Shahinper v Psychology Board of Australia [2017] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION: Shahinper v Psychology Board of Australia [2017] QCA 96

PARTIES: KHOSROW SHAHINPER (applicant) v PSYCHOLOGY BOARD OF AUSTRALIA (respondent)

FILE NO/S: Appeal No 8836 of 2016 / QCAT No 172 of 2014

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2016] QCAT 259

DELIVERED ON: 19 May 2017

DELIVERED AT: Brisbane

HEARING DATE: 2 February 2017

JUDGES: Holmes CJ and McMurdo JA and Bond J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for leave to appeal refused.The applicant should pay the costs of the application.

CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – PSYCHOLOGY – DISCIPLINE, AND REMOVAL FROM REGISTER – where the applicant was disqualified from practice for professional misconduct, in engaging in a personal relationship with a patient before the treating relationship had ended – where the applicant’s registration as a psychologist was cancelled and he was disqualified from applying for re-registration for three years – where the applicant seeks leave to appeal against the sanction imposed on him – where the applicant paid the complainant to prevent her from revealing the relationship – where the applicant contended that the Tribunal erred in failing to find that the complainant had blackmailed him, and in failing to infer that blackmail indicated a change in the power imbalance as between them – whether the Tribunal erred in not making the finding – whether such a finding could have supported an inference about the nature of the relationship at relevant times – where the applicant had been subject to prior disciplinary proceedings – where the applicant denied the misconduct until confronted with evidence – whether the sanction imposed was manifestly excessive

COUNSEL: R W Haddrick for the applicant / C Wilson for the respondent

SOLICITORS: Logie-Smith Lanyon Lawyers for the applicant / Lander & Rogers Lawyers for the respondent

HOLMES CJ: The applicant seeks leave, pursuant to s 149 of the Queensland Civil and Administrative Tribunal Act 2009, to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) constituted by a judicial member¹ assisted by two professional members and a lay member.

The applicant was a registered psychologist said to have engaged in a sexual relationship with a patient before their treating relationship had been ended and to have given dishonest responses in the course of enquiries by the Australian Health Practitioners Regulation Agency (AHPRA). The Tribunal found in these terms that his behaviour constituted professional misconduct:

“Mr Shahinper commenced a physical sexual relationship with a patient mere days following the last counselling session with the patient and before the treating relationship had been adequately terminated. He failed to transfer the patient to the care of an alternate psychologist, nor encourage her to seek independent counselling. This is clearly in contravention of the Code, and constitutes professional misconduct. Appropriately, Mr Shahinper accepts that his entering into a sexual relationship with RW amounts to professional misconduct.”²

The applicant’s registration was cancelled and he was disqualified from applying for re-registration for three years.

The grounds of the application for leave and the proposed appeal

The applicant contends that he should be granted leave to appeal because a substantial injustice has been done to him. The proposed notice of appeal indicates that it is to be brought against the cancellation of registration and the disqualification period, rather than the finding that the applicant engaged in professional misconduct. The proposed grounds of appeal are as follows:The Tribunal erred by failing to consider, or failing to afford sufficient weight to, the evidence that the complainant (and her son) had demanded the payment by the applicant of certain sums of money, as a condition of the complainant remaining silent regarding the applicant's conduct.In all the circumstances (and particularly having regard to the authorities provided by the parties to the Tribunal), the Tribunal erred by ordering a sanction that is: disproportionate to the offending conduct; andunnecessary, having regard to the protective function of the disciplinary proceedings.

The evidence

A Statement of Agreed Facts was put before the Tribunal. Those facts included that the applicant had been registered as a psychologist in Australia on 5 September 2006. The patient in question, to whom the Tribunal referred in its decision as “RW”, was referred to him in November 2008 in relation to work-related stress and distress about the failure of a relationship. By March 2009, the applicant had begun a personal relationship with her. They exchanged increasingly intimate emails, culminating in his informing her on 15 April 2009 that he had a “strong sexual desire” for her. The following evening he went to her house and they engaged in sexual intercourse. Thereafter they maintained a sexual relationship and exchanged text messages and emails of an intimate nature.

The applicant’s last counselling session with RW took place on 2 April 2009, but it was admitted that as at 16 April 2009 he had not terminated, or adequately terminated, the treating relationship or arranged to transfer RW’s care to another psychologist. Nor had he complied with requirements of the Australian Psychological Society Code of Ethics 2007 that he take the matter of RW’s potential vulnerability up with a senior psychologist and encourage RW to seek independent counselling. (These requirements, however, appear to relate to psychologists wishing to engage in sexual activities with former clients at least two years after the end of their provision of psychological services. The Code prohibits sexual activity with a client or a former client within two years of the termination of the professional relationship.)

