Maroulis v Psychology Board of Australia - [2021] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MAROULIS v PSYCHOLOGY BOARD OF AUSTRALIA
[2021] SASC 16
Judgment of the Honourable Justice Bleby
26 February 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY
This is an appeal against a decision of the South Australian Civil and Administrative Tribunal.
The appellant was a registered psychologist. On 17 December 2019, the South Australian Civil and Administrative Tribunal found, pursuant to s 196(1) of the Health Practitioner Regulation National Law (National Law), that the appellant had behaved in a way that constitutes professional misconduct. Pursuant to s 196(2) of the National Law, the Tribunal reprimanded the appellant and cancelled his registration as a registered health practitioner, with a disqualification period of 3 years.
The complaint against the appellant was relatively straightforward. Most particulars of the complaint became the subject of agreed facts. On the basis of those agreed facts, the Tribunal found that between 18 March and 3 April 2016, the appellant engaged in intimate physical and/or sexual contact with a vulnerable patient, AB. The appellant admitted that his behaviour constituted professional misconduct.
The appellant advanced two grounds of appeal:
1. That the Members of the South Australian Civil and Administrative Tribunal were unduly harsh in their assessment of the Appellant in terms of “Insight and risk" and failed to take appropriate and proper notice of the medical report of Dr. Marco Giardini dated 13th December 2019 and the Character References that were tendered to SACAT.
2. That the penalty imposed by SACAT was far too harsh in the circumstances when the Appellant made admissions as to his professional misconduct and when the conduct between the Appellant and the patient was entirely consensual and furthermore when the Appellant had an excellent prior record with no blemishes to his reputation for more than 30 year [sic] as a registered Psychologist.
Held, per Bleby J, dismissing the appeal:
1. The appellant has not established any error on the part of the Tribunal in imposing the sanctions that it did.
Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) Sch 2, ss 53, 196(1), 196(2); Sentencing Act 2017 (SA) s 4(1)(d), referred to.
Shahinper v Psychology Board of Australia [2017] QCA 96; Psychology Board of Australia v Wakelin [2014] QCAT 516; Psychology Board of Australia v Bakjac [2016] SAHPT 3; Medical Board of Australia and Ogundipe [2019] WASAT 32; Psychology Board of Australia v Maroulis [2019] SACAT 69; Medical Board of Queensland v Alroe [2016] QCA 120; Psychologist Board of Queensland v Meredith [2004] QHPT 5, discussed.
House v The King (1936) 55 CLR 499; R v Knight [2016] SASCFC 40; Craig v Medical Board (SA) (2001) 79 SASR 545; Health Care Complaints Commission v Do [2014] NSWCA 307; NSW Bar association v Evatt (1968) 117 CLR 177; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Lee v Health Care Complaints Commission [2012] NSWCA 80; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, considered.

MAROULIS v PSYCHOLOGY BOARD OF AUSTRALIA
[2021] SASC 16
Appeals to a Single Judge: Civil

BLEBY J: On 17 December 2019, the South Australian Civil and Administrative Tribunal found, pursuant to s 196(1) of the Health Practitioner Regulation National Law (the National Law),[1] that the respondent had behaved in a way that constitutes professional misconduct. The Tribunal made the following orders pursuant to s 196(2) of the National Law:
(a) The respondent is reprimanded.
(b) The respondent’s registration is cancelled, effective forthwith.
(c)The respondent is disqualified from applying for registration as a registered health practitioner for a period of 3 years.
[1] Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).
The Tribunal subsequently published a Statement of Reasons for the orders it had made.
It appears that the appellant at least attempted to file a Notice of Appeal on 15 January 2020. In any event, the Notice of Appeal is recorded as having been filed on 2 March 2020. The appeal is out of time but the respondent took no issue with granting the necessary extension of time to file the Notice of Appeal. At the hearing of the appeal, I granted the necessary extension of time.
The appeal hearing was substantially delayed. The appellant was self‑represented at the time that he filed the Notice of Appeal. In May 2020, when the matter was allocated to me, the appellant requested a considerable adjournment on account of matters concerning his health. I granted that adjournment administratively as the respondent did not oppose it. There were further attempts to list the matter, including before a different Judge, but various difficulties intruded. In the event, the matter came back before me and was listed for a hearing in February 2021. On 4 February 2021, the appellant’s current solicitors filed a Notice of Acting. This was a mere week before the hearing of the appeal. I record my appreciation of the efforts of Mr Lloyd for the appellant in undertaking the steps necessary to prosecute the appeal within a quite limited period.
