Tsolis v Health Care Complaints Commission

This is an appeal from a decision of NCAT involving a psychologist who was found to be guilty of unsatisfactory professional conduct and professional misconduct.

The practitioner is Sava Tsolis (‘the practitioner’). He is a registered psychologist. The defendant is the Health Care Complaints Commission (‘HCCC’). The practitioner is seeking a judicial review of a previous decision made by the New South Wales Civil and Administrative Tribunal (‘the Tribunal’) that found him guilty of unsatisfactory professional conduct and professional misconduct.

The practitioner was represented by M. Jones of counsel. The defendant was represented by I. Chaterjee of counsel. The parties relied on a joint court book, separated into three volumes (Exs A1, A2 + A3).

This appeal arises from a decision of the Tribunal in Health Care Complaints Commission v Tsolis [2022] NSWCATOD 109 (‘the Tribunal’s decision’). The decision arose from an application made by the Health Care Complaint Commission (‘HCCC’) to NCAT prosecuting a complaint made against the practitioner by Patient A.

On 4 January 2018 Patient A made a formal complaint against the practitioner to the Psychology Council of New South Wales.

On 22 January 2018 the practitioner was subject to an enquiry pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (‘the National Law’). Findings and supporting reasons were made and published on 29 January 2018. The psychology board proceeded to impose conditions on the practitioner’s practising certificate.

On 4 June 2021 the HCCC made an application to NCAT to prosecute the complaint made by Patient A. The complaint was comprised of three complaints each broken into particulars.

On 28 September 2022, the Tribunal comprising of R.C. Titterton OAM, W Roberts and C Allen, all Senior Members and R Kusuma, General Member (‘the Tribunal’) then issued draft reasons to the parties.

The parties wrote to the Tribunal indicating that there were some obvious typographical errors in the decision. The practitioner’s legal representatives indicated that there were perceived to be errors in the nature outlined in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1.

The Tribunal sought submissions as to whether there were any parts of the decision that ought to be supressed or redacted from the published decision. The practitioner’s legal representatives submitted that, until the determination of the Stage Two decision, the practitioner’s identity ought to be redacted. The Tribunal sought further submissions on the matter but, ultimately the plaintiff did not press his application on the basis that the costs of further submissions were too costly.

On 25 November 2022 the Tribunal published its decision. The practitioner seeks relief from the whole decision and seeks that the decision be set aside and declared invalid. The practitioner relies on the affidavit of Paul Blake dated 21 April 2023 (‘Blake aff’) in Ex A.

This appeal is brought pursuant to Sch 5, cl 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘CAT Act’). Clause 29(2) provides that a party to proceedings in which a “profession decision” is made has a right to appeal against that decision to the Supreme Court. Clause 29(1)(d) defines a “profession decision” to include “a decision for the purposes of the Health Practitioner Regulation National Law (NSW)”.

Clause 29(4) of Sch 5 of the CAT Act provides that an appeal lies as of right on any question of law.

The practitioner seeks the following orders:

The first issue to be decided is whether the plaintiff requires an extension of time to lodge his appeal.

The face of the published record states that the orders were made and given on 28 September 2022. However, those reasons were subject to what were described as “errors”. Orders were not entered or published at that time. The Tribunal subsequently amended the decision. Those amended reasons and orders were entered and published on 18 November 2022 (‘the decision’). I will take it that the material date is 18 November 2022. Therefore, the appeal was lodged on 15 December 2022, which is in time.

If I am wrong and the material date is 28 September 2022, the practitioner requires an extension of time to pursue this appeal. The defendant makes no submission as to prejudice. Hence, I would grant an extension of time to file the amended summons up to and including 15 December 2022.

The practitioner was Patient A’s treating psychologist for the period 22 April 2016 to August 2017, though the last time the practitioner actually saw Patient A would appear to be 17 July 2017.

In April 2016, Patient A, the practitioner’s initial assessment of her patient’s mental state was that she suffered from (probable) bipolar II disorder, substance and alcohol use disorders and social anxiety. She disclosed to the practitioner a significant history of sexual, emotional and physical abuse, commencing when she was a child and continuing through her teen years and as an adult. The abuse was from her older siblings and then various partners.

For the purposes of this appeal, the relevant factual matters underpinning the complaints made against the practitioner can be categorised into four main categories.

First were complaints about the manner in which therapy was conducted. This included the use of nicknames (with the practitioner calling Patient A ‘kid’ and ‘my love’, and, and Patient A calling the practitioner ‘boss’); the practitioner telling Patient A she was ‘beautiful’ and ‘intelligent’; and engaging in excessive, in the context of the ongoing therapeutic relationship, telephone and SMS contact with Patient A. These were the subject of Complaint One (Blake aff, Annexure 5 p 64) of the three complaints and all of the matters identified were admitted by the practitioner, albeit that the comments as ‘beautiful’ and ‘intelligent’ were apparently made to ‘instil some self-confidence at a time when she had a very negative view of herself’ (at [85]), and the excessive conduct was asserted to be ‘emergency correspondence’.

Second was complaints of inappropriate physical or sexualised conduct in the course of therapy including: allegations that the practitioner had inappropriately touched Patient A’s thighs and forehead; the practitioner had hugged her; and the practitioner had made inappropriate comments to her of a sexual nature. These were there subject of Complaint Two, and materially, the only element in this category found proven by the Tribunal was that the practitioner had hugged patient A on multiple occasions (at [224]).

Third were circumstances that led to the practitioner and Patient A having dinner at the restaurant on 9 July 2016, the dinner itself and the events immediately following. It is not in dispute that the dinner was arranged and paid for by the practitioner, and that Patient A had consumed alcohol at the dinner.

The practitioner accepted that Patient A had a problem with alcohol at the time. Approximately 3 weeks before the dinner, the practitioner referred Patient A to the depression clinic at Prince of Wales Hospital. He noted that Patient A was abusing cocaine, cannabis and alcohol on a daily basis (at [121]). The practitioner also accepted that on the day of the dinner, he believed that Patient A ‘likely had a drug disorder and alcohol disorder’ (at [122]) and asserted that he had a ‘background concern’ as to suicidality on her part (also at [122]).

In addition, it was alleged that the practitioner inappropriately touched and kissed Patient A at the dinner and in the Uber ride from the restaurant to her home. The Tribunal was not satisfied as to the former, but found (on the strength of evidence from the Uber driver Mr Vinod Rehaan) that the practitioner and Patient A had hugged and kissed on the ride to her place of residence.

