Angelakis v Psychology Board of Australia

[2024] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

ANGELAKIS v PSYCHOLOGY BOARD OF AUSTRALIA

[2024] SASC 133

Judgment of the Honourable Justice B Doyle  

27 November 2024

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - APPEALS

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - OTHER RELATIONSHIPS WITH PATIENT

The appellant, a registered psychologist, appeals against part of a decision of the South Australian Civil and Administrative Tribunal ('the Tribunal') pursuant to s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA).

The appeal concerns the Tribunal's finding (and orders recording) that the appellant engaged in professional misconduct by providing false or misleading information to the Australian Health Practitioner Regulation Agency and to the respondent about the timing and circumstances of boundary violations and her relationship with a former client, CA.

The appellant appeals against the relevant finding and order on grounds that:

1.The Tribunal failed to undertake a subjective assessment of the appellant’s actual state of mind at the time of her self-notification and the first interview;

2.The Tribunal erred in failing to engage with the expert evidence regarding shame-based cognition and its capacity to explain the appellant’s failure accurately to describe the timing and circumstances of her earlier transgressions;

3.The Tribunal erred in failing to consider the impact that the reflective education undertaken by the appellant might have had on her evidence;

4.The Tribunal erred by attaching significant weight to the appellant’s demeanour in making findings that attracted the principles associated with Briginshaw v Briginshaw (1938) 60 CLR 336;

5.The Tribunal erred by drawing an adverse inference against the appellant for not calling CA as a witness;

6.The Tribunal erred by making adverse findings against CA;

7.The Tribunal erred in considering the evidence relevant to the appellant’s state of mind selectively, including by failing to consider or attach weight to aspects of her conduct or evidence which contraindicated a finding that she deliberately or recklessly misled regulators.

The appellant submitted that those errors, considered in the light of miscellaneous additional errors made by the Tribunal, either individually or collectively, were material to the ultimate finding and order challenged and that the Court should set aside the finding and order and:

1.decline to remit the matter for further hearing and dismiss the relevant grounds of the complaint against the appellant; or

2.accept the appellant’s admission that she was negligent or careless in providing the self-notification and the statements made during the first interview and, consequently, determine that a finding of unprofessional conduct is appropriate; or

3.remit the question of the characterisation of the appellant’s conduct to a differently constituted Tribunal.

Held, dismissing the appeal:

1.The Tribunal did not fail to consider and make findings with reference to the appellant’s actual state of mind at the relevant times.  The references in the Tribunal’s reasons to the objective likelihood of particular facts and circumstances were steps in the reasoning to a conclusion about the appellant’s actual state of mind.

2.The Tribunal did consider the expert evidence regarding shame-based cognition.  In any event, when considered in the context of all the evidence, it ultimately lacked cogency and significant explanatory value in this particular case.

3.The Tribunal did not err by finding that the appellant had a tendency to minimise events or to acknowledge their significance only with the benefit of hindsight, and thereby implicitly rejected the proposition that it was only the process of reflective education that had brought certain realisations to light.  It did not err by failing to set out, more explicitly than it did, the reasons why it reached that finding of fact.

4.The manner in which the appellant gave evidence, as distinct from the content of her answers, did not play a large or decisive role in the Tribunal’s reasoning, and it did not err by placing undue reliance on adverse impressions about the appellant’s demeanour. 

5.The Tribunal did not treat the appellant’s failure to call CA as generally undermining the appellant’s evidence on all matters.  It was open, in particular respects, to treat the failure to call CA as warranting an inference that evidence he may have given on those matters would not have assisted the appellant.  The limited weight given by the Tribunal to the failure to call CA on particular matters, as well as the Tribunal’s adherence to the approach described in Briginshaw was evident from its failure to be satisfied that any inappropriate touch occurred during the treatment session on 19 July 2019.

6.The Tribunal’s observations respecting CA did not amount to appellable error.

7.The Tribunal did not err by engaging in a selective or incomplete consideration of the evidence relevant to the appellant state of mind.

8.Such errors as were made by the Tribunal in the course of its reasons were not material.

9.On an independent review of the evidence, it is not demonstrated that the Tribunal erred in making the impugned finding or order.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 196; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39 and s 71, referred to.

Giudice v Legal Profession Complaints Committee [2014] WASCA 115, distinguished.
Boulton v Delpech [2008] WASCA 245; Boyle (a pseudonym) v The Queen [2022] SASCA 50; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; DL v The Queen (2018) 266 CLR 1; Jamil v Medical Board of Australia [2024] SASC 90; Law Society of South Australia v Jordan (1998) 198 LSJS 434; Lee v Lee (2019) 266 CLR 129; Manly Council v Byrne [2004] NSWCA 123; Mealey v Power [2015] NSWSC 1678; Medical Board of Australia v Shah (a pseudonym) [2023] SACAT 105; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Nguyen v Tran (2018) 86 MVR 16; [2018] NSWCA 215; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Psychology Board of Australia v Angelakis [2024] SACAT 24; R v Mayger (2013) 116 SASR 488; Return to Work Corporation of South Australia v Wastell [2024] SASCA 98; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Testel Australia Pty Ltd v Goulding [2023] SASCA 116; Walsh v Legal Practitioners Conduct Board [2016] SASCFC 52; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, discussed.

Briginshaw v Briginshaw (1938) 60 CLR 336; Fox v Percy (2003) 214 CLR 118; Hutchinson v Van Den Berg [2024] SASCA 117; Jones v Dunkel (1959) 101 CLR 298; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77; New South Wales Bar Association v Kalaf [1988] NSWCA 101; Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339; Terry v Leventeris (2011) 109 SASR 358, considered.

ANGELAKIS v PSYCHOLOGY BOARD OF AUSTRALIA

[2024] SASC 133

Civil: Appeal

B DOYLE J:

Introduction

1. The appellant, Dr Samantha Angelakis, is a registered psychologist.  Following a contested ‘stage one’ hearing,[1] the South Australian Civil and Administrative Tribunal (‘the Tribunal’) delivered reasons on 9 April 2024[2] in which it made findings that she engaged in professional misconduct by failing to maintain proper professional boundaries in the course of treating CA, a former client,[3] and by entering into an intimate and sexual relationship with CA within two years after the termination of the professional relationship.[4] 

   [1]     That is to say, a hearing conducted for the purposes of making findings as to the conduct of the practitioner and the characterisation of that conduct.

   [2]     Psychology Board of Australia v Angelakis [2024] SACAT 24 (‘Reasons’).

   [3]     The allegations in relation to boundary violations during the appellant’s treatment of CA comprised Ground 1 of the respondent’s amended referral under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘Amended Referral’).

   [4] Amended Referral, Ground 2.

2. Most relevantly for the purposes of this appeal, the Tribunal also found that the appellant engaged in professional misconduct by providing false or misleading information to the Australian Health Practitioner Regulation Agency (‘Ahpra’) and the Psychology Board of Australia (the respondent) about the timing and other circumstances of the boundary violations in her self-notification and during the first interview she attended with Ahpra investigators.[5]

   [5] Amended Referral, Grounds 3 and 4.

3. On 10 May 2024, the Tribunal made formal orders recording its findings.  In respect of the appellant’s statements in her self-notification and in the first investigation interview, the orders record that:

   … the [appellant] has behaved in a way that constitutes professional misconduct for the purposes of s 196(1)(b)(iii) of the National Law in that: … the [appellant] provided false/misleading information to the Board and Ahpra about the timing and other circumstances in which the boundary violations and relationship with CA occurred in: (a) her self-notification of 7 February 2020; and (b) her first interview with Ahpra on 27 May 2020.

4. The appeal to this Court concerns this part of the Tribunal’s orders.[6] 

   [6]     Alternatively, the appellant appeals against the paragraphs of the Reasons in which those findings are set out.  In order to guard against the possible expiry of the time within which she was required to appeal, the appellant filed her first Notice of Appeal at a time when the Reasons had been published, but the formal orders had not been made. 

5. The appellant does not challenge the findings or conclusions of the Tribunal to the effect that she was guilty of professional misconduct in failing to maintain proper professional boundaries with CA during the last eleven days of her treatment of him.  Nor is there any challenge on appeal (nor was there a dispute before the Tribunal) that the appellant entered into an intimate and sexual relationship with CA within two years after terminating the professional relationship (indeed, they subsequently married), and that the entry into that relationship amounted to professional misconduct.[7] 

   [7]     On 17 May 2024 the appellant filed a document titled Appeal Grounds – Revision 1 (‘Revised Grounds’).  Ground 9, which challenged the findings relating to boundary violations during the period of CA’s treatment, was not pressed.

6. It is common ground that the account given by the appellant in her self-notification and during the first interview was inaccurate and misleading in various respects.  The central question on appeal is whether the Tribunal erred in finding that the appellant deliberately or alternatively recklessly misled Ahpra and the respondent.  That was the basis upon which the Tribunal characterised the appellant’s conduct as ‘professional misconduct’.[8] 

   [8] Reasons [140]-[142], [171]-[179].

7. Each of the appeal grounds pressed by the appellant is directed to that issue.  The appellant’s contentions may be summarised as follows:

   (1)The Tribunal failed to undertake a subjective assessment of the appellant’s actual state of mind at the time of her self-notification and the first interview.[9]

   (2)Further, and in any event, the Tribunal:

   (a)failed to engage with the expert evidence regarding shame-based cognition and its capacity to explain the appellant’s failure accurately to describe the timing and circumstances of her earlier transgressions;[10]

   (b)failed to consider the impact that the reflective education undertaken by the appellant might have had on her evidence;[11]

   (c)erred by attaching significant weight to the appellant’s demeanour in making findings that attracted the Briginshaw[12] principles;[13]

   (d)erred by drawing an adverse inference against the appellant for not calling CA as a witness;[14]

   (e)erred by making adverse findings against CA;[15]

   (f)erred in considering the evidence relevant to the appellant’s state of mind selectively, including by failing to consider or attach weight to aspects of her conduct or evidence which contraindicated a finding that she deliberately or recklessly misled regulators.[16]

   [9] Amended Grounds [2].

   [10] Amended Grounds [1].

   [11] Amended Grounds [3].

   [12]   Briginshaw v Briginshaw (1938) 60 CLR 336.

   [13] Amended Grounds [4].

   [14] Amended Grounds [5].

   [15] Amended Grounds [6].

   [16] Amended Grounds [7].

8. The appellant submits that these errors, either individually or collectively, are material to the finding of professional misconduct in providing false or misleading information to the respondent and Ahpra about the timing and circumstances in which the boundary violations and relationship with CA occurred.[17] 

   [17] Amended Grounds [8].

9. The appellant submitted that whereas demonstration of error in the fact-finding process might otherwise lead to the matter being remitted to a differently constituted Tribunal, in the particular circumstances of this case, the Court should decline to remit the matter for further hearing, and should dismiss the grounds of the referral relating to her conduct in connection with the self-notification and first interview because the Tribunal would not now be able fairly to make a subjective determination of the appellant’s state of mind at the relevant times.

10. The appellant alternatively submits that the Court could accept the appellant’s admission that she was negligent or careless in providing the self-notification and in the statements she made whilst attending the first interview, and find that a finding of unprofessional conduct is appropriate. 