The complaint against the appellant was relatively straightforward. Most particulars of the complaint became the subject of agreed facts. On the basis of those agreed facts, the appellant admitted that his behaviour constituted professional misconduct. I set out the agreed facts on which the Tribunal proceeded, substituting, as the Tribunal did, the letters ‘AB’ for the initials of the patient:
1.At all material times, and in particular between and during February 2016 and April 2016, the respondent:
(a)     was a registered psychologist, having first obtained registration on 19 July 1989;
(b)     was subject to the professional standards set out inter alia in the Australian Psychological Society’s Code of Ethics 2007 (APS Code of Ethics); and
(c)     practiced psychology at Ingle Farm Medical Centre (Practice), in the State of South Australia.
2.Between 18 March 2016 and 3 April 2016, the respondent engaged in intimate physical and/or sexual contact with his patient, [AB]:
(a)     As at 2016, [AB] was a 36-year-old woman, and was a parent to a child with special needs. [AB] had a history of psychiatric conditions and diagnosis as shown in the attached records marked “A”.
(b)     [AB] was referred by her general practitioner to the respondent for psychological treatment on 18 January 2016.
First appointment
2.2On 29 February 2016, [AB] had her first appointment with the respondent at the Practice, at which he was provided with her family background and history, including that:
(a)     She had experienced learning difficulties;
(b)     There was a history of mental health disorders in her family;
(c)     She had difficulties in her relationship with her de facto partner;
(d)     Her daughter had a developmental disability; and
(e)     She was at that time involved in family law proceedings with her ex-husband, including in relation to the custody of her two biological children.
The practitioner’s notes of that appointment are contained in the attached document marked “B”.
Second and last appointment
2.3On 7 March 2016, [AB] had a second appointment with the respondent at the Practice at which he tentatively diagnosed her with chronic major depression disorder with anxiety disorder.
The practitioner’s notes of that appointment are contained in the attached document marked “C”.
Friday 18 March 2016
2.4On Friday, 18 March 2016 and Saturday, 19 March 2016 [AB] was on an arranged respite care holiday in a cabin at Adelaide Shores Caravan Park (Adelaide Shores), staying in a cabin with her children.
The booking information for that visit is the attached document marked “D”.
2.5On the evening of Friday, 18 March 2016, by arrangement with [AB], the respondent drove to the Adelaide Shores and met with her at her cabin in circumstances that were not an emergency. Her de facto partner was not at the cabin when the respondent arrived, and [AB]’s children were asleep.
2.6The respondent while at the cabin:
(a)     did not make contemporaneous notes of his interactions with [AB];
(b)     engaged in consensual intimate physical and/or sexual contact with [AB] in the lounge room and on the bed in the bedroom of the cabin including kissing, his touching of her vagina and her of his penis, for a not insignificant time, but with no sexual intercourse taking place.
Sunday 20 March 2016
2.7On the evening of Sunday, 20 March 2016, the respondent at the request of [AB] picked her up in his car and drove her to Adelaide Shores to collect a pillow that she had left behind that morning on check out.
2.8     While in the car, the respondent:
(a)     Engaged in conversation with [AB] which was personal that was unrelated to, and inconsistent with, his role as her psychologist;
(b)     Engaged in consensual intimate physical and/or sexual contact with [AB], including [AB] touching his penis whilst he was clothed in his car; and
(c)     Did not make contemporaneous notes of his interactions with [AB].
2.9At one or more of these meetings, the respondent disclosed to [AB] some personal information including his age, that he lived in his mother’s house, he had separated from his partner, he had a child who lived overseas and that he was (or had been) bankrupt.
2.10A Notification was made to AHPRA by a third party (a clinical psychologist) on 14 April 2016 following a disclosure made to her by [AB] that day.
By a Further Amended Response dated 28 November 2019, the appellant admitted that his conduct on 18 and 20 March 2016 amounted to professional misconduct and unprofessional conduct.
The complaint had alleged that a further occasion of similar conduct had occurred between the two agreed occasions. That was denied and the Tribunal did not proceed on the basis that it had occurred. I raise that further allegation simply to account for the description of professional misconduct in the complaint, which I set out below. To be clear, the matter proceeded on the basis that only what the Board had characterised as the ‘First meeting’ and the ‘Third meeting’ had occurred.
Paragraph 3 of the complaint characterised the meetings as professional misconduct as follows:
3.The respondent’s conduct comprised in the First meeting, Second meeting and Third meeting, amounted individually and/or collectively to professional misconduct, as:
3.1    conduct occurring in connection with the practise of psychology, that is inconsistent with him being a fit and proper person to hold registration as a psychologist; and/or
3.2    involved more than one instance of unprofessional conduct that, considered together, amount to conduct that is substantially below the standard reasonably expected of a psychologist of an equivalent level of training or experience; and/or
3.3    unprofessional conduct that is substantially below the standard expected of a psychologist of an equivalent level of training or experience.
