Sharman v New Zealand Association of Counsellors Incorporated
[2013] NZHC 3553
•20 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-1360 [2013] NZHC 3553
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review
BETWEEN TINA MARIE SHARMAN Plaintiff
ANDNEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED First Defendant
ANDHEARING PANEL OF THE ETHICS COMMITTEE OF THE NEW ZEALAND ASSOCIATION OF COUNSELLORS Second Defendant
Hearing: 9 September 2013
Appearances: R J Hooker for plaintiff
S M Hunter & T Joseph for defendants
Judgment: 20 December 2013
JUDGMENT OF WINKELMANN J
This judgment was delivered by me on 20 December 2013 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Vallant Hooker & Partners, AucklandGilbert Walker, Auckland
TINA MARIE SHARMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2013] NZHC 3553 [20 December 2013]
[1] The plaintiff, Ms Sharman, is a counsellor and a member of the New Zealand Association of Counsellors (NZAC), the first defendant in the proceeding. She was subject to disciplinary proceedings following a complaint made to NZAC by a former client, G,1 in connection with counselling services provided. NZAC referred the complaint to the Hearing Panel of the Ethics Committee of the NZAC, the second defendant in these proceedings. The Panel laid charges against Ms Sharman
for professional misconduct and/or engaging in conduct which was unbecoming of a member of NZAC. It delivered its decision in January 2013, upholding five of six charges and finding Ms Sharman guilty of professional misconduct.2
[2] Ms Sharman seeks a judicial review of that decision. She alleges that NZAC breached natural justice because it laid charges that were without evidential foundation, ambiguous or duplicitous and which were based on breaches of guidelines contained in the NZAC’s code of ethics, which were not compulsory. She further says that natural justice was breached because the Panel acted as “a judge, jury and prosecutor” in that it formulated, heard and determined the charges. Ms Sharman also says that the Panel made an error of law in admitting statements when G was not available to be questioned by Ms Sharman’s counsel at the hearing, and this has unfairly prejudiced Ms Sharman. Finally, she says that the Panel’s decision was unreasonable.
Factual background
[3] From 1996 to 2009, Ms Sharman provided counselling services to G. This was funded, at least in part, by ACC during the period 1996 to 2005. When ACC funding was withdrawn in 2005, G continued with the counselling, paying for it herself, even though she was a welfare beneficiary. Ms Sharman says that she terminated the counselling relationship in 2009 because she considered that G had
fabricated a history of sexual abuse.
1 As a complainant to NZAC G is entitled to confidentiality in respect of her name.
2 There is yet to be a hearing at which the appropriate sanction for this conduct, if any, will be considered and decided.
The complaint
[4] In February 2011 the Ethics Committee of NZAC received a written complaint from G, which recorded a number of complaints. G alleged that between
2003 and 2008, Ms Sharman had come to her home on several occasions extremely distressed and tearful, asking to borrow substantial sums of money, giving various reasons as to why she needed the money. G said that the first occasion occurred shortly after G had received a lump sum payment from ACC. Ms Sharman visited G at home and asked for $2,000, which she needed for her monthly mortgage payment. On other occasions Ms Sharman said she needed money for her family for food and Christmas presents. G’s account was that Ms Sharman said she would repay the money.
[5] G enclosed a copy of the bank statements showing amounts drawn of G’s account and deposited into Ms Sharman’s bank account. G’s summary of the payments was as follows:
12/12/03 – Told they had been “ripped off” by whanau and were waiting court payment. Also for lawyers’ fees. Was a mortgage payment and they needed money for the kids for Christmas presents and food.
23/1/04 – Another $2,000 for mortgage and $250 for car payment/repair.
11/3/04 – Money for prescriptions and to pay for Physio sessions (broken arm/elbow).
11/10/04 – Mortgage as her injury stopped her from working and doing all the ACC reports so ACC was not paying her.
15/2/08 – Lawyers’ bills for “fraud” case she said was later dismissed.
[6] The payments that were detailed for each of those dates were $2,000, $2,250,
$750, $2,000 and $2,000 respectively. G said that following the termination of the counselling relationship, she wrote two letters requesting Ms Sharman to make arrangements to pay the money back and that she had received five monthly payments of $200 as a consequence.
[7] G made other complaints as follows:
(a) Ms Sharman would tell her about clients who had no money for food or for their children. As a consequence, G gave Ms Sharman many bags of groceries for these people. G estimated that this involved
hundreds of dollars of goods over the years. She said that some of these gifts were for Ms Sharman and her family.
(b)G said that she gave some of her medications to Ms Sharman because she could get those over the counter for free.
(c) Many times Ms Sharman disclosed details of other clients and their circumstances.
(d) Ms Sharman had disclosed details of her own abuse to G.
(e) Ms Sharman had set “inconsistent and inappropriate boundaries”, at times providing very short counselling sessions, and at other times up to three to four hours. She had done cooking for G, cleaned her house and put her to bed.
(f) Finally, G complained that Ms Sharman had provided inaccurate and misleading reports to ACC.
Ms Sharman’s response
[8] Ms Sharman was provided with a copy of the complaint and gave a written response to it. She did not deny the payments had occurred, but said that $7,000 of it represented “top up” payments of $20 per session for the ACC-funded counselling during the time period 1996-2005. She said that although it was very unusual for her to charge top up fees to clients, G had insisted upon being charged a top up amount. However, G made no top up payments until December 2003. Ms Sharman said:
[G] finally negotiated and agreed early in 2002 that she would make a contribution towards the “top up” payments when and if [G] received her ACC lump sum payment.
