Donnelly v Health Care Complaints Commission (NSW)
[2011] NSWSC 705
•08 July 2011
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 Hearing dates: 25 May; 10 June 2011 Decision date: 08 July 2011 Jurisdiction: Common Law Before: Fullerton J Decision: Appeal upheld in part
Catchwords: Appeal from Psychologists Tribunal of New South Wales - professional misconduct - protective order - statutory test for professional misconduct - failure to give adequate reasons - insufficient evidentiary basis - failure to resolve critical factual disputes - civil standard of proof in Briginshaw v Briginshaw - denial of procedural fairness - mandatory reporting - failure to report under s 27 of the Children and Young Persons (Care and Protection) Act Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Health Practitioner Regulation National Law (NSW)
Medical Practice Act 1992
Pharmacy Practice Act 2006
Psychologists Act 2001
Supreme Court Act 1970Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Briginshaw v Briginshaw (1938) 60 CLR 336
Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200
Fox v Perry [2003] HCA 22; 214 CLR 158
HCCC v Dene & Donnelly (No 2) [2010] NSWPST 4
House v The King (1936) 55 CLR 499
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Lindsay v Health Care Complaints Commission [2010] NSWCA 194
Lucire v Health Care Complaints Commission [2011] NSWCA 99
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220
O'Sullivan v Health Care Complaints Commission [2008] NSWCA 295
Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537
Qidwai v Brown [1984] 1 NSWLR 100
Repatriation Commission v Warren [2008] FCAFC 64; 167 FCR 511
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Sakalo v Medical Board of Western Australia [2002] WASCA 178
Sinha v Health Care Complaints Commission [2001] NSWCA 206
Sydney United Football Club Pty Ltd v Soccer New South
Wales Ltd [2005] NSWSC 474Category: Principal judgment Parties: James Donnelly (Plaintiff)
Health Care Complaints Commission (NSW) (Defendant)Representation: R Graycar/B Kaplan (Plaintiff)
K Stern (Defendant)
Crane Law (Plaintiff)
Health Care Complaints Commission (NSW) (Defendant)
File Number(s): 2010/266018 Publication restriction: Order prohibiting the publication of the names of certain persons who are to be referred to by pseudonyms only
Judgment
On 8 July 2010 the Psychologists Tribunal of New South Wales ("the Tribunal") found that the plaintiff's conduct as a registered psychologist constituted both unsatisfactory professional conduct within the meaning of s 24 of the since repealed Psychologists Act 2001 ("Complaint 1") and professional misconduct within the meaning of s 25 of the same Act ("Complaint 2") ( HCCC v Dene & Donnelly (No 2) [2010] NSWPST 4).
In exercise of its statutory power to make a protective order under s 53 of the Psychologists Act , the Tribunal also ordered that the plaintiff's name be removed from the Register of Psychologists and that he not reapply for registration as a psychologist for a minimum period of three years from 7 August 2010.
The proceedings against the plaintiff were commenced by the Health Care Complaints Commission ("the HCCC") on 26 June 2008. On 9 June 2009 the Tribunal ordered that the complaints be heard concurrently with proceedings involving Ms Dene, a provisionally registered psychologist who was at the relevant time a graduate student in psychology at the university where the plaintiff held an academic post in the School of Psychology. Ms Dene was subject to the plaintiff's supervision in the therapeutic sessions she provided to patients referred by the plaintiff as a part of the practical component of her postgraduate studies.
The complaints against both the plaintiff and Ms Dene arose in the context of her treatment of a person, hereafter referred to as Mr A. The complaints were laid following a report to the HCCC from the Program Director of a Pre-Trial Diversion of Offenders Program concerning Mr A. Mr A was inducted into the program following a police investigation in which he admitted sexually abusing children, including one of his daughters hereafter referred to as Miss B, over a number of years.
The complaints concerned the failure of both the plaintiff and Ms Dene to report the fact that Miss B was at risk of significant harm under s 27 of the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act") after Mr A disclosed inappropriate touching and sexualised thoughts about her during the course of therapy with Ms Dene, the nature of the interventions that were employed after that disclosure, and issues relating to the scope, content and standard of the supervision Ms Dene received from the plaintiff as her supervisor.
Both the plaintiff and Ms Dene were alleged to be guilty of unsatisfactory professional conduct and professional misconduct although in different respects necessarily reflective of the differences in their professional status at the relevant time. The particulars relied upon in proof of both complaints laid against the plaintiff (although in identical terms) were more extensive than those relied upon in proof of the complaints alleged against Ms Dene. Subject only to some minor qualification, the Tribunal was satisfied that each of the particulars of unsatisfactory professional conduct alleged against the plaintiff were established. It also found the plaintiff guilty of professional misconduct by an aggregation of those particulars and, in addition, in respect of some particulars a discrete finding of professional misconduct was made.
I am also conscious of this Court's commentary on the form of pleadings that have been adopted by the HCCC in the past where complaints of unsatisfactory professional conduct and professional misconduct have been laid in reliance on the same set of particulars. Where a pleading of this kind is the basis of a prosecution for complaints of unsatisfactory professional conduct or professional misconduct Basten JA identified certain risks in Lucire v Health Care Complaints Commission [2011] NSWCA 99. His Honour said at [43]:
...Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate.
I am satisfied that the risks that his Honour identified did not materialise in this case. I am of that view despite the complexity inherent in the joint proceedings brought by the HCCC against the plaintiff and Ms Dene and the fact that the complaints against each of them were prosecuted by reference to some shared particulars.
That said, because of the way the appeal was prosecuted it is necessary to set out the particulars relied upon by the HCCC in support of both complaints laid against the plaintiff in full:
Between June 2003 and November 2004 the psychologist provided therapy to Mr A and/or his daughter KA himself and/or through his supervision of Ms Kerri Dene, a provisionally registered psychologist providing treatment services under his supervision. The psychologist:
1. In October 2003, upon becoming aware that Mr A had disclosed to Ms Dene during a therapy session that he had been touching his daughter KA in an inappropriate manner for the last few years,
a) failed properly or at all to understand the legal and professional obligations upon him in cases of potential child abuse;
b) failed to make a report to the Department of Community Services of those disclosures as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998;
c) did not voluntarily report the disclosures to the Department of Community Services;
d) failed to take adequate steps to assess whether or not KA or her sister HA were at risk;
e) failed to appreciate the risk to KA and HA;
f) failed to take appropriate action to protect the safety and welfare of KA and HA;
g) failed contrary to B5 of the Board's Code of Conduct to communicate the fact of Mr A's disclosures to appropriate professionals or organisations; and
h) caused or permitted Ms Dene (a trainee under the psychologist's supervision) to continue to provide treatment services to Mr A notwithstanding that this was beyond her competence and experience.
i) caused or permitted Ms Dene to continue to provide treatment services to Mr A notwithstanding that she had disclosed her own past history of sexual abuse to Mr A.