By reason that in each case:
3.4    involves the respondent’s pursuit of sexual gratification in disregard of the interests of the patient and the exploitation of that relationship;
3.5    demonstrates that the Respondent lacks the good character and integrity to practise as a professional in relation to vulnerable persons;
3.6    is contrary to clause C1 of the APS Code of Ethics as it would bring the professional discipline of psychology into disrepute, and would be detrimental to the reputation of, and the public’s trust and confidence in, that profession;
3.7    is contrary to clause C3 of the APS Code of Ethics as it involves engaging the client in a relationship which risked impairing his competence, effectiveness and ability to provide services and to harm the patient;
3.8    is contrary to clause C4 of the APS Code of Ethics which prohibits psychologists:
(a)     exploiting people with whom they have a professional relationship; and
(b)     engaging in sexual activity with a client.
By a Response dated 3 October 2019, the appellant admitted the occurrence of the two meetings on 18 and 20 March 2016. He admitted not making contemporaneous notes of the meetings but denied that there was a consensual intimate physical and/or sexual contact with AB, other than that he asserted that AB had kissed him one or more times, which kissing was unsolicited and which he attempted to resist. That was in respect of the 18 March occasion; he denied any such contact on 20 March 2016.
In November 2019, the appellant filed an Amended Response. By this further document, he admitted that there was physical contact between AB and him. He said that this was instigated by AB and that he attempted to resist her advances. He further admitted however, that they engaged in sexual contact in the lounge room and on the bed in the bedroom of the cabin including kissing, his touching of her vagina and her of his penis, for a not insignificant time but with no sexual intercourse taking place. With respect to the evening of 20 March 2016, he denied that he had requested the complainant to participate in sexual contact with him. However, he admitted that they mutually agreed to engage in consensual sexual contact including AB touching his penis while he was clothed in his car.
On 28 November 2019, the appellant filed a Further Amended Response. This was in broadly similar terms. However, in respect of the First meeting on 18 March 2016, the appellant withdrew the assertion that AB had instigated the physical contact and that he had attempted to resist her advances. His response to the allegations in respect of 20 March 2016 were the same. He then pleaded at paragraph 3:
3.The Respondent admits that his conduct on 18 and 20 March 2016 (the alleged meeting on 19 March 2016 being denied) amounted to professional misconduct and unprofessional conduct and further says that:
3.1    he agrees that his conduct was inconsistent with him being a fit and proper person to hold registration as a psychologist.
3.2    he agrees that his conduct involved more than one instance of conduct that amounted to conduct below the standard reasonably expected of a psychologist of an equivalent level of training and experience as himself.
3.3    he agrees, as set out in 3.2
3.4    he denies that his conduct at any time involved the pursuit of sexual gratification in disregard of the interests of [AB] and the exploitation of his relationship with her as a patient.
3.5    he does not admit that his conduct demonstrates a lack of good character and integrity to practise as a psychologist in relation to vulnerable persons but admits that he lacked professional judgment and that his conduct was unprofessional and constituted professional misconduct.
This response to the Board’s characterisation of his actions as professional misconduct was mostly the same as that in the earlier Amended Response. The principal difference was that paragraph 3.4 had now also abandoned the allegation that it was AB who had instigated intimate physical and sexual contact with him and that he had succumbed to her unsolicited and unexpected physical advances.
It is apparent that the Statement of Agreed Facts was then drawn from these admissions. Importantly, the matter proceeded on the basis that there remained no assertion that it was AB who had initiated the sexual contact.
The Tribunal’s findings
The Tribunal made findings in accordance with the Statement of Agreed Facts, as well as a number of further findings. It drew certain further inferences from the agreed facts and from the other material. A number of these are particularly important to its final conclusions.
First, the Tribunal accepted that AB had not provided the appellant with her referral document from her GP. This took the form of a ‘GP Mental Health Treatment Plan’. Consequently, the appellant did not have a clear understanding of her psychiatric condition. However, the Tribunal observed:[2]
Be that as it may, this was a vulnerable patient and the respondent ought to have been well aware of that fact. It was a situation in which the psychologist was required to be particularly vigilant to observe and maintain appropriate boundaries in the relationship.
[2] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [12].
Then, having set out the factual matters the subject of the proceedings, the Tribunal observed:[3]
The description of events on 18 and 20 March 2016 is that the conduct was consensual. The Tribunal understands this to mean, and fully accepts, that AB (as well as the respondent) willingly participated in such conduct. The Tribunal emphasises, however, that AB was a vulnerable patient. Her ability to make wise choices about her involvement was compromised by her vulnerability. This should have been obvious to the respondent as an experienced psychologist.