[9] When ACC withdrew funding in 2005, Ms Sharman said it was agreed G would pay for counselling at the rate of $20 per session. But G made no payments between 2005 and 2008. It was then agreed in 2008 that G would pre-pay for any further counselling sessions. When Ms Sharman withdrew services in 2009 there was a credit of $1800 owing to G. Although Ms Sharman thought she had provided
far more services to G than she had invoiced her for, she accepted she could not claim for them, given the termination of the counselling relationship. Ms Sharman said she had therefore repaid the $1,800 not representing sessions that she had invoiced G for. She repaid it at the rate of $200 per month over the period August
2010 to May 2011.
[10] In relation to the allegations concerning medication, Ms Sharman denied she had ever accepted any medication from G. However she agreed that because she was on an extensive medication regime herself, this often prompted medication discussions, because Ms Sharman and G would discuss whether they were on the same or similar medication.
[11] As to gifts of food and toys for clients and family, Ms Sharman agreed G had given her food and toys for clients, particularly during 2005-2008. She donated them to families they had discussed during counselling.
[12] Ms Sharman denied ever having discussed her own sexual abuse with G, but said she did give examples of how she and other clients had managed to overcome Post Traumatic Stress Disorder.
[13] Ms Sharman said G had been her only long term client and that there had been many tensions in the relationship. She continued:
In 2006 or 2007 [G] participated in [a] TV show relating to obesity. In this documentary [G] gave a different narrative regarding her past abuse experiences, when challenged regarding these inaccuracies, it was established that some of the information [G] had provided to ACC, in 1996-
2005, could have been fabricated or untrue.
NZAC and its processes
[14] Under NZAC’s Constitution, the Ethics Committee is responsible for processing complaints, and for formulating rules and procedures for the complaints process. Ms Ann-Marie Stapp is the secretary of the Ethics Committee of the New Zealand Association of Counsellors. She has filed an affidavit on behalf of the NZAC explaining the nature of the NZAC, its disciplinary procedures and rules, and the history of the disciplinary proceedings against Ms Sharman before that body.
Ms Stapp explains that NZAC is a professional body representing counsellors in New Zealand. It is a voluntary organisation. Only those counsellors who meet NZAC’s membership criteria and agree to comply with NZAC’s constitution and Code of Ethics are eligible to be members. It is desirable to be a member as some government funding agencies will only fund the provision of counselling services by members of NZAC.
[15] The objects of NZAC are to “ensure the establishment, maintenance and enhancement of professional standards” and “to assist clients to obtain services adequate to their needs”.
[16] The Panel is the disciplinary body of NZAC. Its task is to both lay and determine charges of professional misconduct against members of NZAC. In accordance with the disciplinary processes and rules adopted by the NZAC the Panel’s process is inquisitorial rather than adversarial. The Panel reviews the material in relation to the complaint to determine whether or not to formulate and lay charges against the member. If charges are laid, the Ethics Secretary advises the member of the charges and the date for the hearing, and provides details of the hearing’s process. The Panel has a discretion as to how the hearing is conducted, but the published complaints procedure states that the complainant will be asked to attend and give their account.
[17] On the basis of G’s complaint and Ms Sharman’s response the Panel decided
to lay charges against Ms Sharman. Ms Sharman was notified of that in September
2012. The form of the notification of the charges to Ms Sharman was as follows:
To Tina Sharman
You are charged that in the period 1996 – 2009 you acted in a manner which amounted to professional misconduct and/or engaged in conduct which was unbecoming of a member of the New Zealand Association of Counsellors ("NZAC").
The alleged facts giving rise to these charges and the particular charges arising from those facts are set out below.
If the Hearing Panel of the Ethics Committee of NZAC determines that any of the charges are proved then there will be grounds for the Panel to exercise the disciplinary powers set out in the NZAC complaints process, following the Constitution.
ALLEGED FACTS
1Between 1996 and 2005 you provided counselling services to [G], in part funded by ACC and in part funded privately by [G].
2Between 2006 and 2009 you provided counselling services to [G], funded privately by [G].
3You provided more than 570 counselling sessions to [G] in the period 1996 – 2009.
4You failed to provide clear contractual terms to [G] for either ACC funded counselling or counselling funded privately by [G] which led to ambiguity about the following matters:
a. Nature of the counselling relationship; b. Purpose of the counselling relationship; c. Funding of counselling sessions;
d. Length of the counselling relationship;
e. Duration of counselling sessions;
f. Venue of counselling sessions.
5Between December 2003 and October 2004 you elicited the following payments from [G]:
a. December 2003 - $2,000 b. January 2004 - $2,250
c. March 2004 - $750
d. October 2004 - $2,000
6In 2008 you obtained a further payment of $2,000 from [G], which she describes as a payment to you for a lawyer's bill and which you describe as a pre-payment for counselling fees.
7Between February 2008 and July 2009 you invoiced [G] for 10 sessions for a total fee of $200.
8 Between August 2010 and May 2011 you repaid [G] a total of
$1800, by 9 payments, each of $200.
9During the course of the counselling you created a relationship with [G] which was different from the counselling relationship [G] had created with you. In particular:
a.You asked [G] for financial and other material support (including groceries, toys, Christmas presents and medication) for yourself and other people;
b. You performed a role of domestic help and caregiver to [G];
c. You discussed your own medication with [G];
d.You disclosed information or confidential details about other clients you had.
10You allowed the counselling relationship to expand beyond the area of your knowledge, competence and expertise.