2. Failed on or around November 2003, upon the occasion of making a referral to Dr Brechman-Toussaint:
a) to provide all relevant information to Dr Brechman-Toussaint in relation to the risk of harm to KA and HA;
b) adequately to reconsider the question of whether or not KA and HA were at risk; and
c) to make a referral to the Department of Community Services.
3. On 15 September 2004, encouraged and/or permitted Ms Dene to involve KA in the therapeutic process she was undertaking with Mr A notwithstanding that this was:
a) beyond her competence;
b) inappropriate in the circumstances; and
c) without any steps being taken to assess or to ensure KA's welfare in relation to this process.
4. Failed to exercise appropriate supervision of Ms Dene in her treatment of Mr A.
5. Failed to take steps to safeguard the welfare of Ms Dene in relation to her therapeutic relationship with Mr A.
6. From around January 2005 - August 2005, delayed making a report to the Department of Community Services.
7. Did not keep any appropriate and/or accurate clinical records in relation to the psychological treatment provided to Mr A.
8. Caused or permitted Ms Dene to provide 42 sessions of therapy to Mr A as an intern.
The hearing before the Tribunal extended over seven hearing days. Both Ms Dene and the plaintiff gave evidence as did two expert witnesses called by the HCCC to give peer review evidence. Dr Banks, a clinical and forensic psychologist, gave evidence in the case against the plaintiff. Much of the documentary evidence was relevant to proof of each of the complaints against both the plaintiff and Ms Dene. While they gave evidence in defence of the complaints laid against them individually, their evidence was not in conflict. In critical respects the plaintiff expressly relied on Ms Dene's evidence.
The Tribunal's Reasons for Decision extended over 200 pages. It included a comprehensive review of the evidence identified by subject headings in the index to the decision. Its findings generally, and its findings in respect of each of the particulars relied upon in proof of each of the complaints, were identified by paragraph numbers in the index. The parties filed detailed written submissions which were annexed to the decision. The submissions dealt with all matters of fact in dispute, the conclusions that should be drawn from a resolution of the matters of fact in dispute and the findings the Tribunal should make on the ultimate issue as to whether either or both complaints were established against either or both the plaintiff or Ms Dene. The Tribunal referred to the submitted position of the parties in the Reasons for Decision by paragraph number without replicating the submissions in full.
The structure of the Reasons for Decision is not unimportant in light of what the plaintiff claims to be the failure of the Tribunal to give reasons for its decision and its failure to expose the reasoning by which it resolved disputed issues of fact adverse to the plaintiff.
The grounds of appeal in summary
By an amended summons filed on 11 November 2010 the plaintiff appeals from the Tribunal's decision in part only. The three grounds of appeal mask the complexity in the way the appeal was prosecuted.
The appeal is limited to the Tribunal's findings of professional misconduct and the making of the protective order and its terms. There is no direct challenge to the Tribunal's finding of unsatisfactory professional conduct. However, given that the same particulars were relied upon by the HCCC to establish both complaints, if error is made out in the Tribunal's approach to proof of Particular 1(b) (as contended for in the first ground of appeal), the associated finding that the plaintiff failed to make a report as required under s 27 of the CYPCP Act cannot be sustained. Given the acknowledged seriousness of that conduct, and the way in which it is related contextually to other particulars relied upon in support of both complaints, the HCCC accepted that if that finding is disturbed the integrity of the Tribunal's findings of unsatisfactory professional conduct would necessarily be undermined which would in turn undermine the Tribunal's finding of professional misconduct which, in part at least, derives from that finding.
The grounds of appeal
The first ground of appeal contends that there was error in the approach the Tribunal took to considering Particulars 4 and 6 and in its finding that they each supported a distinct finding of professional misconduct. Particular 4 concerned the adequacy of the plaintiff's supervision of Ms Dene and Particular 6 his delay in reporting the matters Mr A disclosed to Ms Dene in the course of therapy. (I note that while it is "delay" in reporting that is identified in Particular 6 the plaintiff at no time reported Mr A's sexual abuse of his daughter. It was not reported until August 2005, and only then by Ms Dene.) The plaintiff did not submit that proof of the conduct the subject of Particulars 4 and 6 was not supported by the evidence, or that they were incapable of supporting a finding of unsatisfactory professional conduct. The challenge was to the conduct meeting the statutory test for professional misconduct as a matter of law.
It was also submitted that the finding of professional misconduct based on the same two particulars was infected by error in the Tribunal's failure to give reasons to support its finding and, further, that to isolate these two particulars as constituting discrete evidence of professional misconduct without giving adequate reasons for so doing, is eloquent of an error of law and an example of what is said to be the Tribunal's arbitrary, capricious and irrational approach to its statutory responsibility to provide reasons under s 115 of the Psychologists Act (s 167F of the Health Practitioner Regulation National Law (NSW)). In support of this submission counsel relied upon the joint judgment of Bell and Crennan JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [121]-[131].
The second ground of appeal contends that the Tribunal also failed to give reasons (or adequate reasons) for finding that the conduct the subject of the balance of the particulars, when viewed in aggregate, constituted professional misconduct. It was submitted that this was error of the kind identified by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[67].
The third ground of appeal contends that there was an insufficient evidentiary basis for a finding of professional misconduct in any event and, further, that the Tribunal failed to resolve the critical factual disputes raised by the evidence by reference to the civil standard of proof in accordance with the approach in Briginshaw v Briginshaw (1938) 60 CLR 336. This submission was advanced despite the Tribunal recognising that because of the seriousness of the allegations and their consequences it had to be reasonably satisfied that the particulars of the complaints had been established by evidence of sufficient quality and weight before considering whether those particulars constituted unsatisfactory professional conduct or professional misconduct or both. In this connection the Tribunal cited Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 at [31].