The applicant had been the subject of other disciplinary proceedings, in respect of which he provided an undertaking on 11 November 2009 to the Psychologists’ Board of Queensland and the Health Practitioners’ Tribunal. The undertaking required, among other things, that he: be supervised by another psychologist; report any complaint about him to the supervising psychologist; and address with the supervising psychologist the importance of maintaining professional boundaries. (The Tribunal noted in its decision that the applicant had engaged in the conduct the subject of the proceedings before it at a time when he was negotiating the terms of the undertaking in the prior proceedings and while he was subject to its terms. He had not in fact engaged a supervisor in the terms envisaged by the undertaking.)

According to the Statement of Agreed Facts, the relationship between RW and the applicant continued until she ended it on 11 December 2009. There was a dispute between the applicant and RW as to when they had last sexual relations, which the Tribunal did not find it necessary to resolve; the applicant said that it was in October 2009, although he accepted that they had continued to exchange text messages and emails of a personal and sexual nature. In cross-examination, he conceded that the relationship would properly be described as having remained sexual, notwithstanding the absence of physical contact.

The Statement of Agreed Facts recorded that the applicant had deposited sums of $4,000.00, $3,000.00 and $1,000.00 into RW’s bank account on 21 December 2009, 11 February 2010 and 22 March 2010 respectively. At the end of May 2010, he gave her son an envelope containing about $10,000.00 in cash. The applicant admitted in the Statement of Agreed Facts that during the AHPRA investigation he had denied any sexual relationship with RW, attributing this to a fear that his marriage would break down. On 21 February 2014, he finally admitted to having engaged in a sexual relationship with her.

Ground 1: the Tribunal should have found and taken into account blackmail by the complainant

The findings and the applicant’s submissions in relation to them

The Tribunal noted that both RW and her son asserted that the money paid to her was completely unsolicited by her. The applicant, on the other hand, maintained that he made the payments because RW had threatened to reveal the relationship to his then wife if he did not. While the Tribunal did not accept the applicant’s “various accounts” and characterised him as an unreliable witness, it regarded RW’s version of receiving the money unsolicited and without her prior knowledge as “inherently improbable”. It concluded:

“It is clear in the circumstances that the payments were connected to the conduct. Whether or not they were unsolicited or motivated by Mr Shahinper’s concern to keep the relationship from his wife, the inference is inescapable that the payments were made in an attempt to keep RW quiet.”³

The applicant contended here that the Tribunal was obliged to make findings of fact about the circumstances of the making of the payments. The finding which ought to have been made was that RW and her son had blackmailed the applicant, demanding the payments as a condition of her remaining silent about the applicant’s conduct. The finding should have been made on the basis of: the applicant’s evidence that RW had threatened to destroy his marriage if he did not pay her; the evidence of another psychologist whom the applicant had consulted, to the effect that he had told her that he paid money in an attempt to ensure that his wife was not informed; evidence from RW’s son, who said he had agreed with a colleague of the applicant that if RW were paid $20,000 he (the son) would persuade her to sign a letter to AHPRA saying that her relationship with the applicant had been entirely professional; and inconsistencies in RW’s evidence.

The relevant parts of RW’s evidence said to constitute inconsistencies were: that when she originally made her complaint in May 2012, she did not refer to being paid money; that in a statement made after AHPRA had obtained the applicant’s bank statements she claimed that she had no idea why she was being paid and had not discussed it with the applicant; that in a subsequent statement in February 2014, she mentioned for the first time a cash payment; and that in another statement given in December 2014, she qualified an earlier statement that she had not given her bank details to anyone by saying that she provided them to her son, but nonetheless had not participated in any discussions of payment of money to her account.

Counsel for the applicant pointed out that his client’s version had been consistent throughout as to the threat to inform his wife, whereas RW and her son were reluctant in the first instance to disclose the payment of money and their versions of the events differed. Consequently, he argued, the Tribunal should have acted on the applicant’s evidence and made the finding of blackmail.

The significance of the posited finding was this: it was argued here and at first instance that if RW were able to blackmail the applicant, that showed that the power imbalance between them was substantially diminished. The Tribunal rejected that argument as having any force, observing:

“In oral submissions, Mr Haddrick contended there was a substantial diminution in the power imbalance between Mr Shahinper and RW by virtue of her alleged demands for payment. If there was any change, that change occurred well after the treating relationship had ceased. It certainly cannot alter the nature of the misconduct.