11 You failed to end counselling when it was no longer helpful to [G].
12 You have reluctantly refunded money to [G].
13You misled the Ethics Committee of NZAC with your account as to the outcome of the criminal charges laid against you by ACC.
CHARGES
Charge 1
1You failed to establish clear and reasonable terms for your counselling relationship with [G], thereby breaching the following Ethical Principles and Guidelines of the Code of Ethics:
a.Principle 4.2 Counsellors shall avoid doing harm in all their professional work;
b.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships;
c.Ethical Guideline 5.1 (a) Counsellors shall take all reasonable steps to protect clients from harm;
d.Ethical Guideline 5.4 (a) The terms on which counselling is provided shall be clear and reasonable and address matters such as availability, fees ... ;
e.Ethical Guideline 5.4 (b) Counsellors shall establish with clients the aims or purposes of counselling and renegotiate them as necessary;
f. Ethical Guideline 5.6 Counsellors shall clarify fees and the method of payment at the beginning of the counselling relationship.
Charge 2
2You failed to set and monitor boundaries between your counselling relationship with [G] and other relationships with her thereby breaching the following Ethical Principles and Guidelines of the Code of Ethics:
a.Principle 4.1 Counsellors shall act with care and respect for individual and cultural differences and the diversity of human experience;
b.Principle 4.2 Counsellors shall avoid doing harm in all their professional work;
c.Principle 4.5 Counsellors shall promote the safety and wellbeing of individuals, families, communities, whanau, hapu and iwi;
d.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships;
e.Ethical Guideline 5.11 (a) Counsellors assume full responsibility for setting and monitoring the boundaries between a counselling relationship with a client and any other kind of relationship with that client and for making such boundaries as clear as possible to the client.
Charge 3
3By eliciting payments from [G] as detailed above and / or the provision of food, toys, groceries, Christmas presents and/or medication from [G] you breached the following Ethical Principles and Guidelines of the Code of Ethics:
a.Principle 4.1 Counsellors shall act with care and respect for individual and cultural differences and the diversity of human experience;
b.Principle 4.2 Counsellors shall avoid doing harm in all their professional work;
c.Principle 4.5 Counsellors shall promote the safety and wellbeing of individuals, families, communities, whanau, hapu and iwi;
d.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships;
e.Ethical Guideline 5.12 (a) Counsellors shall not exploit clients for purposes of personal, professional, political or financial gain.
Charge 4
4 By providing in excess of 570 counselling sessions over a period of
13 years, you failed to work within the limits of your knowledge, training and experience thereby breaching the following Ethical
Principles and Guidelines of the Code of Ethics:
a.Principle 4.1 Counsellors shall act with care and respect for individual and cultural differences and the diversity of human experience;
b.Principle 4.2 Counsellors shall avoid doing harm in all their professional work;
c.Principle 4.3 Counsellors shall actively support the principles embodied in the Treaty of Waitangi;
d.Principle 4.5 Counsellors shall promote the safety and wellbeing of individuals, families, communities, whanau, hapu and iwi;
e.Principle 4.8 Counsellors shall practise within the scope of their competence;
f. Ethical Guideline 5.9 (c) Counsellors shall work within the limits of their knowledge, training and experience.
Charge 5
5You provided more than 570 counselling sessions to [G] and failed to end counselling when it was no longer helpful to [G] thereby breaching the following Ethical Principles and Guidelines of the Code of Ethics:
a.Principle 4.2 Counsellors shall avoid doing harm in all their professional work;
b.Principle 4.5 Counsellors shall promote the safety and wellbeing of individuals, families, communities, whanau, hapu and iwi;
c.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships;
d.Principle 4.8 Counsellors shall practise within the scope of their competence;
e.Ethical Guideline 5.16 (a) Counsellors shall work with clients to end counselling when clients have received the help they sought, or when it is apparent that counselling is no longer helpful.
Charge 6
6You failed to be honest in your response to [G’s] complaint about you to NZAC when you advised that the criminal charges against you were "thrown out of Court", when in fact the outcome of those charges was that they were withdrawn by ACC, thereby breaching the following Ethical Principles and Guidelines of the Code of Ethics:
a.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships;
b.Principle 4.9 Counsellors shall treat colleagues and other professionals with respect.
c.Ethical Guideline 7.1 (a) Counsellors should treat colleagues with respect, fairness and honesty.
[18] The Panel received advice in November 2012 that G had died earlier that month. Ms Sharman’s counsel, Mr Hooker, then asked NZAC to abandon the hearing because G would be unable to attend the hearing and be questioned about her complaint. The legal advisor to the Ethics Committee, Mr van Bohemen, replied that the Panel would proceed with the hearing, and set out the evidence it would consider and the procedure the Panel would follow at hearing.
[19] The hearing took place on 12 December 2012. At the commencement of the hearing, Mr Hooker submitted that the charges were flawed. Having apparently decided against choosing his words carefully he accused the panel of being a “kangaroo Court … leading his client to the gallows”. He made essentially the same arguments now raised on review. He objected to the receipt into evidence of G’s complaint as she was not present and able to be questioned and called for the charges to be dismissed as poorly framed and lacking factual foundation. The Panel rejected these various arguments and resolved to proceed with the hearing. Mr Hooker then told the Panel that Ms Sharman would not answer questions and would now leave, and issue proceedings in the High Court. He did however make submissions in respect of each of the charges. The hearing came to a close.
