PSYCHOLOGISTS TRIBUNAL OF NEW SOUTH WALES

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PSYCHOLOGISTS TRIBUNAL OF NEW SOUTH WALES

PSYCHOLOGISTS TRIBUNAL
OF NEW SOUTH WALES

REASONS FOR DECISION

The Psychologists Tribunal (the Tribunal) held a fresh inquiry commencing 10 June 2009 into a complaint made by Ms Karen Mobbs, the Director of Proceedings, Health Care Complaints Commission (HCCC). The first complaint was made 16 April 2007. The claimant was given leave to file a further amended complaint at the commencement of the proceedings on 10 June 2009. This amended complaint had been served on the respondent 5 weeks prior to the hearing. He had no objections to the amendments.

A differently constituted Psychologists Tribunal handed down its decision on 7 April 2008. The HCCC appealed. On 8 December 2008 the Supreme Court found there was a denial of natural justice and remitted the matter back to a differently constituted tribunal for rehearing. It is that second hearing which is the subject of this decision.

Complaint One

Has been guilty of unsatisfactory professional conduct within the meaning of s.25 of the Act, in that he has:

(i) demonstrated that the knowledge, skill, judgment possessed or care exercised by the psychologist in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or;

(ii) engaged in improper or unethical conduct in the course of the practice or purported practice of psychology.

Particulars of Complaint One

Between 5 March 2003 and 13 June 2003 the psychologist provided therapy or other professional psychology services to a female client.

The psychologist:

1. upon realising that he had developed personal feelings for the female client and/or the female client had developed feelings for the psychologist, failed to:

                                            i.seek advice from an appropriate college or supervisor,

                                          ii.terminate the therapeutic or other professional relationship with the female client and/or

                                        iii.refer the female client to another psychologist.

1. failed to maintain appropriate boundaries in his therapeutic or other professional relationship with the female client in that he:

                                            i.had social and physical contact with the female client contrary to A 4 of the NSW Psychologists Registrations Board’s Code of Ethical Conduct dated 3 November 1997 (“the Board’s Code of Conduct”) and/or

                                          ii.engaged in therapy or other professional sessions with the female client, in an informal social setting outside his office.

1. engaged in a personal and sexual relationship with the female client, which included sexual intercourse, contrary to A 4 of the Board’s Code of Conduct.
2. failed to refer the female client to another psychologist following termination of the therapeutic or other professional relationship with the female client, contrary to A 5 of the Board’s Code of Conduct.

Complaint Two

Has been guilty of professional misconduct within the meaning of s24 of the Act, in that he has:

(i) demonstrated that the knowledge, skill, judgment possessed or care exercised by the psychologist in the practice of psychology is significantly below the standard reasonably expected of a psychologist of an equivalent level of training or experience, and/or;

(ii) engaged in improper or unethical conduct in the course of the practice or purported practice of psychology

Particulars of Complaint Two

The Particulars of Complaint Two are identical to those of Complaint One.

Relevant Law

Section 25 of the Psychologists Act 2001 (the Act) is as follows:

For the purposes of this Act, unsatisfactory professional conduct, in relation to a registered psychologist, includes any of the following:

(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the psychologist in the practice of psychology is significantly below the standard reasonably expected of a psychologist of an equivalent level of training or experience,

(b) a contravention by the psychologist of a provision of this Act or the regulations or of a condition of the psychologist’s registration,

(c) a failure without reasonable excuse by the psychologist to comply with a direction by the Board to provide information with respect to a complaint under this Part against the psychologist,

(d) a failure by the psychologist to comply with an order made or a direction given by the Board or the Tribunal under this Act,

(d1) a contravention by the psychologist of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,

(e) any other improper or unethical conduct by a psychologist in the course of the practice or purported practice of psychology.

The definition of “unsatisfactory professional conduct” was amended by the Health Registration Legislation Amendment Act 2004 (Schedule 1), which commenced on 1 March 2005. The amendment added the reference to the standard reasonably expected of a psychologist of an equivalent level of training or experience. The particulars of the complaint filed against the Respondent relate to incidents that occurred prior to 1 March 2005. However, pursuant to the transitional provisions of Statute Law (Miscellaneous Provisions) Act (No. 2) (Schedule 4), the relevant law to be applied by the Tribunal is that which was in force at the time the complaint was filed. The complaint currently before the Tribunal was filed on 16 April 2007. Consequently, the definition of “unsatisfactory professional conduct” applicable in these proceedings is the definition contained in the current legislation.

Section 24 reads:

For the purposes of this Act, professional misconduct, in relation to a registered psychologist, means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the psychologist’s registration.