It was submitted that even were the finding of professional misconduct undisturbed, by cancelling the plaintiff's registration for a period of three years the Tribunal failed to properly exercise its statutory discretion on the question of penalty thereby committing an error of the kind specified in House v The King (1936) 55 CLR 499 at 504 - 505 per Dixon, Evatt and McTiernan JJ.
Submissions in support of the third ground of appeal were principally (but not exclusively) directed to what the plaintiff submitted was the insufficiency of the evidence bearing upon the timing and content of Mr A's initial disclosure of inappropriate behaviour towards his daughter. It was common ground before the Tribunal that this was a critical factual issue in dispute. Proof of the fact that the plaintiff was aware that Mr A had disclosed sexual behaviour towards his daughter in October 2003 in the terms contended for by the HCCC was central to proof of Particular 1(b), and underpinned other particulars of the plaintiff's conduct relied upon by the HCCC in proof of both complaints.
The HCCC's case before the Tribunal depended to a significant extent upon the Tribunal's assessment of Ms Dene's evidence and the clinical notes of the therapy sessions she conducted with Mr A between October 2003 and November 2004. On the appeal the plaintiff challenged the Tribunal's finding that the information that Ms Dene relayed to the plaintiff in October 2003 constituted a reportable matter under s 27 of the CYPCP Act. He also challenged the Tribunal's finding that he was a person upon whom the CYPCP Act imposed mandatory obligations to report.
Given the significance of the Tribunal's findings concerning the timing and content of the initial disclosure, I propose to deal with the third ground of appeal before considering the first and second grounds.
The application to amend the pleadings
In the course of the hearing I raised what appeared to me to be a disparity between the terms of the protective order made by the Tribunal, namely suspension for three years, and the order sought by the HCCC in its submissions, namely suspension for 18 months. Where it also appeared that the plaintiff had made no submissions on the question of penalty at all, I queried whether it was to be submitted that the plaintiff had been denied procedural fairness in his challenge to the making of the protective order.
Neither of the plaintiff's counsel appeared before the Tribunal. They appeared pro bono after orders were made by Studdert J on 9 September 2010. Ms Graycar was not in a position to deal with the issue without instructions and without undertaking a review of the course of proceedings before the Tribunal. Although Ms Stern appeared for the HCCC on the appeal as she did before the Tribunal, because the issue was not raised directly by the pleadings she was also not in a position to deal with the issue. Both counsel sought an opportunity to consider their positions and, in the event that there was to be an application for leave to further amend the summons to include a ground claiming a denial of procedural fairness, it was agreed that a notice of motion would be filed and served and a further hearing convened.
By notice of motion dated 10 June 2011 the plaintiff applied for leave to file a further amended summons to include a ground of appeal that the plaintiff was denied procedural fairness in the imposition of the protective order because the Tribunal did not afford him a reasonable opportunity to make submissions on the question whether a protective order should be made or its duration. The HCCC opposed the grant of leave.
Relying upon the principles identified by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [94] - [102] the HCCC submitted that the plaintiff had a more than adequate opportunity to bring the appeal on grounds which he contended constituted error on the part of the Tribunal before the hearing commenced. In addition, even if the Tribunal did not afford him an opportunity to be heard on the issue of the making and duration of a protective order (which was not conceded), the HCCC submitted that his failure to offer any explanation for not having raised the issue of procedural fairness until it was raised for the first time at the hearing of the appeal was a factor weighted against leave being granted. It was also submitted that to permit an amendment after the hearing of the appeal was contrary to the administration of justice. The last submission was not developed.
I am unable to discern how the administration of justice is prejudiced by the application for leave to amend since both counsel prepared detailed submissions directed both to the question of leave and, assuming leave was granted, to the substantive question. I consider that in the particular circumstances of this case the interests of justice dictate that the question whether the plaintiff was denied procedural fairness be determined in these proceedings despite the fact that it was not an issue identified by the plaintiff and that it was only because I raised it that an application for leave to amend was made. What persuades me to that view is the advice from the parties that the Tribunal is currently hearing an application by the HCCC for the plaintiff to be subject to a prohibition order under s 53(3A) of the Psychologists Act, an application which may only be made if a practitioner is already the subject of a protection order. Were the question raised by the application for leave not resolved in these proceedings the Tribunal's jurisdiction to consider the application for the prohibition order might be in doubt. Accordingly, I propose to grant leave permitting a further amendment to the amended summons in the terms sought by the notice of motion.
The relevant law
Although the Tribunal's decision was handed down after the repeal of the Psychologists Act and the commencement of the Health Practitioner Regulation National Law (NSW) ("the National Law") on 1 July 2010, the complaint was dealt with under the Psychologists Act in accordance with the savings and transitional provisions in the National Law. However, the appeal to this Court is dealt with under the National Law as if the complaint had been decided under that statutory regime.
Where a registered health practitioner has been the subject of complaint referred to a specialist Tribunal under subdivision 2 of Part 8, s 162 of the National Law provides what has been described as a "bifurcated right of appeal" to this Court:
162 Appeal against Tribunal's decisions and actions [NSW]
(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against -
(a) a decision of the Tribunal with respect to a point of law; or
(b) the exercise of a power by the Tribunal under Subdivision 6 of Division 3.
162A Powers of Supreme Court on appeal [NSW]
(1) In deciding the appeal, the Supreme Court may -
(a) dismiss the appeal; or
(b) make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law.
(2) If the Supreme Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Subdivision 3 of Division 6 may not be made until after a specified time.
The rights of appeal under the since repealed Pharmacy Practice Act 2006 were recently considered by Adams J in Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220 at [48] - [50] where his Honour applied the analysis undertaken by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 of a similar provision under the since repealed Medical Practice Act 1992. Both decisions are instructive. The provisions under consideration in both cases had a similar, if not identical operation to the rights of appeal now embodied in s 162(1) of the National Law.