Panel’s findings
[20] In relation to charge one (“Ms Sharman failed to establish clear and reasonable terms for her counselling relationship with [G]”) the panel found:
Ms Sharman failed to establish clear and reasonable terms as to the nature, funding and length of counselling with [G]. Insofar as the terms Ms Sharman says she established with [G] (about top up payments, pre- payments for counselling, and refund of overpaid fees), the Panel determined that those terms were not clear and reasonable.
By Ms Sharman’s evidence, [G] was a client who suffered mental health issues and who was reliant on ACC and/or WINZ for income and for payment of her counselling costs. [G’s] mental health issues were noted by Ms Sharman’s counsel in his submissions when he referred to evidence of [G’s] exhibiting symptoms of disassociation.
[21] The Panel found that in so doing, Ms Sharman had breached the following principles and guidelines:
a.Principle 4.7 Counsellors shall be honest and trustworthy in all their professional relationships – the financial aspects of the counselling relationship raised questions of honesty for the Panel.
b.Ethical Guideline 5.1(a) Counsellors shall take all reasonable steps to protect clients from harm – given [G’s] presenting issues and the length of the counselling relationship Ms Sharman’s failure to negotiate the terms of counselling constituted a failure to protect [G] from harm.
c.Ethical Guideline 5.4(a) The terms on which counselling is provided shall be clear and reasonable. As noted, the Panel’s decision is that such terms as Ms Sharman negotiated were neither clear, nor reasonable.
d.Ethical Guideline 5.6 Counsellors shall clarify fees and the method of payment at the beginning of the counselling relationship. This did not happen.
[22] In relation to charge two (that Ms Sharman failed to set and monitor the boundaries between her counselling relationship with G and other relationships with her) the Panel said:
The panel cannot identify a valid reason for a counsellor “often” discussing their own medication and their own medical situation with a client, particularly with someone in [G’s] position, a long term client with identified mental health concerns.
The Panel cannot identify a valid reason for obtaining toys, food and parcels from one client to give to other clients, as part of a counselling relationship, particularly with someone in [G’s] position. The Panel wanted to discuss these aspects of the charges further with Ms Sharman but was prevented from doing so.
The Panel finds that by eliciting toys, food and parcels from [G] for other clients and in discussing her own medical situation and medication with [G], Ms Sharman breached [ethical guideline 5.11(a)].
…..
Further, the Panel finds that in failing to assume full responsibility for setting and monitoring boundaries in the counselling relationship and making clear such boundaries, Ms Sharman put at risk the wellbeing of her client by subverting the potential benefits afforded by the boundaries inherent in a professional counselling relationship, thus breaching [ethical guideline
5.11(a) and principle 4.5].
[23] In relation to charge three, (that Ms Sharman exploited her counselling relationship with G for professional and personal gain) the Panel found that by
eliciting toys, food and parcels from G for other clients, Ms Sharman breached ethical guideline 5.12(a).
[24] In relation to charge four (that by providing in excess of 570 counselling sessions over a period of 13 years, Ms Sharman failed to work within the limits of her knowledge, training and experience), the Panel said as follows:
Nowhere in Ms Sharman’s response to the complaint did she identify why counselling lasted as long as it did or does she say what counselling achieved for [G]. In his submissions Mr Hooker referred to a 1997 report from Dr Fernandez who commented on the benefits [G] was receiving from counselling at that time and to a 2003 report from Dr Asteriadis which referred to the benefit he believed [G] was receiving from counselling. The full reports were not provided to the Panel. The Panel notes that Dr Fernandez’s comments were made within the first year of counselling and Dr Asteriadis’ comments were made in year 7 of the 13 year counselling relationship.
Ms Sharman withdrew from the counselling relationship in 2009, when, she
says, the relationship became “untenable” (Para 1.2 Ms Sharman’s letter of 6
May 2011).
The Panel is aware of the literature about the relationship between the effectiveness and the duration of counselling, and that research on the “dose- effect relationship” would suggest that prolonged counselling tends to have decreasing benefit. Few studies into the duration of therapy consider therapy of the length of counselling relationship Ms Sharman had with [G]. “Long- term” therapy tends to be defined as being well short of more than 570 sessions, over 13 years.
There is no evidence in the qualifications Ms Sharman cites on her letter that she has had professional education to undertake long term counselling of the length that she engaged in with [G].
In the absence of any evidence to justify why the relationship lasted for as long as it did, and in the context of what is known about the limited benefits of extended therapy … the Panel concludes that Ms Sharman failed to work within the limits of her knowledge, training and experience and breached [ethical principles 4.2, 4.5, and 4.8 and ethical guideline 5.9(c)].
[25] In relation to charge five (that Ms Sharman provided more than 570 counselling sessions to G and failed to end counselling when it was no longer helpful to G) the Panel found as follows:
Ms Sharman says that she counselled [G] for more than 570 sessions, and then she ended the counselling relationship because it had become untenable. She provided no evidence about how she worked with [G] to end the relationship but it ended with Ms Sharman owing [G] $1,800; Ms Sharman’s repayments to [G] did not start for 13 months; it took nine months for
Ms Sharman to settle her debts with [G] and Ms Sharman resented repaying her debt to [G].
The Panel finds that by terminating the relationship in the time frame, and as she did, Ms Sharman breached [ethical principle 4. and ethical guideline
5.16(a)].
[26] The Panel dismissed charge six (Ms Sharman had failed to be honest in her response to G’s complaint when she advised the criminal charges against her were “thrown out of Court”).