Irrespective of the circumstances surrounding Mr Shahinper's payments to RW, his decision to make the payments was undeniably self-motivated. He was focused on the preservation of his own marriage and family, rather than the wellbeing of his patient.”⁴

Conclusions

In my view, the argument fails at the first hurdle. The evidence did not compel a finding that RW had blackmailed the applicant, whether the relevant threat was to make a complaint to AHPRA or to reveal the affair to the applicant’s wife. The fact that the applicant’s account to the latter effect had been consistent did not mean that it had to be accepted; and having found that he was “a most unreliable witness” the Tribunal was entitled to refuse, as it did, to accept any of his accounts. His having made the same claim to his psychologist could not improve that situation.

On the other hand, the Tribunal did not accept RW’s version, finding that her claim that the payments were unsolicited and a surprise to her was “inherently improbable”. But there is an obvious distinction between considering it likely that payments were solicited and expected, and making the further finding that adverse consequences were threatened if the demand for payment was not met. The Tribunal could have made the latter finding against RW only if it were satisfied on the Briginshaw standard. It could not have been so satisfied on the applicant’s evidence, since it did not find him reliable. The son’s evidence, for what it was worth, was that the money was paid effectively in exchange for RW’s denial of the applicant’s misconduct, but he did not suggest that his mother had been involved in that arrangement. The applicant, for obvious reasons, did not press the tribunal to accept the son’s version. Not surprisingly, given that it was in a position in which it found none of the witnesses credible, the Tribunal did not make, and could not reasonably have made, a finding that RW was engaged in blackmail.

The Tribunal referred to the payments being made after the end of the treating relationship, although it made no finding as to precisely when that was. What was much more important was that they were made after the personal relationship ended, which, it was agreed, occurred on 11 December 2009. The applicant’s contention for a diminution of the power imbalance between the applicant and RW requires a conclusion that at the relevant time, that is, during the personal relationship, RW was able to exert power herself. But even if the Tribunal had been able to find that there were demands and threats by RW such as to indicate a change in the dynamic between her and the applicant, it could not safely draw the retrospective inference which the applicant’s counsel urged, that events after the personal relationship ended could serve to demonstrate RW’s state of mind and the state of the power balance during it. There was no evidence which could support a finding as to when RW first felt herself in a position to make such demands; whether it was within the relevant period, or after both the treating and sexual relationship had ended.

The Tribunal did not err in not making findings about the circumstances in which the payments to RW were made. It was also entitled to conclude that the payments did not establish any form of mitigating circumstance diminishing the seriousness of the applicant’s misconduct.

Ground 2: Sanction disproportionate and unnecessary

The Tribunal’s findings and consideration of sanction

In considering the appropriate sanction, the Tribunal noted that the applicant’s concession of misconduct came four years after the matter was first investigated and only in the face of irrefutable evidence. Over the intervening period he had vigorously and repeatedly denied the sexual relationship while making accusations concerning RW, her family and her motivations. Had AHPRA not produced text messages, phone records and bank statements which demonstrated the existence of the relationship at an interview on 21 February 2014, the Tribunal found, the applicant would have continued to deny the relationship. His admissions had been limited and he had continued to minimise and rationalise his behaviour.

The Tribunal accepted submissions from counsel for the respondent Board that the applicant continued to lack insight into his offending behaviour. He had “continually minimised RW’s level of vulnerability”,⁵ indicating that he had yet to understand the power imbalance inherent in the treating relationship. As to the continuation of that power imbalance at relevant times, the Tribunal made the findings set out at paragraph [13] above. The sexual relationship was a gross violation of the responsibility and trust placed in the applicant as a psychologist. There was evidence from RW and two of her children as to the adverse effect of the relationship on her mental health.

The Tribunal noted a number of cases to which its attention had been drawn concerning professional boundary violations, but regarded them as involving conduct less egregious than the applicant’s, given his dishonesty, lack of insight and prior disciplinary history. However, the Tribunal regarded the decision in Psychology Board of Australia v Wakelin⁶ as providing some assistance, although it considered that the applicant’s conduct was worse than that of the psychologist in Wakelin. In that case, the psychologist had entered into a sexual relationship with a former patient immediately following the end of the therapeutic relationship, made false statements denying the relationship in a letter to AHPRA during its investigation, and made admissions only in a context where AHPRA had already received information indicating the falsity of what she had said previously. The sanction there was an 18 month period of suspension, a reprimand and the imposition of conditions on her registration.