All registered psychologists in NSW are bound by a code of conduct. When considering the meaning of improper or unethical conduct the Tribunal will have regard to the Psychologists Registration Board Code of Ethical Conduct, dated 3 November, 1997 which was relevant at the time of the alleged incidents. (Exhibit 17) Clause 4 provided:

“Psychologists must not exploit their relationship of trust with their clients, students or supervisees in any way. In particular they must not have a personal or sexual relationship with them during the professional relationship. When the professional relationship has included the provision of any form of psychotherapy in which the professional relationship was a major therapeutic factor, a sexual relationship with the clients involved should never later occur. When other kinds of professional relationship have ended, the advice of senior colleagues should be sought before beginning any other kind of relationship. Normally a period of one year should elapse before such a relationship begins.”

Standard of proof required

The onus of proving the complaints lies with the party bringing them, in this case the HCCC. The standard of proof is “comfortable satisfaction on the balance of probabilities” derived from Rejfek v McElroy (1965)112 CLR 517 @ 521. In applying this standard the Tribunal must consider the seriousness of the allegations and the gravity of its consequences on the Respondent in accordance with principle enunciated in Briginshaw v Briginshaw

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”

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

Psychologists are expected to maintain high standards because the trust placed in psychologists is analogous to that placed in medical professionals due to the necessity for the client to disclose highly personal information to the psychologist in the course of treatment and the resulting vulnerability of the client.

 “The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters, the trust a patient places in a doctor is considerable. In some cases, of which the present seems to be an example, the patient’s trust cannot help but be almost absolute. The doctor’s power in regard to the patient in such cases is also very great. I do not mean power in the abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain high standards; all this being very much in the public interest.”

Commencement of disciplinary action

The Respondent wrote a letter to the Psychologists Board on 28 August 2005 informing the Board that he had committed a severe violation of the therapeutic boundaries with a female client including sexual intercourse.

Witnesses

The Respondent gave evidence at the hearing. There were no other witnesses called for cross examination. Both parties sought to rely on the transcript of the hearing of the first Tribunal where the Respondent cross examined both Mr Cox-May who was the second treating psychologist of the client and Ms Goldberg who provided the peer review reports. Dr Haralambous, the Respondent’s treating psychologist also gave evidence. This Tribunal recognises it has not had the benefit of observing the witnesses giving evidence and will limit the weight it gives that evidence where credit of the witness is in issue.

The female client did not appear and wants to remain anonymous. She is referred to as Client X.

Documentation

The HCCC tendered a bundle of documents listed in Appendix 1 to this decision. Each of these documents was accepted and marked Exhibit 1-25. Exhibit 21 was admitted into evidence but the Tribunal indicated that its weight would be a matter to be determined after submissions.

The Respondent objected to Exhibit 21 because it was an unsigned typed letter and the alleged author, Client X was not available for cross examination. The letter was witnessed by Mr Cox-May. He was not required for cross examination, though the transcript of him being cross examined at the first hearing was in evidence. The Respondent accepted the facts in this letter but did not accept any innuendos or opinions. He took the Tribunal through the letter and marked which sections he objected to. He submitted that it was unlikely that Client X was the author. He gave several reasons why the Tribunal should come to that conclusion. He also submitted that the substance of the letter may be affected by Mr Cox-May who had witnessed the letter. The Tribunal is sympathetic to the Respondent’s submission however the Respondent did say, several times in evidence that the facts in the letter were accurate.

The Respondent submitted that the report of Mr. Cox-May was problematic because he had been involved in an inappropriate relationship with a female client at around the same time and that he was the subject of disciplinary action. However the Respondent did acknowledge some of the factual details in that report though he did not specify which were accurate. The Tribunal will take care when considering the report of Mr Cox-May but notes that it appears Mr Cox-May behaved appropriately in this matter.

Background

The Respondent obtained his professional qualification for the practice of psychology with Honours in Psychology, Macquarie University 1977 and Masters in Psychology, University of Sydney 1978 -1981. He practiced as a psychologist in Blacktown Health Centre 1978 -1982, then as a clinical psychologist in the Public Health Sector between 1982 -1994. He undertook part time private practice in 1990 - 1994; he has been in full time private practice since 1994 which included consulting to various government facilities. The Respondent’s clients included referrals from general medical practitioners, solicitors, insurance companies and employers.

When Client X first sought the professional services of the Respondent she had been in a religious order for 8 years. She was to take her final vows in a few months. These included a vow of chastity which she had also taken as a novitiate. She had joined a religious order as an adult some years after leaving school. Prior to entering the religious order, Client X’s life in the community appeared unremarkable.