[27] Having found the first five charges proved, the Panel then considered whether Ms Sharman was guilty of professional misconduct and concluded that she was. It set out for itself the test for professional misconduct, referring to Pillai v Messiter (No 2).3 That case said that for a charge of professional misconduct to be sustained there must have been:4
... deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration.
[28] The Panel found:
Ms Sharman’s fee arrangements and her exploitation of [G] were deliberate and conscious decisions on her part. The Panel does not know if her failure to set and monitor boundaries was deliberate. If it was deliberate then it was misconduct by Ms Sharman. If the failure to set and monitor boundaries was not deliberate, the Panel considers that Ms Sharman was seriously negligent in failing to set and monitor relationship boundaries and portrayed an indifference to and abuse of her professional obligations.
First ground of review: the NZAC breached natural justice because it (a) laid charges that were ambiguous or duplicitous and which were based on guidelines only, (b) acted as judge, jury and prosecutor
[29] The first ground of challenge is that some of the charges were based upon an allegation that guidelines within the Code of Ethics had been breached, and those
guidelines are not binding on members of the body.5 The submission is that the
3 Pillai v Messiter (No 2) (1989) NSWLR 197 (CA).
4 At 200.
5 I note that there is a preliminary point to be addressed in relation to the applicability of the
current Code of Ethics. The existing code was adopted in 2002, part way through the provision of counselling services by Ms Sharman to G. However it is common ground that the events with
guidelines are guidelines, and not rules. Mr Hooker for Ms Sharman contrasts this situation to that of solicitors who are bound by law to the client care rules.
[30] The argument that the guidelines are not binding upon members is based upon the following statement in the Code of Ethics:
This Code first outlines core values, then elaborates ethical principles which are developed out of these values, followed by general guidelines for professional practice. These values, principles and general guidelines apply to all areas of counselling practice. There follow particular guidelines for specific domains of practice that should be read in conjunction with the general guidelines.
[31] The Code goes on to state:
This Code cannot resolve all ethical issues, but it does provide a framework within which ethical and practice related dilemma might be addressed. Counsellors are responsible for making careful judgments about which parts of this Code apply to particular situations.
[32] Building on this, Mr Hooker says that it is for the counsellor to make the judgment call as to which parts of the Code apply to particular situations. More than this, it is for the counsellor to choose which parts of the Code apply, not NZAC.
[33] I see no merit in Mr Hooker’s argument. When NZAC’s Code of Ethics is read as a whole, it is plain that the guidelines are intended to provide guidance as to the conduct to be expected of counsellors acting in accordance with the ethical principles. Some of these guidelines are expressed to be mandatory. In the present case, Ms Sharman was charged with, and found guilty of breaching mandatory guidelines only (in addition to being charged with, and found guilty of breaching ethical principles). To illustrate my point that guidelines are plainly mandatory when expressed to be so, I take as an example the guideline that counsellors obtain informed consent to the provision of services. It is unthinkable that a counsellor could understand that whether they obtained informed consent from their clients to the provision of services was optional. Mr Hooker’s submission that these
guidelines are optional, or even more fancifully that it is for the counsellor and not
which this proceeding is concerned occurred after the date that the current ethical rules were adopted by the NZAC.
NZAC to decide which apply, is inconsistent with the language and purpose of the
Code.
[34] The second point made is that there is a lack of particulars in respect of some of the charges, and that there is no evidence to support some of the particulars contained within charges. It is also argued that the charges are duplicitous, vague and imprecise.
[35] Mr Hooker identifies the following deficiencies:
(a) Charge one: The charge is duplicitous and vague. To take as an example, in charge one, there are four separate guidelines allegedly breached, and two principles allegedly broken. Mr Hooker asks, was Ms Sharman expected to respond to each? He says that each of the charges is duplicitous.
There are no facts alleged as to what the terms of engagement were and why they were inadequate. Nor is any fact alleged that Ms Sharman was not honest and trustworthy in her relationships with G. There is no particular or factual allegation to support the charge that Ms Sharman did not take reasonable steps to protect G from harm.
(b)Charge two: There is no fact or allegation as to where and when the boundary should appropriately have been set. Furthermore, there is no particular as to when Ms Sharman should have monitored boundaries and where she failed. There was no evidence presented that Ms Sharman could challenge.
(c) Charge three: Mr Hooker complains that this charge is also bad for duplicity. He asks:
If there is no harm established under para (b) then is the charge dismissed? If the relationship was honest and trustworthy then is the charge dismissed? [Ms] Sharman simply does not know how to respond...
He also complains of the reference to “exploitation”. He says that exploitation is a serious allegation, but there is no particular as to how Ms Sharman was alleged to have exploited G. Mr Hooker notes the absence of any fact or particular of the allegation that Ms Sharman harmed G. Again he says there was no evidence produced to support the charge.
(d)Charge four: Mr Hooker argues that this charge is deficient in particulars as to what knowledge, training and experience Ms Sharman was lacking in if she were to undertake long-term counselling. He also says that the Panel could not find this charge proved without expert evidence to support the conclusion that counselling went on too long. If the Panel relied on literature, as it said it did, that should have been referred to Ms Sharman.
(e) Charge five: Mr Hooker complains of the lack of particulars as to when the Panel considered counselling was no longer helpful to G. No particulars were provided of the harm caused to G. Mr Hooker says it is implicit in the charge that it is alleged that Ms Sharman harmed G.
[36] Mr Hooker submits that a charge can be so badly worded as to be duplicitous or vague and imprecise, which can lead to an unfair hearing. He cites Z v Complaints Assessment Committee as authority for that proposition.6 In that case Fogarty J, addressing the nature of the charges stated:
The common law principles of natural justice have at their heart the proposition that a person should know the charge which he or she faces in advance of the hearing.