11. In the further alternative, it is submitted that the Court should remit the question of how the appellant’s negligent and careless reporting should be characterised to a differently constituted Tribunal.

12. In brief outline, the respondent’s submissions may be summarised as follows:

    (1)The Tribunal made a subjective assessment of the appellant’s state of mind at the time she made the self-notification and was interviewed.  Whilst its reasoning included that, in light of documentary and other evidence, it was objectively unlikely that the appellant was either confused or unable to access her memory of the timing, nature and circumstances of her ethical transgressions, there was nothing impermissible about that form of reasoning.  

    (2)In respect of the specific complaints made about the Tribunal’s reasoning:

    (a)the expert evidence relating to shame-based cognition was inconsistent with acceptance that the appellant was not suffering from an inability accurately to recall the relevant events (such as might be explained by shame-based cognition) and that process would not explain the giving of a false, as distinct from an incomplete, narrative;

    (b)there was no need to weigh the effect of reflective education in circumstances where it was rightly found that the appellant in fact understood her conduct was unethical at the time it was undertaken;

    (c)there was no error in making adverse findings about the way the appellant gave evidence;

    (d)it was open to the Tribunal to consider that various findings it made were buttressed by a finding that the evidence of CA would not have supported the appellant’s evidence or case, and, in any case, the same findings were and are available without reasoning in that way;

    (e)the Tribunal made no adverse finding against CA and, to the extent that it did, that does not detract from the findings made against the appellant;

    (f)the Tribunal did not engage in selective consideration of the evidence.  It considered and found persuasive the objective evidence from which inferences of deliberate falsity were drawn.

13. The respondent submits that the Tribunal’s ultimate conclusion was correct and, to the extent that this Court on appeal considers any aspect of the Tribunal’s reasons for reaching that conclusion was erroneous, the Court should, making its own independent assessment, reach the same result. 

14. It was submitted that the Court should only consider remitting the matter if, having concluded that one or more aspects of the Tribunal’s reasoning was problematic, and considering for itself the correctness of the ultimate findings, the manner in which the appellant gave evidence (as distinct from the content of the evidence) assumes significance.

    Approach on appeal to this Court

15. The appeal to this Court is by way of rehearing.[18]  The Court may draw inferences of fact from evidence or material before the Tribunal.[19]  It may affirm, vary or set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.[20]

    [18]   South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’) s 71(3a).

    [19] SACAT Act, s 71(3b).

    [20] SACAT Act, s 71(4).

16. In accordance with the principles governing an appeal of this kind,[21] it is necessary for me to conduct a ‘real review’ of the trial record in order to determine whether the Tribunal erred in fact or law.[22] 

    [21]   The principles relating to an appeal by way of rehearing are collected in Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114]-[118] (Doyle, Livesey and Bleby JJA) and in Testel Australia Pty Ltd v Goulding [2023] SASCA 116 at [26]-[31] (Livesey P, Doyle JA and Stein AJA). They were recently applied in the context of an appeal from SACAT in respect of a disciplinary decision in Jamil v Medical Board of Australia [2024] SASC 90 at [26]-[27] (McIntyre J).

    [22]   Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ), Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ).

17. This involves undertaking an independent review of the evidence and findings below and forming a view as to the appropriate outcome.  Because the appeal is not a hearing de novo, the Court on appeal should not substitute its own view, or otherwise interfere, unless satisfied that the Tribunal erred.[23]

    [23]   Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [115] (Doyle, Livesey and Bleby JJA), Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40] (Doyle CJ, Duggan and Lander JJ agreeing).

18. I must be mindful of the ‘natural limitations’ attending a review proceeding on the record, which is to say I should bear in mind the advantage enjoyed by the Tribunal by reason of having seen and heard the witnesses and experienced the ‘feeling’ of the case.[24] 

    [24]   Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [116]-[117] (Doyle, Livesey and Bleby JJA), Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

1. This may call for a degree of appellate restraint in respect of findings which are likely to have been affected by impressions about the credibility or reliability of witnesses formed by the Tribunal as a result of having seen and heard them give evidence, and of having had the opportunity to consider their evidence in the context of the evidence as a whole and of the trial as it unfolded.  The advantage may extend to secondary facts which are based on a combination of the Tribunal’s impressions and other inferences from primary facts.[25]

   [25]   Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 [117] (Doyle, Livesey and Bleby JJA), Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

2. The extent of the advantage may be weakened by substantial delay between the hearing of the evidence and the delivery of the judgment under appeal.[26]

   [26]   Terry v Leventeris (2011) 109 SASR 358 at [15] (Gray J, Sulan and Vanstone JJ agreeing).

3. Ultimately, however, and subject to respecting that advantage, if having conducted a review of the evidence and the findings, the conclusion is reached that material error is disclosed, the Court cannot shrink from giving effect to that conclusion.[27]

   [27]   Testel Australia Pty Ltd v Goulding [2023] SASCA 116 at [31] (Livesey P, Doyle JA and Stein AJA), Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), Fox v Percy (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).

4. There will also be cases in which, although the challenged finding is one relating to the credibility or demeanour of a witness, it can be seen that the process of making findings of that kind has miscarried, such as where no analysis is made of competing evidence or no explanation is given for rejecting important evidence.  In such a case the Court on appeal may be satisfied that the process has miscarried,[28] without the Court first having being positively persuaded, by reference to a review of the entirety of the relevant evidence, that the ultimate or dispositive finding was erroneous. 

   [28]   See, eg, Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 at [11] (Basten JA, Leeming JA agreeing), Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [66] (Leeming and Payne JJA and Schmidt J), Nguyen v Tran [2018] NSWCA 215 at [45]-[52], [76] (Beazley P, Bellew J agreeing).

5. In considering whether the fact-finding process has miscarried, the ‘necessarily incomplete’ character of the reasons at first instance should be borne in mind.  As Leeming JA said in Nominal Defendant v Smith:[29]

   In part [that] arises because of the desirability of avoiding unnecessary prolixity and inessential detail: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]. In part it arises for the reasons given by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45, in a passage approved in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137]:

   The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.

   [29] (2015) 73 MVR 257; [2015] NSWCA 339 at [93].

6. In a similar vein, in Murray v Sheldon Commercial Interiors Pty Ltd,[30] the Court observed that:

   …it is almost certain that after the event, a disappointed litigant will be able to point to errors of omission and commission in the course of making contested factual findings in any mildly controversial trial.  The nature of the fact-finding process, coupled with human fallibility, the exigencies of time and the limitations of reasons for judgment, not to mention the creativity of appellate advocacy, means that it will inevitably be amenable to criticism.  That of itself is immaterial; as Lord Hoffmann said, ‘[t]he exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed’: Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 at 1372. It is the quality and quantity of any such errors in the fact-finding process which matters for the purposes of concluding that the process is sufficiently flawed to amount to appellable error.

   [30] [2016] NSWCA 77 at [62] (Leeming and Payne JJA, Schmidt J).

7. Where the conclusion is reached that the fact-finding process has miscarried, a question then arises whether the Court should make a finding as to the relevant issue or whether the only appropriate course open is to remit the matter.[31] 

   [31]   See, eg, Nguyen v Tran [2018] NSWCA 215 at [77] (Beazley P, Bellew J agreeing), and compare Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 at [55] (Basten JA) and [95] (Leeming JA).

8. Deciding that question will require the appeal court, at least in a preliminary way, to consider whether it can be comfortably satisfied that notwithstanding the limitations attending a review of the record, it can make the findings necessary finally to dispose of the matter or, in an appropriate case, whether it is satisfied that findings required to be made in order for the party carrying the onus to establish their claim to relief should not be made. 

9. That will entail a consideration of the nature of the fact or facts the existence of which is in issue (including, in a case like this, a consideration of the Briginshaw principles) and the extent to which non-testimonial evidence or non-contentious testimonial evidence bears on the probability of their existence. 

10. If the Court is left in a position where it considers that it could not be comfortably satisfied that an important or dispositive finding should, or should not, be made, without having seen the way in which a witness or witnesses presented, or without having witnessed the atmosphere of the first instance hearing, the matter may have to be remitted. [32]  That will be so even though it is obviously undesirable from the standpoint of cost and delay that matters should be remitted for a further hearing.

    [32]   Hutchinson v Van Den Berg [2024] SASCA 117 at [148]-[153] (Kourakis CJ, Lovell and Doyle JJA).

    Summary of the facts

11. Before turning to consider the challenges made to the Tribunal’s reasoning, it is necessary to summarise those facts, and the evidence led at the hearing.

12. Whilst the ultimate conclusions to be drawn with respect to the appellant’s state of mind when she self-notified and was first interviewed are contested, the surrounding facts and circumstances were, to a large extent, not in dispute before the Tribunal and, to the extent that the Tribunal made findings about matters that were not agreed, those findings are, with very limited exception,[33] not challenged on appeal.

    [33] The parties agree that the Tribunal made an incorrect finding at Reasons [177] that the spouses of the appellant and CA were aware by 20 July 2019 of the relationship between them. The appellant also submits that the Tribunal made miscellaneous errors identified in a schedule to the appellant’s submissions.

13. The summary of the facts that follows is drawn from unchallenged findings made by the Tribunal and a review of the entire record of the proceeding at first instance.[34]

    [34]   There were two primary exhibits in the hearing before the Tribunal, exhibits A1 and A2.  These, together with the other exhibits, were with limited exceptions reproduced in a Supplementary Appeal Book (‘SAB’) prepared for the purpose of the appeal.  The Court has also had access to the transcript of the proceeding below which occupied five hearing days.  There was a separate transcript for each hearing day, and where references to transcript are made in these reasons they take the form [hearing day]TR[page number].

    Background

14. The appellant was born on 22 November 1987.  She holds a Bachelor of Psychology (Honours) and Doctor of Philosophy (Clinical Psychology) degrees. 

15. At relevant times she was registered as a psychologist with an endorsement in clinical psychology on the register maintained by the respondent pursuant to Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘National Law’). She practised as a clinical psychologist at PsychMed Pty Ltd (‘PsychMed’), specialising in the treatment of trauma recovery through cognitive therapy.

16. The appellant was at relevant times subject to the professional standards set by the Australian Psychological Society Code of Ethics (2007) (‘Code’). The Code was adopted by the respondent pursuant to s 39 of the National Law.

17. CA is an Inspector of Police with South Australia Police who in or around April 2019 was referred by a human resources consultant to the appellant for treatment in connection with work-related post-traumatic stress disorder.  He underwent clinical treatment in the form of 17 treatment sessions with the appellant between 17 April 2019 and 19 July 2019.

18. By the end of June 2019, the appellant formed the view that CA no longer required treatment, but he was encouraged by a consultant to his employer to attend further ‘catchment sessions’ with the appellant, which were more in the nature of preventative therapy rather than active treatment.  At the session on 6 July 2019 it was agreed that CA’s next session, which ultimately occurred on the afternoon of 19 July 2019, would be his last.

19. CA and the appellant were both married at the time the appellant treated CA.  Each of their relationships came to an end around the time of the last treatment session on 19 July 2019.  Their respective former partners, who have not been involved in or given evidence in these proceedings, will be referred to in these reasons, without any intended disrespect, as W and H.