Fourth is the allegation that the practitioner lied to the Psychology Council, in telling them that he had not consumed alcohol at the restaurant (Complaint 3, Particular 8)).

The defendant submitted that what is fatal to the practitioner’s appeal is that the Tribunal expressly identified three separate bases on which it was satisfied that the practitioner had engaged in professional misconduct. Only one of those was on the basis of findings it made with respect to disputed facts. The remaining two bases rested wholly on admissions made by the plaintiff.

The Tribunal was satisfied that the practitioner had engaged in both professional misconduct and unsatisfactory professional conduct. At [261]-[264], it stated:

The next issue to be addressed is one of materiality. The defendant submitted that the plaintiff's approach in these proceedings, and the timing of it, has the result that it is fundamentally flawed. In short, the defendant submitted that a judicial review should be lodged after both stages 1 and 2 of the hearing have been finalised. This judicial review relates to only Stage 1.

The Tribunal below was dealing with a disciplinary application brought by the defendant with respect to conduct the plaintiff, the practitioner was said to have engaged in with one of his patients. Patient A was in the decision below (the Tribunal’s decision) and in these submissions, referred to as "Patient A".

That application (which specified three separate Complaints) was brought pursuant to section 144(b) of the National Law which relevantly reads:

The complaint against the practitioner alleged that he had engaged in both unsatisfactory professional conduct (Complaints One and Two), and professional misconduct (Complaint Three, relying on certain particulars set out in Complaints One and Two, or alternatively all particulars in both Complaints taken cumulatively).

Relevantly, the National Law defines professional misconduct as being "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration" (section 139E, National Law).

On satisfaction that conduct is either unsatisfactory professional conduct, or professional misconduct, under the National Law the Tribunal's discretion to impose disciplinary orders will be enlivened (see relevantly sections 149 - 149C). Stage 2, which is yet to take place (if this appeal fails) is the hearing as to the appropriate disciplinary orders to be imposed.

A number of the factual allegations contained in Complaints One and Two were admitted by the plaintiff, but he denied that conduct amounted to either unsatisfactory professional conduct or professional misconduct.

The statutory task that the Tribunal was required to undertake was: first, a resolution of the disputed facts; second, whether on the facts that it either found proved, or were admitted, or some combination, the practitioner had engaged in unsatisfactory professional conduct; and third, if so satisfied, whether such conduct amounted to professional misconduct.

The recent decision of Health Care Complaints Commission v Robinson [2022] NSWCA 164 (‘Robinson’), Simpson AJA (Leeming and Kirk JJA agreeing) stated at paragraphs [54]-[56]:

Here, none of the plaintiff's grounds of appeal address in any way the Tribunal's alternative paths of reasoning set out at [262]—[263] respectively, and which are based solely on facts admitted by the plaintiff.

Those separate paths of reasoning constitute "separate findings that independently led" to the Tribunal's ultimate conclusion (SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31 per Bennett J at [28]; see also [34] - [41]), which in itself is a basis to dismiss the appeal.

Further, as no disciplinary orders have been made yet, this appeal is purely hypothetical. That is, the Tribunal may ultimately decide to impose orders that it is satisfied could be made solely on the basis of the facts that are admitted (or that are not challenged).

Those two matters make it effectively impossible for the plaintiff, at this time, to demonstrate that any asserted errors are material in the sense contemplated by Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, and which the plaintiff must do as it asserts jurisdictional error in the decision.

The HCCC erroneously contends that the practitioner’s appeal is fatal on the basis of materiality. With respect, that is a flawed contention that ignores or misunderstands the statutory task before the Tribunal. A finding of professional misconduct does not necessarily foreshadow cancellation or suspension rather, the stage one findings must be considered to decide an appropriate penalty to be imposed on the practitioner at Stage Two.

There is no requirement or statutory recognition of the bifurcated two-stage process. For the purposes of the National Law, Stage one and Stage Two are a convenient way of dealing with a singular statutory task. Stage one typically requires a determination of factual allegations against a practitioner and determination of whether that practitioner has engaged in unsatisfactory or professional misconduct. Stage Two typically requires a determination, having considered the findings at Stage one, of an appropriate penalty that considers the protection of the public, the profession and general deterrence from repeat behaviour.

The HCCC erroneously contend that the appeal is hypothetical. That contention is misguided in circumstances where the HCCC ought to be cognisant that lawful factual findings in Stage one are a fundamental basis for the proper exercise of the Tribunal’s jurisdiction in a penalty at the Stage Two hearing.

In substance, at Stage Two, the practitioner will be required to demonstrate, inter alia, insight and remorse into the allegations said to have been established against him in the stage one hearing. It can be readily accepted that a failure to make lawful determinations about the allegations made against the practitioner at stage one would frustrate the proper exercise of jurisdiction at Stage Two. This is especially true where the interest of the public, the profession and deterrence were critical sentencing factors. In this light, the impugned errors move beyond that of technical errors but will have a material impact on the proper exercise of the Tribunal’s statutory task.

It would be an absurd and prejudicial process to allow a Tribunal to proceed on unlawful findings when those findings are plainly material to the outcome of the Stage Two hearing. Such a path would depart from the objects of the CAT Act and s 56 of the Civil Procedure Act 2005 (NSW).

To impose a penalty against the practitioner that accords with the Tribunal’s obligations to, inter alia, protect the profession, the public and/or impose some level of deterrence, the Tribunal must necessarily consider and address each of the findings against the practitioner. Without doing so would be a constructive failure to exercise jurisdiction.

It follows that a failure to lawfully perform a primary statutory duty (Stage 1 factual determination of allegations) which, in turn, affects the subsequent statutory duty (stage 2), must be material for the purposes of this appeal. The invocation of judicial supervision at this time is necessary for the just and practical resolution of the proceedings.

The impugned findings are material to the outcome of the proceedings below and, even if there is an available alternative path of reasoning used to reach a finding of unsatisfactory or professional misconduct, the Tribunal is required to consider all the conduct alleged and purported to be established against the practitioner to properly exercise its jurisdiction at Stage 2. Where errors are established in stage 1, each of the errors are material to the proper exercise of the Tribunal’s statutory task.

It is common ground that the Court has inherent supervisory jurisdiction and jurisdiction conferred by section 69 of the Supreme Court Act 1970 (NSW).

