Le Roux v A Professional Conduct Committee
[2016] NZHC 3180
•21 December 2016
NOTE: ORDER MADE PURSUANT TO S 95(2)(D) OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003 PROHIBITING PUBLICATION OF THE NAME OR PARTICULAR AFFAIRS OF THE PATIENT MS S AND PUBLICATION OF PARAGRAPHS [5] AND [6] OF THE JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-749 [2016] NZHC 3180
BETWEEN JEANNE LE ROUX
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 2 August 2016 Appearances:
A H Waalkens QC for Appellant
P J Radich QC for RespondentJudgment:
21 December 2016
JUDGMENT OF PAUL DAVISON J [redacted version]
Solicitors:
DLA Piper, Wellington
Minter Ellison Rudd Watts
LE ROUX v A PROFESSIONAL CONDUCT COMMITTEE [2016] NZHC 3180 [21 December 2016]
[1] Ms Le Roux is a registered psychologist. She was found guilty of professional misconduct pursuant to s 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (the Act) by the Health Practitioners Disciplinary Tribunal in its decision of 2 December 2015.
[2] Ms Le Roux appeals the Tribunal’s subsequent penalty decision, dated 31
March 2016, on the basis that the penalties that have been imposed are unreasonable and excessive.
Background
[3] Ms Le Roux obtained registration as a clinical psychologist in August 2003, and in 2010, she began providing services to the Accident Compensation Commission (ACC) on a full-time basis through four different service providers. Ms Le Roux describes her role as follows:
I engage with ACC clients who present with psychological difficulties following physical or sexual abuse injury. My role includes assessment, treatment planning and therapy for clients.
[4] Ms S is a former client of Ms Le Roux. [5] [This paragraph has been redacted].
[6] [This paragraph has been redacted].
[7] Ms S was initially scheduled for therapy sessions one-day per week in around August 2011 but, in January 2012, Ms Le Roux began providing residential respite care after Ms S was taken to hospital for self-harm. Ms Le Roux explains:
So, when the doctor asked if she would be supervised for the night, I identified myself as the psychologist working with her, and stated that she would be able to remain overnight at my home. [Ms S] agreed to this, and my husband and I drove her to our home that evening.
[8] Ms Le Roux thereafter continued to provide Ms S with residential respite care on a casual basis, particularly when Ms S said that she was feeling stressed or unsafe. Ms Le Roux saw this as an attempt to “prevent crisis when [Ms S] was
feeling particularly ‘at risk’ [of harming herself]”. She was still providing Ms S with
psychological services at this time.
[9] As the year went on, Ms S’s presentation, support needs and level of risk “increased significantly” and became more complex. Ms Le Roux described herself as being “out of [her] depth”.
[10] Despite being advised by her supervisor to terminate the professional/client relationship with Ms S, and being warned by the New Zealand Psychologists Board (NZPB) that she was failing to maintain professional boundaries, Ms Le Roux nevertheless continued to deal with Ms S because she was “worried that [Ms S] would fall through the cracks and not get the treatment she needed”. She also continued to provide Ms S with residential respite care because she “did not feel [she] could step away and withdraw from [Ms S] until she had alternatives in place…”
[11] In May 2012, Ms Le Roux was able to secure Ms S a spot at a respite facility called His House and, in July 2012, she offered and arranged to pay Ms S’s costs because Ms S said she could not afford to pay for it herself.
[12] Professional boundaries became more and more blurred as Ms S continued to call on Ms Le Roux for help and support outside of formal arrangements.
[13] Sometime in August 2013, Ms S’s friend, who sometimes attended therapy sessions as a support person for Ms S, became doubtful as to whether Ms Le Roux was acting in accordance with her professional and ethical obligations. She made a formal complaint against Ms Le Roux on 27 February 2014, with an array of charges being laid thereafter.