The right of appeal under s 162(1)(a) of the Health Practitioner Regulation National Law (NSW)
The right of appeal in s 162(1)(a) mirrors what Basten JA described in Prakash as a common form of statutory language permitting an appeal where an error of law is identified in the procedure adopted by the Tribunal, or in its reasoning, an error which is material to the final and operative decision that the complaint is proved or not, or as to the disciplinary order made. His Honour observed that it would be unfortunate were there any significant distinction between the kinds of error which warrant quashing of a decision under s 69 of the Supreme Court Act 1970 and those justifying setting aside a decision in the exercise of the statutory appeal jurisdiction under the National Law with respect to a point of law. Of significance, neither of the statutory rights of appeal involves a general power to review the Tribunal's finding or to set it aside because the decision is unreasonable. His Honour said at [86]:
Given the approach adopted in the relevant authorities as to the scope of an appeal against a decision with respect to a point of law, what is said to be protected against even a "perverse" result, are the findings of primary facts, so long as there is some evidence to support the finding. Although, in his much-cited three stage analysis in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Glass JA linked, as the first stage, "determining the facts by way of primary findings and inferences", it may be necessary to separate the drawing of inferences from findings as to the primary facts, at least where the inferences involve the third stage identified, namely the application of the law to the facts found. An inference of the relevant kind in the present case would be a finding that particular conduct was sufficiently serious to justify a suspension or deregistration, and was therefore professional misconduct. On one view, such a finding would involve an evaluative judgment of the kind which may more readily be reviewed than primary facts, on an appeal by way of rehearing: see Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ). It is also arguably similar to the kind of opinion, described as capable of being set aside pursuant to judicial review if "arbitrary, capricious, irrational, or not bona fide" in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No. 2) (1944) 69 CLR 407, by Latham CJ at 432. An opinion so formed would not be an opinion of the kind required by the statute as a basis for an order suspending or deregistering a medical practitioner.
Consistent with his Honour's approach to the scope of a statutory appeal he also noted that a finding of primary fact is protected against even a perverse result provided that there is some evidence to support it. It follows that no appeal lies under s 162(1)(a) from a claim that there was insufficient evidence before a Tribunal to ground a particular finding of fact.
In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [41] Sackville J emphasised the critical importance of distinguishing between points of law (which are subject to appeal) and questions of fact (which are not) such that where there is a challenge to the findings of a Tribunal which lead to an ultimate finding that a complaint has been proved, there must be an identified error of law.
In Lucire v Health Care Complaints Commission [2011] NSWCA 99, an appeal under s 162 of the National Law against a decision of the Medical Tribunal, Basten JA again had occasion to emphasise that to make good a challenge to substantive findings of misconduct on the basis that the Tribunal had misapplied or misunderstood the evidence (as distinct from there being a complete absence of evidence to support a finding which his Honour noted was not contended for by the plaintiff and which I note is not contended for by the practitioner in this case), it was necessary to distinguish between errors with respect to facts and errors with respect to law. In order to identify an erroneous decision in point of law the facts must be established, or at least unchallenged, and the argument based upon them must have been clearly articulated and not addressed by the Tribunal.
In the context of considering whether the identification of an error of law on an appeal to this Court from the Medical Tribunal under s 162 of the National Law should be approached in the same way as an error of law resulting from a failure to take into account a relevant consideration in administrative review, Basten JA said:
[97]... [However] it is not possible to characterise the conduct of a Tribunal as erroneous in point of law unless, in effect, the Tribunal has misunderstood, in a substantial respect, the case put by the practitioner. Such a claim will not be made good simply by pointing to passages in the evidence which have not been referred to by the Tribunal in its reasons, or by suggesting that some evidence was given greater weight than it should have received, or that the Tribunal relied on some evidence to the exclusion of other elements.
The plaintiff's written submissions offend against this stricture in a number of respects, one example being the asserted failure of the Tribunal to take into account the plaintiff's evidence that because Ms Dene was an exemplary student he did not see the need to closely supervise her. In dealing with a number of the submissions advanced in support of each of the grounds of appeal it will be necessary to refer back to the principled approach to an appeal under s 162(1)(a) mandated by the authorities.
An appeal under s 162(1)(b) of the Health Practitioner Regulation National Law (NSW)
In Ng Adams J observed that the second statutory right of appeal (which for present purposes is that provided for under s 162(1)(b) and relied upon by the plaintiff in his challenge to the imposition of the protection order) is not limited in the same way as an appeal under s 162(1)(a). In a helpful distillation of the detailed analysis undertaken by Basten JA in Prakash his Honour said:
[49] The second right of appeal is not so limited. His Honour cited with approval characterisations used by Priestley and Clarke JJA in Bannister v Walton (1993) 30 NSWLR 699 in respect of this second right of appeal, the former noting that it did not "extend to questioning the acceptance by the Tribunal of the facts comprising proof of the complaint (30 NSWLR at 734C) and the latter noting that in respect of this right of appeal, the Court acts on 'the basis that the factual findings underlying the "decision" of the Tribunal are not open to scrutiny', his Honour continuing by way of explanation (at 735A-B) -
It may be, however, that the Tribunal may reach conclusions on a number of factual issues which, while not strictly relevant to the complaint, may be considered to be of importance in determining what is the appropriate [disciplinary] order.... In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order [in an appeal of this kind]....
[50] Basten JA concurred that it had been recognised "that the exercise of power constituted by the making of disciplinary orders was discretionary in nature and that an appellant must identify an error of the kind specified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon, Evatt and McTiernan JJ). His Honour cited the oft-quoted passage from this joint judgment -
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
...
[51] In dealing with the situation where it is argued that matters were considered which should not have been taken into account whilst material considerations were ignored which should have been taken into account, his Honour observed -
[88] A broader approach may be appropriate in considering an appeal against a discretionary judgment. Thus, a material consideration may involve any matter having potential relevance to the exercise being undertaken and may not be limited to legally mandatory considerations. In this sense, what is relevant will depend upon the particular circumstances of the case, as well as the scope and nature of the statutory power. However, the obligation of the Tribunal to consider such matters will not usually extend beyond those presented to it by the party seeking to resist the exercise of a particular power in circumstances where it had been engaged: ...