20. The appellant and CA exchanged numerous emails between 8 July 2019 and 19 July 2019 which manifested a failure on the appellant’s part to maintain proper professional boundaries.  In respect of this period, in findings not challenged on appeal, the Tribunal concluded that the appellant had engaged in non-clinical and personal communication and a social and/or close personal relationship with CA. 

21. On the day following the last treatment session, the appellant and CA commenced an intimate and sexual relationship.  Ultimately, they became married.  The commencement of a sexual relationship within two years after the termination of the professional relationship amounted to professional misconduct.  That was not in dispute before the Tribunal.

22. Although the characterisation of the interactions up to and including 19 July 2019 and the fact of a sexual relationship more or less immediately following the end of the termination of the professional relationship are not in issue on the appeal, it is necessary to canvass aspects of those interactions in some detail.  That is because they bear on the question whether, to the extent that the appellant, in later disclosures to regulators, omitted or misrepresented aspects of these interactions, she might have done so other than deliberately or recklessly. 

23. The respondent submits, without hyperbole, that these were ‘life-changing and dramatic’ events. This is relevant, on the respondent’s case, to the implausibility of the appellant’s claim that although her self-notification and first interview created an incorrect and misleading impression about the timing and proximity of events (to one another), this was careless, but not deliberate nor reckless.

    Interactions prior to the ‘catchment period’

24. The appellant and CA had a treatment session on 11 June 2019 at which CA discussed the death of his grandmother and the appellant reciprocated by disclosing her feelings when her grandmother died. 

25. At around this time the appellant provided CA with a ‘gmail’ address which was then used in some of the subsequent email communications between them, their earlier email communication to that point having occurred using the appellant’s ‘psychmed’ email address.[35] In the first email sent to the appellant’s gmail address, CA said he genuinely believed she was a really a good person and that he hoped he had not abused the purpose of her providing the address.[36]

    [35] Reasons [41]. The appellant submits that there was only one email prior to this time, and that, subsequently, the appellant sometimes continued to communicate using the ‘psychmed’ email address.

    [36] Reasons [38], Exhibit A2, p 1216 [SAB 1210].

26. The appellant responded politely the following day indicating he was in no way abusing her email.[37] CA responded saying he was glad that his email had meant the appellant’s day had started well, and remarking that the trust he felt in her was not just a result of her profession, it was ‘you personally’.[38]

    [37] Reasons [39], Exhibit A2, p 1217 [SAB 1211].

    [38] Reasons [40], Exhibit A2, p 1218 [SAB 1212].

27. In her evidence before the Tribunal the appellant said that if she had a chance to go back she probably would not have responded to CA’s email and would have had a conversation in session about email contact.[39]  In relation to CA’s subsequent email about trusting her personally, her evidence was that she saw things differently now and, without saying that she should not have at that time, her evidence was that she just did not catch the meaning at the time.[40]

    [39] 4TR60.

    [40] 4TR63-64.

28. CA attended sessions with the appellant on 15, 18, 21 and 29 June 2019.[41]  Amongst other topics there was discussion about CA’s relationship with his wife. 

    [41]   Exhibit A1, p 172-179 [SAB 276-283].

29. In a letter of report prepared on 18 June 2019, the appellant opined that CA was now ready to return to work on a return to work plan and that whilst he had demonstrated considerable improvement in his mental health, his role carried considerable risk of vicarious trauma and he should continue to attend sessions with the appellant.[42]

    [42]   Exhibit A2, p 1224-1225 [SAB 1218-1219].

    Interactions during the ‘catchment period’

30. On 6 July 2019, CA attended a session with the appellant. Her notes of the session record that CA had been going well and found himself feeling much happier. The main stressor noted related to his partner. It was noted that he wanted to stay in the relationship for his children. CA was noted as saying that he felt ready to stop further sessions as symptoms had reduced and he felt ready to re-engage in work. It was agreed that the next session (which was held on 19 July 2019) would be the last session.[43]

    [43]   Exhibit A1, p 182 [SAB 286].

31. In the period between 8 and 19 July 2019, the appellant attended ‘F45’ exercise classes with CA on 3 or 4 separate occasions and, on one occasion, briefly met with CA afterwards whilst they purchased takeaway coffee.[44] In her response to the Amended Referral, the appellant accepted these interactions involved ‘boundary violations’.[45]

    [44] 2TR20-24. The appellant said that this was across the road from the F45 class and she was ‘going to guess he said or I said, ‘Do you want coffee?’, went across the road, got a takeaway coffee, and then we both went our separate ways’: 2TR23.

    [45]   Amended Response [3.1].

32. Over the same period, there were a large number of emails exchanged between the appellant and CA[46] in which they shared their personal interests, social activities and values, and discussed common interests and things they would like to do together.[47] 

    [46] The appellant’s senior counsel put to Dr Angelakis that there were 54 emails sent by her during that period (not including emails from CA to her), and she did not cavil with the proposition: 2TR18-19.

    [47] These included going for walks in the hills and botanic gardens, drinking gin, getting a house in the Adelaide Hills, travelling (skiing, camping and overseas), yoga, and maintaining a ‘debt list’ of things to do together including going for walks, travelling, drinking gin, yoga, sitting in front of the fire at the Stirling Hotel, watching gangster movies and other film and television productions set in New York: Reasons [42].

33. These exchanges include the appellant providing CA with a self-knowledge worksheet which stated that better self-knowledge would lead to, amongst other benefits, better decision making including with respect to big decisions such as ‘which partner you’ll spend your life with’.[48] The appellant made comments on the self-reflection undertaken by CA including by way of observations in an email sent on 9 July 2019:[49]

    [48]   Exhibit A2, p 1227 [SAB 1221].

    [49] Exhibit A2, p 1248-1249 [SAB 1242-1243]. The appellant accepted that typically worksheets filled out by a client would be placed on their file. She said she should have done so here and could not explain why she had not done so: 3TR110-111.

    Hi [C],

    Below are some really brief, quick notes. I thought you might find the task useful and you’re exactly right as to why I thought of it now, rather than earlier … you’re getting pretty good at this therapist thing.

    You’ll always be an amazing dad, and of course your kids will be your #1, you just can’t forget yourself.

    …

    Interest

    …

    ·    … I’m starting to see why we click so much, I think my values and interest are identical

    Temperament

    …

    ·    It is such a testament to your character that you have been able to be ‘vulnerable’ in this process, and I hope you have not felt humiliated or judged at any time.

    o   P.s., I find it hard to believe that you’ve had many knock backs from girls …

34. In emails exchanged on 10 July 2019, CA and the appellant both said that they would enjoy talking to each other outside of ‘this’ (a reference to treatment).[50]  In a later email that day, the appellant wrote:[51]

    I should probably have thought first before putting anything in an email/in writing!  I feel like some of my ‘witty’ comments are probably not the most therapy focused and someone else would use them against me.

    [50]   Exhibit A2, p 1257, 1259 [SAB 1251, 1253].

    [51]   Exhibit A2, p 1263 [SAB 1257].

35. The appellant was cross-examined to the effect that, contrary to the proposition that it was only with the benefit of reflective education that she had come to appreciate how non-therapy focused her communications were, this email showed that she had that appreciation at the time.  Her evidence was that:[52]

    … I appreciate where that’s coming from and can understand that conclusion, but I think even when I said, like, this isn’t the most therapy focused, I think I was also, I think it was just to more, I don’t know, just to kind of suggest that it was just, like, humour.  Just that it was humorous.  I don’t know whether I actually even understood what the gravity of those words were there.  But I can’t argue that they aren’t my words. 

    [52] 3TR56.

36. She went on to acknowledge that by this time she should have recognised that things were not therapeutic.[53]

    [53] 3TR58.

37. In an email on 11 July 2019, the appellant said that she should not have favourite clients, but that CA made her smile and laugh the most, and that she had never pushed herself to work out with anyone else.[54] 

    [54]   Exhibit A2, p 1266 [SAB 1260].

38. Later the same day they swapped emails about gin, with the appellant joking ‘[t]herapy with gin, maybe that’s something I should keep in mind for our upcoming sessions’.[55]  On 12 July 2019 in response to a reference in CA’s email to thinking about walking in the hills, the appellant responded:[56]

    If you ever need a hills walking buddy I’m you[r] gal!  Unfortunately the weather seems to have spoiled my plans for a lofty walk today, not particularly great weather for a 3 months old to be in … Maybe this means I need to cosy up by the Stirling Pub’s fire :)

    If you end up going tomorrow let me know, and I’ll swap yoga for F45, otherwise I’ll see you Monday morning bright and early!

    [55]   Exhibit A2, p 1268 [SAB 1262].

    [56] Reasons [82], Exhibit A2, p 1272 [SAB 1266].

1. CA responded saying he might hold her to that one day and, in reference to Stirling Pub, saying ‘I so wish that was an invite’.[57]  Later that day, the appellant joked that she would happily join in on a weekend by the beach in a ‘shack’ but that CA’s kids and wife might find it ‘extremely strange if the little too friendly psychologist joins’.  The appellant went on to say ‘I know she already has a pretty rubbish idea of me/therapy’.  In relation to the walk in the hills, she said:[58]

   Go ahead and hold me to it.  I’m always happy to go for walks in the hills … who know [sic] we could end up at Stirling in front of the fire anyway! Plus, I’d love to see you try and interrogate me. …

   [57] Reasons [83], Exhibit A2, p 1273 [SAB 1267].

   [58]   Exhibit A2, p 1274 [SAB 1268].

2. CA responded, inter alia:[59]

   Done!  You are now in ‘Hills walk and Stirling fire’ debt.  I took the liberty of including the last bit even though you threw it in as more of a ‘you never know’ …

   [59]   Exhibit A2, p 1275 [SAB 1269].

3. Over the weekend that followed they exchanged emails with the appellant commenting that he had earned her trust, that she was glad she had come into CA’s mind and that she had thought of him earlier.[60] 

   [60]   Exhibit A2, p 1282 [SAB 1276].

4. The following Monday (15 July 2019), the appellant and CA swapped emails about the possibility of a ‘cheeky coffee break’ together, with CA commenting that she had his number.[61]  In an email sent early in the morning on 16 July 2019 after they had attended an F45 session together, CA referred to having liked their ‘catch up with the butterflies …’[62], which, in context, was a reference to a previous occasion when they had purchased coffee together after F45.[63]  There was some contention before the Tribunal about what the appellant understood by the reference to ‘butterflies’.[64]  At all events, in response, the appellant said she would have loved a morning coffee with CA but had to duck off.  She added:[65]

   I promise for some self-disclosure when we finally organise a catch up; you can use your interrogation skills.  What are you [sic] plans for this weekend?

   [61]   Exhibit A2, pp 1287-1289 [SAB 1281-1283].

   [62]   Exhibit A2, p 1305 [SAB 1299].

   [63] 4TR76.

   [64] In cross-examination, the appellant said that, much later, CA had told her that he used the word ‘butterflies’ as a way of changing topics in an otherwise awkward situation. However, the appellant’s evidence of her understanding when she received the email was that she ‘didn’t actually respond to that, to the term butterflies, I don’t know what I thought or – I can’t answer that’: 4TR13. There was later cross-examination about their subsequent use of the term ‘butterflies’ in a romantic context: 4TR20-21.

   [65]   Exhibit A2, p 1306 [SAB 1300].

