [42]

[22] Medical Board of Australia v Veness [2012] ACAT 36

[24] Howard v Psychology Board of Australia [2018] ACAT 127

[27] See for example the Mental Health Act 2015, section 194

[28] Section 423A of the Legal Profession Act 2006 specifies that disciplinary proceedings in the Tribunal in relation to lawyers are de-identified until all appeal processes are finalised

[29] See the principles set out in John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324

[30] Section 60 of the ACAT Act and section 179 of the Legislation Act 2001

[31] Sections 222 and 225 of the National Law

[32] Psychology Board of Australia v Fox (2) [2015] ACAT 25; Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135; Nursing and Midwifery Board of Australia v Nurse DZ [2015] ACAT 93 and Psychology Board of Australia v D [2010] VSC 375