PROFESSIONS ANDF TRADES - HEALTH CARE PROFESSIONALS - PHSYCHOLOGISTS - HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY - where psychiatrist conducted counselling sessions with de facto couple both joint and separately - where psychiatrist aware of relationship breakdown as a result of counselling - where intimate relationship commenced between psychiatrist and de facto wife during the therapeutic relationship - where psychiatrist sought assistance of patient for the purposes of finding someone to bring harm upon the former de facto husband - whether the psychologist's conduct amounts to professional misconduct

[1] On the 17th of January 2014, the Psychology Board of Australia referred disciplinary proceedings to the Tribunal against Mr Steven Spring, who was formerly a registrant under the Health Practitioner Regulation National Law. Mr Spring's registration had lapsed on 31 December 2012. The lapse of his registration was no bar to the Tribunal bringing these proceedings as s 138 of the National Law provides that a National Board may commence proceedings of this kind against a former registrant as though that person were still registered under the Act. So too, this Tribunal can determine such proceedings and may make orders in respect of a former registrant seeking registration in the future.

[2] The grounds for disciplinary action, as referred by the Board, concern what are colloquially referred to as boundary issues. The breaches of the boundaries by Mr Spring concern two patients: one CW and one PS.

[3] The nature of the boundary violations in respect of each of those patients is different. The patient CW was a patient of Mr Spring between July 2010 and November 2010. During that period, importantly, CW's de facto husband TC was also a patient of Mr Spring. They participated in separate and joint counselling sessions with Mr Spring. Without descending into the detail, which is clearly set out in the Board's referral, it is quite evident that the treatment of CW, which she received from Mr Spring, included disclosures by her, as one would readily understand, of highly personal matters, particularly concerning her relationship with TC. And it is apparent from the clinical notes which Mr Spring made at the time that CW was a psychologically vulnerable person throughout that period of time.

[4] That is evident not only from what she herself disclosed, but also from what he indeed concluded as to her condition. It is also evident from the significant number of counselling sessions which Mr Spring conducted with her during that period of time.

[5] An intimate relationship developed between Mr Spring and CW. The precise time at which that occurred is, quite understandably in the absence of any admission by Mr Spring, difficult to pinpoint. However, on the evidence, it is clear that it was a relationship which commenced during the course of the therapeutic relationship. The therapeutic relationship concluded on 18 November 2010. In correspondence from Mr Spring to a Mr Drake, who was conducting an investigation in relation to these issues, Mr Spring identified that the relationship was discovered by TC in mid-October 2010.

[6] That establishes that the relationship was extant at that time. But it doesn't establish how much earlier in time the relationship had started. There is other evidence, particularly a letter from CW to Mr Spring, which was discovered by TC on the home computer and is dated 28 July 2011, and which refers to the disintegration of the relationship between CW and TC about a year earlier. It is also clear from the evidence that the relationship between CW and Mr Spring commenced only a short period after the disintegration of her relationship with TC.

[7] So all the evidence clearly satisfies me that the relationship which was entered into by Mr Spring commenced during the period of the therapeutic relationship. It is also clear that the intimate relationship was also a sexual relationship.

[8] The matters concerning the patient PS are of a different kind. A series of text messages exchanged between Mr Spring and PS reveal a curious discourse during which Mr Spring appears to be seeking the assistance of PS to engage the services of somebody who might bring harm upon another. The circumstances reveal, particularly through what can only be seen in my view to be self-serving explanations later offered by Mr Spring to the investigators, that the person from whom he was seeking protection was TC. In those self-serving explanations, Mr Spring tries to advance an explanation which would see his conduct in the light of trying to obtain information which might be of assistance to police in the furtherance of criminal investigations. In my view, those self-serving statements ought be rejected. Not for the least reason being that PS has gone into sworn evidence about the circumstances of these events. There is no reason not to accept PS in respect of that evidence.

[9] As Ms Gallagher, who appears for the Board, rightly submits, when all of that is taken together it leads to the inference that Mr Spring, as a treating psychologist, was prepared to expose somebody who is clearly a vulnerable patient, that is PS, to danger in furtherance of his own perceptions of his need for his own protection. That, of course, is a serious matter and raises concerns as to Mr Spring's suitability to practise as a psychologist. It is also clear from the material that Mr Spring, in the course of his therapeutic relationship with PS, made entirely inappropriate disclosures of personal information concerning himself to PS. Incidentally, although it doesn't form part of the Board's pleaded case against Mr Spring, it is apparent that he also made such disclosures to other patients.