5. In subsequent emails CA explained he had plans Saturday, as did the appellant during the day, and she indicated she was free all Sunday, commenting that if he ended up having some free time he should let her know and ‘maybe we can work out some of that debt’.[66]  CA responded, commenting how at ease and happy he felt being around her, and saying he was ‘really going to try to align the stars for Sunday’.[67] 

   [66]   Exhibit A2, p 1308 [SAB 1302].

   [67]   Exhibit A2, p 1309 [SAB 1303].

6. In emails exchanged on Tuesday 16 July and Wednesday 17 July 2019, CA commented that Friday (the planned therapy session) seemed a long way away, and he was having ‘Sam-Withdrawals’, to which she responded that if he was running low on his dose of ‘Sam’ he could come to yoga (also joking in the email that he was ‘far too fit and handsome’ to be a rent-a-cop).[68] 

   [68]   Exhibit A2, pp 1315-1316 [SAB 1309-1310].

7. In another email on that date CA said he was standing at his computer ‘pretty much non-stop so I see your emails pop up’, and that he tries to hold off replying so as not to look ‘too eager’.[69]  The appellant responded, inter alia:[70]

   I thought I was alone in hoping that I saw an email from you at the end of each client session.  And justification and validation is completely a thing – just another reason as to why you would make a great therapist (or just be a good catch).

   [69]   Exhibit A2, p 1319 [SAB 1313].

   [70]   Exhibit A2, p 1320 [SAB 1314].

8. In CA’s response and the appellant’s reply to that email there were references to being in each other’s heads, jokes exchanged about CA stalking her, and further discussion of common interests such as New York.[71]

   [71]   Exhibit A2, pp 1320 -1328 [SAB 1314-1322].

9. On Thursday 18 July 2019, the day prior to CA’s last session with the appellant, a number of further emails were exchanged.  CA said that he had had an interesting evening and that a ‘solid break-up plan has been formulated and we just need to implement’.[72]  The appellant responded by asking if anything had prompted it, and commented:[73]

   Sounds like an interesting session tomorrow or vino at Stirling to be had.  My offer to catch up Sunday still stands.

   [72]   Exhibit A2, p 1330 [SAB 1324].

   [73]   Exhibit A2, p 1331 [SAB 1325].

10. She inquired whether he had a rental he would move into.  CA responded saying he must admit he was looking forward to their session, continuing:[74]

    Can we just have the session at Stirling? Ha ha! I really want Sunday to happen too.  I actually look forward to when it does happen – even if it’s not this Sunday, it will happen!  I would love to see you kicking back relaxed and just enjoying the down time.

    [74]   Exhibit A2, p 1332 [SAB 1326].

11. They then exchanged several further emails throughout the course of the day on various topics including hills, wineries, restaurants, and movies and jokes about CA keeping the appellant captive in a cellar. 

12. The appellant accepted in her evidence that it was inappropriate to be planning interactions with CA whilst he was in the process of breaking up with partner (and where there were children involved).[75] 

    [75] 4TR37-38.

13. The next morning, the appellant and CA exchanged further emails which included a comment by CA that his daughter had ‘figured out’ what was going on, and CA explaining that he would have to come to the session in his uniform.  The appellant responded, referring to a number of movies she liked, and commenting that she could not wait to see him in uniform.  The email concluded: ‘Bet you drive the ladies mad’.[76] 

    [76] Reasons [45](b), Exhibit A2, pp 1337-1339 [SAB 1331-1333].

14. This prompted an email from CA in which included:[77]

    You just rattled off some of my favourite movies. That’s awesome! I have not seen Heat for soooooo long. It’s on the list! Hey, when we talked about watching movies set in New York, I actually messed around and googled ‘movies set in New York’ so I could say – “let’s do our ‘New York’ themed catch up watching this one”. The first one that came up was “When Harry Met Sally” and I thought, nah, too suggestive and possibly a little unnerving for you. The next one that came up was “Friends with Benefits” and I thought, that’s restraining order material!!!! So I gave up and mentioned Suits. Ha ha ha…. I did have a good chuckle to myself. Season seven Suits has a storyline that will make you laugh - I won’t say what it is but the timing is hilarious.

    …

    Ha ha. The current uniform is a little weird. I’ll say nothing when I see you but then I’ll point out the flaws [smiley face emoji]. Uniform used to be ‘of interest’ but I don’t see it as much now. I have two funny uniform stories - my favourite being when I went to a Noise Complaint job. I went out the back to get this 21st birthday party to turn the music down and the birthday girl thought I was a stripper. She came over and provocatively danced a little and then tried to tear at my shirt. Ha ha!!! I kept saying “hang on, real gun, real gun”. I’m not silly though - had I gone to the same party one hour later in plain clothes, I wouldn’t have raised an eyebrow. People like the ‘idea’ of it I believe.

    [77] Reasons [45](c), Exhibit A2, p 1340 [SAB 1334].

15. The appellant responded by an email that included:[78]

    I love When Harry met Sally. Who can say no to a good rom-com with Meg Ryan?!? Not to rub it in, but I did go to the diner in the movie when I was in NY. They had a great Ruben sandwich and matzo ball soup.

    …

    I would have loved to have seen you being mistaken for the sexy stripper.

    [78] Reasons [45](d), Exhibit A2, p 1341 [SAB 1335].

16. The appellant accepted in her evidence that when she received CA’s email she was aware what the references to ‘When Harry Met Sally’ and ‘Friends with Benefits’ meant in a general sense.[79]  The reference to the seventh season of ‘Suits’ was to a plot line involving a relationship between a female therapist and her former patient.  The appellant’s evidence was that she was not aware of that.[80]

    [79] 4TR67.

    [80] 4TR67.

    Final treatment session

17. CA attended his last treatment session with the appellant from approximately 4 pm to 5 pm on Friday 19 July 2019.[81]  The notes prepared by the appellant in relation to the session record that CA felt ready to end sessions and that his mental health was stable.  The notes record that treatment termination was discussed and that the file would be closed and that the professional relationship would cease, with closure letters to be sent.[82]  A letter was prepared to CA’s general practitioner reporting on the treatment and noting that his file had been closed.[83]

    [81] The appellant’s evidence was that sessions would typically run for 50-60 minutes: 2TR96.

    [82]   Exhibit A1, p 184 [SAB 288].

    [83]   Exhibit A1, p 188 [SAB 292].

18. The records on the appellant’s patient file did not include any of the emails that had been exchanged relating, amongst other things, to CA’s relationship with his wife.[84] The appellant accepted[85] that the emails between 8 and 19 July 2019 constituted records of client contact that she was required to keep for a minimum period under the Code.[86]

    [84] Reasons [71].

    [85] 3TR64-65.

    [86]   Clauses B.2.1-B.2.2, Exhibit A1, p 1168 [SAB 1160].

19. Before the Tribunal, there was an issue as to whether there was any inappropriate physical contact between the appellant and CA at this session.  That issue arose by reason of CA’s reference in an email the following day to him ‘thinking back to your touch as I type’.[87]  Ultimately, and notwithstanding the inference drawn that CA’s evidence on the topic would not have assisted the appellant on the issue, the Tribunal was not comfortably satisfied, having regard to Briginshaw  principles, that any touching of a sexual or intimate nature occurred.[88]

    [87] Reasons [50], Exhibit A2, p 1352 [SAB 1346].

    [88] Reasons [99]-[100].

20. There was also a question as to whether, as the appellant had said to Ahpra investigators, CA asked for her telephone number at the end of the session.  That issue was relevant to an account, given by the appellant to Ahpra investigators in her first interview, that her catch up with CA on Saturday 20 July 2019 was the result of him calling her number on that day.  As will be explained, it is apparent from the emails later produced that they discussed when and where to meet by exchanging a number of emails.[89]

    [89] Whilst the appellant agreed in her evidence at trial that the meeting on that day was not precipitated by a phone call from CA, she did maintain that he had asked for and had given CA her phone number and that he still had the piece of paper on which she had written it: 2TR115.

    Communication following final treatment session

21. Within approximately an hour after the session, the appellant sent an email (the subject line of which was simply an ellipsis) as follows:[90]

    Running the risk of appearing too eager.  I’m all free Saturday if you’re still keen

    I had no idea of what the subject line is meant to be.  This is completely foreign to me

    [90] Reasons [46], Exhibit A2, p 1347 [SAB 1341].

22. Later that evening, CA responded:[91]

    Hello you.

    What a day, huh??  [Smiley face emoji] 

    Sorry for slow response.  Everything came out here so kids, family and friends aware.  It’s all happening!!!

    Not too eager - equal eager if that makes sense.  [Smiley face emoji] 

    Will chat/email to fine tune tomorrow.

    Have a great night/morning.

    [91] Reasons [47], Exhibit A2, p 1348 [SAB 1342].

23. The following morning, on 20 July 2019, the appellant sent an email to CA saying:[92]

    So I was your silver bullet?

    I thought something like that might unfold when you got home.

    I ended up having a shocker of a night. We went to a festival with friends and ended up having a huge fight over god knows what. I just left and now I’m spending the weekend at my parents.  I guess I’ll just have to hide in the teepee at the party

    Don’t feel any pressure for this arvo/night.  I really would just like to chill with you

    [92] Reasons [48], Exhibit A2, p 1349 [SAB 1343].

24. CA responded a few hours later:[93]

    … I am definitely keen to go back over closing comments from yesterday!! Very much.  [Smiley face emoji]

    Can U think of anywhere we can go where we just won’t be seen.  Would be pretty bad if we get recognised somewhere.  This weekend in particular.

    Your thoughts?

    [93] Reasons [48], Exhibit A2, p 1350 [SAB 1344].

25. The appellant responded shortly after that, saying, amongst other things:[94]

    You sound like an excited school boy!! But I must admit I do have butterflies too.

    Is it bad that I’m really struggling to think of somewhere that I don’t regularly frequent for a beverage?  I’m staying down at prospect right now but I’m happy to travel wherever.

    [94]   Exhibit A2, p 1351 [SAB 1345].

26. CA responded, inter alia:[95]

    Not sure there are too many school boys with my hairline.  But yeah, I can see what u r saying.  I keep thinking about yesterday and I close my eyes so I can remember the details – not good when driving but no crashes yet.

    …

    I am going to throw up the question  Is it too risky?? As hard as it is (and thinking back to your touch as I type), do we call it?  (Ouch).  We would need to figure something else out ASAP that’s for sure!!

    I’m ok for a call if u r clear?

    [95] Reasons [50], Exhibit A2, p 1352 [SAB 1346].

27. He then sent a further email asking if she could catch up that night.[96]  The appellant responded that she was at a party that finished at 5 pm and could not speak but would really like to see him.[97]  A few minutes later, the appellant emailed CA again saying that because her sister was out of town they could meet there.[98]  He responded: [99]

    Naughty girl!!!!!

    OK. [Smiley face emoji]

    No chance of random apologetic visitors?

    [96]   Exhibit A2, p 1353 [SAB 1347].

    [97]   Exhibit A2, p 1354 [SAB 1348].

    [98]   Exhibit A2, p 1355 [SAB 1349].

    [99]   Exhibit A2, p 1356 [SAB 1350].

28. In subsequent email messages they confirmed the details and both confessed to feeling butterflies.[100]  In fact, the appellant referred to her butterflies ‘coming back’.[101]

    [100] Exhibit A2, pp 1357-1362 [SAB 1351-1356].