[37] This statement of Fogarty J is a good starting point for consideration of this ground of challenge. It encapsulates the underlying requirement of a charge – it must be clearly enough expressed, and sufficiently particularised so that a person
knows the case he or she has to face, and in advance of hearing. A charge may be
6 Z v Complaints Assessment Committee [2006] NZAR 146 (HC) at [50].
“double or multifarious” where a charge states two or more separate offences, arising from the one factual allegation.7 In the criminal law, the courts are particularly concerned to eliminate duplicitous charges because of the risk of double jeopardy. These are considerations that do not apply in the present context. For this reason, the cases relied upon by Mr Hooker are not apposite. The cases of Hovell v New Zealand Police,8 Kollar v Civil Aviation9 and Szekely v Police10 all concerned the proper formulation of criminal charges governed by the Summary Proceedings Act
1957.
[38] Of more relevance to the present case is the statement in R v The Medical
Board of Victoria; ex parte Epstein where the Supreme Court of Victoria observed:11
One is not dealing here with a legal tribunal and legal precision is not required in the statement of charge. When dealing with a tribunal of this kind, all that is necessary is that the substance of the charge shall be plainly brought home to the person charged.
[39] In the disciplinary context, conduct will often be charged as involving breaches of more than one, sometimes several, ethical principles or rules. That may be because professional principles or rules are not drawn with the care of criminal legislation. It may be because of the complexity of the conduct and relationships regulated in the professional context. But where the breaches are merely particulars of a charge, as is the case here, this creates no difficulty so long as the factual allegations involved are sufficiently clear.
[40] With one exception, I am satisfied that when the charges are read together with the factual preamble, Ms Sharman was clearly and fully informed of the case that she had to meet. There was nothing vague about the charges. The charges were adequately particularised in that they clearly related back to the factual preamble set out at the beginning of the notification of charges. For example, the failure to monitor boundaries was an allegation that related to the various inappropriate aspects
of the relationship – the discussions Ms Sharman initiated concerning her own
7 Ministry of Transport v Burnetts Motors Ltd [1980] 1 NZLR 51 (CA) at 54.
8 Hovell v New Zealand Police HC New Plymouth CIV-2008-443-18, 4 September 2008.
9 Kollar v Civil Aviation Authority of New Zealand HC Christchurch, AP 76/97, 7 May 1997.
10 Szekely v Police HC Auckland AP155/86, 27 November 1986.
11 R v The Medical Board of Victoria; ex parte Epstein [1945] VLR 60 (SC) at 64.
medication, and how she coped with her own post traumatic stress disorder, the eliciting of groceries and toys and so on from G. The reference to a failure to protect G from harm clearly relates back to the principal charge. To take as an example, charge one, because Ms Sharman failed to establish clear and reasonable terms, she thereby failed to protect G from harm.
[41] I note that if Ms Sharman had difficulty understanding the case against her, she could have sought further particulars of the charges in advance of hearing, but chose not to. The Panel addressed arguments that Mr Hooker had made as to lack of particulars in its decision. It was not persuaded by his arguments, and said:
The Panel expects Ms Sharman, as a Member of the Association, to be familiar with the concepts which make up the particular charges.
[42] Mr Hooker also complained of a lack of evidence to support the charges. The evidence at the hearing was the complaint of G, and Ms Sharman’s response to that complaint. This, if admissible, provided an adequate evidential basis for the facts as narrated which formed the basis for the charges. I come to Mr Hooker’s challenge to the admissibility of this evidence shortly.
[43] One particular issue raised by Mr Hooker was the lack of any expert evidence to support charge four. The essential allegation there was that in providing so many sessions of counselling over so many years, Ms Sharman failed to work within the limits of her knowledge and training and experience.
[44] It is the case that there is an assumption that underlies how this charge was formulated, and the Panel’s findings of breach in relation to it, that counselling stretching over years, and running into hundreds of sessions is unusual, and at least of doubtful benefit. In reaching its decision the Panel refers to literature and studies about the relationship between the effectiveness and duration of counselling. It does not identify particular literature, or particular studies. But this was a panel comprised of three counselling professionals, and one lay member. One of the reasons to have professional members on a disciplinary panel is to allow them to
bring to bear upon their assessments of complaints, their own technical knowledge.12
12 Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at [36].
[45] The Panel were taking into account knowledge available to all counsellors. Where the knowledge is of a type that counsellors would be expected to apply in their every day therapeutic relationships with their patients, then expert evidence is not required. Here, as the Panel says, this relationship sat outside any of the accepted norms of counselling relationship in terms of length of time for which it went on, and the number of sessions.
[46] I therefore read this part of the decision as the Panel applying what is foundational knowledge and understanding within the counselling profession. Evidence of foundational knowledge should not be required. Moreover, there is nothing unfair to Ms Sharman in this. What is alleged against her is perfectly clear. She was aware of the allegation, but did not seek to challenge the underlying assumption.
[47] There is one point amongst the many Mr Hooker makes, which I consider has merit. It is in relation to the allegation of dishonesty. Any allegation of dishonesty should be particularised. Here it was not. In finding Principle 4.7 breached the panel said:
The financial aspects of the counselling relationship raised questions of honesty for the Panel.
It is not clear from the charge what aspect, if any, of Ms Sharman’s conduct was alleged to be dishonest. Reading the decision it is still not clear from the decision, just how the question of honesty is raised by the financial aspects.