All that is required for the practitioner to establish his case and so to enliven the Court's power to issue remedies is for the Court to find an error of law on the face of the record (the "record" is the written reasons - see, section 69(3) & (4) of the Supreme Court Act 1970 (NSW)). Errors of law on the face of the record need not be errors going to jurisdiction.

If the Court forms a view that determination of allegations made against the practitioner in medical disciplinary proceedings were not material, or do not enliven an avenue of appeal, on the basis that they do not challenge the finding of professional misconduct or unsatisfactory professional conduct, the practitioner contends that the supervisory jurisdiction of the Court is enlivened for purposes of addressing jurisdictional error and error on the face of the record having exhausted avenues of appeal and review.

The appeal mechanism is akin to a formal version of judicial review. This appeal relies on errors on the face of the record and jurisdictional error. The orders sought in the practitioner’s amended summons expressly identify a remedy typically sought in judicial review. In many respects, the avenue of appeal is a formal version of judicial review with leave available for grounds outside that of an error of law. The practitioner expressly relies upon the orders sought in the alternative in the amended summons and says that those orders sought are sought pursuant to the appeal mechanism concurrently with judicial review if such an appeal is not enlivened. If the appeal is not enlivened in not challenging the conclusion of unsatisfactory professional conduct or professional misconduct, the impugned findings are material to the discharge of the Tribunal’s statutory task and, having exhausted appeal avenue, warrants the invocation of judicial supervision in this matter.

It is incorrect to say that the alternate paths of reasoning set out at [262]-[263] of the Tribunal’s decision are based solely on the facts admitted by the plaintiff. Some of the particulars of the complaints themselves were contested before the Tribunal, such as there were factual findings made in relation to the practitioner calling Patient A “my love” and particularly in relation to the night of the dinner at the restaurant and the consumption of alcohol. In Robinson, the New South Wales Court of Appeal was not critical of the approach of the NCAT Tribunal taking the two-stage approach. The Tribunal had already decided that the hearing was to proceed in “two stages”. In these circumstances, I would not interfere with its prior decision, that the hearing would take place in two stages.

The grounds of appeal are lengthy and, in some ways, repetitive. They have required careful analysis. I shall set them out in full here, but then group them into the main topics as outlined earlier in this judgment:

I shall deal with appeal grounds 1, 2 and 10 first as they related to Complaint One, followed by appeal grounds 3 to 7, the dinner, consumption of alcohol at the restaurant and misleading the Psychology Council (appeal ground 8), hugged and kissed Patient A (appeal ground 9), conduct of a sexual nature (appeal ground 11) and the exposure session (appeal ground 12), in seriatim. It is convenient to record here that the particulars of each of the three complaints are relied upon constituting unsatisfactory professional conduct either individually or only in combination with other particulars.

I take into account that the reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’), the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (Vic) to explain “the actual path of reasoning” (at [55]):

I also accept that the Tribunal has an obligation to provide lawful reasons, a failure to respond to a substantial and clearly articulated argument will amount to a denial of procedural fairness and a constructive failure to exercise jurisdiction.

In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (‘Cervantes’) at [19] - [22], Basten JA said:

The underpinning of the plaintiff’s grounds of judicial review are the complaints one, two and three, including their specific particulars that I will reproduce in this judgment.

Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of psychology is significantly below standard reasonably expected of a practitioner on equivalent level of training or experience.

Particular 1 is relied upon as constituting unsatisfactory professional conduct either individually or in combination with other particulars.

The particulars of Complaint One, particular 1 is as follows:

On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he:

So far as particular 1(a) is concerned, the practitioner admitted calling Patient A “Kid”, the Tribunal found that it was established.

The practitioner admitted particulars 1(c)—(d). He admitted to calling Patient A “beautiful” and “intelligent”. Particulars (1)(e)(f) were not established, because it did not accept the evidence of Patient A as being sufficiently established: Tribunal decision [6]. So it is only the findings as to particular 1(a) in relation to “my love” under challenge in this judicial review.

It is “my love” that is the only disputed particular in 1(a). As set out earlier, Complaint One, Particular 1(a) states:

On this topic of “my love” at [100] and [101], the Tribunal, after referring to the practitioner’s evidence, stated:

The practitioner submitted that the error amounts to a jurisdictional error in that the finding is based on no evidence, the finding is legally unreasonable, the Tribunal have erred in failing to apply the correct standard of proof, the Tribunal misunderstood the nature of the question that was required to be determined, the Tribunal misunderstood or mistakenly erroneously interpreted the evidence that was before the Tribunal which affected the way in which the tribunal’s power was exercised.

The Tribunal misunderstood or misstated the evidence that was before them, and as a direct consequence of that misunderstanding, the Tribunal was erroneously satisfied, at [4], [218] and [269] that Complaint One, Particular (1)(a) was established.

The Tribunal was firstly required to find that the Practitioner had referred to Patient A as “My love”. The practitioner then submitted that the Tribunal was then required to take the further step to determine whether the practitioner referred to Patient A as “my love” on multiple occasions.

The disclosed path of reasoning by the Tribunal illustrates a critical misunderstanding of the evidence that was before them. The practitioner had admitted to referring to Patient A as ‘kid’ on multiple occasions. It was therefore open to the Tribunal to have made a finding of partial satisfaction. However, the practitioner submitted that the Tribunal elected to find the whole particular was established.

In support of Tribunal’s finding that on more than one occasion the practitioner referred to Patient A as ‘Kid’ and ‘My Love’, it relied on the following reasons:

This passage above is repeated at [215] of the Tribunal’s decision. The practitioner made no such admission and that the Tribunal relied on a positive admission by the practitioner in reaching a reasonable satisfaction of the allegation. Without an express admission, the practitioner submitted that the finding lacks evidence and intelligible justification.

Further, the Tribunal went to considerable lengths to illustrate that they were unable to rely on uncorroborated evidence of Patient A. The Tribunal repeatedly express that they were unable to accept Patient A’s evidence unless it was independently and objectively corroborated. In this circumstance, it was critical to illustrate a lawful application of those principles in Briginshaw v Briginshaw (1983) 6 CLR 336 (‘Briginshaw’) in coming to their reasonable satisfaction. The Tribunal has not done that and instead, has purported to making a finding based on an objectively mistaken interpretation of the evidence before the Tribunal.

That practitioner’s ‘Reply’ before the Tribunal is materially different to the points of defence that were actually not before the Tribunal, in that it does not deny that the practitioner referred to Patient A as "my love", but instead was silent as to the allegation.