[52] His Honour then turned to the tension between two lines of appeal -
[89] It may be accepted then that the power of review of an order [imposing a disciplinary consequence]... even constrained by the principles in House v The King, is likely to permit a wider scope for review than that contained in [an appeal on a point of law].... Thus, at least in relation to findings of professional misconduct, where the complaint is found proved and not challenged, or the challenge is unsuccessful, the proper inference from the statutory scheme is that the challenge to the order of the Tribunal, so far as it does not identify an error of law, must identify an error of principle, but one which does not form a basis of the finding that the complaint has been proved. In the case of a finding of professional misconduct, this may be a serious constraint, because almost any circumstance affecting the severity of the misconduct, will be relevant to the finding that it was indeed "professional misconduct". Thus an appellant who is able to challenge only the order made by the Tribunal may well be effectively limited to such matters as a failure to give proper weight to prior good conduct or evidence of rehabilitation.
[90] As a practical matter, it is almost inevitable that the findings which inform the conclusion that the conduct complained of is professional misconduct will also be of direct relevance in the exercise of the consequential power to make a protective order. Because these matters are not subject to review, there is a danger in describing the right of appeal with respect to the exercise of power as a "general appeal", without noting the constraints on the scope of the appeal imposed, at least implicitly, by its statutory and litigious context.
The third ground of appeal
Although Ms Graycar acknowledged that findings of fact are matters quintessentially within the remit of the Tribunal, she submitted that there are limited and comparatively rare circumstances where a fact finding exercise can be shown to be so fundamentally flawed that conclusions drawn from those facts are also flawed, thereby giving rise to an error of law. She submitted that error of that kind is demonstrated in this case. She placed considerable reliance upon Sinha v Health Care Complaints Commission [2001] NSWCA 206 where Fitzgerald AJA referred to Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [45] and [50]. In that case the Court found that the Tribunal erred in law in failing to satisfactorily explain why it accepted a patient's account of a practitioner's sexual impropriety as credible when there was other evidence, favourable to him, which cast doubts on the veracity and reliability of his patient's account. She also submitted that the evidence upon which the Tribunal's elementary fact finding exercise was engaged was so insubstantial that, applying the approach in Briginshaw, the Tribunal could not have been reasonably satisfied of the facts that supported a finding adverse to the plaintiff such as to give rise to an error of law (see Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [110] per French and Jacobson JJ, [126] per Branson J).
Irrespective of whether there is any difference in principle between a submission that a fact finding exercise is flawed because of the approach of the fact finder or flawed because of the quality of evidence against which a finding of fact is made, the plaintiff must demonstrate that the Tribunal's findings concerning the timing and content of the initial disclosure were not reasonably open to it.
The HCCC submitted that the Tribunal's approach to the evidence and the consideration it gave to resolving the conflict on the evidence, fell well short of the limited category of case of which Sinha is an example. The HCCC submitted that when viewed in its entirety the weight of the evidence probative of the initial disclosure being of inappropriate sexual behaviour was more than adequate to support the Tribunal's intermediate findings to that effect and more than sufficient to sustain its ultimate finding that both complaints were established in large part because of that finding. The HCCC submitted the appeal is in essence a challenge to the Tribunal's adverse factual findings, in effect a "merits review", without identifiable error of the kind to which Basten JA identified in Prakash.
The HCCC also submitted that the Tribunal's reasoning in support of its findings was both clear and express and that there was nothing inherent in the reasoning to indicate that in resolving what it was agreed was a critical factual dispute, the Tribunal failed to apply an appropriate standard of persuasion in accordance with Briginshaw.
The therapeutic relationship between Ms Dene and Mr A
Between 2001 and 2006, the plaintiff worked as a lecturer and clinical neuropsychologist in the School of Psychology at a university in New South Wales. From 2002 to 2005 Ms Dene was a graduate student in psychology at the same university during which time she completed two practical components, the first of which was supervised by the plaintiff and the second by both the plaintiff and Dr Margaret Brechman-Toussaint, a specialist child psychologist.
In June 2003 the plaintiff was treating Mrs A, a woman who suffered from chronic multiple sclerosis dementia and a range of related psychological problems from a clinic associated with the university. In the course of treatment the plaintiff identified her husband as being in need of psychological support as a husband and father of two young daughters, Miss B and Miss C.
At the plaintiff's invitation (and ostensibly under his supervision) Ms Dene provided treatment to Mr A directed to assisting him to deal with the stress of his wife's illness and her rapidly deteriorating health, and assisting him to deal with his sole parenting responsibilities for his two daughters. It was not in dispute that at least between October 2003 and November 2004 the plaintiff was obliged to supervise Ms Dene in the treatment she provided to Mr A by reason of her status as an unregistered psychologist undertaking postgraduate studies.
In August 2005, after consulting with Mr A as a private patient over some months, Ms Dene reported his inappropriate dealings with and feelings for Miss B to the Department of Community Services ("the Department") pursuant to the CYPCP Act. This prompted a police investigation in the course of which Mr A admitted sexual abuse of children over many years. Ms Dene's report was made almost 11 months after she first decided a report of inappropriate sexual behaviour by Mr A should be made and 22 months after his initial disclosure of that behaviour. The initial decision to report Mr A's sexual misconduct was made in September 2004 while he was still a patient at the university clinic. The reasons why a report was not made at that time were discussed in the Discharge Summary prepared by Ms Dene and apparently signed by the plaintiff in January 2005.
The Tribunal's findings concerning the timing and content of the initial disclosure
It was not in dispute that, in the course of a therapeutic session with Ms Dene, on 21 October 2003 Mr A disclosed having feelings for Miss B and having made physical contact with her pubic region. The question in serious contention was whether he disclosed a sexual dimension in the touching (as distinct from it being accidental in the course of a father's legitimate concern for the health and welfare of his young child), and/or whether his thoughts and feelings about her carried a sexual connotation.
After considering all the evidence (including, in particular, Mr A's further disclosures of inappropriate touching and sexualised feelings towards his daughter noted in Ms Dene's clinical notes from October 2003 to November 2004, and the content of the Discharge Summary where those matters were the subject of summation and analysis), the Tribunal found that it was likely that on 21 October 2003 Mr A disclosed to Ms Dene that for some period of time he had deliberately touched Miss B's pubic region and had only recently ceased that behaviour, and that he had inappropriate sexual thoughts and feelings for her.
In so finding, the Tribunal expressly adopted the submissions of the HCCC, which, as I have noted, were annexed to the decision. Those submissions were cross-referenced to the evidence with particular reference to the content of Ms Dene's clinical notes.