However, the Tribunal noted, the psychologist in Wakelin had made false statements on only one occasion, followed by admissions 11 months later, and had no prior professional disciplinary record. In contrast, the applicant had denied his conduct for four years and engaged in it while subject to an undertaking, having allegedly breached professional boundaries previously. The psychologist in Wakelin had voluntarily commenced counselling, ceased practice and fully complied with an undertaking. The applicant had not begun counselling and supervision, notwithstanding the existence for some four years of an undertaking to do so. The psychologist in Wakelin had provided psychological services only over a span of 16 days, and there was no suggestion that she had failed adequately to terminate the therapeutic relationship before the commencement of the sexual relationship, whereas the applicant had not done so, and had treated RW for more than five months.

The applicant’s treating psychologist had accepted that he still had some “challenges”, given that she had not been told about the prior disciplinary proceedings, the applicant’s undertaking or his repeated denials of the relationship with RW. That feature, taken with the applicant’s evidence before the Tribunal (which indicated a continuing lack of insight) led the Tribunal to regard him as posing a significant risk of recidivism, particularly in light of the prior disciplinary proceedings and his dishonest dealings with both AHPRA and the respondent Board. The Tribunal considered that the gravity of the applicant’s conduct, the risk of recidivism and the need for community protection against a repetition of the behaviour warranted cancellation of the applicant’s registration for three years.

The applicant’s submissions

Counsel for the applicant contended that Wakelin was authority for the proposition that the range for the “sexual component” of what he characterised as “post-treatment sexual misconduct” was six to 12 months suspension. He based that submission on statements by a judicial member of the Tribunal in Wakelin. Noting that both the psychologist and the Board had proposed an order which would entail an 18 month suspension from practice, the judicial member made the following observation:

“The question is whether this is too light a response, given the serious aggravation of the overall conduct by the respondent’s attempted deception of the [B]oard. The comparative cases submitted by the Board suggest that a suspension of around 6 to 12 months might be suitable if the post-treatment sexual misconduct stood alone. However, the additional deceptive conduct might itself justify a response in the vicinity of at least 18 months suspension.”⁷

The judicial member referred to Psychology Board of Australia v Dall⁸ and Medical Board of Australia v Putha⁹. He went on to say that having regard to the fact that as well as the 18 months actual suspension, there were conditions for education, future practice, reprimand and costs, he was satisfied that the sanction was within range for the conduct

“although, taking into account the dishonest dealings with the Board, it may be thought to be on the light side”.¹⁰

Counsel here submitted that the deceitful conduct in Wakelin was worse than the applicant’s. It included counselling the patient to make a false declaration as to the nature of the relationship, thus exposing the patient to a criminal charge. (That appears to be an overstatement: the facts as set out in Wakelin include that the letter which the psychologist sent to AHPRA denying the relationship was accompanied by an affidavit, apparently sworn by the patient, to the effect that she had behaved professionally towards him. Nothing is said or found in the decision as to the circumstances in which the affidavit was produced.) What the tribunal had wrongly done in the present case was to start from the 18 month suspension as imposed in Wakelin and add a further 18 months for deceit.

The applicant also relied on Dall, referred to in Wakelin. In that case, a psychologist employed at a correctional centre formed a relationship with a prisoner whom she had treated during admissions to a crisis support unit over a 17 month period. She wrote to him and telephoned him regularly thereafter, using a pseudonym, and visited him in different correctional centres on many occasions. The allegation was that she had engaged in an inappropriate personal relationship with him and exploited the treating relationship. The Tribunal found the relationship to be a sexual one in the sense that it was intimate and motivated by attraction, but it was not found that there was any physical element to it. The psychologist’s conduct, the Tribunal considered, demonstrated incompetence; she had not been alert to the possibility that her patient might have an interest in manipulating her. There were a number of findings of deceit: of the psychologist’s employer, in her establishing unauthorised conduct with the patient and continuing to be involved with him after his discharge from her care; in her misleading of investigators; and in her colluding with the patient in deceit of others. The psychologist continued to lack insight about the ethical implications of the relationship. On the other hand, there was no evidence of predatory conduct by her and she was herself personally vulnerable; she had a genuine concern for the welfare of the patient, although her emotional involvement clouded her judgement about how best to support him. The Tribunal concluded that a suspension period of 18 months was appropriate.

The applicant’s counsel submitted that the applicant’s conduct was similarly non-predatory. Like the psychologist in Dall, the applicant was manipulated, in his case by being inveigled into making payments to RW. The sanction imposed was unnecessary, having regard to the protective function of the disciplinary proceedings. There was no proper basis for the Tribunal to conclude that there was a significant risk of recidivism. The applicant’s relationship with RW ceased in 2009 and had not been renewed; there had been no other complaints of inappropriate sexual activity against him; the earlier disciplinary proceedings did not entail allegations of sexual activity and were resolved on a “no admissions” basis. Even if the applicant did pose a significant risk of recidivism, a proportionate response would have been to impose a chaperone condition or a condition precluding him from treating female clients for a specified period.