The practitioner did admit to calling Patient A "my love" on one occasion. The practitioner’s oral evidence on this issue was to the effect that he might have called Patient A "my love" on one occasion but could not recall.

What is not set out is the exchange almost immediately following between the Tribunal and counsel for the practitioner (Evidence of the practitioner, Transcript 16 March 2022:

A denial that conduct had occurred on "more than one occasion" is necessarily an admission that it occurred on one occasion. That is how the Tribunal understood the practitioner's position:

In the Tribunal, the practitioner was recorded at [93]:

The Tribunal then proceeded to make a finding that the practitioner had called Patient A "kid" on multiple occasions, and "my love" on one occasion, with the latter based on the practitioner's admission.

The Tribunal was not required to (nor did it) find that the practitioner had referred to Patient A as "my love" on multiple occasions.

In any event, a different result would not have been reached. The use of the nickname "my love" formed part of one sub-particular to an allegation that the practitioner had engaged in unsatisfactory professional conduct by failing to maintain appropriate professional boundaries.

Neither the expert evidence on the issue nor the Tribunal's reasoning differentiated between the use of "kid" and "my love" as nicknames. Rather it was the use of nicknames per se that in the opinion of the HCCC’s expert, Professor Kenny, was problematic in that they "infantilised Patient A and exaggerated the power imbalance between therapist and patient" (at [248]). The practitioner admitted to using at least the nickname "kid" on multiple occasions. It cannot be argued that the Tribunal may have reached a different conclusion if it had not found that the practitioner had called Patient A "my love" on one occasion.

The transcript does not illustrate an admission that the practitioner had referred to Patient A as “My Love”. Simply, the transcript illustrates that the questions of the tribunal was answered in the same way that the allegation had been framed. Nothing further.

In matters as serious as these disciplinary proceedings, there is a substantial gap between an active and outward admission of conduct and silence on the matter or denying the allegation as it has been framed by the HCCC. Simply, a denial of an allegation on the same terms in which it was framed against the practitioner is not necessarily an admission as the HCCC would have it. If it were, then the Tribunal ought to have explained that as precisely their path of reasoning. Instead, the Tribunal merely state there was an admission but fail to point to the source or location of an express admission of the allegation.

There appears to be a dispute as to whether the Tribunal was required to find that the practitioner had referred to Patient A as “My Love” on more than one occasion. However, if it is the case that the Tribunal was only required to find that he had referred to Patient A as “my love” on a single occasion. That was never brought to the attention of the practitioner; it is contrary to the ordinary construction of the allegation against him and there is still no reasonable evidence of an admission that the practitioner did in fact refer to Patient A as “My Love” even on one occasion.

This error is demonstrably material in that the phrase “My love” has connotations of intimacy. Further, the practitioner will be required to show insight and remorse for a finding that was not available and based on a fundamental misunderstanding of the allegation and evidence before the Tribunal.

In the practitioner’s reply, he admitted Particular 1(a) in so far as he referred to Patient A as “kid”. That is common ground. So far as “my love” is concerned, the practitioner denied that he called Patient A ‘my love’, but in evidence the practitioner admitted that it certainly did not happen on more than one occasion. His evidence aligns with the admission he made in his reply.

The practitioner here and throughout the grounds of appeal submitted that the Tribunal’s findings do not satisfy the “Briginshaw test”.

In Briginshaw, Dixon J stated at 361 – 362:

While these proceedings are heard on a civil standard, when the Briginshaw test applies is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue. When the test is raised in the other grounds of appeal, this is the test that I have adopted throughout my reasoning.

I accept that the Tribunal was only partially satisfied that particular 1(a) had been established. While this is so, Complaint One, Particular 1(a) is to be considered either individually or in combination with other particulars. Additionally, there was evidence from the expert, Professor Kenny that it was the issue of nicknames per se that was problematic in the way they “infantilised Patient A and this exaggerated the power imbalance between Patient A and the practitioner. Put into context, the practitioner admitted he allowed Patient A to call him boss and he called her “my love on one occasion”. In circumstances where the particulars are to be individually and cumulatively considered [my emphasis], there is overwhelming evidence to establish that Complaint One has been established to the satisfaction of the Briginshaw test on a cumulative basis. No error of law or jurisdictional error has been made out. Appeal ground 1 fails.

Complaint One, Particular 2 is that between 28 April 2016 and 23 May 2017, the practitioner failed to maintain appropriate professional boundaries in that he exchanged the following number of 'out-of-session' telephone calls and text messages with Patient A in circumstances where the amount of contact was excessive in the context of the therapeutic relationship and some of the communication was personal in nature:

These messages and phone calls are set out at CB 438-458.

The Tribunal erred in finding that Complaint One, Particular 2, was wholly established, namely that “[s]ome of the communication was personal in nature”.

The practitioner had admitted to the allegation of the volume of calls and text. Specifically in the points of the defence the practitioner asserted responded to Complaint One, Particular 2, with the following:

In response to 2(a)–(d) of the particulars, the practitioner admitted the allegations contained in those paragraphs but says that the correspondence was in the nature of emergency correspondence or in maintenance of possible suicidal thoughts.

The practitioner had made a substantial and clearly articulated argument that the communications were not personal in nature and that the HCCC had not pointed to the communications with any particularity that could have satisfied the Tribunal that “[s]ome of the communication was personal in nature” pursuant to the HCCC complaint.

The Appeal Panel has not dealt with this substantial and clearly articulated argument. In fact the Tribunal appear to have overlooked the requirement of the allegation and were satisfied of the whole complaint on the admission of the volume of the communication alone. This is a failure to exercise jurisdiction and a denial of procedural fairness to the practitioner.

In failing to respond to the substantial and clearly articulated argument, the Tribunal have also failed to provide lawful reasons for their satisfaction that “some of the communication was personal in nature”.

The practitioner's reply admitted the allegations set out in Complaint One, Particular 2.

The practitioner understood below that the HCCC's case concerned the frequency of contact and not the content of the messages - see for instance the practitioner's closing written submissions filed 20 May 2022 at Annexure P Blake at [132].

Expert opinion was relied upon by the HCCC that went solely to the volume of contact. Professor Kenny was of the view:

The Tribunal, in an orthodox manner, considered the expert opinion relied on by both the HCCC and the practitioner (being a Mr Rolfe), and preferred Professor Kenny's opinion (decision at [248] - [256]) and that part of the decision is not being appealed.