Charges and findings
[14] The Tribunal began its decision with the observation that Ms Le Roux’s acts and omissions “were made with the intention of providing the best care and therapeutic support for [Ms S].”1
[15] After setting out and assessing the evidence, the Tribunal found that Ms Le
Roux was guilty of failing to maintain appropriate professional boundaries by:
(a) allowing Ms S to stay at her home address some eight or nine times during the period between August 2011 and March 2013, sometimes for one or two nights, but on one occasion, for up to 7 to 10 nights, while conducting therapy sessions at the same time. The Tribunal added:
There is the aggravating factor that Ms Le Roux had discussed the matter with her then supervisor, [Ms A], who in turn had discussed the matter with [Ms G]; with the consequential advices to Ms Le Roux of the impropriety of her doing so. Nevertheless, she continued with the practice despite that advice.
(b)socialising with Ms S, such as by allowing her to attend family dinners and taking Ms S out to dinner on her birthday (though this was said to be “a necessary consequential result of the staying at Ms Le Roux’s home”), as well as dining with Ms S at Ms S’s friend’s house, “once for lunch… to meet and get to know Ms Le Roux better and once for dinner on the return from [a respite centre].” The latter occasions were described as amounting to boundary breaches but “not of themselves sufficient to warrant disciplinary sanction. To an extent they were a corollary to the other aspects in which Ms Le Roux has
been involved in boundary breaches with [Ms S]”;2
(c) allowing Ms S to help out with renovations (though it was accepted by the Tribunal that “Plainly the help was initiated by [Ms S] and not requested by Ms Le Roux. It is a corollary to [Ms S] having stayed at
Ms Le Roux’s home but not a necessary one.” The Tribunal said this
1 At [66].
2 At [155].
was a boundary breach “but not in itself sufficient to warrant disciplinary sanction”);3
(d)giving gifts to Ms S, especially paying for residential respite care which came to a total of $700; and
(e) engaging in excessive email communications with Ms S, which “often took place very late at night.” These exchanges were described as being “often confusing, part caring and scolding” of Ms S, as well as being “highly inappropriate” because Ms Le Roux often engaged with Ms S by way of communicating directly to Ms S’s alter-personalities.
[16] The Tribunal reiterated its view that the breaches arose out of a situation where “there was a genuine and honest attempt by Ms Le Roux to help [Ms S] with her needs and with the complex situation”, adding:4
Decisions were made by Ms Le Roux which were bad ones. These included allowing [Ms S] to stay at her, Ms Le Roux’s, home. That was a breach of boundaries and created the wrong environment for professional therapy. Ms Le Roux became far too involved in the life of [Ms S] in giving her gifts, paying for respite care, transporting [Ms S], and allowing her to stay at her own home…
The penalty decision
[17] In its subsequent decision as to penalty, the Tribunal observed:5
This is not a case where Ms Le Roux has sought in any way to benefit from her relationship with the patient or to gain any personal advantage. That is, the Tribunal has found that Ms Le Roux’s motivations behind the boundary breaches were not motivated by self-interest. Rather Ms Le Roux’s boundary breaches were misguided based on what Ms Le Roux considered would be beneficial to the patient…
… The Tribunal does not perceive, however, (perhaps with the exception of the staying at her home issue referred to below) Ms Le Roux’s well- intentioned behaviour was in any way coupled with an arrogant disregard for standards. It does find, however, that at the time Ms Le Roux did not take boundary issues into account to the proper extent and this was either because
3 At [150].
4 At [288].
5 At [15], [16].
of ignorance of them or because she thought that she was following a better course.
[18] The Tribunal noted that rehabilitation for Ms Le Roux was an important factor in relation to an appropriate penalty, and commented that the focus must be on:6
the correction of misunderstandings and education and training, to the extent that this may not have already occurred, such that Ms Le Roux may continue with her profession as a psychologist in a context where she is aware of the ethical considerations applicable, including identifying and maintaining boundaries.
…
The Tribunal further accepts that there has been a significant opportunity for Ms Le Roux to reflect on and to take advantage of collegial support that she has had and the benefit of any research she has done. In that context, the Tribunal has had to balance the fact that Ms Le Roux defended all of the particulars of the Charge brought against her with the fact that in doing so, she made concessions and acceptances which showed a measure of clearer understanding.
[19] The Tribunal also emphasised the need for deterrence, as “[t]he aspects of the
Charge found by the Tribunal are significantly serious”.7 The Tribunal explained:8
there needs to be a penalty imposed which ensures there is deterrence of Ms Le Roux from any attempted repeat of breaches of this kind. The Tribunal is also of the view that the message must be sent to the remainder of the profession that, in dealing with patients of the kind involved in this case, a psychologist (and indeed any other health professional) must ensure that appropriate boundaries are assessed and then strictly kept.