[3] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [21].
The appellant did not give evidence. There was no explanation for why he attended the caravan park on 18 March 2016. The Tribunal accepted that there was reason to suspect that he went there in the hope of pursing a personal relationship. The possibility that he went there to provide ‘couples counselling’ to AB and her partner was raised in the pleadings. As the partner had not been present when the appellant arrived, the Tribunal observed that the appellant should have left immediately. Ultimately, the Tribunal did not make a finding as to why the appellant went to the caravan park on 18 March. It did find that once he was there, he decided to stay and succumbed to the opportunity to pursue an inappropriate relationship with a vulnerable patient.[4]
[4] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [24].
The Tribunal then found that the appellant’s decision to return to the park on 20 March 2016 must have been in the hope and expectation that further intimate conduct might occur between them.[5] This second visit occurred two days later, after the appellant had had the opportunity to reflect on the inappropriateness of the first contact. This caused the Tribunal to conclude ‘that [the appellant] chose to pursue his own gratification in disregard of the vulnerability of AB and the damage that might potentially be caused to her’.[6]
[5] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [25].
[6] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [26].
This finding was important in light of the appellant’s maintained pleading at paragraph 3.4 of the Further Amended Response, denying that his conduct at any time involved the pursuit of sexual gratification in disregard of the interests of AB and the exploitation of his relationship with her as a patient. It had a critical consequence for the Tribunal’s conclusions as to the degree of insight shown by the appellant and the risk of further misconduct in the future. The Tribunal reviewed the gradual admissions made over the course of the Response, the Amended Response and the Further Amended Response. It concluded:[7]
Thus there has been a staged movement to the position where the basic misconduct was admitted. That progression has the hallmarks of the respondent at each stage seeking to minimise his culpability but eventually being forced by the weight of evidence to admit what has occurred. The Tribunal remains concerned that the eventual admissions may well have been compelled by pragmatic considerations rather than true insight, acknowledgement and contrition.
[7] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [35].

Further, the Tribunal noted the maintained denial in the Further Amended Response at paragraph 3.4, set out above. It continued:[8]
Our findings call into question the degree to which the respondent really understands and acknowledges the gravamen of his misconduct. It appears to the Tribunal that the respondent’s insight remains limited. The Tribunal is not satisfied that the respondent has any real appreciation of the risks to the patient as a result of his misconduct. We are not satisfied that he fully understands or acknowledges that he put his personal interests before those of the patient.
[8] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [37].
The Tribunal then turned to the evidence adduced by the appellant. This included a medical report from a psychiatrist, Dr Marco Giardini, dated 13 December 2019. The Tribunal noted the key conclusions of that report. Dr Giardini had found the appellant to ‘display a keen interest to learn about these concepts and challenges [being those of boundary transgressions and violations with patients], and he seems to have learned important lessons from this whole experience’. He did not express a view as to the degree of risk of the appellant repeating conduct of this nature in the future.[9]
[9] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [42].
The Tribunal noted that it appeared that Dr Giardini had only been provided with the Amended Response and not the Further Amended Response. The significance of this was that in the Amended Response, the appellant was still claiming that he had attempted to resist unwanted advances by AB. That had the potential to put a different complexion on or, at least, qualify the conclusions of Dr Giardini, such as they were.
The appellant had also tendered eight character references. The Tribunal identified that it had considered those references and given them such weight ‘as is appropriate’.[10] It treated the references with caution, observing:[11]
However, most of the referees appear to be aware only of the allegations against the respondent and not the fact of his ultimate admissions. It is in that context that many of the referees state that the allegations are “out of character”. It leaves open the clear possibility that these referees believe the allegations to be untrue, which of course diminishes any weight that can be given to the reference. Nonetheless, we accept that the referees generally regard the respondent as a good and caring person.
[10] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [44].
[11] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [44].
The Tribunal noted that one reference did note the admissions of the appellant and maintained that the allegations were out of character. It expressly took this reference into account.
When it came to considering the appropriate disciplinary action, the Tribunal noted that the appellant had admitted that his conduct was inconsistent with him being a fit and proper person to be a registered psychologist. It concluded:[12]
The Tribunal considers that this remains the case. The belated admissions by the respondent do not convince the Tribunal that the respondent truly understands or acknowledges the gravamen of his conduct or its potential effects on AB. The evidence before the Tribunal falls short of providing any assurance that the respondent can now be relied upon to practise in a manner consistent with appropriate ethical requirements.
Thus it was appropriate to cancel the respondent’s registration. Indeed, this was not opposed by the respondent.