The finding was contrary to what had been urged upon the Tribunal by both the plaintiff and Ms Dene. They each gave evidence (albeit with different emphasis) that the initial disclosure by Mr A was of accidental touching of the child's genital region while her stomach was being massaged to prepare her for sleep, and that the topic was only introduced into therapy as a "taboo subject" (the descriptor in Ms Dene's clinical notes) because of Mr A's concerns that his emotional needs for his daughter were crossing legitimate boundaries because of his wife's absence from the family home and her unavailability as a sexual partner. The plaintiff and Ms Dene emphatically denied that there was any suggestion in what Mr A disclosed in October 2003 that the touching of the child's pubic region was deliberate or that his feelings towards her were sexual.
It was the common position of the plaintiff and Ms Dene that after she spoke with the plaintiff following her session with Mr A on 21 October 2003 the plaintiff spoke with him. They were, however, the only source of evidence as to what was said in that exchange. The evidence left unresolved whether the plaintiff sought to clarify or confirm with Mr A the accuracy of what Ms Dene relayed to him and whether he made his own assessment of the appropriate professional response in those circumstances. The plaintiff did not prepare any notes of the session with Mr A. Mr A did not give evidence.
Ms Dene's clinical notes
The dispute concerning the content and timing of Mr A's initial disclosure resulted from Ms Dene's failure to record the fact of the disclosure or its content in her clinical notes of the therapy session with him on 21 October 2003. Her notes of the session were not written up until 28 September 2004, at that time apparently prompted by Mr A disclosing what Ms Dene noted as "[the] duration of previous sexual transgressions [being] much greater than previously advised".
The note of 28 September 2004 commenced with the statement "I want to record my thoughts about the ethical difficulties in this case". Against the date 21 October 2003 the following was recorded:
[Mr A] disclosed that he had touched his daughter [Miss B] inappropriately about once a week (genital area) for about a few years. He said he would lie with her when he put her to bed and touch her until she pushed his hand away. He said he had stopped about two weeks ago, and had told her he was sorry and he would not do it again.
It appears that at this time a separate clinical note dated 21 October 2003 was also created which recorded as follows:
Behavioural Observations:
[Mr A] looked worn and his shoulders sagged. He did not meet my eyes at the beginning of the session and seemed very troubled with a furrowed brow. He was highly emotional during the session, crying much of the time. He looked a spent and defeated man at the end of the session.
Progress Notes:
[Mr A] reported that he needed to tell me about something that was troubling him greatly and was taboo. He reported that he had inappropriately touched his elder daughter... about once a week for a few years. [Mr A] said he would give her a light massage which included fondling her pubic area. He reported stopping when she would roll over or indicate that she had had enough. He said that this behaviour had ceased about 2 weeks ago when he told her that he would not do it anymore and that he was sorry that he had done it.
The session focused on this disclosure. I ascertained that there had been no penetration, coercion or physical violence. [Mr A] reported that he had been burdened with guilt for what he had done and was very concerned that she would be confused about her sexuality as she entered puberty. He said he was only attracted to touching her, he had not felt any inclination to touch his elder daughters, nor his youngest daughter. He also said that he had no sexual attraction to other children now or in the past. [Mr A] said that it was confusing for him to feel an attraction to [Miss A] and requested help to maintain appropriate behaviours with her.
Ms Dene gave evidence that this note (and, it would seem, her other clinical notes) were inaccurate in critical respects. She said that in recording what Mr A had told her of his dealings with his daughter and his feelings towards her, she attributed to him a sexual dimension to his thoughts and conduct, when in truth he had not disclosed any inappropriate sexual touching or sexual thoughts at any time, and in particular in the session on 21 October 2003 when the so called inappropriate touching was first ventilated. She claimed that she had unconsciously allowed her own personal experiences as a victim of sexual abuse to "bleed through" her dealings with Mr A and the treatment she provided to him, and into the clinical notes. She said that she was unaware of the extent to which the notes were inaccurate until she reviewed them in preparation for the hearing. She claimed that she was "shocked and appalled" when she re-read the notes and realised that she had wrongly attributed to Mr A an admission of having sexually misconducted himself in relation to his daughter when this was not the case.
The plaintiff urged the Tribunal to place no reliance on Ms Dene's clinical notes. He submitted that they not only suffered from a lack of contemporaneity, but Ms Dene's evidence that the notes were materially inaccurate completely neutralised their utility as a source of evidence as to what she was told by Mr A and what Ms Dene relayed to him. For that reason he submitted that his evidence of what he was told (and Ms Dene's evidence of what Mr A in fact told her) should be preferred to her notes. He also submitted that were the Tribunal to approach their fact finding exercise by disregarding the post-dated clinical notes, and to take into account (in his favour) that to the extent that the other clinical notes recorded contemporaneous disclosures of abuse he was unaware of them because he had not read them, the complaints against him should be dismissed.
The Tribunal expressly rejected Ms Dene's evidence that her clinical notes were an inaccurate record of what she was told by Mr A whether because, as she claimed, her own emotional state was "bleeding through", tainting what Mr A had first disclosed to her in October 2003 and thereafter, during the ongoing course of therapy.
Clearly enough, the terms of the initial disclosure recorded in Ms Dene's post-dated clinical note was critical evidence of what was disclosed at the time. However, it was not the only evidence upon which the Tribunal relied in rejecting Ms Dene's evidence that the notes were a gross exaggeration. They were satisfied that when considered in the context of all the available evidence, in particular the clinical notes considered in their entirety, the post-dated clinical note fairly reflected what Ms Dene was first told on 21 October 2003. The Tribunal accepted that although Ms Dene's notes were in some respects clinically poor, they recorded in a coherent and consistent manner the fact that Ms Dene was concerned with Mr A's conduct towards his daughter, the fact that she was at risk because of it and its potential for harm.
In his examination in chief the plaintiff was asked what Ms Dene relayed to him concerning Mr A's initial disclosure. He responded:
What she had disclosed she had said that Mr A disclosed to her that after stating he had something to talk to her about and he felt it was somewhat taboo that he had mentioned that he had been using massage in the past at night approximately once a week to help his daughter settle at night and he was feeling uncomfortable about it. He had described it or demonstrated it as stroking her abdomen lying on her back, stroking this way with contact with her pubic region with his wrist as he went by, and that based on Ms Dene's report she had queried whether it was any penetration and he denied any penetration. He denied that - any other kind of touching behaviour and he had ceased the massage behaviour.