Conclusions

I do not consider that Wakelin purports to state any general range for sanctions for sexual misconduct and deceit, as opposed to considering what was appropriate in that case. (Nor would it have been appropriate for the Tribunal to seek to set a range.) In any event, the present case entails significant differences. Most obviously, the personal relationship here was begun with an exchange of intimate emails during the course of actual treatment and developed into a physical relationship at a time when it was admitted that the applicant had not terminated the treating relationship. It was continued over a period when, at the best for the applicant, the treating relationship had recently ended, but he had done nothing to refer RW elsewhere. As the Tribunal noted, unlike the psychologist in Wakelin, the applicant was the subject of an undertaking in response to previous disciplinary proceedings. The Tribunal made other appropriate distinctions between the two cases in regarding the applicant’s conduct as requiring a sanction greater than that in Wakelin.

The submission that the applicant’s conduct should, like that of the psychologist in Dall, be regarded as non-predatory cannot be accepted. His actions, in emailing RW about his sexual desire and going to her house in order to bring about sexual intercourse with her, at a time when the treating relationship had not been properly ended, were certainly predatory. There is nothing in his behaviour which suggests the genuine concern for the patient exhibited in Dall or the vulnerability of the psychologist there. The subsequent payments of money did not demonstrate any manipulation of him at relevant times. Dall is not, on its facts, comparable.

I should deal with a matter which was the subject of submission by counsel, although not directly relevant to the appeal grounds: whether the Tribunal treated as an aggravating circumstance the fact that the applicant had paid money in order to procure RW’s silence. I do not think that anything in the decision supports that view; rather what is contained in the passage from the Tribunal’s reasons set out at [13] above is a rejection of the argument that the payments should be regarded as a mitigating circumstance, as exhibiting a change in the power imbalance. Nothing in the remainder of the Tribunal’s discussion suggests otherwise. It is clear that it regarded the aggravating circumstances as: the power imbalance itself; the continued lack of insight; the dishonesty; and the fact that the conduct was engaged in while the applicant was subject to an undertaking.

Nothing in the Tribunal’s reasons indicates that the period selected for cancellation of the applicant’s registration was composed of distinct components of 18 months in respect of the sexual activity with a further 18 months added in respect of the deceit. Rather, the Tribunal identified: the need for community protection against repetition of the conduct, in a context in which it had found a significant risk of recidivism; the need for deterrence of others from like conduct; the gravity of the applicant’s offending; his dishonesty; and his continued lack of insight as factors leading to the conclusion that the appropriate penalty was cancellation and prohibition from re-registration for three years. The Tribunal was entitled to find that there was a substantial risk of recidivism, given: the lack of remorse and insight demonstrated by the applicant during the hearing; the fact that the misconduct occurred at a time when he was subject to other allegations of breach of professional boundaries and continued at a time when he had given an undertaking to the Board; that he had not been candid with his treating psychologist; and his continued attempts to minimalise and rationalise his behaviour.

The sanction of cancellation of the applicant’s registration, effectively for three years has not been shown to be disproportionate by reference to other cases. Nor has any error been identified in the Tribunal’s reasoning as to what was necessary by way of sanction.

Orders

The applicant has not demonstrated any injustice arising from the Tribunal’s decision, and he has no prospect of success on an appeal. I would refuse the application for leave to appeal. The applicant should pay the costs of the application.

McMURDO JA: I agree with the Chief Justice.

BOND J: I agree with the Chief Justice.

Footnotes

1. Section 149(3)(b) provides that an appeal against the decision of the Tribunal so constituted may be made on a question of fact or a question of mixed law and fact only with leave. ↩

2. Psychology Board of Australia v Shahinper [2016] QCAT 259 at [49]. ↩

3. Psychology Board of Australia v Shahinper [2016] QCAT 259 at [23]. ↩

4. Psychology Board of Australia v Shahinper [2016] QCAT 259 at [71]-[72]. ↩

5. Psychology Board of Australia v Shahinper [2016] QCAT 259 at [70]. ↩

6. [2014] QCAT 516. ↩

7. Psychology Board of Australia v Wakelin [2014] QCAT 516 at [25]. ↩

8. [2011] QCAT 608. ↩

9. [2014] QCAT 159. ↩

10. Psychology Board of Australia v Wakelin [2014] QCAT 516 at [26]. ↩