The disqualification for a period of 3 years was necessary, in the opinion of the Tribunal, to protect the public, to bring home to the respondent the seriousness of the conduct, and to make clear that such conduct will not be tolerated. The disciplinary action imposed will assure the public that proper standards will be maintained within the profession and that vulnerable patients will be protected. In determining the period of disqualification, the Tribunal was referred to various comparative cases which have provided guidance. In the end, however, our task was to settle upon a period which reflected our assessment of what was required to secure the protection of the public in the circumstances of this case.
(Footnote omitted)
[12] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [47]-[49].
The Appeal
The Notice of Appeal, filed by the appellant while he was unrepresented, complains of the order that the appellant’s registration as a psychologist be cancelled forthwith and the order disqualifying him from applying for registration as a registered health practitioner for a period of three years. It seeks an order that the appellant’s registration as a registered health practitioner be suspended for such period and/or on such terms and conditions as the Court deems appropriate.
There is an immediate difficulty with this framing of the appeal, in that the Tribunal recorded at paragraph 48 of its Statement of Reasons, set out above, that the appellant had not opposed an order cancelling his registration. At the hearing of the appeal I pressed both parties as to whether this was an accurate statement. Mr Jacobi for the Board submitted that the statement in paragraph 48 reflected what had occurred during the sanction hearing.
Mr Lloyd for the appellant had not had the benefit of being present at the sanction hearing. He conveyed his instructions that his client had not made submissions on the question at that hearing, but ultimately indicated that his client did not challenge the correctness of the statement.
The appellant was represented at the sanction hearing. I have available to me the transcript of that hearing, however it appears that a large proportion of the submissions made on the appellant’s behalf were not recorded or transcribed. I do not have the benefit of the full context of the hearing from which the observation at paragraph 48 was made. I do note that the appellant’s legal representative at that hearing did make submissions that were designed to distinguish the facts of this matter from those in Shahinper v Psychology Board of Australia,[13] where the practitioner in question who had engaged in a sexual relationship with a patient had also had their registration cancelled and been subject to an order disqualifying them from applying re-registration for three years.
[13] [2017] QCA 96.
In the circumstances of this case, notwithstanding the accepted correctness of paragraph 48 of the Tribunal’s Statement of Reasons, I am prepared to proceed on the basis that there may be scope for differences in understanding between the parties as to what that recorded non-opposition signified.
The grounds of appeal are as follows:
1.That the Members of the South Australian Civil and Administrative Tribunal were unduly harsh in their assessment of the Appellant in terms of “Insight and risk” and failed to take appropriate and proper notice of the medical report of Dr. Marco Giardini dated 13^th December 2019 and the Character References that were tendered to SACAT.
2.That the penalty imposed by SACAT was far too harsh in the circumstances when the Appellant made admissions as to his professional misconduct and when the conduct between the Appellant and the patient was entirely consensual and furthermore when the Appellant had an excellent prior record with no blemishes to his reputation for more than 30 year [sic] as a registered Psychologist.
The written submissions filed on behalf of the appellant complained of the Tribunal having placed insufficient weight on a number of matters and too much weight on certain findings in their reasons. The complaints of insufficient weight specified the Giardini Report and the character references that are the subject of Ground 1, but also extended to other matters, by reference to which it was said that the sanction was too harsh.
An appeal of this nature is by way of rehearing. However, it is an appeal against a decision involving the exercise of a discretion. It is necessary for the appellant to identify an error of the kind identified by the High Court in House v The King.[14] The mere question of the weight to be placed on a relevant consideration is a matter for the fact finder and is not capable of being the subject of a complaint of error under House v The King principles.[15]
[14] [1936] 55 CLR 499 at 504-505.
[15] See e.g.; in a sentencing context, R v Knight [2016] SASCFC 40 at [3] (Kourakis CJ, Blue and Doyle JJ agreeing).
Nevertheless, Mr Lloyd for the appellant submitted that the various factors relevant to the ultimate sanction to be imposed were capable of demonstrating the erroneously harsh nature of the sanction imposed. Ultimately, the question of whether the sanctions imposed were available to the Tribunal must be informed by all relevant considerations. I have approached the matters raised on behalf of the appellant with a view to considering whether, collectively or individually, they take the sanctions imposed by the Tribunal outside of the available range.
These matters inform primarily the complaint in Ground 2 of excessive harshness. That complaint formed the main focus of the appeal hearing. Nevertheless, I will first address Ground 1.
Ground 1 takes issue with the part of the Statement of Reasons headed ‘Insight and risk’, summarised above. Insofar as it complains of a failure to take ‘appropriate and proper notice’ of the medical report of Dr Giardini and the character references, there is no merit to the complaint. The Tribunal expressly paid careful attention to both the report and the character references.[16] It had specific regard to Dr Giardini’s observation that he found the appellant to ‘display a keen interest to learn about these concepts and challenges, and he seems to have learned important lessons from this whole experience’. This was what might be described as the high point of Dr Giardini’s observations about the appellant’s rehabilitation. Further, the Tribunal had express regard to the character references as I have observed above.