[10] Dr Varghese who examined Mr Spring for the purposes of reporting to the Board has in a report dated August 2012 referred to the fact that these matters show that Mr Spring clearly does not appreciate boundary issues which must apply to the practice of a psychologist. Dr Varghese in his report also refers to a clear and disturbing lack of insight on the part of Mr Spring in relation to these matters and also to a lack of empathy in relation to the patients concerned. Of Mr Spring's disclosures of personal information to his patients, Dr Varghese says this:

This is a practice without boundaries. The practice is from his own home, and once his wife has left he is alone in the home without office help that would act as a chaperone. His clients, or some of his clients, are aware of the break-up of the marriage, and moreover they are aware of Mr Spring's problems with Mr S, including the alleged threats of violence. His excuse that he had to tell clients because there was a possibility that appointments would be cancelled because of threats is most worrying. One can only imagine what sort of turmoil would be going on in a client who has depression or anxiety who has to turn up for therapy with the possibility that the therapy may have to be cancelled in an emergency because of threats of violence from a third party.

It seems to me much more likely that Mr Spring was seeking support and comfort from his clients in the absence of any other individuals who could provide this. This is grossly inappropriate and potentially damaging for clients.

[11] Those observations of Dr Varghese, in my view, clearly indicate why it is that the disclosure of personal information by a treating psychologist is not an innocuous social interaction; but a matter potentially severely damaging to the already vulnerable who are consulting with the psychologist for professional services. Of course, Mr Spring's entering into an intimate and sexual relationship with a present or, indeed, even a former patient, in respect of whom there had not been an appropriate period of time elapsed since the cessation of a therapeutic relationship, is also a gross violation of boundaries; and grossly inappropriate behaviour on the part of a psychologist. It is, without doubt, professional misconduct as defined by the National Law.

[12] Because Mr Spring is no longer registered, the submissions of the Board in relation to sanction have centred upon what is an appropriate period during which he should be precluded from future registration pursuant to s 196 (4)(a) of the National Law. The Tribunal is able to order a person to be disqualified from applying for registration as a registered health practitioner for a specified period.

[13] The Board has referred to a number of previous decisions of the Tribunal. The Board submits that an appropriate period of preclusion would be a period of three years from the time of making the orders. In my view, the authorities referred to by the board suggest a somewhat shorter period of time of preclusion. Of course, no two cases are identical in nature, and different considerations are to be borne in mind in determining an appropriate period of sanction in any particular case.

[14] In that regard, it is important to note that whilst he has had notice of these proceedings, Mr Spring has not participated at all in the course of them. Therefore, he has not been able to demonstrate any remorse for his conduct, or to evidence any insight into his conduct which may give the Tribunal confidence that he now possesses, or will in the future possess, the requisite understanding of boundary issues to see him return to practice. In other cases there have been such demonstrations of insight and remorse, which have been reflected in the orders of sanction made by the Tribunal.

[15] It is also to be borne in mind that Mr Spring has not practised as a psychologist since December 2012. It is a relevant consideration to take into account how long overall a person will be precluded from practice, and part of that consideration may be any voluntary withdrawal from practice which they have undertaken themselves. In the Psychology Board of Australia v GA [2014] QCAT 409 the Honourable James Thomas AM, sitting as a Judicial Member of the Tribunal, observed in respect of a person who had voluntarily removed himself from practice for a period in excess of six months that in that case ought to be taken into account in determining what period of further suspension should be imposed. The Judicial Member observed, however, at paragraph 40 that:

It will not always be appropriate to regard voluntary cessation of practice as equivalent to a de facto suspension, as a practitioner might take a convenient holiday and seek to obtain benefit from it.

[16] Because Mr Spring has not participated in these proceedings, it is unknown as to why it is that he ceased practice. It is unknown as to whether that of itself reflects some level of understanding or insight, or indeed remorse, which he now experiences in respect of these matters. Notwithstanding that, it is a fact that he has not practised or sought to practise now for a period of some two and a-half years. In my view, an order which will see him effectively precluded from practice for a period of five years in total is appropriate. In those circumstances, it is appropriate to order that he be precluded from applying for registration as a registered health practitioner for a period of two years and six months from the date of this order. That will effectively result in him having been precluded from practice, including his own voluntary preclusion, for a period of five years.

[17] It is also appropriate that Mr Spring be reprimanded.

[18] It will, of course, be a matter for Mr Spring to establish to the satisfaction of the Psychology Board of Australia, in the event that he does ever seek to be re-registered, that he possesses the requisite personal and professional qualities and requirements to satisfy the board that he is indeed a fit and proper person to hold registration. That will, however, be a matter, appropriately, for the Board to determine, if those events ever transpire.

[19] The Board seeks its costs. There is no reason why it ought not have its costs. Because of Mr Spring's lack of engagement in these processes, the Board has had to prepare a case without any admissions, with evidence sufficient to establish to the requisite standard the matters which it alleges. That has taken considerable time and effort. An award of costs, of course, is not meant to be punitive on another party. It is compensatory to the party in whose favour it is made to recognise that costs have been incurred in the carriage of its case. The Board is of course supported, if not exclusively, in large part by the subscriptions of members of good standing. There is no reason why those members should bear the costs of proceedings such as this. Mr Spring will be ordered to pay the Board's costs of and incidental to these proceedings assessed on the standard basis for matters in the District Court.

[1] Reasons amended in accordance with Tribunal order dated 24 September 2015.