[20] The Tribunal said punishment was not the “primary purpose of any penalty order”, and that the least restrictive penalty must be imposed, noting that publication of Ms Le Roux’s name will have a punitive function in and of itself.9
[21] Turning to the circumstances of the misconduct, the Tribunal said the
aggravating features were that Ms Le Roux’s acts and omissions occurred over a
6 At [19, [20].
7 At [24].
8 At [25].
9 At [27].
significant period of time, and they were increasing in severity and complexity. Also that:10
(a) Ms Le Roux was “out of her depth” when dealing with a patient of the complexity of Ms S, and even though she may have come to some realisation of the situation, she failed to take “effective measures to extricate herself”; and
(b)Ms Le Roux failed to look to her supervisor for support, and also failed to act on her supervisor’s advice about not having a patient stay with her in her own home.
[22] Turning to the mitigating factors, the Tribunal noted Ms Le Roux’s genuine belief that she was acting in the best interests of her client; that she was not motivated by any self-interest; and also that there has been a measure of learning and understanding on the part of Ms Le Roux.
[23] The Tribunal also noted that the gifts Ms Le Roux gave to Ms S had been given in a spirit of generosity, and in the case of the payment of fees for the respite facility, for Ms S’s safety and protection.11 The Tribunal further recognised that Ms Le Roux had attempted to deal with Ms S’s complex psychiatric and psychological disorders by therapy (including via emails) in ways she believed to be constructive and helpful.12 It added that Ms Le Roux had attended the hearing before the Tribunal and presented full evidence explaining the reasons for her actions and decisions, and had fully participated in the process, from which the Tribunal discerned there had been a measure of learning and understanding on her part. 13
[24] The Tribunal considered a number of cases in order to assess the comparative penalties imposed and, with a view to ensuring consistency, concluded that a three
10 At [32.3], [32.5].
11 At [33.2].
12 At [33.3].
13 At [33.4], [33.5].
months’ suspension (with conditions) was appropriate to protect the public and
maintain standards in the profession.14 The conditions it imposed were:
49.1.That within 12 months of the date of this decision Ms Le Roux undertake at her expense an appropriate New Zealand-based course (such as a two-day workshop) as approved by the NZPB on ethics and boundary issues. The Tribunal does not wish to dictate what course is appropriate. That is for the NZPB. A suggestion might be a New Zealand-based course similar to the Canadian course “Being an Ethical Psychologist”. The 12 month period is fixed so that there will be time for Ms Le Roux to get into the course and carry it through. The intention is that she should participate in the course as soon as possible and provide to the NZPB details of the outcome, particularly having successfully passed the course.
49.2.That as soon as possible but no later than within 12 months of the date of this decision Ms Le Roux provide a self-assessment in writing of the particular case in question in this proceeding. This should be at least 2,500 words and should indicate that she has had the insights and lessons she has learned from the experience. This should be done with help from the supervisor referred to below and should be presented to a reviewer appointed for the purpose by the NZPB at Ms Le Roux’s expense. The purpose of this is to ensure that she has, and can demonstrate in writing, the necessary insights from the experience of this case and that the reviewer is satisfied that the necessary lessons have been learned and clinical awareness achieved. That will need to be done in the 12 month period from the date of this decision. That will allow time for the process. The condition will be on the basis that as soon as possible but no later than that 12 month period Ms Le Roux provides to the NZPB the reviewer’s assessment that the outcomes have been achieved.
49.3.That for 18 months after Ms Le Roux resumes practice as a psychologist following the period of suspension she practise out of a clinic where other clinical psychologists also practise and not from her own home. This will give her the collegial support of a clinic and will allow her to have discussions on any ethical issues arising. That would be, of course, in addition to the clinical supervision that she is required to have in any event.