[16] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [39]-[45].
The balance of the complaint in Ground 1 of undue harshness in the assessment of ‘insight and risk’ is also related to Ground 2. In order to address these related complaints, it is useful first to make some general observations.
In Craig v Medical Board (SA), Doyle CJ explained the purpose of disciplinary proceedings:[17]
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[17] Craig v Medical Board (SA) (2001) 79 SASR 545 at [41] (Doyle CJ, Williams and Martin JJ agreeing).
The protective purpose of disciplinary proceedings continues to be emphasised. In Health Care Complaints Commission v Do, the New South Wales Court of Appeal observed:[18]
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
[18] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] (Meagher JA, Basten and Emmett JJA agreeing.
It is understandable that a practitioner who is subjected to an onerous sanction may well view it from the perspective that they are being punished. That sense can only be increased when there is authoritative acknowledgment that the purpose of such disciplinary sanctions extends to both personal and general deterrence. These objects are acknowledged purposes of sentencing for criminal offences.[19] Nevertheless, it remains important to adhere to the distinction. The fundamentally protective purpose of disciplinary sanctions may require orders that prove more onerous on the practitioner than would be an order crafted purely for punitive purposes.[20]
[19] See e.g.; Sentencing Act 2017 (SA) s 4(1)(d).
[20] Craig v Medical Board (SA) (2001) 79 SASR 545 at [43] (Doyle CJ); NSW Bar association v Evatt (1968) 117 CLR 177 at 183-184.
One consequence that follows from the protective purpose of professional disciplinary sanctions is that there are limits on the comparisons that can be drawn with other cases where the same or some lesser sanction was imposed for conduct that on one or other measure might be regarded as more egregious. The breadth of discretion available to the Tribunal does not depend upon a simple, linear relationship between the seriousness of conduct according to one or other measure.
The seriousness of the conduct is of course highly relevant to the Tribunal’s consideration. First, it will inform whether the conduct in question is properly characterised as professional misconduct, unprofessional conduct or unsatisfactory professional performance.[21] Secondly, the Tribunal can and should look to broadly comparable cases to inform the exercise of the discretion. The fact that a sanction is far outside of the course of sanctions imposed historically for broadly comparable conduct may be indicative (although not necessarily conclusive) of error.
[21] National Law, s 196(1).
The range of sanctions available under s 196(2) of the National Law applies to any of the classified forms of conduct under s 196(1). In this case, the appellant admitted and the Tribunal found professional misconduct. That is the most serious classification of conduct liable to disciplinary action.
The complaints of the appellant in submission in support of Ground 2 tended towards complaining of excessive onerousness of the sanctions imposed, having regard to both the appellant’s own circumstances and in comparison with other cases.
The appellant pointed to the decision of the Queensland Court of Appeal in Shahinper v Psychology Board of Australia[22] (Shahinper) as an example of conduct by a practising psychologist that he submitted was manifestly more egregious than his own, but which had resulted in sanctions that were the same as he had received. In that case, Mr Shahinper had commenced a physical sexual relationship with a patient only days after their last counselling session and before the treating relationship had been adequately terminated. He did not transfer the patient to the care of an alternate psychologist and did not encourage her to seek independent counselling. The relationship involved sexual intercourse. Further, the practitioner paid sums of money to the now former patient. These sums totalled $18,000 over time. He had, over a course of some years, denied having a sexual relationship to the AHPRA investigation. He attributed those denials to a fear that his marriage would break down.
[22] [2017] QCA 96.
Mr Lloyd submitted that Shahinper had been a much more serious case that had clearly warranted disqualification of a licence for a period of three years.
There are limits on the utility of this kind of comparison. In the first instance, different comparisons of egregiousness might be drawn. In Shahinper, the relationship had commenced as the treating relationship was coming to an end, but before it had done so. It the present case, the encounters occurred at the beginning of the treating relationship. The conduct in the present case did not involve actual sexual intercourse, whereas in Shahinper, sexual intercourse did occur.
Both parties referred to other cases for comparative purposes. The appellant referred to Psychology Board of Australia v Wakelin,[23] where on what the appellant described as ‘similar facts’ to the appellant’s case, the sanction imposed was an 18-month period of suspension, a reprimand and imposition of conditions on the practitioner’s registration. The female practitioner in that case had become aware of the potential for a conflict of interest between her interest and her professional obligation during the second consultation with the male patient. She had terminated the professional relationship during the third consultation. A sexual relationship then developed. The practitioner had denied the relationship for about a year when challenged and, once she did admit the conduct, voluntarily ceased practice until approved by the Board.