    [101] Exhibit A2, p 1359 [SAB 1353].

    Commencement of sexual relationship and deletion of emails

29. When they met at the appellant’s sister’s house in the evening of 20 July 2019 the appellant and CA spent several hours talking on the couch, drinking gin, touching, holding and (ultimately) kissing each other.[102] 

    [102] Reasons [110].

30. There is and was no dispute that this amounted to ‘sexual activity’ for the purposes of clause C.4.3 of the Code and that, as the Tribunal found, the appellant commenced an intimate and sexual relationship with CA from 20 July 2019, albeit they did not have intercourse until 26 July 2019.[103]

    [103] Reasons [112].

31. CA sent an email to the appellant the following morning referring to having had the perfect evening with the perfect person and observing that ‘I know we are stuck with email for a little while but it’s what we have so use it to tell me your thoughts and how things go’.[104] 

    [104] Exhibit A2, p 1363 [SAB 1357].

32. The appellant’s response included that she was going to come up with a bit of a plan, in reference to her own marital circumstances.  She said she would be on her laptop for the day and ‘wouldn’t say no’ to more emails from him.  Her email concluded:[105]

    On a side note are you deleting these?

    [105] Reasons [118], Exhibit A2, p 1364 [SAB 1358].

33. In his responding email, CA said:[106]

    I hope things are going as best they can.  I feel really bad for you in all of this. 

    …

    I am being super cautious so getting space for emails has been tough.  Hang in there.  This is the worst of it. 

    Noooooo.  I have not been deleting because i am the sentimental type.  But I know the story and will clear all off.  Boooooooooo…..!!

    Hope u r doing well.  Thinking of u.

    [106] Reasons [118], Exhibit A2, p 1365 [SAB 1359].

34. In an email later on Sunday, 21 July 2019, the appellant said, inter alia:[107]

    I thought it was just me who was sentimental about the emails.  If I’m being completely honest, sometimes I scan over them when I’m alone just so I can think of you some more [Smiley face emoji]  But, it’s the safest thing to do.

    I couldn’t stop thinking about you even if I tried.

    [107] Reasons [118], Exhibit A2, p 1366 [SAB 1360].

35. There were later emails between CA and the appellant the following day in which the appellant said she even thought about saving them as a PDF and putting them in a hidden password-protected folder.[108]

    [108] Exhibit A2, p 1373 [SAB 1367].

36. Before the Tribunal, the appellant’s evidence was that CA had asked her to delete the emails and that was for the purpose of ensuring his wife or her husband did not see or stumble onto the emails.  She said CA was worried about the implications for access to his children if his wife saw the emails.  However, the appellant’s evidence was she deleted all the emails with CA (by doing a search for his name) including emails in respect of which she said there was no need for concealment.[109] 

    [109] 2TR28-29, 4TR53, 56-57, 65.

37. Later in the evening of 21 July 2019, the appellant sent an email to CA saying:[110]

    … I had a good chat to my sister just before (just about [H], I may have omitted my unethical behaviour [smiley face emoji]) and I feel a bit better.  I just wish I could be with you!  This seems so cruel.  I know if you were next to me all of the ‘yuck’ would just fade away.

    …

    You just say the day and I’ll find a ‘yoga class’.  There’s no way I can go too long without a dose of Mr A.  I don’t think I’ve ever felt this way befor [sic] xx

    [110] Reasons [119], Exhibit A2, p 1369 [SAB 1363].

38. On 23 July 2019, CA wrote:[111]

    So I have no emails to go back over …. all our pre-planning for the cellar, the movie list, the debt list – all gone!! Don’t worry though, I have it stashed away in my little brain.  I have added ‘date’ to the debt list.  Just so you know.  [Smiley face emoji.]

    …

    I envisage a cinema night coming up soon.  Russell and Hobbs?

    [111] Reasons [121], Exhibit A2, p 1395 [SAB 1389].

39. The appellant said in her evidence that she would not have described the earlier emails as ‘pre-planning’ emails.[112]

    [112] 4TR44.

40. Over the course of the week commencing 22 July 2019 the appellant and CA exchanged a large number of emails in which they discussed their own personal circumstances and discussed finding times to speak and catch up.  In an email sent on 24 July 2019, CA said:[113]

    … In real terms, we need to keep things clandestine for quite some time.  I do have kids.  I do have to start from a rough place in setting myself up and finding balance between my new life and keeping kids on track.  Regardless of how long we leave things, there will always be suspicion that we got together before end of therapy. …

    [113] Exhibit A2, p 1417 [SAB 1411].

41. On 26 July 2019, CA emailed:[114]

    … I think it would be madness for either of us to ‘give things another go’ [a reference to their relationships with their spouses] – things are too far gone – we have been quite intimate and connected and I think even if we didn’t work out – our short history would be a lot to carry if we tried to go back to our respective spouses.  Neither of us are intrinsically deceitful and it would be a lot of weight to carry.

    …

    Make sure you delete these emails – I actually feel a bit guilty saying this stuff – but it also feels good to get it out. …

    [114] Exhibit A2, p 1449 [SAB 1443].

1. In a responding email, the appellant confirmed that she was deleting emails,[115] and later that morning, CA wrote that he had just deleted all emails, commenting that it was ‘[h]ard to do but know I have to’.[116] 

   [115] Exhibit A2, p 1450 [SAB 1444].

   [116] Exhibit A2, p 1452 [SAB 1446].

2. In another email exchange on 26 July 2019, CA asked: ‘we are together aren’t we – I like to think so – don’t correct me’,[117] and the appellant responded: ‘I like to think we are together in our complicated way’.[118]

   [117] Exhibit A2, p 1451 [SAB 1445].

   [118] Exhibit A2, p 1453 [SAB 1447].

3. It is common ground that the appellant and CA met that evening at a house at which CA had arranged to stay and that they had intercourse for the first time.[119]  In emails the following day they expressed their love for one another.[120] 

   [119] 3TR13-14, 24.

   [120] Exhibit A2, pp 1472-1473 [SAB 1466-1467].

4. In an email sent on 31 July 2019, CA asked whether the appellant was going to leave her husband and whether she was truly intending to stay with him.  He went on to ask:[121]

   Is it truly 2 years or is it a ‘guide’?  What does that two years look like?  (102 weeks to go)

   [121] Exhibit A2, p 1567 [SAB 1561].

5. The appellant’s email in response included:[122]

   [122] Exhibit A2, p 1569 [SAB 1563].

   I’m not 100% sure on the ethics thing.  I think there’s an ethics line I can call but I can’t quite figure out how I ask the questions … “I’m asking for a friend?”  Ethical guidelines state:

   C.4.3 Psychologists:

   ·do not engage in sexual activity with a client or anybody who is closely related to one of their clients;

   ·do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client;

   ·who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter; and

   ·do not accept as a client a person with whom they have engaged in sexual activity.

   I also don’t really know what the actual repercussions are, and if there are only repercussions if you say I took advantage of you (which I obviously did J).[123]

   [123] The appellant explained that this was a smiley face emoji that had been converted to a ‘J’: 2TR33.

6. Shortly thereafter, CA sent an email in which he commented:[124]

   I see an important factor if [sic] that’s the wording.  The main point is that there has been no ‘sexual activity’ between us – ever.  Our interactions started out as friendship after we ceased seeing each other professionally.  We were both going through break-ups and our friendship developed into a romance however we are acutely aware of the ethics around this and we would honour the requirements stipulated.  I am more than prepared to seek further, independent counselling where it will come out that my symptoms were strongly affected by a failed relationship exacerbated by her dismal behaviour.  At the end of the day, I am a strong and resilient person per the reports from you, James and my GP and I am in the senior management levels of SAPOL where capability testing has proven I am a strong leader and suitable to make critical decisions and structured / strategic decisions.  As such, the risk of me being vulnerable is extremely low, if not, non-existent. …  Whilst it is our intent to continue to see each other at a romantic level, there will be no ‘sexual activity’ as we both agree that your passion for your job and your benefit to those in need, far outweighs the need to breach any ethical barriers.

   Lucky we held out, huh? …

   [124] Exhibit A2, p 1570 [SAB 1564].

7. The appellant sent a return email stating:[125]

   Ha! I’m going to need to keep that paragraph in case I ever have to go up in front of the psych board!

   [125] Exhibit A2, p 1571 [SAB 1565].

8. CA’s response included:[126]

   It’s all true!!!! That’s the best thing. 

   Although my words probably didn’t talk up just how much you did genuinely help me …

   [126] Exhibit A2, p 1572 [SAB 1566].

9. In her evidence, the appellant said that her comment that she would keep the email was just bad humour and a joke, and that she never intended to or was going to keep the sexual relationship a secret.[127]  She said that she treated CA’s comments about there not having been sexual activity as ‘tongue in cheek’ and that he was joking.[128]

   [127] 2TR34.

   [128] 4TR69-70.

10. It is apparent from further emails exchanged at this time and subsequently that whilst CA was living separately from his wife,[129] the appellant, whilst frequently staying over with CA, was still involved in discussions with H, and was finding it difficult to navigate an end to her relationship.  

    [129] He moved into a rental premises in Coromandel Valley on 2 August 2019.

11. The appellant and CA continued to communicate extensively by email and telephone and to see each during the day and on some evenings over the following weeks.  On 13 August 2019, CA forwarded to the appellant the emails they had exchanged back on 12 June 2019 (that is, before their professional relationship had ceased), describing it as an ‘early gem’ and commenting on how difficult he found it to delete their chats.[130]  She responded that he had ‘totally abused the ‘privilege’ of having [her] email’.[131] 

    [130] Exhibit A2, p 1720 [SAB 1714].

    [131] Exhibit A2, p 1722 [SAB 1716].

12. In cross-examination the appellant said that this was a ‘joking email’ and that she could not recall what she was thinking at the time but:[132]

    … I do think that I was still not appreciating like the hugeness of my deviations within all of that. …

    [132] 4TR62.

13. On 1 September 2019, the appellant booked flights to Bali as well as accommodation for her and CA to stay there between 13 and 19 September 2019, which they subsequently did.[133]

    [133] Exhibit A2, p 1768-1782 [SAB 1762-1776], 3TR22.

14. The appellant’s evidence was that she told her husband she was seeing someone else probably in around September or October 2019.[134]  CA told his colleagues and his wife about his relationship with the appellant in February 2020.[135]

    [134] 3TR42.

    [135] 3TR48, Exhibit A2, p 1795 [SAB 1785].

    Self-notification to the respondent

15. Under cover of a letter from a solicitor retained on her behalf dated 7 February 2020, the appellant made a self-notification to the respondent in which she stated, inter alia:[136]

    [136] Exhibit A1, p 16 [SAB 123].

    My name is Dr Samantha Angelakis … I am writing to notify the Board of a breach of APS Code of Ethics (Code C.4.3).  I am, and have been since August 2019, engaging in a romantic relationship with a past, terminated client ([CA]) prior to the passing of two years since the termination of our professional relationship.