It is also relevant to note that the practitioner never made good his case that the volume of communication "was in the nature of emergency correspondence or in maintenance of possible suicidal thoughts". His written referrals to other practitioner’s (see for instance to Dr McInnes dated 25 May 2016 – Tribunal Decision at [172]) identified Patient A as having "nil suicidal ideation".

The practitioner's progress notes identify that a suicide risk assessment was conducted on five occasions (22 April, 9 May, 23 May, 9 June 2016, and 2 March 2017), none of which disclosed any suicidal ideation.

None of the practitioner's four prior written statements refer to any suicidal ideation expressed by Patient A, or any concerns the practitioner had in that regard.

The only evidence led by the practitioner on the issue was in chief at the hearing, which was both general and brief in nature. Given the adverse credit findings made by the Tribunal in relation to the practitioner, and the fact that his evidence was contrary to the contemporaneous written records, his oral evidence was of little import.

For a failure to consider an argument to amount to jurisdictional error in the Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26 (‘Dranichnikov’) sense, the argument must rest "upon established facts". None of the facts the argument rests on are identified by the practitioner in his submissions, nor were they identified below.

In Dranichnikov, Gummow and Callinan JJ stated at [24]:

Finally, it is relevant to note that this particular formed a relatively minor part of the complaint. Professor Kenny was not strongly critical of the practitioner’s conduct in this regard, and this particular was only relied on in concert with other particulars to establish unsatisfactory professional conduct and professional misconduct.

The finding is relevant and material to Stage Two as it will require the practitioner to respond, in some way, to a finding that the communication was personal in nature. If the allegation did not require that the communication was personal in nature, then that part of the allegation ought to have been withdrawn.

Further, the HCCC does not point to or illustrate anywhere in the decision that the Tribunal have responded to the substantial and clearly articulated argument.

The Tribunal has expressed its clear preference for the opinion of Professor Kenny over Mr Reed. In the context of Professor Kenny’s opinion, the personal nature of the communication was a minor point and can be read in the context of being joined with the complaint of excessive communication in the context of the practitioner and Patient A’s therapeutic relationship.

The practitioner has given an intelligible explanation to justify the excessive contact in the context of the therapeutic relationship between himself and Patient A. Patient A’s purported ‘suicidal ideation’ has not been proven on the facts. The Tribunal’s preference for Prof. Kenny’s reasons stated above is sufficient for it to validly make its finding. The Tribunal have not failed to consider the substance of the practitioner’s argument to an extent that they have misunderstood their task.

The practitioner admitted that between 28 April to 23 May 2017, he failed to maintain appropriate professional boundaries in that he exchanged 122 telephone calls initiated by Patient A. That is 137 telephone calls initiated by the practitioner, 82 text messages sent by Patient A and 53 text messages sent by the practitioner and out of session telephone calls and messages with patient A in circumstances where the amount of contact was excessive in the context of a therapeutic relationship and some of the communication was personal in nature. In the light of the practitioner’s admission, the Tribunal’s reasons needed only to be brief.

The Tribunal stated in relation to the practitioner accepting a large number of out of session test and phone calls from Patient A, it was Prof. Kenny’s opinion that the telephone conversations between Patent A and the practitioner, the calls and texts were too frequent and should not have been permitted to continue in the way that they did and that for a substantial part of the therapeutic contact, Patient A viewed the practitioner as a secure attachment figure to whom she could turn to for emotional regulation. Her reliance on contact and the practitioner’s inability to properly curtail this expectation fell significantly below the standard reasonably expected a practitioner of equivalent training experience.

The Tribunal stated that Prof Kenny’s opinions were supported by logical and persuasive reasons, Mr Reed’s report prepared for the practitioner was asked to comment on the practitioner’s use of nicknames for Patient A, and the volume of text messages and phone calls between Patient A and the practitioner. The Tribunal found that part of the narrative report [Dr Reed’s Report] of 31 January 2022, to be unhelpful to our task and unpersuasive.

The practitioner argued that the Tribunal failed to properly express its opinion on whether the communication between the practitioner and Patient A was personal in nature and that Professor Kenny’s opinion formed a minor point. Read in context, it was not. None of the facts the practitioner’s argument rests on are “established facts” identified by the practitioner in his submissions or identified in the Tribunal’s hearing. It follows that the Tribunal has not failed to consider an argument that would amount to a jurisdictional error in the Dranichnikov sense. This ground of Appeal fails.

Particulars 1(b), (6) and 7(d) were withdrawn during the hearing. Each of the Particulars 1(a), 1(b), (2), (3), (4), (5)(c) and (7) were not established. Each of Particulars (1)(a), (b), 5(a)(b) and (d), (8) and (9) were established.

The Tribunal erred in finding (decision at [6] and [269](3)) that Complaint Two, Particulars 1(a) – (c) were satisfied.

Appeal ground 2 concerns particulars 1(a)-(c) of Complaint Two which alleges that at certain times, the practitioner failed to maintain appropriate professional boundaries in that (a) he touched Patient A’s thighs; (b) kissed Patient A’s forehead and (c) hugged Patient A. Only particular (1)(c), hugging the Patient A was established.

Each of particulars (1)(c), 5(a)(b) and (d), (8) and (9) were established. Particular (1)(b) of complaint was withdrawn.

Complaint Two is relevantly as follows:

The Tribunal stated at [223]—[224]:

The practitioner referred to the Tribunal’s decision at [6] and [269][3]. They read for the following reasons, in relation to Complaint Two, we find each of Particulars (1)(a) to (c) are established. The Tribunal orders that each of Particulars (1)(a) to (d) is established. Only in relation to Complaint Two, Particular 1 and [269][3]. The Appeal Panel made findings that Complaint Two, particulars (1)(a) and (c) are established.

The practitioner submitted that the Tribunal have erred in finding, at [6], and making orders effecting the finding at [269](3), that Complaint Two, Particulars 1(a), (b) & (d) were satisfied. It is accepted that at both [6] and [293] of its decision, the Tribunal stated (incorrectly) that each of those particulars were found proved. Appeal Ground 2 focuses on the error contained in relation to Complaint Two, Particular (1)(c).

The Tribunal stated twice in their decision that the Tribunal was satisfied of the particulars 1(a)—(c). The Tribunal also made orders effecting those findings.