49.4.That for 18 months after Ms Le Roux resumes practice as a psychologist following the period of suspension she have supervision (as defined by the HPCA Act – “monitoring of, and reporting on, [her] performance by a professional peer”) at her expense by a clinical psychologist whose appointment is made by, or approved by, the NZPB. This is to be additional to her clinical supervision and by a different person. The supervisor is to ensure that that supervision, monitoring and reporting, includes express reference to ethics and professional boundary issues. The supervisor is to report to the NZPB every three months.
14 At [36], [37].
49.5.That for 12 months after Ms Le Roux resumes practice as a psychologist following the period of suspension she is not to provide professional services to clients with any sexual psychological trauma history or ACC sensitive claims work with people with a sexual abuse history; and that in the six months following that time she is to provide services to such clients only after agreeing a framework and approach with the supervisor appointed or approved by the NZPB.
49.6.That Ms Le Roux is to have no email contact with any patient other than for administration purposes and not in any way for therapy. This is recommended to be an unlimited restriction but the Tribunal can only impose that for a period of 3 years which it does.
[25] The Tribunal also made an order for censure, pursuant to s 101(1)(d) of the Act, “to express the Tribunal’s disquiet about the Charge to the extent it has been found to be made out.”15
[26] Ms Le Roux was ordered to pay a contribution of $40,000 in costs, which was in excess of 20 per cent of total costs, “divided equally between the PCC [Professional Conduct Committee] and the Tribunal”.16
The appeal
[27] Ms Le Roux appeals against the suspension order, saying that it is overly harsh and excessive given the purpose of the Act and the undisputed finding that her conduct was always well-intentioned. She also appeals against two of the conditions imposed by the Tribunal, namely those listed as [49.2] and [49.3] above, on the basis that they are impractical, unreasonable and excessive.
[28] Mr Waalkens QC informed me from the Bar that Ms Le Roux has received an email from ACC advising her that if her suspension were to be upheld, her registration with ACC as an accredited counsellor would be terminated. As ACC provides the major proportion of Ms Le Roux’s work,17 Mr Waalkens said the effect of termination would be devastating upon her as not only would she be unable to work for the duration of the suspension period, but thereafter, the great proportion of
her work would disappear as a result of the termination of her ACC registration.
15 At [50].
16 At [61].
17 In its decision dated 2 December 2015, the Tribunal noted that Ms Le Roux’s contracting work
from ACC was on a full-time basis and was “ her current sole source of income” at [50].
[29] The email from ACC was not produced by Mr Waalkens. I asked Mr Radich what his view of this was and he accepted that Mr Waalkens’ account was accurate, while commenting that he himself had not seen the email. However, Mr Radich acknowledged and accepted that termination of Ms Le Roux’s ACC accreditation would have serious consequences for her. He further accepted that although this was information that was not before the Tribunal, it is nevertheless relevant to this appeal.
[30] The PCC opposes the appeal, saying the three-month period of suspension is “not unduly harsh” given the maximum period of suspension is three years. Mr Radich submitted that the conditions under appeal are in each case appropriate, and not at all burdensome. He said “Ms Le Roux cannot carry on assisting patients in the unguided way in which she has operated and needs the support and guidance… to ensure that clinical awareness is achieved.”
Approach to appeal
[31] Section 106 of the Act provides for an appeal to the High Court against the whole or any part of an order as to penalties made by the Tribunal under s 101.
[32] This appeal is by way of rehearing.18 On hearing the appeal, this Court may confirm, reverse or modify the Tribunal’s decision, and make any other decision or order that the Tribunal could have made.19
[33] Case law seems to suggest that “two approaches” have developed on the question of whether s 106 imposes a general or a discretionary appeal. On a “general appeal”, the approach in Austin, Nichols & Co v Stitchting Lodestar applies:20
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower
18 Section 109(2).
19 Section 109(3).
20 At [16] (footnotes omitted).
Court’s assessment of the acceptability and weight to be accorded to the
evidence, rather than forming its own opinion.
[34] On a discretionary appeal:21
… the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.
[35] Both counsel accepted that the decision of TSM v Professional Conduct Committee is the most recent authority,22 wherein Palmer J said that the established approach of the High Court in relation to disciplinary penalty appeals is to come to its own view of the merits, meaning the Austin Nicholls approach applies.23 I agree, and that is the approach I shall take.