    …

    [CA] attended 17 regular, weekly sessions from 17 April 2019 to 19 July 2019.  Sessions followed an evidence-based Cognitive Behavioural Therapy format including strategies such as thought challenging, exposure, value exploration, and activation. Symptoms were monitored using psychometric assessments and symptoms showed significant reductions over the course of treatment. From his 14th session (held on 21 June 2019) [CA] advised that he considered that he had recovered and no longer required ongoing sessions. He denied experiencing PTSD symptoms (i.e., reexperiencing, hyperarousal, affective, avoidance symptoms) and reported levels of anxiety and depression within the mild range. [CA] advised that he felt ready and able to re-engage with his work on a fulltime basis and that he had learnt multiple therapeutic tools to maintain good mental health without therapy. [CA]’s personal reports were corroborated by objective assessments taken throughout treatment. On 19 July 2019, his treatment was terminated, and his file was closed by PsychMed. Termination was clearly discussed with [CA] and closure letters were sent.

    Following the termination of treatment, communication between [CA] and I continued and eventuated to social interactions and then romantic interactions. The connection and feelings between [CA] and myself eventuated faster than either of us could have anticipated, and it was not until these feelings became quite profound that the gravity of these ethical issues became obvious (shortly after which this notification has been made). [CA] and I both share the same core values and engage and communicate in an intellectual, respectful, and equal manner. We could not have predicted this, but we both truly feel lucky to have found one another. We deeply respect and love one another and believe that the bond we share is incredibly special.

    Specific Considerations for the Board

    I understand that engaging in a relationship with [CA] is a breach of the Code. I believe it to be imperative for me to make this notification voluntarily. I recognise that the Board’s role is to protect the public, so it must evaluate the risk I pose to the public. I wish to be transparent with the Board by giving full and frank disclosure of all facts which the Board may consider material to this breach. In considering the relationship between [CA] and myself I have reflected on a number of factors. In summary, I have considered the following:

    ·Exploitation – [CA] and I do not believe there to be exploitation by myself of [CA] in the context of our relationship. I acknowledge that there is always a power imbalance inherent in the professional treating relationship. However, I do not believe that I have exploited this power imbalance. [CA] and I do not believe there is a power imbalance in our ongoing relationship. Our relationship is based on mutual trust and respect.

    ·Duration and Termination of Professional Relationship – I saw [CA] for a reasonably short period of time (4 months) on a regular basis. Treatment was terminated in a formal manner, prior to the commencement of the romantic relationship, as a result of [CA] no longer requiring psychological treatment.

    ·Self-Notification – I willingly and voluntarily have provided my honest notification to the board.

    ·Disclosure to Employer - I will willingly and openly discuss my breach to my employer and seek ongoing supervision and consultation.

    ·Professional Development – I will continue to engage in online courses, presentations/seminars, peer consultation and supervision.

    …

    Absence of a Power Imbalance

    I am aware that as a psychologist, I generally hold a position of power over my patients as I am able to exert a significant degree of influence over them. I understand that [CA] trusted me to have the skills and tools necessary to treat his PTSD and that it is my paramount duty to ensure that [CA]’s wellbeing is not harmed. I do not believe that at any point in time, I used my position and power to unethically pressure or coerce [CA] into a relationship with myself. Treatment sessions were always focused on his PTSD, treatment sessions were circumscribed, and it was understood that treatment would be terminated once PTSD symptoms subsided. No romantic interactions took place while treatment was ongoing.

    …

    Duration and Termination of Professional Relationship

    [CA]’s treatment consisted of 17 sessions, occurring between 1 April 2019 and 19 July 2019. I consider that his treatment cycle could be seen as being, objectively speaking and compared to the standard patient which I treat, of a relatively ‘short’ duration. [CA]’s treatment was terminated because he no longer required continued treatment. He advised of his PTSD, anxiety, depression symptoms being in the mild/normal range. He self-reported that he was ‘well’ and no longer needed to attend sessions. When [CA] and I continued to communicate following the termination of his treatment, I advised him that if he required further psychological treatment in the future, I would be unable to see him professionally. [CA] understood this and agreed.

    Although my personal relationship with [CA] commenced following the clear termination of treatment, I acknowledge that the relationship initiated inside the timeframe proscribed as a breach by the Code. It was never my intention to commence a relationship within that timeframe, however our connection developed quicker than we could have anticipated. The feelings that [CA] and I share for one another have caught us off guard and we truly have an incredible love and respect for one another. I entirely understand that this is not the healthiest way to develop a relationship. I have never experienced such feelings for any present or past clients and I wholeheartedly believe that this situation will never be repeated. [CA] and I consider ourselves to be in a committed relationship with one another and we have discussed multiple long-term plans, including moving in together and the potential for marriage.

    I would like to emphasise that this behaviour is not typical nor in my nature. In my professional career as a trauma-focused therapist, I have often needed to talk about and reflect upon professional boundaries with my clients and other therapists. I have often needed to consider the vulnerability of the clients I work with as many have experienced significant trauma including child sexual abuse (CSA) and sexual abuse. Further, there have been times in the past in which it has become apparent that clients’ have formed some kind of emotional or sexual attraction towards me. In line with my ethical obligations, I transferred their care to another practitioner and consulted with peers.

    I have not had any issues with boundary violations prior to this, and I understand that boundary violations are unethical and detrimental. I have not before, and never will again engage in this form of relationship. I believe that the relationship that I have with [CA] is truly a once off and whilst it occurred soon after his treatment finished, the relationship is genuine and equal.

    Self-Notification

    In order to ensure that this situation does not happen again, and that I continue develop and reflect on my experiences I am engaging in a number of matters which will reinforce my commitment to ensuring that I have appropriate boundaries in place with my clients.

    I believe that it is imperative for me to be honest with the Board and for me to voluntarily notify the Board of this breach. Whilst my feelings for [CA] are honest and true, I am aware that my prior position as [CA]’s psychologist causes our relationship to be unethical. In an effort to be completely transparent I have provided this detailed report, along with [CA]’s report, and have documented the evolution of our relationship honestly. [CA] and I are completely willing to offer additional information to the Board that it may consider relevant. I also acknowledge that the Board and AHPRA will likely wish to discuss the matter with [CA] independent of me, and I undertake not to involve myself in those discussions, so that [CA] can discuss the matter with AHPRA and the Board freely and without any involvement from me.

    …

    Conclusion

    In closing, while I am aware of this breach, [CA] and I are in a committed and genuine relationship. We believe there to be no power imbalance or exploitation on my part. I have taken considerable steps to further develop my personal and professional growth and unequivocally believe that this situation will not occur again. I do not pose an ongoing risk to the public, and am a conscientious, caring practitioner.

    I thank the Board for taking the time to read and consider this notification.

16. As will be explained in more detail, the Amended Referral identified various respects in which the self-notification was alleged to be inaccurate or misleading. The appellant accepted in her Amended Response,[137] and in her evidence,[138] that the self-notification was not entirely accurate and was inaccurate about the timing of certain events.  She denied, however, that she had been deliberately dishonest.

    [137] Amended Response, [20].

    [138] 2TR38-39.

17. The letter to the respondent from the appellant’s solicitor also included a letter from CA in which he stated:[139]

    I write to you to provide an important perspective to accompany the letter provided by Doctor Samantha Angelakis (Sam).

    …

    With regard to Sam’s demeanor [sic] during treatment, at no time did she say anything that made me feel she was attracted to me nor did I feel she was steering me to a position that would benefit her. She was always professional, understanding and kind however I knew very little about her during treatment and at no time did I feel invited to probe into her personal life.

    It is fair to say that I had felt an attraction to Sam early however I was capable of ‘burying’ these thoughts as my focus was on dealing with my PTSD coupled with the fact, I did not feel the attraction was reciprocated. I was eager to find methodologies to deal with my PTSD. I answered all of her questions, undertook all ‘homework’ she provided me, and I developed my own strategies that helped me disclose information better to Sam and allowed me to more deeply process the issues and solutions. It is without a doubt that Sam led me to a full recovery and, since therapy finished, I have had very few nightmares and intrusive thoughts. I have not felt anxiety that has been beyond my control. I have full confidence that the treatment was nothing short of professional and effective. In the weeks after therapy had finished, I continued communication with Sam, and it is reasonable to acknowledge I wanted to engineer a situation whereby a romantic relationship became possible. I believe it were these interactions that led to the feelings becoming shared and within about 4-6 weeks, we entered into a relationship. The relationship has been ongoing, and it is built on genuine mutual respect, a strong connection in our core values, emotional needs and trust. I care very deeply for her and I believe those feelings are wholly reciprocated. I would describe us as very deep love. Our relationship is fair and equal and there is no power imbalance. We have made many long-term plans, including plans to live together. Whilst I wish I did not need to disclose this in such a formal and impersonal way, the magnitude of our relationship is best highlighted by the fact it is my intention to marry her in 2021.

    …

    I submit that this letter was my idea due to the fact I feel it is paramount the board has all the facts when considering Sam’s notification. I wrote this letter independently and alone albeit we have obviously discussed our thoughts in the lead up to notification.

    In discussion with Sam, I am also making arrangements to see an independent psychologist for the purpose of reflecting on the situation and to ensure my mental health is still satisfactory. I am very confident this is the case. I will make myself available to any representative of AHPRA for the purpose of openly and honestly answering questions relating to this or to clarify points made.

    [139] Exhibit A1, p 22 [SAB 129].

18. Again, the respondent alleged that CA’s letter was inaccurate and misleading in various respects.  The appellant accepted in cross-examination that she had read CA’s letter and wanted the respondent to rely on it.[140]

    [140] 3TR67.

19. On 9 February 2020, the appellant met with Dr Quentin Black and other PsychMed staff, informed them about her relationship with CA, and gave Dr Black a copy of her self-notification.  She did not inform him of any unprofessional conduct during the treatment period or that she and CA had kissed on 20 July 2019, the day after the last session.[141]  Dr Black and, later, on 21 February 2020, another confidential notifier, made notifications to Ahpra.

    [141] 3TR51-52.

    Ahpra investigation

20. On 6 March 2020, Ahpra wrote to the appellant notifying her of the respondent’s decision to investigate her conduct, enclosing copies of the notifications received, and requiring her to provide documents and other information by 18 March 2020 under Schedule 5 of the National Law,[142] including a complete copy of her patient file regarding CA, including all clinical notes with respect to his treatment between 17 April 2019 and 19 July 2019 and details of all the telephone numbers and telecommunications providers that she and CA had used to contact one another.

    [142] Exhibit A1, p 40 [SAB 147].

1. The last of these passages of evidence was referred to by the Tribunal at Reasons [143] in the second bullet point under the heading ‘The First Interview’. The gist of the second of the passages was referred to by the Tribunal at Reasons [143] in the third bullet point under the heading ‘The Self-Notification’. The first passage is set out in the sixth bullet point under the heading ‘The Self Notification’.

2. In respect of the first passage set out above, it is important to appreciate the answer was in response to a question about the absence of reference in the self-notification to their attendances at F45 and their coffee catch up.  She was asked, when she wrote the letter, when she thought those events occurred.  Just prior to this, the appellant had been asked to respond to the allegation that the statement in her self-notification that her personal relationship with CA commenced ‘following the clear termination of treatment’ was misleading because of the social interactions and communication during the treatment period.  The appellant answered:[259]

   When I – again, when I wrote this, I was – I didn’t – I don’t know if this is the right word, but I didn’t appreciate, I didn’t kind of understand and see the – or didn’t even remember, like, all of those emails and see them as boundary violations when I wrote that, it was – which is, like, obviously quite inaccurate, but, like, when I wrote that I was of the opinion that – I don’t know how to put it, but, like, that’s actually what I thought, that, you know, we’d ended treatment and then as of, like the 20^th things just kicked off from there.