Client X was referred to a psychologist because she had suffered a traumatic experience as the result of an unfavorable report following an assessment for fitness to take her final vows in the religious order. A personal and sexual relationship occurred between the Respondent and Client X between March and September 2003. The Respondent has accepted the particulars of each claim and there is little dispute over the facts of the relationship the Respondent had with Client X.

Client X first appointment with the Respondent for an “intervention” was 11 March 2003. 9 weekly sessions were recorded and paid for between that date and 13 June 2003.The first 5 sessions involved elements of counselling, debriefing and support. The Respondent gave evidence that he had feelings for Client X by the second appointment and that throughout the relationship he was more interested in pursuing a sexual relationship than Client X. At the fourth session Client X suggested they have a cup of coffee. The Respondent suggested they meet at a café which they did on 9 April. The Respondent spent most of that day with Client X. At his invitation they returned to his house and went into his bedroom where the first sexual touch and attempt to undress Client X took place. On 15 April they met socially again.

Two days later two members from the religious order attended the session with Client X. The members asked the Respondent to provide them with some feedback/report with respect to Client X and the earlier psychological profile. The Respondent sent a letter to the Order in response to this request on 18 June.

On the 22 April the Respondent hired a hotel room in Cronulla and Client X stayed with him there at least for the evening meal. On the 8 May the Respondent invited Client X to his house for her “birthday present” which were rose petals on his bed and a stuffed toy pig. He made sexual advances but she refused. The next day the Respondent’s father, who had been unwell for some months, died. “Shortly thereafter” Respondent left for France where his father lived. He returned on 22 May. On 25 May Client X went to the Respondent’s house and sexual intercourse occurred. During May/July period they met on a social basis about weekly. On 3 July the Respondent hired a room at Kangaroo Valley with a double bed, they slept together but did not engage in sexual intercourse. Sometime towards the end of August the Respondent asked Client X to watch “The Guru” with him. The Respondent could not remember but said it was possible sexual intercourse occurred.

On the 19 August Client X was voted into the Order. Respondent claims he last saw her in about September 2003. In early October Client X rang him, the Respondent refused to meet with her so they said their goodbyes on the phone. In December 2003 Client X took her final vows.

On the 23 April 2004 Client X went to a another psychologist (Mr Cox- May) and detailed her sexual contact with the Respondent.
At Mr Cox-May’s request, the Respondent met with Mr. Cox-May and Client X on 15 September 2004. They asked him to write a 3000 word essay on client boundaries and the effects of breaking them and they wanted him to seek supervision and therapy. The Respondent agreed to do these things. After being “reminded” by Mr Cox-May in a letter dated 12 November, Respondent saw psychologist, Dr. George Haralambous though didn’t continue until reminded again in about March 2005. Mr Cox May has to remind the Respondent several times before he provided the Essay on 30 April 2005.

On 6 June the Respondent wrote to Client X referring to the sexual intercourse which they had had and apologizing directly for his behaviour. In early August Mr. Cox-May sent letters to the Respondent and to Dr Haralambous saying that Mr. Haralambous had an obligation to report the Respondent to HCCC. On the 28 August the Respondent “self-reported” to the Psychology Registration Board and admitted his behaviour was a violation of therapeutic boundaries and involved sexual intercourse. In a further letter dated 22 November he set out his treatment of Client X which he said included counselling and supportive psychotherapy. He resiled from the contents of this letter when he gave evidence.

The Respondent claimed in his letter that he was self reporting as the next step to rehabilitation. The Tribunal does not accept this explanation. It finds that the Respondent reported his violation because he was pressured to do so by Mr. Cox-May who applied pressure on both the Respondent and his therapist Mr. Haralambous.

Discussion

Both parties agree that when Client X sought the services of the Respondent that a ‘professional relationship’ was created. At the hearing the Respondent claimed that he was only asked to provide a report and that in the narrow sense there was no “therapeutic relationship”. This Tribunal does not find that this distinction provides any help in this matter. The Act refers to the “practise of psychology“ and the relevant Code of Behaviour refers to “professional relationships”. In the Peer Review prepared by Ms Greta Goldberg she opines “a professional relationship with a psychologist is the overriding context that governs the application of the ethical code rather than the specific modalities”.

However both parties placed emphasis on whether a therapeutic relationship existed. For completeness the Tribunal has decided to address this issue.

Prior to there being any investigation into his behaviour the Respondent described his professional activity with Client X as counselling and treatment, and identifying the client’s trauma as the main target of the psychological counselling provided. It is only in hindsight that the Respondent redefines the relationship. It is the Tribunal’s view that the Respondent’s claim that he was only referring in “generic” terms to counselling or treatment in numerous earlier documents is self-serving.