The practitioner submitted that the Tribunal’s findings are: based on no evidence; a lack of evident and intelligible reasoning, and are, accordingly, legally unreasonable; and finally, fail to illustrate an application of the lawful test of proof. It is submitted that the error is entangled with the orders, the reasons and the findings of the decision and therefore, it goes beyond a mere typographical or slip rule error. The practitioner seeks to render the decision null. The HCCC also noted that the findings and orders are material to the consideration of the Stage Two hearing where the practitioner will be expected to show, insight, education and remorse on professional findings. It is critical to those proceedings that the findings, reasons and orders be made in accordance with law.

However even a cursory review of the Tribunal decision identifies that to be a typographical error. The Tribunal, in its reasons dealing with this conduct, was clear that it only found Complaint Two, Particular 1(c) (that is, as to hugging Patient A during sessions) was established.

Then, in considering whether the factual matters alleged in Complaint Two amounted to unsatisfactory professional misconduct, the Tribunal (correctly) only took into account (of the matters alleged in particular one (c)) its finding that the practitioner had hugged Patient A in sessions:

The Tribunal at [257] stated:

The Tribunal stated under the heading, ‘Are the Particulars of Complaint Two established?’ at [223]:

It is noted that various other typographical errors in the decision were identified by the HCCC, and a consent application made to correct those errors. The errors in [6] and [293] were never raised by the practitioner. Had they been, the Tribunal would have been able to identify, definitively, to the parties whether those matters were typographical errors on intended findings.

On balance, they are plainly inadvertent errors. Those errors are also not "entangled within the orders, the reasons and the findings of the decision" and beyond general assertion, no identification is made of why these errors are material or otherwise influenced the Tribunal's reasoning as to its ultimate conclusions.

The decision has been publicly published, without redaction of the practitioner’s name. The face of the record states that the Tribunal was satisfied, and made orders to the effect of the Tribunal’s satisfaction of Complaint Two, Particular (1)(a), (b) and (d).

In addition to the prejudice suffered in the publishing of an erroneous decision and the subsequent media reports, the practitioner will be prejudiced in the Stage Two hearing if the error is not set aside.

The correspondence of the HCCC, which was sent with the consent and agreement of the practitioner, expressly identifies that there are errors with findings of Complaint Two, Particulars (1)(a)–(c).

Specifically, the correspondence states:

If these were simply typographical errors, they were brought to the attention of the Tribunal. The failure to amend this error goes beyond that of a typographical error.

The Tribunal was properly constituted by four members. Each of those four members read and approved those orders. Even when other errors had been brought to the attention of the Tribunal, the Tribunal saw fit to publish the decision containing those findings, orders and internally inconsistent reasons.

Further, the practitioner had written to the Tribunal and indicated that he considered that the Tribunal had made errors in the nature of Bhardwaj. The Tribunal failed to respond to that correspondence. Instead, it simply published the decision that is now subject to this appeal.

This error afflicts the whole published decision. The error reads at [3] in the preamble to the decision, then is repeated in findings at [6] of decision and then, ultimately orders effecting that error at [269]. It appears that the HCCC agree that there is an obvious internal inconsistency between the reasons provided, findings and the orders.

This is not the kind of error contemplated by the slip rule. There is a cavernous gap in the decision between the reasons provided and the orders of the Tribunal. Whether the error is in the reasons, incomplete reasons, or in the findings and orders themselves, the nature of the internal inconsistency between the reasons at [223] of the decision and the balance of the findings and orders render this error material and inextricable from the record.

Even if the HCCC’s contention was accepted that these were inadvertent errors, the decision was published publicly, the decision was then reported in the media and has resulted in irreparable damage to the reputation of the practitioner and his practice. The decision must be set aside.

While the Tribunal incorrectly recorded at [269][3] that Complaint Two, (1)(a)(b) and (d) were satisfied, it only particular (1)(c) that was in fact established. There was no particular 1(d) in Complaint Two. I have focused on the substance in relation to Complaint Two contained in the Appeal Panel’s reasoning in its decision. At [223], the Tribunal reasoned that it did not find particulars 1(a) and (b) were established because the Tribunal did not accept the uncorroborated evidence of Patient A as being sufficiently persuasive. In relation to Complaint Two, Particular 1(c) at [224], the Tribunal stated:

In my view it is clear that the Tribunal made a finding that only Particular (1)(c) that was established. In these circumstances, no error of law or jurisdictional error has been established. Appeal ground 2 fails.

Not surprisingly, the practitioner admitted particular 5(1)(a) that he was Patient A’s treating psychologist.

The Appeal Panel stated at [51]—[65] in its decision:

The following case note was made by another treating psychologist during her appointment with Patient A on 31 October 2017. It relevantly reads:

The practitioner challenges findings made by the Tribunal that he ordered and consumed alcohol with Patient A at the restaurant.

Grounds 5 and 6 were that the Tribunal erred in finding (decision at [113], [122], and [182]) that “all of the alcohol had been consumed” and the Tribunal erred in finding (decision at [182]) that the practitioner ordered the alcohol (‘consumption of alcohol’). I will focus on appeal grounds 5 and 6 of appeal before dealing with appeal Grounds 3, 4 and 7.

The practitioner submitted that grounds [5]-[6] are central to the other grounds of appeal on this topic. That being so, I will address appeal grounds (5) and (6) first.

The Tribunal erred in finding that the practitioner on 9 July 2016, had consumed alcohol at a dinner with Patient A. The natural consequence is that the Tribunal was erroneously satisfied that Complaint Two, Particular (5)(b) was established.

The HCCC acknowledged that the reasoning set out at [261] of the Tribunal’s decision rests on the basis of findings made on disputed facts, and in particular that the practitioner and Patient A had consumed alcohol together at the dinner, and were physically intimate. If the practitioner is able to succeed on Grounds 3 to 9 of its appeal (all of which contest those two factual findings), it may succeed in overturning the first line of reasoning.

Prior to the hearing, the practitioner had agreed that Patient A had consumed alcohol. The practitioner had consistently denied that he had consumed alcohol. A practical consequence of the Tribunal’s satisfaction that the practitioner had consumed alcohol was that the practitioner had misled the psychology council (Complaint Two, Particular 9).

The Tribunal ought to have had at the forefront of their minds the gravity of the consequences flowing from the alcohol findings. The reasons fail to demonstrate that the Tribunal grappled with the gravity of consequences that might flow from the alcohol findings. Instead, the reasons reveal that the Tribunal rely upon assumptions informed by their own experiences rather than established conduct of the practitioner to reach their state of satisfaction.