(b) Panel not independent because it was the judge, jury and prosecutor
[48] Mr Hooker submits that the rules were not clear enough in creating an inquisitorial model and that the way the hearing was conducted was ultimately unfair. At the hearing, he says the parties present were members of the Panel, and Ms Sharman and her counsel. There was no representative of the NZAC or the secretary of the NZAC. The NZAC did not present any evidence to the Panel. The Panel had its evidence and wanted to hear from Ms Sharman. Whatever evidence had been given to the Panel had not been given to counsel. To add to this, it was the Panel that had brought the charges so that it was unable to consider objectively
whether its charges were flawed. He says that Ms Sharman was not informed before the hearing by NZAC or the Panel as to what evidence would be led by NZAC against her.
[49] As to Mr Hooker’s first argument, the rules are sufficiently clear that this is not an adversarial process, but rather an inquisitorial one. In the rules published in respect of the hearings appears the following statement:
An NZAC ethics committee hearing is not an adversarial court procedure. The hearing panel gathers information in order to determine whether the charges will be upheld.
[50] As was submitted for the defendants, an administrative decision maker is master of its own procedure. In this case, the rules provide that the panel is to formulate and hear the charges. It has long been established that an administrative body may act in both the prosecutorial and inquisitorial functions. Given the resources of bodies such as NZAC, this is an entirely appropriate process.
[51] An example of a disciplinary body with a similar process appears in R v Wadley, Ex parte Burton.13 In that case, the committee of the Queensland Turf Club exercised powers granted to it under the Australian rules of racing to charge a jockey with an offence and then hear the charge itself. The jockey challenged the decision on the basis, amongst other things, that it was both prosecutor and Judge. The Court dismissed this argument, pointing to the provisions of the relevant rules which permitted the committee to perform the capacity of both prosecutor and Judge. The Court said:14
There can be no doubt … that the right and duty of the Committee to enforce the Rules, of necessity, requires it to bring a charge when it honestly believes that some conduct within its jurisdiction needs investigation, and thereupon to decide the issues. Under the Rules there is no other body, or person, other than its own agent or officer to do so.
[52] As observed by the learned author of Justice in Tribunals:15
13 R v Wadley, ex parte Burton [1976] Qd R 286.
14 At 294.
15 JRS Forbes Justice in Tribunals (3rd ed, Federation Press, Annandale, 2010) at [15.46].
Apprehended bias, let alone actual bias, is not established by the mere fact that a member of a tribunal receives a complaint and issues a notice to show cause, in the absence of an assistant to perform those tasks.
[53] It is true however that by its conduct a Panel empowered to act in this way may disqualify itself from proceeding to hear the charges. King J put the matter as follows in R v Medical Board of South Australia; ex parte S:16
Members of a tribunal which is authorised to receive complaints, investigate conduct and formulate charges, as well as to hear and determine the charges, may nevertheless “go out of their way to put themselves in a special position as prosecutors and thus to disable themselves from sitting in a quasi-judicial capacity at the enquiry” … This is so even if, as a consequence, there remains no tribunal which can adjudicate upon the conduct … . But in this case the board has done no more than that which is directly involved in or reasonably incidental to the performance of its statutory functions. It cannot properly be regarded as accuser, complainant or prosecutor. The notices to the practitioner, it is true, are in the form of charges but this is of little significance … . Some formulation of charges is necessary to give the practitioner fair notice of what he must answer and that is clearly the responsibility of the Board. The giving of the notice does not make the Board an accuser or a party to a lis against the practitioner.
Here there is no evidence that the Panel took on the role of actively prosecuting
Ms Sharman.
[54] Ms Sharman’s related point that because there was no counsel acting as prosecutor, she was not aware of the evidence before the Panel cannot withstand consideration of the documentary records. In a letter dated 29 November 2012 to Mr Hooker, Mr van Bohemen said that although the material which the Panel would consider at its hearing had already been provided to Mr Hooker, he would restate what that evidence would be. It would consist of G’s letter and enclosures to the Ethics Committee dated 4 February 2011, and Ms Sharman’s letter and enclosures to the Ethics Committee dated 6 May 2011.
[55] As to the process that would be followed, Mr van Bohemen said:
Ms Sharman will be given the opportunity to provide any further evidence to the hearing panel. I anticipate that panel members will have questions they wish to ask Ms Sharman.
16 R v Medical Board of South Australia; ex parte S [1976] 14 SASR 360 (SC) at 376.
At the conclusion of Ms Sharman’s evidence and the panel’s questions, you as Ms Sharman’s counsel will have the opportunity to make submissions as to whether or not the charges dated 10 September 2012 have been made out.
The panel will then consider its matters and make its decision.
Second ground of review: error of law in admitting G’s complaints as evidence
[56] Mr Hooker submitted that the Panel made an error of law in allowing into evidence the complaint by G in circumstances where she was not able to be questioned in relation to that complaint.
[57] Mr Hooker had objected to the admissibility of G’s evidence at the hearing on the basis that it was hearsay evidence. In its written decision, the Panel said that it had decided that the rules of evidence contained in the Evidence Act 2006 would govern admissibility before it. It said:
By reference to s 18 of the Evidence Act 2006 the Panel decided that as [G] was dead, it would admit her letter and enclosures of 4 February 2011 as evidence before it. However, because the Panel was unable to test [G’s] credibility and reliability and because Ms Sharman’s counsel challenged [G’s] credibility (Mr Hooker’s submission was that she was “an inveterate liar”), the Panel has relied on [G’s] evidence only where it has been specifically accepted by Ms Sharman in her written response to the Ethics Committee of 6 May 2011.