Analysis
General principles
[36] Before dealing with the substance of the appeal, I set out the relevant purposes and principles that apply to the imposition of penalties.
[37] The Act does not set out the factors that the Tribunal or an appellate Court must consider when deciding what penalty to impose, but I record in full the relevant parts of Collin J’s decision wherein he set out what he considered to be the “penalty factors”:24
[44] The Tribunal’s first consideration requires it to assess what penalty most appropriately protects the public. This factor is identified in s 3 of the Act where it is said that the principal purpose of the Act is:
to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
Part of the function of protecting the public involves the Tribunal setting penalties that will deter other health professionals from offending in a similar way.
21 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
22 TSM v Professional Conduct Committee [2015] NZHC 3063 at [13].
23 At [11].
24 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.
[45] Secondly, when assessing what penalty to impose the Tribunal must be mindful of the fact that it plays an important role in setting professional standards. This point was made in the following way by Eichelbaum CJ in Dentice v Valuers Registration Board:
[Disciplinary hearings] exist to enforce a high standard of propriety and professional conduct; to ensure that no person unfitted because of his or her conduct should be allowed to practise the profession in question; to protect both the public and the profession itself against persons unfit to practise; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them...
[46] Thirdly, it is also important to recognise that penalties imposed by the Tribunal may have a punitive function. I accept that punishment is often viewed as a by-product of the penalties imposed by the Tribunal and that protecting the public and setting professional standards are the most important factors for the Tribunal to bear in mind when setting a penalty. However, where the Tribunal imposes a fine or censure it normally does so in order to punish the health professional.
[47] Fourthly, where it is appropriate, the Tribunal must give consideration to rehabilitating health professionals. This point was made by Blanchard J in B v B. A reason why rehabilitation may be an important consideration is that health professionals and society as a whole make considerable investments in the training and development of health practitioners. Where appropriate, the Tribunal should endeavour to ensure these investments are not permanently lost, provided of course the practitioner is truly capable of being rehabilitated and reintegrated into the profession.
[48] Fifthly, the Tribunal should strive to ensure that any penalty it imposes is comparable to other penalties imposed upon health professionals in similar circumstances. In stating this objective I recognise that each case will require a careful assessment of its own facts and circumstances. Rarely will two cases be identical. Nevertheless, it is important for the Tribunal to try and ensure a degree of equity between those health professionals who appear before the Tribunal. Importantly, in cases involving sexual misconduct, there is no logical reason why different categories of health professional should be treated differently. The establishment of a single Tribunal to determine disciplinary charges against all 20 categories of registered health professionals is a clear signal that Parliament intended that health professionals be treated in a similar way where their circumstances are comparable. This point was recognised by the Tribunal in Professional Complaints Committee v O where it endeavoured to impose a penalty on a nurse who engaged in an inappropriate relationship with a patient that was consistent with the type of penalty that would be imposed upon a doctor or other health professional.
[49]Sixthly, it is important for the Tribunal to assess the health practitioner’s behaviour against the spectrum of sentencing options that are available. In doing so the Tribunal must try to ensure that the maximum penalties are reserved for the worst offenders.
[50]Seventhly, the Tribunal should endeavour to impose a penalty that is the least restrictive that can reasonably be imposed in the circumstances. This point was made in the following way by Randerson J in Patel v Dentists Disciplinary Tribunal when he said that the Tribunal must consider “alternatives available to it ... and to explain why lesser options have not been adopted in the circumstances of the case”.
[51]Finally, it is important for the Tribunal to assess whether or not the penalty it is proposing to impose is fair, reasonable and proportionate in the circumstances presented to the Tribunal. Imposing a penalty involves issues of finely balanced judgement. It is not a formulaic exercise.
Suspension
[38] I agree with Mr Waalkens that, in light of all the circumstances, the Tribunal’s decision to suspend Ms Le Roux from practice for a period of three months was excessive and an inappropriate means of achieving the purpose of protecting the public, as well as other objectives.
[39] While Mr Radich was right to point out that a three-month suspension period is relatively modest, given the maximum period is three years, what also needs to be recognised is that suspension is the second most restrictive penalty in the hierarchy of orders listed under s 101, (cancellation being the most restrictive). Suspension must therefore be treated as a serious penalty which should not be imposed other than where necessary to achieve the objects of the disciplinary process – namely the protection of the public.