In coming to its conclusion, the Tribunal made a finding at [182] of its decision:

This passage reveals the critical statement in support the Tribunal’s satisfaction of Particular 5(b). The assertions in this passage, and the Tribunal’s reasons generally, are afflicted with jurisdictional error.

Central to the argument on the alcohol findings are Grounds 5 and 6. Those grounds illustrate that the Tribunal’s satisfaction rests upon lawfully erroneous determinative factors being:

These were determinative factors that are afflicted with legal error, vitiating the Tribunal’s findings on alcohol. The above impugned findings were determinative findings in leading the Tribunal to conclude that the Complaint One, (5)(b) had been established.

Without those determinative factors, the Tribunal’s alcohol findings rest upon that alternative transport arranged for the event.

The error is clear in contemplation of the actual words of the tribunal “allowed him to consume alcohol if he wished”. There is an unexplained leap in the tribunal’s path of reasoning that simply concluded that the only reasonable explanation for taking an Uber to and from an event would be to consume alcohol. In real terms the Tribunal concluded that the practitioner had the option of drinking alcohol at the restaurant so he must have. That path of reasoning lacks evident and intelligible justification. That path of reasoning fails to illustrate a substantive grappling with the lawful standard of proof. The path of reasoning relies on the Tribunal’s own personal experience rather than that of the practitioner’s conduct.

The path of reasoning provided on the alcohol findings is afflicted with legal error.

Should the errors in Ground 5 and 6 be established, the Grounds 3, 4 and 7 must succeed. The findings at Grounds [5] and [6] were fundamental to the purported satisfaction of the tribunal in relation to Ground [3], [4] and [7].

The material consequences that flow from those findings are serious. The Tribunal was required to illustrate a lawful path of reasoning that disclosed the application of the lawful standard of proof. The Tribunal have failed to do so.

The Tribunal erred in making a finding that all the alcohol had been consumed. At [113] the Tribunal stated:

The Tribunal erroneously stated that the bill for alcohol showed that all the alcohol had been consumed. No such finding was available on the bill. The finding is without evidence and lacks evident and intelligible justification.

Further, at [113], the Tribunal stated:

The practitioner made no such concession. The cross examination illustrates that no such concession was made:

The assumption, and subsequent finding, that all the alcohol had been consumed was a determinative factor in concluding that the practitioner had consumed alcohol. Such an assertion is unsupported by logical and probative evidence. The assertion that “the practitioner agreed that “all of the alcohol had been consumed” is a critical misunderstanding of the evidence that was before the Tribunal. That misunderstanding has affected the way in which the Tribunal has exercised its jurisdiction.

The misunderstanding of the evidence that was before them has led to an erroneous finding that has affected the way in which the Tribunal has turned their mind to the determination of the Complaint Two, Particular (5)(b). The Tribunal’s erroneous interpretation of the evidence that was before them has affected the way in which the Tribunal have exercised their jurisdiction.

So far as appeal ground 6 is concerned, the practitioner argued that first, the Tribunal concluded that he ordered alcohol. The allegation that the practitioner had in fact ordered the alcohol needed to be proved on the balance of probabilities having regard to those principles in Briginshaw.

Patient A could not recall. Patient A made confused claims about intoxication and then made claims about blocking out the event. This is significant given that it is Patient A who is the principal complainant which resulted in these proceedings. The Tribunal agreed that Patient A was unreliable.

Accordingly, the allegation ought to have been treated with caution. The Tribunal’s satisfaction of such an allegation ought only have been reached with logical and probative evidence. There was no objective evidence to say whether the practitioner had ordered alcohol. The highest available finding was that the practitioner had acquiesced to the alcohol order.

In making its finding, the Tribunal rely on two factors, that he was the host and that he paid for the dinner. On that basis alone, the Tribunal concluded that the practitioner ordered the alcohol. That is an unsupported leap in reasoning. The Tribunal step from “alcohol was ordered” to “the practitioner ordered the alcohol”. From this reasoning that the tribunal have relied on their own experiences to make this finding rather than being informed by objective evidence of the conduct of the practitioner. This is the failure to properly apply the lawful standard of proof.

The Tribunal have failed to illustrate an application of the requisite standard of proof in making that finding. The Tribunal have failed to illustrate a lawful path of reasoning. In concluding that the practitioner ordered the alcohol, the Tribunal have made a no evidence finding. The finding lacks evident and intelligible justification.

The practitioner's submissions ignore the general context within which those findings were made, including findings that are not the subject of challenge in this appeal, or were admitted to by the practitioner, and which circumstances were directly relevant to assessing the plausibility of the respective cases put by each side.

There was no dispute that the practitioner and Patient A went to the restaurant for dinner; that alcohol was ordered at dinner; and that they travelled in an Uber from the restaurant to Patient A's residence after dinner.

The Tribunal had found that, by the night of the dinner, the practitioner: Had hugged Patient A in therapy sessions on a number of occasions (which finding is not subject to challenge) (at [224]); Had called Patient A "beautiful" and "intelligent" in therapy sessions (which was admitted); Failed to maintain appropriate professional boundaries, in engaging in excessive phone and SMS contact in the context of the (then ongoing) therapeutic relationship (which he admitted) and repeatedly called Patient A "kid" in therapy sessions (which was admitted below), which was not consistent with appropriate professional behaviour (at [253]).

Further, so far as the night out itself was concerned, the Tribunal either found, and/or it was the practitioner’s evidence as follows:

The decision to go to the restaurant was his idea, and in this regard, the practitioner accepted that he had decided on the venue; had suggested that it be done on a Saturday night; had made the booking; and assumed that he would (and as a matter of fact did) pay for the evening (at [106] – [110], [127]);

The practitioner had lied to his wife about where he was going to be that night, having told her that he was "going out with a few friends for a few drinks" because she would not have been "happy" if she knew that the practitioner had gone out with a client (at [114]-[116]);

The practitioner had organised an Uber to take him to Patient A's home. He had spent 30 minutes at Patient A's house prior to their departure to restaurant, a period of time that the Tribunal considered "greater than the practitioner's affidavit evidence that he entered the house 'briefly'". In this regard, the Tribunal expressly rejected the practitioner's evidence (that was raised for the first time by him in cross-examination) that he had spent that time "preparing" Patient A for the alleged therapy (at [159]-[160]), with the result that time spent was unexplained; the practitioner had then organised for an Uber to take both of them to the restaurant. The practitioner and Patient A had spent approximately four hours at the restaurant, from 6 pm to 10 pm; The practitioner paid for the meal and drinks which came to some $333.80, and included a bottle of wine, three scotches and one glass of port and the practitioner had organised an Uber to, and travelled with, Patient A to her residence.