This is not only inconsistent with Ms Dene's note of the session on 21 October 2003 recorded in September 2004, it was also inconsistent with her clinical notes of a telephone session with Mr A recorded two days later on 23 October 2003 and inconsistent with what was recorded in the Discharge Summary, a document countersigned by the plaintiff. The Discharge Summary included the following:
In October 2003, the therapeutic agenda was expanded as a consequence of a disclosure made by [Mr A]. He reported that he had recently ceased inappropriate behaviours towards his daughter [Miss B]. [Mr A] said that for several years he had given his daughter a gentle massage at bedtime about once a week. During the massage he had stroked her genitals. He reported stopping when [Miss B] indicated she had had enough, and denied coercion or penetration...
Therapeutic interventions were also provided to [Mr A] in relation to inappropriate desire, thoughts and behaviour...
In September 2004, further disclosure by [Mr A] about the length of time that the inappropriate touching took place provided grounds for a reassessment of reporting responsibilities and the prognosis in relation to future therapeutic requirements. The risk to [Miss B] was now considered low. The revised assessment was discussed with [Mr A] who responded with both agreement and concerns/fear. Unfortunately, the timeline from reporting was disrupted due to [Mrs A's] deterioration and it was assessed that it would be too difficult for [him] to deal with the intensity of both stressors at the same time...
It is expected that at the appropriate time, a report to DoCS will be made and [Mr A] will be supported through the process.
(emphasis added)
When he was cross-examined about the Discharge Summary the plaintiff said:
Q. But part of it was also inappropriate fondling of the pubic area?
A. I don't like the word "fondling". I still think that's an overstatement.
Q. No, I will use your other word, inappropriate stroking of the genitals, that was part of the
A. I think it's a light massage with contact/occasional contact with the pubic region is what we should have written.
In addition to the notes extracted at [52], [53] and [54] the material entries can be summarised as follows (italics are used for emphasis):
(i) On 23 October 2003, in the course of a telephone call with Mr A two days after the session where the initial disclosure was made, Ms Dene recorded that she discussed the importance of providing support to Miss B and noted Mr A's concerns at her "shame and embarrassment and a possible unwillingness to talk". Ms Dene also discussed with him that were the Department notified they would be ensuring Miss B's safety by supporting her and monitoring the situation. She also noted that her continued work with him would be expanded to include "goals of not engaging in inappropriate sexual fondling of [Miss B]; assisting her to set safe boundaries for herself; unburdening her from the 'secret' and assisting [Mr A] to examine and change distorted cognition in relation to [Miss B]". The note also records that she advised the plaintiff of the outcome of the phone call with Mr A.
(ii) On 10 November 2003 Ms Dene recorded that it had been a "good week" as on two occasions Mr A had "an awareness of an urge for inappropriate behaviour with his daughter".
(iii) On 3 February 2004 Ms Dene noted "Relationship with [Miss B]" - emotional dependence/physical behaviours - instinct to touch".
(iv) On 6 April 2004, under a subheading of "[Miss B]", Ms Dene noted Mr A reported "feeling the ease of subtle inappropriate touch in games" and a discussion as to how to effectively deal with it (inappropriate touching) in the moment from past transgressions.
(v) On 6 May 2004 Ms Dene reported as follows:
[Mr A] was dressed casually and looked relaxed. He cried when talking about the importance of apologising to Miss B, and his feelings of remorse.
She noted that Mr A went on to say that during the holidays while playing with his daughter she fell and her tooth went through her lip. He described his distress at seeing his daughter hurt and said that the visual image of her being "damaged" increased his resolve to apologise to her for "past inappropriate touching". He said he tried to talk to her the next day and that she reportedly brushed him aside.
(vi) On 15 September 2004 Ms Dene recorded the results of her meeting with Miss B at which Mr A was present. She noted that she told Miss B she was aware of what her father had done and that the child hid behind a hat and did not want to talk about it. She then went on to detail what occurred in the course of the session when Mr A apologised to his daughter and told her he would not "hurt" her again. She noted her belief that Miss B "took the first steps in healing the abuse today".
(vii) On 20 September 2004 Ms Dene recorded that Mr A appeared deeply remorseful about his past actions and that most of the session was taken up with talking about his relationship with Miss B and how "he had begun transgressing her boundaries" and how one of his maintaining factors was a "personality trait of enjoying the taboo".
The clinical notes were tendered on the appeal over objection however, since they were obviously critical evidence upon which the Tribunal placed considerable reliance for a number of findings adverse to the plaintiff, Ms Graycar accepted there was no legitimate basis for my not having access to them for the purposes of the appeal. The notes were also highlighted by Ms Stern in oral submissions on the appeal in meeting the plaintiff's contention that there was an insufficient evidential basis for the Tribunal to be satisfied that the content of the initial disclosure disclosed inappropriate touching and sexualised thoughts.
I am of the firm view that the clinical notes (of which the above extracts are an example) are relevant for a number of reasons, not limited to the submissions advanced in support of the third ground of appeal. The Tribunal expressed the view that the pattern of Mr A's conduct (which I interpolate must have been by reference to the clinical notes) was a "textbook" pattern, in that he made incremental disclosures in therapy while recruiting the support and friendship of Ms Dene as the therapist. They went on to note that an important aspect of the practice of psychology is an awareness of the potentially manipulative nature of some clients to which a person in the plaintiff's position should have been alert.
The clinical notes were also referred to by Dr Banks as the independent peer reviewer of the plaintiff's conduct. Despite Ms Graycar's submission that Dr Banks' wholesale and unrelenting criticism of the plaintiff proceeded from an uncritical reliance on the content of the clinical notes, I am satisfied that his reference to the notes was not for the purpose of resolving the dispute as to the content of the initial disclosure (plainly not his task as a peer reviewer) but for determining what conclusions concerning the plaintiff's conduct might be drawn on the assumed basis that the initial disclosure was of sexual misconduct and sexualised thoughts as contended for by the HCCC.