[23] Psychology Board of Australia v Wakelin [2014] QCAT 516.
The appellant also relied on Psychology Board of Australia v Bakjac.[24] This case concerned a female practitioner embarking on a sexual relationship with a male patient and giving to AHPRA a false and misleading explanation about the relationship as to when it commenced and under what circumstances. The Health Practitioners Tribunal of South Australia imposed a 15-month suspension and an obligation of supervision for a year. In Medical Board of Australia and Ogundipe,[25] the State Administrative Tribunal of Western Australia imposed, by consent, a 15-month suspension on a general medical practitioner in respect of conduct that that was inappropriate in the context of a doctor/patient relationship, including one instance of sexual intercourse with the patient. The Reasons for Decision of the Tribunal do not indicate anything other than that the practitioner admitted the conduct.
[24] [2016] SAHPT 3.
[25] [2019] WASAT 32.
For its part, the Board pointed to cases that had resulted in similar sanctions imposed on psychologists when there had been a denial of a sexual relationship with the patient. It referred to Medical Board of Queensland v Alroe,[26] where the treating psychiatrist of a patient had embarked on a sexual relationship with a patient, had put the Board to proof, challenged the patient’s evidence and denied wrongdoing. He was found to have pursued and manipulated this particularly vulnerable patient. The psychiatrist was disqualified from reapplying for registration for four years.
[26] [2016] QCA 120.
In Psychologist Board of Queensland v Meredith,[27] a psychologist had engaged in sexual acts with a patient on three occasions when the therapeutic relationship was active. The Queensland Health Practitioners Tribunal imposed a three-year period of disqualification from re-applying for registration.
[27] [2004] QHPT 5.
The various cases relied on by both the appellant and the respondent, while relevant and directly helpful to the Tribunal’s task of formulating a sanction in the exercise of its discretion, are of limited assistance in support of a complaint of error in the present matter. In Marin v Chiropractic Board of Australia, the Chief Justice, with whom Peek and Nicholson JJ agreed, said:[28]
[28] [2020] SASCFC 74 at [79]-[80].
It is well accepted that in sentencing for criminal offences the assistance provided by comparative sentences is limited. That is all the more the case in periods of disqualification imposed to maintain professional standards. In Lee v Health Care Complaints Commission, the Court of Appeal of New South Wales observed:[29]
[29] [2012] NSWCA 80 at [34].
(a)     comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b)     such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is ‘correct’;
(c)     the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d)     the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e)     since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection …
In Health Care Complaints Commission v Litchfield, it was held:[30]
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
(Footnotes in original)
[30] (1997) 41 NSWLR 630 at 638.

The respondent emphasised that any question of a range or pattern will be potentially of value only if it is possible to gather from it an appreciation of some unifying principle. In application of that observation, it submitted that a unifying principle lay in the clear and unambiguous rule that the boundary between a practitioner and patient, and especially between female patients who are vulnerable to male practitioners sexually, must be strictly enforced. As Mr Jacobi for the Board expressed it:[31]
… the inherent characteristic of a relationship between a psychologist and patient puts the psychologist in a position of enormous personal advantage over their patient, and it is an utter distortion and manipulation of the relationship when it's used for those purposes.
[31] T 40.11-16.
Comparisons with the cases deployed by both parties to the present appeal may be of some value when it comes to articulating a unifying principle of the importance of the boundary between practitioner and patient. Shahinper, for example, exemplifies the principle that adheres in respect of male psychologists crossing the professional boundary with female patients by sexual contact:[32]
… the Tribunal identified: the need for community protection against repetition of the conduct, in a context in which it had found a significant risk of recidivism; the need for deterrence of others from like conduct; the gravity of the applicant’s offending; his dishonesty; and his continued lack of insight as factors leading to the conclusion that the appropriate penalty was cancellation and prohibition from re-registration for three years. The Tribunal was entitled to find that there was a substantial risk of recidivism, given: the lack of remorse and insight demonstrated by the applicant during the hearing; the fact that the misconduct occurred at a time when he was subject to other allegations of breach of professional boundaries and continued at a time when he had given an undertaking to the Board; that he had not been candid with his treating psychologist; and his continued attempts to minimalise and rationalise his behaviour.
[32] Psychologist Board of Australia v Shahinper [2017] QCA 96 at [30] (Holmes CJ, McMurdo and Bond JJ agreeing).
Some of the conduct in Shahinper might be said to be more ‘egregious’ than that in the present case. Nevertheless, as the Board submitted, in circumstances where the purpose of the sanction is to protect the public and where the response of a practitioner is characterised by a lack of insight, belated admissions and a failure to explain the conduct, from a perspective of principle and the protective purpose of the legislation, the parallels are significant.