   [259] 2TR42.

3. That answer tends to confirm that the appellant was not, on her evidence, before the Tribunal reliant on the emails to recall that they had met and kissed on 20 July 2019, the day following the last session (the date of which was known to the appellant as it is set out in the self-notification).  Accordingly, what the appellant was addressing in the first passage of evidence was something she put no higher than a possible explanation for not mentioning (or recalling) that the F45 and coffee interactions had occurred prior to the cessation of training, namely, that she thought these events had occurred after they had kissed on 20 July 2019.  The explanation does not appear to be that she had mistakenly placed their first kiss later in time, with the F45 and coffee interactions perhaps occurring between the cessation of treatment and the first kiss. 

4. Because I would regard it as unlikely that, even without access to the emails, the sequence of events could be mistakenly inverted in this way, and because the appellant herself did not commit firmly to this explanation, I would not regard the evidence in question as cogent and of a kind which, absent distinct recitation and rejection, might be inferred was overlooked.

5. In any event, as noted, the evidence was referred to and it is clear that the Tribunal generally rejected the appellant’s explanations for the inaccuracies in her accounts (Reasons [171]).

6. Further, given the quality of the evidence given by the appellant, I do not consider that the Reasons are deficient for failing to set out why individual passages were not found to be compelling. 

7. The appellant’s submissions under this ground of appeal included contentions that:

   Dr Angelakis’ timeline of the development of the relationship as set out in the self-notification and the first interview was incorrect.  The reasons for her confusion as to the whole timeline [are] clear if the end of treatment is considered to be the commencement of the catchment sessions.  That is a matter of some six weeks; the Appellant’s self-notification occurs some seven months later.  The Appellant gave evidence of ‘not understanding or clocking the level of contact that had occurred during the catchment phase …’

   It is entirely plausible that the Appellant incorrectly recalled that the relationship had developed after the end of all sessions, rather than when it did (i.e. after the end of the structured PTSD treatment sessions but before the end of the catchment sessions, which had been required by CA’s employer).

   (footnotes omitted)

8. The difficulty I have with that submission is that at the first interview the answers given by the appellant show that she did recall that their first kiss had occurred the day following the last treatment session.  Under cross-examination she gave an answer to the effect that she recalled that the kiss had occurred on 20 July 2019 when she made the self-notification and that there was nothing intentionally misleading in its omission from the letter because, ‘when I put in the notification, I was assuming that I was going to be talking through those details’.[260]  The self-notification letter contains a detailed description of the phases of treatment of CA.  When I consider those matters in combination I do not find an explanation that the appellant had effectively forgotten about the treatment extending into the catchment period and therefore to the eve of their first kiss to be a plausible or persuasive one.

   Failure to bring to bear or engage with proffering of meeting on 20 August and recovery and provision of emails

   [260] 3TR66.

9. The appellant submits that in considering whether it could be comfortably satisfied that the appellant had deliberately or recklessly misled the respondent and Ahpra, the Tribunal failed to bring to bear (or its reasons fail to explain what it made of) the circumstance that the appellant volunteered the detail of the meeting on 20 July 2019 at the first interview when it was not revealed by phone records, and that she produced the email communications.

10. In respect of the former, the appellant also submits that the volunteering of the events of 20 July 2019 undermines the Tribunal’s finding at Reasons [176] that the appellant ‘set about deliberately misleading the Board and Ahpra by distorting the timing and the nature of her relationship with CA so as to make it appear that nothing had occurred during the treatment period and that a sexual relationship did not occur until weeks after the treatment period had ended’.

11. Dealing with that point first, I consider that Reasons [176] is to be understood as recording the Tribunal’s finding as to the appellant’s approach preceding the self-notification. It can hardly have escaped the Tribunal’s attention that by the time of the first interview, the appellant’s account included that the appellant and CA had sex sooner than ‘weeks after’ the treatment period had ended.[261]

    [261] As earlier set out, the appellant’s answers were to the effect that they would have had sex on the ‘27^th, 28^th-ish’, when, in fact, it was slightly earlier, on 26 July 2019.

12. The real question is whether the Tribunal erred by failing distinctly to address in its reasons the contention that the volunteering of additional information at the first interview and the subsequent cooperation in producing the emails were contraindicative of dishonesty or recklessness in her approach to dealing with regulators.

13. As I have said, reasons need not address every argument and every item of evidence but should address substantial arguments advanced by the parties.  Here, the contentions made in relation to these issues were particular strands of the appellant’s argument that the appellant did not act dishonestly or recklessly.[262]  The reasons why the Tribunal came to the contrary conclusion are clear enough.  The extent to which it was necessary to confront and comment on particular strands of the contrary argument is difficult to divorce from a consideration of the force of the argument or arguments in question.

    [262] See the appellant’s closing submission at 5TR1:36-38.

14. In the case of the ‘volunteering’ in the first interview of events on 20 July 2019, a number of observations may be made.  According to the telephone records, the first phone call between the appellant and CA was a call from CA to the appellant on 23 July 2019 of 1713 seconds, which equates to nearly half an hour.  That information, which was not available to the respondent at the time it received the self-notification, was likely to call for some context or explanation in the first interview. The question whether this relatively lengthy call was the first communication following the last treatment session was likely to be asked.

15. That said, the point remains that if the appellant was intent on deceiving the regulators there was no need for her to volunteer that they had met on 20 July, and that they kissed on that occasion (as there was some risk associated with doing so). 

16. Against this, however, the appellant’s account of how they came to meet on that evening, and the suggestion that CA rang on a night when she was, in any event, staying at her sister’s place, is problematic for the appellant.  Her evidence was that this amounted to ‘gap filling’. 

17. To state the obvious, where the account she gave differed from the true narrative, it presented a version of events that was less likely to reflect adversely on her conduct.  Her narrative was consistent with CA being the initiator, and with the fact of having been at her sister’s house when he called as adventitious.  In fact, she had promoted a Saturday, rather than Sunday, catch up, and had decided to go to her sister’s house for the very purpose of being alone with CA. 

18. In my view these circumstances very powerfully undercut any favourable inference that might otherwise be drawn about the appellant’s candour in volunteering the catch up on 20 July 2019.  So does the circumstance that none of this was mentioned in the self-notification, despite the appellant stating in her letter that:

    … I wish to be transparent with the Board by giving full and frank disclosure of all facts which the Board may consider material to this breach. …

    I believe that it is imperative for me to be honest with the Board and for me to voluntarily notify the Board of this breach. … In an effort to be completely transparent I have provided this detailed report, along with [CA]’s report, and have documented the evolution of our relationship honestly. …

19. In relation to the retrieval of emails, again, the significance to be attributed to this circumstance needs to be seen in context.  At the time the appellant received a notice from Ahpra on 17 November 2020, some months had passed since the first interview at which investigators were informed that the appellant and CA had kissed one another the day after the last treatment session.  The investigators had had access to phone records, which did not show communication between the appellant and CA until a later time.  The terms of the notice made clear that the investigators had reason to think that there might be email correspondence between the appellant and CA that may be of relevance between 27 April 2019 and 23 July 2019.  The notice did not only require production of any emails during that period, it required ‘details of whether [she] corresponded with [CA] between 29 April 2019 and 23 July 2019 by any other means, and if so, copies of any and all correspondence’.  And the notice was accompanied by provisions of the legislation that set out the powers of investigators and that offence provisions relating to a failure to give stated information without reasonable excuse.

20. Whilst it may be that the appellant would not have been in breach of the requirement to produce the emails if she had satisfied herself that they were not recoverable from her own email records, her account of how the emails came to be retrieved suggests that she had, by this time, appreciated that there were relevant emails between her and CA and that they had been deleted.  Once the appellant became aware from CA that the emails could be retrieved by him, it is difficult to see that simply adopting the position that they were not required to be produced because they were not in her possession at the date of the notice would have been a tenable approach.

21. That is not to say that the appellant’s production of the emails without obfuscation is not to her credit, but nor, in my view, was it a highly significant matter when considering whether, at the time of the self-notification and first interview, the inaccuracies in her account were inadvertent.  Whilst I have hesitated before reaching this conclusion, I have concluded that this issue falls into the category of arguments that was not so central or substantial that it required separate treatment in the Reasons.

22. Had the emails been produced without the appellant having received a compulsory notice at all,[263] that would have been a significant and substantial matter.  But bearing in mind that the Tribunal had found that when the appellant deleted the emails she had done so with knowledge that the exchanges between her and CA between 8 and 19 July 2019 were client records that she had an ethical obligation to keep confidentially for seven years,[264] the contention that her production of the emails was a factor to be weighed before concluding that the appellant had been deliberate or reckless in misleading regulators, whilst fairly made by her counsel,[265] was not so substantial or cogent that the Tribunal erred in law by failing in the Reasons to assign a distinct reason for its rejection.

    [263] In cross-examination, the appellant said in hindsight she should have ‘given them the emails’ in response to Ahpra’s first documentary request: 3TR65.

    [264] Reasons [147]; see 4TR56.

    [265] 5TR1:37.

23. In this context it is relevant to note that although the appellant said that one reason for deleting emails was to ensure that neither of their partners saw the communications, the appellant accepted in cross-examination that all of their emails were deleted including emails sent before 8 July 2019 which she said she would not have been concerned about H or W seeing.[266]

    [266] 4TR57.

24. For those reasons I do not consider the Tribunal erred in law in the ways contended for by the appellant.  Nor, based on my independent review of the evidence, do I consider that the Tribunal erred in fact in its ultimate conclusions, for reasons I have earlier given and return to below.

    Miscellaneous errors and contention that errors material in combination

25. The appellant contended that the errors made by the Tribunal were material, both individually and when combined.  I address this contention in the concluding part of these reasons.

26. The appellant also included, by way of a schedule to her submissions on appeal, a document titled ‘Schedule of Errors in the Statement of Reasons’.  These were not advanced as distinct grounds of appeal but were submitted to indicate a ‘concerning lack of attention to the evidence and the submissions’, which justified this Court treating the Tribunal’s attribution of weight to the delay in self-notification with caution.

27. Having reviewed the schedule, I conclude that some of the instances identified are either not errors or would be better described as infelicities of, or minor inaccuracies in, expression, of a kind that would be expected in lengthy reasons traversing a substantial body of facts and evidence.

28. There are two matters that are more substantive.  The first is that in Reasons [71] the Tribunal contrasted the two email addresses used by the appellant when communicating with CA by describing them as her ‘professional and personal email addresses’.  As the appellant has submitted, the appellant’s unchallenged evidence was that the ‘gmail’ address was also used for work, meaning that the Tribunal’s labels involved a false contrast.  There is force in this, but the Tribunal did note that the appellant’s evidence was that both addresses were used interchangeable with all clients.  Considering the matter for myself, I would accept the appellant’s submission that there was little or no forensic significance in the fact that the appellant communicated with CA using her ‘gmail’ address.  Given that some of the non-therapeutic communications came from her ‘psychmed’ address, the email addresses used appear not to have been of significance to the appellant.  That said, I do not consider that this issue played a significant role in the Tribunal’s reasoning.