The Tribunal finds that Client X was seeking counselling and therapy. This was referred to in a number of documents including the referral from the Psychological profiling company and the Respondent’s letters to the Psychologist Board and the HCCC. The Respondent responded to these needs of Client X by using specific treatment processes of support, counselling and debriefing in at least the first 5 sessions. He was not asked for a report/feedback until the 6th session. The Order intended the sessions to involve treatment and thanked him for his treatment on completion. The Tribunal finds the Respondent was in a therapeutic relationship with Client X.

When Client X sought the services of the Respondent she was particularly vulnerable. After many years as a novitiate she had a traumatic response to the questioning of her commitment by the Order and the subsequent psychological profile. The Tribunal finds that the Respondent pursued sexual contact during their professional relationship despite not only the client’s attempts to avoid a sexual relationship but also despite his knowledge of her personal vows and commitment to celibacy. This was an exploitation of the relationship of trust he had with this client.

In doing so, the Respondent took advantage of the unequal relationship which exists between a psychologist and client. The Tribunal considers the active pursuit of a client who was taking a vow of chastity is a severe abuse of the professional relationship, and that such behaviour occurred over several months.

The Respondent admitted that he did not follow appropriate standards in terminating his professional relationship with the client, or provide appropriate care and referral. The harm done by the inappropriate relationship with the Respondent was compounded by the abrupt, insensitive and unprofessional manner by which he terminated the relationship, and failed to provide for the ongoing welfare of the client.

It took from September 2003 when the relationship ended to 28 August 2005 for the Respondent to inform the Registration board of his breach of standards which he did as a result of coercion from the client and her then therapist.

The Respondent acknowledged that in hindsight he could see the inappropriateness of his behaviour. He claimed that the lapse of his professional standards occurred as a result of the “black hole” that he fell into on the illness and then death of his father. The Tribunal has some concern about the Respondent’s claim that this represents a specific circumstance of such unusual intensity that it impaired his decision making. He also claimed that it can be viewed as a function of the grief process and therefore unlikely to occur again. However, he stated in evidence that during the relevant period he had 14 other clients and he reported no problems in his management or care of them. The Tribunal therefore rejects his claim that his emotional state at the time could explain or reduce the severity of the consequences of those breaches.

A number of incidents came to light during the hearing which the Tribunal consider worthy of mention. Firstly, in the handwritten letter of Client X to Mr. Cox-May, 29 April 2005 she makes an allegation that the Respondent had admitted to her about other relationships with clients and the Respondent admitted to some social contact with other clients and referred to a Vietnamese woman and a wedding he had attended. In the Respondent’s letter to Mr. Cox May dated 6 June, 2005 he reiterates his belief that social contact with clients can at least on occasion be justified as a function of his therapeutic orientation. When he was asked in evidence whether he continued to hold such beliefs the Respondent did not directly answer. Instead he referred back to the differing philosophies inherent in various treatment approaches. In the extraordinary context of the hearing about boundary violations the Tribunal finds his refusal to engage directly about his view about social contact with clients concerning. The Tribunal takes the view that the Respondent is likely to continue to seek and engage in potentially risky situations with clients that involve social situations.

At the hearing the Respondent appears to have withdrawn somewhat from his contrition and assumption of full responsibility in the Essay and the letter to the client. In evidence he referred to the relationship with the client as consensual, despite acknowledging he was more actively interested in sex. The Respondent’s reluctance to accept his role as therapist and his ambivalence about his behaviour presents a worrying lack of insight into his behaviour. Such lack of insight and ambivalence despite therapy with a respected clinician Mr Haralambous over a two year period raises serious concerns about his capacity for rehabilitation.

Tribunal’s findings in relation to the Complaint

Having found the Particulars of Complaint made out and noting the admissions of the Respondent, the Tribunal finds this conduct amounts to unsatisfactory professional conduct in that it demonstrates that the knowledge, skill, judgment possessed and care exercised by the Respondent in the practice of psychology is significantly below the standard reasonably expected of a registered psychologist, more particularly one with the level of experience equivalent to that of the Respondent. The Tribunal therefore finds Complaint One made out.

The Tribunal is comfortably satisfied that the conduct is of such a serious nature that it is of the view that it amounts to professional misconduct and warrants the removal of the Respondent’s name from the register. The Tribunal therefore finds Complaint Two made out.

The Tribunal finds the breaches very serious and finds the Respondent should be deregistered for four years less the time served (8 months) between his first suspension and the overturn of the first Tribunal’s orders by the Supreme Court. We do not provide any grace time for the 10 months that the Respondent voluntarily remained unregistered

Public reprimand

The Respondent was publicly reprimanded after the first hearing. Another reprimand is unnecessary.