[40] The “penalty factors” set out by Collins J above, are all relevant to
identifying the appropriate penalty to be imposed.
[41] It is not clear from the Tribunal’s decision how it came to assess and conclude that Ms Le Roux’s culpability was “sufficiently serious” to warrant the imposition of a period of suspension, given its finding that her actions were all well- intentioned. As Mr Waalkens noted, the Tribunal observed from the outset that this was a case where there were “misguided” boundary breaches, thereby confirming its acceptance that Ms Le Roux’s culpability was less than in circumstances where there was a deliberate disregard of professional standards.
[42] In contrast to each of the other cases considered by the Tribunal for the purpose of achieving consistency, Ms Le Roux’s case is unique in that her actions were all motivated by genuine and humane intentions, albeit misguided. For instance, in James Ross,25 the psychologist was found to have acted inappropriately towards his female patient and had disclosed confidential information to her regarding her partner. That conduct was said to have been undertaken in a context
where other historical aggravating features were relevant to the imposition of the suspension penalty. The Tribunal also considered several other cases where no suspension was imposed, and which involved deliberate breaches of professional standards of a kind and extent that I consider more culpable than the conduct of Ms Le Roux.
[43] Looking at the individual circumstances of Ms Le Roux’s case, her fundamental error was acting in what she genuinely believed to be in Ms S’s best interests, beyond the scope of what was reasonably required to satisfy her professional duties. For example, she provided accommodation for Ms S in her own home, and thereafter involved her in family activities, gave her personal gifts, and paid for her respite care accommodation. While all of these activities may have been an entirely appropriate means of supporting a personal friend who was experiencing the problems that Ms S was going through, they were not appropriate in the context of this professional relationship.
[44] The Tribunal emphasised the point that Ms Le Roux’s misconduct was repetitive and extended over a lengthy period of time. However it is relevant, in my view, that Ms Le Roux’s misconduct was in relation to only one client, Ms S, whose case was so complex and not one that Ms Le Roux had prior experience of. Her actions and inactions were a response to Ms S’s special situation, and are in no way indicative or typical of how Ms Le Roux interacted with other clients.
[45] Also aggravating, in the Tribunal’s view, is that Ms Le Roux continued to breach professional boundaries even after having been told by her superiors that what she was doing was wrong. I agree, but this needs to be viewed against the
circumstances where Ms Le Roux’s misconduct was motivated by a genuine belief
25 Cited as “275 and 333/Psy08/108P”.
that she needed to protect Ms S, and that if she did not continue to do so, Ms S’s
condition could present a real risk of self-harm.
[46] Turning to the mitigating factors, it is relevant that, as the Tribunal noted, no harm was apparently caused to Ms S. Other factors include Ms Le Roux’s participation at the Tribunal’s hearings, and her demonstration of remorse and ongoing willingness to learn about her wrongdoing, as well as her otherwise unblemished professional history.
[47] The Tribunal said this is the sort of misconduct that calls for deterrence both for Ms Le Roux and to other health professionals. While I agree that deterrence is relevant to the determination of the appropriate penalty, I consider that the need for deterrence was overstated by the Tribunal.
[48] In my view, it can be safely observed that Ms Le Roux, as the Tribunal seemed to accept, is unlikely to find herself in a situation like this ever again. Her transgressions all stemmed from her initial decision to offer Ms S accommodation in her home, and to allow Ms S to stay on with her, believing she had no other safe place to stay. Thereafter, matters compounded and her professional duties were progressively compromised as boundaries became even more blurred. Ms Le Roux has already shown that she has since realised her errors, and has gained insight into the need to maintain professional boundaries. This disciplinary process has clearly caused her considerable distress and concern, as well as giving her cause to reflect on how she managed her professional relationship with Ms S and how it went wrong. I have no doubt that this whole experience will have educated Ms Le Roux as to the dangers of failing to maintain professional boundaries, and it will also ensure that she never again allows herself to be drawn into compromising her professional position by reason of a wish to offer personal support. She will have learned that by maintaining appropriate professional boundaries at all times, she will be protecting herself as well as her clients and upholding the standards and integrity of the profession.