The Panel has been assisted in its deliberations by Ms Sharman’s letter and enclosures of 6 May 2011. It wanted to discuss Ms Sharman’s evidence with her, but Ms Sharman elected to deny the Panel that opportunity.
[58] Mr Hooker made extensive submissions based upon the proposition that the Evidence Act does not apply and therefore G’s letter should not have been admitted. It was unfair to Ms Sharman because G had died prior to the hearing so she could not be tested upon the allegations in the letter.
Analysis
[59] It is true that the Evidence Act does not expressly bind a tribunal such as the Panel. However as the authors of The Evidence Act 2006: Act & Analysis point out, many non-Court bodies have routinely adopted the Act as the guide to govern the
admissibility of evidence.17 Tribunals are free to adopt and share their own
procedures, as long as “fairness” is the touchstone.18
[60] The approach the Panel took meant that it proceeded only on the basis of the parts of G’s evidence that were admitted by Ms Sharman. Given that approach, any notion that there was unfair prejudice caused to Ms Sharman by the admission of the original letter of complaint falls away.
Third ground of review: that the finding that Ms Sharman was guilty of professional misconduct was unreasonable
[61] Under this heading Mr Hooker groups together all of his previous arguments. They do not improve on repetition. He also raises various other quibbles with how the Panel described Ms Sharman’s various admissions. There is also nothing in those points and I do not propose to go through them. They are entirely without any merit. The reasonableness of the decision having been raised however, it is appropriate that I satisfy myself that the finding of professional misconduct was reasonable.
[62] The basis of the Panel’s finding was the following:
(a) Continuing a counselling relationship for 13 years and more than
570 sessions when the benefits for [G] appear to have been ambiguous at best. The Panel considers this is to be a particularly
serious derogation from the standards of competent, ethical and
responsible practitioners given what it knows from Ms Sharman of
[G’s] personal situation and Ms Sharman’s evidence of tensions in the relationship, including periods where she and [G] could not agree on whether or not to address issues which had been identified in ACC assessments.
(b) The financial arrangements. [G] was an ACC/WINZ beneficiary.
Ms Sharman, as the counsellor, had the responsibility for clarifying her fees and the payment arrangements. The financial arrangements Ms Sharman says were made are unclear and raise multiple issues. They fall seriously short of the arrangements which the Panel believes a competent, ethical and responsible practitioner would make.
17 Mahoney, McDonald, Optican and Tinsley The Evidence Act 2006: Act and Analysis (2nd ed, Brookers, Wellington, 2010) at [EV4.09.01].
18 Craig v Visiting Justice at Auckland Prison HC Auckland CIV-2007-404-5156, 6 June 2008 at
[22].
(c) Obtaining toys, food and parcels from [G] for other clients on several occasions over a prolonged period of time. Ms Sharman provided no justification for this. The Panel does not believe there is one and has found that Ms Sharman exploited her counselling relationship with [G] for her own purposes. It finds that competent, ethical and responsible practitioners would not exploit a counselling relationship in the manner Ms Sharman did.
(d) Discussing her own medical situation and medication with [G], and discussing the needs of other clients with [G]. The Panel believes that Ms Sharman failed to monitor the boundaries between a counselling relationship and other kinds of relationship. It finds that competent, ethical and responsible practitioners would not in this way risk harm to the safety and well being of a client.
[63] It is not in issue that the Panel correctly directed themselves as to the appropriate standard for professional misconduct, applying the test enunciated in Pillai v Messiter.19 In the light of that test, and given the facts as admitted by Ms Sharman, it is difficult to argue against a finding of professional misconduct. The Panel correctly addresses the nature and seriousness of the departure from accepted standards of ethical and professional conduct. The relationship that
Ms Sharman allowed to develop or developed with G was extremely unusual. As the Panel found, it entailed elements of exploitation. As it developed it was of dubious value to G, and risked harm to her.
[64] I have found some merit in Ms Sharman’s challenge to the fairness of how charge one was framed in so far as it included an allegation of dishonesty.20 I have also held that the Panel did not provide proper reasons to explain that finding. Nevertheless, this error involved no risk of a miscarriage of justice, or unfairness to Ms Sharman. The finding of dishonesty does not feature in the Panel’s finding of professional misconduct. Even if it did, I am satisfied that without the finding of
dishonesty, the charge of professional misconduct is well and truly made out.
Result
[65] The second ground of review (error of law based on admission of G’s
statement) and third ground of review (unreasonableness) fail.
19 Pillai v Messiter, above n 3.
20 Charges 2, 3 and 5 also alleged dishonesty but the Panel did not find that allegation made out for those charges.
[66] In relation to the first ground of review (breach of natural justice) I have found nearly all of the multiple challenges without merit.
[67] Ms Sharman is correct however that there is a lack of particulars in connection with the allegation of dishonesty. The reasons given for a finding of dishonesty are also inadequate. Nevertheless, those errors had no bearing upon the finding of professional misconduct. The Panel placed no weight at all upon the finding of dishonesty in finding a charge of professional misconduct proved. There was ample in the conduct admitted by Ms Sharman to justify that finding.
[68] For these reasons I exercise my discretion against the grant of relief. The decision of the Panel stands.
[69] If the parties are unable to agree costs, the defendants may file any application for costs and disbursements within 40 working days (given the intervening court vacation). Any reply submissions to be filed within a further 10 working days.
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