There is an additional source of evidence the Tribunal took into account in support of its finding on the question of the terms and content of the initial disclosure and when the plaintiff became aware of it which I regard as significant.
The significance of Dr Brechman-Toussaint's evidence
Although Dr Brechman-Toussaint's evidence went primarily to proof of Particular 2, it was also relevant to resolving the dispute about the timing and content of the initial disclosure.
In November 2003, the plaintiff referred both of Mr A's daughters to Dr Brechman-Toussaint, a specialist child psychologist also in practice at the university clinic. She did not make a report to the Department. According to her evidence before the Tribunal and her handwritten notes of the terms of the referral, there was no suggestion that either of the children had been, or were at risk of being, physically or sexually abused or ill-treated. Having been told by the plaintiff that there was "minor" inappropriate touching, her handwritten note queried the possibility of sexual abuse. She then went on to note that:
[The plaintiff and Ms Dene] claim no - but would like daughters to have opportunity to develop gain knowledge of sexually appropriate touch etc. Dangers of abuse?? not seen at risk by [the plaintiff or Ms Dene].
This note was in conflict with the plaintiff's correspondence with the university at which time his conduct as a member of the academic staff was called into question in the context of his treatment of Mr A in the university clinic and his supervision of Ms Dene as a postgraduate student. This was either prior to or at the same time as the HCCC's enquiry into his conduct as a psychologist.
In correspondence with the university dated 20 September 2005 he claimed that to ensure that his decision not to notify the Department of what he then described as Mr A's "touching behaviour" was a fully informed and appropriate decision, he arranged for Dr Brechman-Toussaint to assess the two children and to obtain from her an objective evaluation of the extent of risk as required under s 27(2)(a) of the CYPCP Act.
In her correspondence with the university and with the HCCC Dr Brechman-Toussaint vehemently denied receiving any request from the plaintiff for advice as to whether the children had been abused or were at risk of abuse, or any request for assistance with respect to the plaintiff's decision as to whether a report should be made to the Department. Rather, she understood the referral to be limited to the provision of three counselling sessions with the children, largely as a preventative measure following the plaintiff's independent risk assessment and after he had determined that the children had not been harmed and were not at any risk of harm. She reported that these sessions were convened in December 2003 and were attended by both of the children. She said the sessions included a cognitive behavioural approach to determine whether there was anything of note in the children's behaviour that appeared to coincide with the timeframe of their mother's illness and that necessitated some attention. She also said she provided assistance to the children with a view to them managing and understanding their emotions and actions and that a secondary focus of treatment involved discussing with Miss B changes that would likely occur in her body as she matured. She also provided strategies that the children could employ to protect themselves were they to encounter any inappropriate or abusive behaviour from anyone in the future. She said she was not invited to discuss her assessment or treatment of the children with the plaintiff. She did say that after the final session the plaintiff thanked her for seeing the children.
...such factors as the number and complexity of the complaints or particulars thereof, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders.
The relevance of possible mitigating or aggravating factors and the appropriateness of a range of penalties is also of significance. In some cases these matters can only be addressed by reference to the findings of fact explained in the Reasons for Decision on the substantive issue (see Sakalo v Medical Board of Western Australia [2002] WASCA 178 at [45] per Wheeler J; Sydney United Football Club Pty Ltd v Soccer New South Wales Ltd [2005] NSWSC 474 at [75]-[76] per McDougall J).
The critical question in this case is whether the plaintiff was given a reasonable opportunity to tender evidence and make submissions on penalty in all the circumstances of the case. This obliges me to make an assessment of what Basten JA described at [61] as "practical and strategic considerations and not merely an assessment of abstract possibilities".
In addition to emphasising that the order for a two-staged hearing was never varied the plaintiff pointed to the fact that there were two separate complaints both involving a number of particulars giving rise to a range of factual findings and a range of possible outcomes in respect of each of the two complaints. The fact that the Tribunal indicated at the very end of the final day of the hearing, that the inquiry would no longer be conducted in two phases but that, if the plaintiff wished to re-list the matter after reading the HCCC's submissions but before any decision is handed down by the Tribunal, he was free to do so, does not, so it was submitted, overcome the problem identified by Basten JA in Lucire where at [65] his Honour said that a practitioner should not be expected to anticipate the Tribunal's findings before addressing the question of penalty particularly where (as here) there were two separate complaints but only one which attracted the power to suspend or cancel a practitioner's registration.
Were the Tribunal to have formed the view that the plaintiff's conduct did not constitute professional misconduct but did constitute unsatisfactory professional conduct, there were more limited protective orders available. Even were the Tribunal to have made a finding of professional misconduct (as it did), there were a range of protective orders available other than suspension or cancellation and, even if imposed, the duration of suspension or cancellation is a most material consideration.
Even if the hearing on 1 July should have alerted the plaintiff to the fact that he was at risk of severe protective orders being imposed, the plaintiff submitted that procedural fairness would have required the Tribunal to advise him in what respect(s) his conduct constituted professional misconduct. In the plaintiff's submission, this could only have been done if a decision were made first as to the particulars of the complaints and the characterisation of the plaintiff's conduct, and a copy of the Tribunal's Reasons for Decision provided to the plaintiff, before inviting the parties to make submissions on penalty.
Given the ambiguity in counsel's submitted position on the question of penalty, compounded by the relative complexity in the way the complaints were prosecuted and the potential for a range of findings even after a finding of professional misconduct was notified, I am satisfied that the Tribunal has failed to accord procedural fairness to the plaintiff in respect of the making of the protection orders and their duration by not affording him a reasonable opportunity to be heard on the question, thereby erring in law.
Orders
Accordingly, the orders I make are as follows:
1. The appeal is upheld in part.
2. Order 1 made by the Psychologists Tribunal on 8 July 2010 is set aside.
3. Order 2 made by the Psychologists Tribunal on 8 July 2010 is set aside.
4. Further consideration of the issue of costs before the Tribunal (as reflected in Order 3 made by the Tribunal on 8 July 2010) and the costs of this appeal is reserved.
5. Liberty to restore on 3 days notice.
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Amendments
16 May 2012 - word 'not' inserted into the last phrase of paragraph
Amended paragraphs: 39
Decision last updated: 16 May 2012
54
14
6