[49] As to the need for general deterrence, I consider a message to other health professionals will still be heard through the imposition of a lesser penalty. This is an
unusual case and, in my view, the lessons to be learned from getting too close to clients, even when motivated by the best of intentions, will be clearly signalled and promulgated through the imposition of a lesser penalty.
[50] Dealing next, with the Act’s primary purpose: the need to protect the public. I consider the Tribunal wrongly concluded that recognition and application of this purpose called for the imposition of a suspension.
[51] As the Tribunal correctly observed, the focus should be on rehabilitating Ms Le Roux and reintegrating her back to her profession. Suspension, in the circumstances of this case, detracts from that objective. As Keane J observed, suspension is most apt where there is “some condition affecting the practitioner’s fitness to practise which may or may not be amenable to cure”.26 Randerson J, in a
decision dealing with cancellation, said this:27
… the task of the Tribunal is to balance the nature and gravity of the offences and their bearing on the [health practitioner’s] fitness to practice against the need for removal and its consequences to the individual: … As the Privy Council further observed:
Such consequences [cancellation] can properly be regarded as inevitable where the nature or gravity of the offence indicates that a [health practitioner] is unfit to practise, that rehabilitation is unlikely and that he must be suspended or have his name erased from the register. In cases of that kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of the penalty to the individual.
[52] There is no dispute that Ms Le Roux’s misconduct is plainly “curable”. Ms Le Roux has, using the Tribunal’s language, shown herself to be a “conscientious psychologist who is determined to do her best for her patients”.28 She recognises that she has lessons to learn, and is obviously motivated to learn and apply them.
[53] For this reason, I do not consider that it is proper to conclude that it is in the
public interest to suspend Ms Le Roux’s career, when it is also in the public interest
26 A v Professional Conduct Committee HC Auckland CIV-2008-404-2927, 5 September 2008 at
[81]. Citing Taylor v General Medical Council [1990] 2 AC 539 (PC).
27 Patel v Dentists Disciplinary Tribunal HC Auckland AP77-02, 8 October 2002 at [30].
28 At [19].
that an otherwise entirely competent psychologist is not to be excluded or discouraged from practice.
[54] I repeat Lang J’s observations in MacDonald v Professional Conduct
Committee, wherein he said:29
suspension from practice is a very serious penalty. It ranks second only in severity to cancellation from registration. It operates to prevent the practitioner from being able to work in his or her chosen profession for a defined period. It obviously carries with it very significant financial consequences for the offender, who will be deprived of the ability to earn any form of income from that profession for the duration of the suspension.
[55] Cancellation of Ms Le Roux’s ACC accreditation is a relevant consideration here. As I have said, Mr Waalkens has informed the Court that his client has received written notification from ACC that if she were to be suspended from practice, her ACC accreditation would be cancelled. Were that to occur, Ms Le Roux’s whole practice would disappear, as the ACC work comprises nearly all of her business. Such an outcome would, in turn, result in her being unable to earn an income not only for the period of the three month suspension, but for an extended period thereafter.
[56] The Tribunal was of the view that this case was not one which called for cancellation of Ms Le Roux’s registration as a psychologist, and that was not sought by the PCC.30 Yet the outcome here would have similar (and permanent) consequences.
[57] I record that the information regarding the intention of ACC to cancel Ms Le Roux’s accreditation was not before the Tribunal when it made the decision to impose the three month suspension. Had that information been before the Tribunal, I expect the Tribunal would have readily appreciated that the punitive consequences of suspension would be disproportionately harsh and severe, having regard to the well-
intentioned but misguided conduct found to be professional misconduct.
29 MacDonald v Professional Conduct Committee HC Auckland CIV-2009-404-1516, 10 July 2009 at [96].
30 At [35]
[58] For these reasons, I set aside the order suspending Ms Le Roux’s registration
for a period of three months.
Conditions
[59] I agree, also, with Mr Waalkens’ submission that the Tribunal’s conditions requiring Ms Le Roux to (1) write a 2,500 word essay on the importance of boundaries and (2) practise from a clinic where other clinical psychologists also practise, for a period of 18 months, are both onerous and impracticable.