This is not to say that a Tribunal should not to some degree or other tailor their sanction having regard to the matters that are properly considered to be objectively more or less serious than in broadly comparable cases. However, having regard to the unifying principle linking Shahinper with the present case, whether a different tribunal might have imposed a lesser sanction having regard to some of those comparisons is not the relevant question. The question is whether the Tribunal erred in imposing the sanction that it did.
Cancellation of registration and a considerable period of disqualification are commonly deployed in response to breaches of the professional boundary by sexual contact. The question of the appropriate sanction in any given case directs attention to what, in the Tribunal’s assessment, is necessary to protect the public in the particular circumstances, having regard to the historical course of sanctions for broadly comparable transgressions.
To this end, the Board emphasised the appellant’s lack of explanation for his conduct. As I have already noted, the Further Amended Response specifically denied that the conduct involved the pursuit of sexual gratification and disregard of the interests of AB. However, the appellant never explained his conduct. This caused the Tribunal to question the degree to which he really understands and acknowledges the gravity of his actions.[33] The Board also emphasised the belated and staged nature of his admissions. This extended to continuing to plead in the Amended Response that AB had been the instigator of the sexual contact which he had attempted to resist, which allegation he did not pursue in the Further Amended Response.
[33] Psychology Board of Australia v Maroulis [2019] SACAT 69 at [37].
These matters were of acute importance to the Tribunal’s crafting of sanctions that it considered to be sufficiently protective of the public. Their emphasis by the Tribunal, under the topic of ‘insight and risk’, was entirely appropriate. Cases that may be described as broadly comparable serve to emphasise the importance of the professional boundary between psychologists and patients and the egregiousness of the breaching of that boundary by a male practitioner in respect of a vulnerable female patient through sexual contact. Viewed from the perspective of that unifying principle, the question of the practitioner’s insight and risk, given the entire course of his conduct, was of acute concern. Ground 1 is not established.
This conclusion contributes heavily to the disposition of Ground 2 as well. The appellant also relied on a number of other matters in support of this ground. First, the ground itself relies on the relationship having been entirely consensual. This particular is concerning, in that at the very least, it appears not to recognise the inequality of power characterised by the extreme advantage of the practitioner and the immediate vulnerability of the patient in the psychologist/patient relationship.
The appellant also complains that the sanction is too harsh in light of his previously unblemished record and the fact that he made admissions. I have addressed the admissions above. The Tribunal did not err in concluding that the belated context in which they were made and the failure to explain the conduct continues to give genuine cause to doubt the appellant’s insight. The bare fact that he made admissions, and the fact that he had not previously transgressed are, of course, relevant. However, again, this was not an exercise in punishment. These considerations did not, either alone or collectively, render the sanction excessively harsh.
In submissions, the appellant complained that the Tribunal did not expressly give consideration to the question of suspension, as opposed to cancellation. As I have already noted, he did not oppose cancellation during the hearing. The Tribunal relied on that. More fundamentally, the Tribunal was not under an obligation to canvas expressly all possible sanctions listed in s 196(2) of the National Law and discuss their relative merits before making a determination.
The Tribunal can be taken to have been aware of the options open to it. The appellant, who was legally represented at the time, can have been under no misapprehension that cancellation was a genuine and likely prospect. The Board at the Tribunal hearing had made its attitude clear that the appellant’s misconduct required the cancellation of his registration and a period of disqualification. It had submitted that in the absence of demonstrated understanding on the part of the appellant, the disqualification should be in the order of three years. At the very least, the appellant did not make a positive case against cancellation.
The appellant further submitted that the Tribunal did not take into account that on his application for re-registration, he would be placed under a particularly onerous obligation of having to do three years’ effective study, on the basis that his admission qualifications from 1989 are now not sufficient to be registered. However, not only was this submission not put to the Tribunal, the Board also disputed its accuracy. It observed that it was routine to order some level of reskilling for the purposes of re-registration.
I do not accept the appellant’s submission, which appears improbable on the face of the legislation,[34] absent any evidence in its support and this not having been in issue before the Tribunal. In any event, this submission again tended to assume that the sanction had a punitive rather than a protective purpose. The public is entitled to expect that the Board will only register practitioners in which it has confidence, in accordance with its obligations under the National Law. I reject the submission that the Tribunal made any error by failing to take into account potential burdens on the practitioner in applying for re-registration.
[34] The Board referred to the provisions of Part 7 of the National Law and in particular, s 53.
Conclusion
The appellant has not established any error on the part of the Tribunal in imposing the sanctions that it did. I dismiss the appeal.