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Re A Psychologist

Re A Psychologist

Case [2009] TASSC 70 28 August 2009

Procedural Fairness

Sufficiency of Reasons

Professional Misconduct

Professional Regulation & Discipline

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[2009] TASSC 70

COURT: SUPREME COURT OF TASMANIA

CITATION: Re a Psychologist [2009] TASSC 70

PARTIES:  IN THE MATTER OF THE PSYCHOLOGISTS
  REGISTRATION ACT 2000
  AND
  IN THE MATTER OF A PSYCHOLOGIST

FILE NO/S:  1065/2008
DELIVERED ON:  28 August 2009
DELIVERED AT:  Hobart
HEARING DATE:  7 August 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Professions and Trades – Health care professionals – Psychologists – Disciplinary proceedings – Sexual relationship with former client – Procedural fairness when new basis for alleging professional misconduct emerged during proceedings – Sufficiency of disciplinary authority's reasons in relation to complainant's marriage to the psychologist.

Psychologists Registration Act 2000 (Tas), s50.
Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997, BC9707354; Re a Medical Practitioner [1995] 2 Qd R 154; A Practitioner v The Medical Board of Western Australia [2005] WASC 198; RJT v Nurses' Board of Victoria [2000] VSC 498; Cato v Medical Board of Victoria, unreported, Supreme Court of Victoria, 21 June 1985, BC8500201, referred to.
Aust Dig Professions and Trades [1111]

REPRESENTATION:

Counsel:
             Appellant:  W A Ayliffe
             Psychologists Registration Board of Tasmania:     B R McTaggart
Solicitors:
             Appellant:  McVeity & Associates
             Psychologists Registration Board of Tasmania:     Wallace Wilkinson & Webster

Judgment Number: [2009] TASSC 70
Number of paragraphs: 75

Serial No 70/2009
File No 1065/2008

IN THE MATTER OF THE PSYCHOLOGISTS REGISTRATION ACT 2000
AND IN THE MATTER OF A PSYCHOLOGIST

REASONS FOR JUDGMENT BLOW J

28 August 2009

This is an appeal by a psychologist pursuant to the Psychologists Registration Act 2000 ("the Act"), s58(1). The appellant is aggrieved by a decision of the Psychologists Registration Board of Tasmania ("the Board") in relation to a complaint about him having a sexual relationship with one of his former clients. Amongst other things, the Board decided to suspend his registration as a psychologist for six months. The proceedings were initiated by a complaint by the former client. She is the appellant's wife. The appellant contends that the Board made various errors, that its decision should be quashed, and that the matter should be remitted, with appropriate directions, for rehearing.

The facts

The appellant and the complainant met as psychologist and client. The complainant had been suffering from panic attacks and anxiety symptoms. She was injured in a motor vehicle accident on 25 July 1996, after which her symptoms were worse. Her general practitioner referred her to the appellant in December 1996. She saw him for the first time on 28 January 1997. He saw her on 57 occasions. He treated her for about 2½ years. Her last appointment with him was on 12 July 1999. At the conclusion of that last appointment he and she kissed each other passionately. They commenced a sexual relationship about two weeks later. They commenced living together in about November 2000. They were married on 4 March 2001. There were marital difficulties by Easter 2003. The couple finally separated in mid-2004. They have not been divorced, but a dispute as to property settlement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re A Psychologist

Details

AGLC: Re A Psychologist [2009] TASSC 70
Case: [2009] TASSC 70
Decision Date: 28 August 2009

CaseChat Overview and Summary

The matter before the court was an appeal by a psychologist against a decision to find them guilty of professional misconduct and to impose a sanction. The psychologist had been accused of engaging in an improper sexual relationship with a former client. The case was heard and determined by the Supreme Court of Victoria. The psychologist argued that the disciplinary proceedings against them were unfair due to the emergence of a new basis for the allegation during the proceedings and that the disciplinary authority's reasons were insufficient in relation to the complainant's marriage to the psychologist.

The legal issues that the court had to decide were whether the psychologist was afforded procedural fairness during the disciplinary proceedings, and whether the disciplinary authority's reasons were sufficient. The court had to determine whether the psychologist was given an opportunity to respond to the new basis for the allegation of professional misconduct, and whether the reasons provided by the disciplinary authority were adequate in relation to the complainant's marriage to the psychologist. The court also had to consider whether the psychologist's right to a fair hearing was breached and whether the decision to find them guilty of professional misconduct was unjust.

The court found that the psychologist was not afforded procedural fairness during the disciplinary proceedings as they were not given an opportunity to respond to the new basis for the allegation of professional misconduct. The court held that the psychologist's right to a fair hearing was breached, and that the decision to find them guilty of professional misconduct was unjust. The court also found that the disciplinary authority's reasons were insufficient in relation to the complainant's marriage to the psychologist. The court held that the reasons did not adequately address the issue of the complainant's marriage to the psychologist and did not provide sufficient justification for the disciplinary authority's decision. The appeal was therefore allowed, and the decision to find the psychologist guilty of professional misconduct was quashed.

The final orders of the court were that the psychologist's appeal be allowed, the decision to find them guilty of professional misconduct be quashed, and the matter be remitted to the disciplinary authority for reconsideration in accordance with the court's reasons. The court also ordered that the disciplinary authority provide written reasons that adequately address the issue of the complainant's marriage to the psychologist and provide sufficient justification for their decision. The psychologist was also ordered to pay the costs of the appeal.

Orders