[60] Dealing first with the condition requiring a 2,500 word essay, I note that this condition was imposed notwithstanding the imposition of other conditions requiring Ms Le Roux to undertake, at her own expense, a course of re-training as regards ethical duties and boundary issues. A further condition stipulates that when she resumes practise, Ms Le Roux, in addition to her clinical supervision, is to be supervised at her own expense, by a clinical psychologist whose appointment is made or approved by the NZPB. This supervisor is to report to the NZPB every three months, and is to ensure that supervision, monitoring and reporting includes express reference to ethics and professional boundary issues.
[61] Ms Le Roux does not challenge those or the other conditions imposed upon her.
[62] I consider that condition (1) is of no real utility, having regard to the other requirements already in place. Her attendance at, and completion of, an approved course on ethics and boundaries as required, for instance, will be an effective means of ensuring that she has understood the lessons to be taken from her experiences in this case, and will ensure that she has a full appreciation of the relevant ethical standards.
[63] It should be kept in mind that this is not a case where Ms Le Roux has shown she had, and has, no awareness or insight whatsoever regarding professional and ethical boundaries. Rather, this is a case of her not applying those standards in the circumstances of an increasingly complex situation and one where she had not had
experience of counselling anyone suffering from DID. What is important is that, with the benefit of attending the NZPB ethics course, for example, and by learning the lessons derived from her experiences of this case, she will in future be well equipped and able to identify those situations which call for special drawing and maintenance of clear boundaries.
[64] Accordingly, I uphold Ms Le Roux’s challenge to the condition imposed by the Tribunal requiring her to write and provide a 2,500 word essay, and order that it be removed from the conditions that she is required to comply with.
[65] I consider the condition requiring Ms Le Roux to practise from a clinic with others for 18 months is again, superfluous and unnecessary. The other conditions that are not challenged, and which will apply to Ms Le Roux’s practise, are sufficient to ensure that she is both re-trained regarding her ethical duties and is closely supervised in the course of her work. The requirement that she must practise from a clinic with other clinical psychologists, so that she will have colleagues on hand to discuss ethical issues with, disregards the reality that she will have the ability to speak to her clinical supervisors at any time. Moreover, there is likely to be a significant cost associated with finding and arranging to practise from a suitable clinic operated by other clinical psychologists.
[66] I note also that another condition imposed by the Tribunal, and one which was accepted and not challenged by her, stipulates that for a period of 12 months from when she resumes practise as a psychologist, Ms Le Roux is not to provide professional services to clients with any history of sexual trauma or a sexual abuse history, and that in the six months following that time, she is to provide services to such clients only with lead-in approval of the supervisor appointed or approved by the NZPB. This condition provides yet another layer of protection for the public.
[67] Accordingly, I uphold Ms Le Roux’s challenge to the condition imposed by the Tribunal requiring her to practise for 18 months from the time of her resumption of practise from a clinic where other clinical psychologists practise, and not from her own residence, and I order that it be removed from the conditions she is required to
comply with. Ms Le Roux will be able to resume or continue to practice as a clinical psychologist from her home as she has done is the past.
Conclusion
[68] For the reasons I have set out above, I make the following orders:-
i.The order suspending Ms Le Roux from practice as a clinical psychologist for a period of 3 months is cancelled.
ii.The condition requiring Ms Le Roux to prepare and provide a 2,500 word essay of self-assessment of the case, and identifying the lessons she has learned from the experience of the case, is cancelled.
iii.The condition requiring and stipulating that Ms Le Roux must for a period of 18 months, practice out of a clinic where other clinical psychologists also practice, and not from her own home, is cancelled. Ms Le Roux is to be able to continue to practice, or to resume practice as a clinical psychologist from her own home if she chooses to do so.
iv. Ms Le Roux’s appeal has been successful and she is entitled to costs
on a Scale 2B basis, together with disbursements.
[69] Counsel for the appellant is to file and serve a memorandum as to costs, including a schedule of costs and disbursements within 10 working days of the date of delivery of this judgment. Counsel for the respondent is to file a memorandum in reply within a further 5 working days from the date of service of the appellant’s cost
memorandum.
Paul Davison J
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