29. The second is that in Reasons [177], in the context of finding that the delay in notifying the respondent of her transgressions was ‘corroborative of her intent to mislead’, the Tribunal wrongly observed:

    There was simply no reason for the [appellant] and CA to remain clandestine about their relationship after 20 July 2019 to protect his contact with his children as the [appellant] stated in her evidence given by that time, according to the email correspondence, their respective spouses were already aware by then.

30. In fact the appellant’s evidence was to the effect that H became aware of the relationship in about September or October 2019 and that W was not told about it until some time between 10 and 25 February 2020.

31. Undoubtedly, anxiety about the implications of revealing the timing and circumstances of their relationship to their respective spouses played a part in the decision of the appellant to keep their relationship clandestine for a period.  But it seems equally clear that ethical implications also played a part in the delay in the open disclosure of their relationship.  The appellant had said that fear about Ahpra might do was a reason for keeping the details of the relationship closely confined.[267] 

    [267] 3TR52-53.

32. The email exchanges between the appellant and CA on 21 July 2019 (in which the appellant commented that when speaking to her sister she ‘may have omitted my unethical behaviour’) and on 31 July 2019 (when the appellant and CA discussed the effect of clause C.4.3 of the Code) make it clear that the appellant had an appreciation by that time that there had been ethical transgressions.  That is difficult to square with the statement in the self-notification letter that the notification was being made shortly after the gravity of the ethical issues became obvious.[268]  One can understand that the appellant would have been anxious not to jeopardise CA’s position with respect to access to his children by alerting W to the existence of the relationship but, as the appellant accepted in cross-examination, that risk remained when, after the appellant had notified the respondent, CA first disclosed their relationship to his wife.[269]  However understandable that anxiety may be, the fact that the appellant was prepared, with the knowledge that she was committing an ongoing ethical transgression, to delay notification, is a matter which is capable of buttressing a conclusion that inaccurate statements in the ultimate notification were not inadvertent.  As well, the appellant did acknowledge, in cross-examination, that a concern that disclosure to others might lead to a report to Ahpra ‘must have been somewhere in there’.[270]

    [268] The appellant’s evidence about this was not, with respect, persuasive. When asked in her evidence in chief to respond to the suggestion that that statement was false or misleading, she said: ‘It’s very much, I guess, a bit more of that sense of I should have seen it, I should have seen all of these things, but at the time I didn’t, and in writing that, that comes from that conduct that Sam Angelakis of 2020 that just didn’t see this coming. I in no way meant to be misleading, I didn’t intend it to be misleading, but I think my perceptions and my understanding of the time, like my understanding of my behaviour at the time (indistinct) inaccurate, and when I say that I made this notification ‘shortly after’, I can appreciate now 6 months is not shortly after, but I also think at the time, like, life just went like that – and again, not an excuse, but I think that’s where that term came from’: 2TR41.

    [269] 3TR48-49.

    [270] 3TR50.

33. The self-notification did not state that the appellant had wanted to notify earlier but had been concerned about the implication for CA of revealing their relationship.  It instead suggested that the timing of the notification was prompted by the relationship only progressing to a serious level after the passage of some time.

1. In those circumstances, the Tribunal’s conclusion that the delay in notifying was corroborative of her intent to mislead is supportable without a finding that there were no other reasons that might have contributed to the delay in notification or in making their relationship more widely known.

2. Standing alone, of course, the delay would not be a sufficient basis to make the relevant findings and, for my own part, given the independent reasons that were no doubt motivating the appellant and CA to keep to themselves, for a period, the fact of a developing relationship that had commenced whilst they were still both married, I would not place significant weight on delay.  But it did not stand alone.

3. I am not persuaded that these two errors I have referred to are material.

   Conclusion and disposition

4. I have considered the errors contended for by the appellant individually and collectively and notwithstanding the thorough and thoughtful submissions made on the appellant’s behalf on appeal, I am not persuaded that any material error is demonstrated in the Reasons. I have also considered whether, based on my independent review of the evidence, and making allowance for the fact that I did not observe the appellant give evidence, I would make the same ultimate finding as the Tribunal.

5. In the end I consider, based on an assessment of the evidence and the logic of events, that the appellant must have appreciated or at least been reckless as to the fact that aspects of what she said in her self-notification and then in the first interview were inaccurate or misleading.

6. Without having reviewed the emails, aspects of the detail of them, and perhaps even the full extent of them, may not have been recalled by the appellant at the time of her self-notification.  I allow for the possibility that a sense of shame, coupled with a fear of the consequences and a sub-conscious sense of professional self-preservation, may have made it difficult and uncomfortable to revisit the details or the extent of the non-therapeutic interactions that had occurred up to and including on the date of the last treatment session.  But it is very difficult to think that the appellant did not remember the key elements of what was a momentous 24 hours which involved their final treatment session being followed by both of their existing marital relationships striking serious, if not terminal, difficulty, followed by the making of arrangements to meet at a private location the following night when they drank together and, ultimately, kissed.  Indeed, with the exception of the detail of how the meeting was arranged, the appellant did have a recall of those events when she attended the first interview, and based on her evidence at trial, there is no reason to think that memory was revived only after the self-notification.

7. Once that is recognised, it is very difficult to accept that there could have been any difficulty in recalling that the events of 20 July 2019 were not entirely unheralded. Whilst the fact of there being major developments in both CA’s and the appellant’s marriages within hours of the last session may have been remarkable,[271] and whilst this may have acted as an unexpected accelerant to the appellant and CA commencing an intimate relationship, the way in which they communicated on 20 July 2019 about meeting up unmistakeably suggests that by one means or another they had each, prior to that time, made known their mutual attraction. The appellant could not have been unaware of the ethically problematic nature of having interacted in that way. The earlier ethical transgressions are part and parcel of how striking circumstances of the events of 20 July 2019 could unfold as they did. The appellant could scarcely have been able to recall the events of 20 July 2019 and their proximity to the last treatment session but have become unsure about or oblivious to the existence or timing of the earlier ethical transgressions. The earlier ethical transgressions were apparent from what likely exceed 100 or so emails in the period to 21 July 2019 when the appellant took the step of deleting them (despite having acknowledged their sentimental significance, a concession that, in effect, they captured the beginnings of their relationship and their shared thoughts about what a perfect future might look like), a step she must separately and repeatedly have taken in respect of a significant number of emails after that date in relation to all the further emails over the following days.  Indeed, CA had for his part lamented the need to delete the emails but comforted her by saying ‘Don’t worry though, I have it all stashed away in my little brain’.  And, later, in mid-August, when he discovered an email from mid-June that had escaped deletion, he re-forwarded it to her referring to it as an ‘early gem’.[272]  However difficult it might have been to recall the detail of particular deleted emails, it is more difficult to accept that the appellant could have considered the account she provided in her self-notification without the benefit of having reviewed those emails or without at least alerting the reader to the fact that they had not been reviewed as ‘full and frank’.  That is so even if, as the appellant said, her motivation for deleting the emails was focused upon the risk of H reading them, rather than concealing the relationship from Ahpra.[273] The emails were not routine communications which incidentally captured details of the kind one might otherwise not recall; they were the way in which the appellant and CA began to express their interest in one another; receipt of them was eagerly anticipated and their deletion was undertaken with regret.

   [271] In respect of CA’s marital situation, the appellant had herself remarked that ‘I thought something like that might unfold when you got home’: Exhibit A2, p 1349 [SAB 1343].

   [272] Exhibit A2, p 1720 [SAB 1714].

   [273] 2TR30.

8. The Tribunal’s ultimate findings are consistent with the logic of events and, conversely, the logic of events is strongly contraindicative of accepting the appellant’s evidence about her later state of mind.  The expert evidence relied upon by the appellant did not have significant explanatory value given that it could not explain positively false elements of the narrative, as distinct from omissions in it, and given that the more important events were, on the appellant’s account, not in fact forgotten or suppressed.

9. Further, making appropriate allowance for the pressure that comes with giving evidence[274] and the fact that some people find the process of giving evidence more difficult than others for reasons that do not reflect the accuracy of their recall or their truthfulness,[275] the appellant’s evidence about the inaccuracies in her accounts and the reasons for them was, in its terms, unpersuasive. 

   [274] It is apparent from the transcript that the appellant did find the process of giving evidence challenging: see, eg, 4TR18. But it is also clear that the Tribunal took appropriate steps to ensure that the appellant understood that if she felt under pressure and needed a break she should not hesitate to ask and it would be facilitated: see, eg, 2TR56-57.

   [275] See, eg, Mealey v Power [2015] NSWSC 1678 at [4] (Pembroke J).

10. I would not, in these circumstances, consider that a favourable or unfavourable impression about the appellant’s demeanour in giving evidence to be critical to making a finding that the appellant was aware that the self-notification and aspects of her answers in the first interview were inaccurate and misleading.  Put another way, even if I were to assume that there was nothing unsatisfactory about the way in which the appellant presented as distinct from the content of her answers, I would not, in this case, consider myself to be in a position where I could not appropriately make findings on the ultimate issues, even bearing in mind the Briginshaw principles.

11. If I had found material error in the process of the Tribunal’s reasoning, or in the Reasons, I would be prepared to make findings that would make it appropriate to dismiss the appeal, even making allowance for not having seen the appellant give evidence.

12. Further, because I have not found material error, it would be appropriate to apply a degree of appellate restraint to the challenge to the ultimate findings given that those findings were made with the advantage of seeing and hearing the witnesses give evidence.  But even without applying appellate restraint, I would reach the same result. 

13. None of this is to say that there may not be significant reasons to be sympathetic towards the appellant’s position, nor is it to discount the matters that may appropriately be raised by her in relation to the orders that might be appropriate following upon the findings that have been made. 

14. Ethical obligations are uncompromising, but life is complicated.  Nothing could be clearer than that the connection formed between the appellant and CA was powerful and mutually felt.  That connection has, it seems, been enduring.

15. It is not alleged, and it would not appear to be the case, that CA was in fact particularly vulnerable to any conduct by the appellant in displaying interest in him.  Plainly, the appellant did not consciously exploit her position or any power imbalance that existed.  To the extent that reference was made on appeal to issues of ‘causality’ in relation to the timing of the end of CA’s relationship, I would indicate that I see no basis for such findings.  Those observations are not intended to condone the ethical transgression; but rather to contextualise them and the findings of misconduct in connection with the inaccuracies in her self-reporting and the first interview.

16. Notwithstanding the conclusions I have reached on the grounds of appeal, the fact remains that the appellant did, ultimately, self-notify and has embarked in a conscientious way on a process of mentoring and self-reflection.[276] Although some issues were contested before the Tribunal, the appellant made significant concessions. The ethical transgressions the subject of the notification would appear to have been an aberration in an otherwise promising and worthwhile career. These will be matters for the Tribunal to consider in the context of the principles informing the imposition of appropriate sanctions under the National Law.

    [276] See, eg, Reflections by Dr Angelakis July 2021 to March 2022 [SAB 2490-2577].

17. I consider that the appeal must be dismissed.  I will hear the parties as to costs.