In addition, the practitioner's assertions that he consumed no alcohol at the restaurant was generally implausible.

His version of events was that shortly after arrival at the restaurant, and while he was in the bathroom, Patient A ordered scotches for the practitioner and herself. He returned and apparently did not touch his scotch ([115]). They later went to their table where Patient A, in his presence, ordered a bottle of wine, which he again says that did not drink (at [130]). At some later stage, she ordered a glass of port.

The practitioner version of events was that this was transpiring during what was “a therapeutic exercise”, and in circumstances where he knew he would be paying for the alcohol.

The practitioner gave evidence that the reason he did not attempt to stop Patient A from drinking, or take steps to cancel the alcohol orders, or stop the dinner early was because (and again this was evidence that was raised for the first time in cross-examination) he was concerned that Patient A would have reacted badly.

At [130], the Tribunal sets out the relevant cross-examination on this topic:

None of that - and in particular, the consumption of alcohol by Patient A - was contained in the practitioner’s Progress Note of the alleged "therapy" that was appeared to have been prepared the following day. That note simply said, as recorded at [132]:

Another relevant matter was the practitioner’s evidence that he had never hugged any other patient of his (at [103]) and had never spent "even $10" on conducting an exposure therapy session for any other patient (at [111]).

Finally, the Tribunal also had the evidence of Mr Rehaan (the Uber driver and the only independent witness), whose evidence directly contradicted the practitioner’s narrative of the night at the restaurant being for the purposes of therapy.

Mr Rehaan's evidence was that he thought the practitioner and Patient A were a couple (at [73]); that he saw them hugging outside the restaurant and while he did not see their "lips lock", it seemed like they were "kissing" (at [76]); that on the drive to Patient A's residence, it seemed as if they were hugging and kissing (at [73]-[77]), and were sitting side-by-side on the back seat (that is, without leaving a seat in the middle) for that journey; and that when they got to Patient A's residence, the practitioner got out and hugged Patient A for about 5 seconds (at [81]).

It is also relevant to note with respect to these grounds of appeal that the Tribunal was plainly aware that the principles identified in Briginshaw applied (at [163]); and determined that the practitioner was not a credible witness (which finding is not the subject of appeal) with the result that his evidence was to be approached "with caution" (at [157]-[161]).

The practitioner had never, prior to the hearing, "agreed that Patient A had consumed alcohol" nor had he "consistently" denied that he had not consumed alcohol at the dinner at the restaurant.

Prior to cross-examination, the practitioner had only ever addressed the issue in the course of questioning he faced during a hearing held on 22 January 2018, pursuant to section 150 of the National Law by the Psychology Council.

The hearing below commenced on 14 March 2022, some 4 years later. Over that period, the practitioner filed four statements, none of which addressed the issue of alcohol consumption in any way.

The practitioner’s evidence on the issue at the s 150 hearing was brief (at [114]):

The practitioner’s position in the Tribunal was that he understood the question as being directed solely to whether he had consumed alcohol that evening; not whether Patient A had consumed any alcohol (at [115]).

The reasons published by the Psychology Council on 29 January 2018 identified that they understood the practitioner’s response set out above to be that he denied that either Patient A or he had consumed alcohol that night (at [116]):

The Psychology Council did not have before it the bill for the evening showing at the least that alcohol had been purchased, and which the practitioner accepted he paid for in cash (at [86]).

In cross-examination (at [117]), at the Tribunal hearing the practitioner accepted he had made no prior mention of his position that it was only Patient A who consumed alcohol on the night:

The practitioner's emphasis relies on a single passage of the Tribunal's reasons, extracted in isolation, is misplaced. The Tribunal's reasons fairly read, were not that the only matters relevant to determining whether the practitioner had consumed alcohol at the restaurant were the fact that he was the host, and he had arrived in the Uber. The paragraph relied upon by the practitioner (at [182]) chronologically arrives after a detailed recital of the evidence before the Tribunal and its findings as to various matters must be read in that context.

The HCCC conflates several allegations between the allegation of alcohol consumption and kissing in the Uber Ride.

The HCCC does not articulate, with any precision, which assertions are relevant to each of the grounds of the amended summons. Rather, the HCCC appears to renew their arguments in relation to Complaint Two, Particular (5). Simply, no paragraph in its submissions between [51]–[65] offers any objective or direct evidence that the practitioner himself had consumed alcohol at the dinner.

To avoid any uncertainty, what is challenged in Grounds 3–7 is the lawful findings of the Tribunal that informed their satisfaction that the practitioner had consumed alcohol. Ground 8 challenges the finding that the practitioner misled the Psychology Council in denying that he had consumed alcohol. Those are the alcohol findings.

At [232], the tribunal stated:

The Tribunal deliberately direct the reader to the passage that four members contend contains the whole of their reasoning on the alcohol findings.

For clarity, the passage at [182] is extracted here:

It is this actual path of reasoning that is subject to this appeal.

It appears that the HCCC’s case on alcohol, at its very highest, rests on circumstance and an imputation of a sexual characterisation of conduct between the practitioner and Patient A. Neither of which objectively establish that the practitioner consumed alcohol that night.

The Tribunal was cognisant that Patient A was an unreliable witness.

Remarkably in determining, for instance, Complaint Two, Particular (5)(c), a complaint that the practitioner had kissed and touched Patient A during dinner, the Tribunal expressly state at [183]:

And at [229]:

That is to say, the Tribunal had expressly considered their findings and concluded that, given the unreliability of Patient A’s allegations there was no evidence at all that could support that allegation.

Patient A was the sole complainant and the only available witness to the allegations of alcohol consumption in the restaurant. Her credibility was severely impugned. In these circumstances, the threshold of proof was heightened where the allegations against the practitioner were made by a plainly unreliable witness/complainant and the gravity of consequence that flowed from those findings was so obviously severe.

Significantly the HCCC never questioned Mr Rehaan as to whether the practitioner appeared intoxicated or otherwise.

In this light, the HCCC’s submissions are wholly irrelevant to the consumption of alcohol. What is relevant is the express reasoning provided by the Tribunal. That reasoning is bereft of reasonable evidence and fails to illustrate an application of the lawful standard of proof.

The Tribunal never found that "all of the alcohol" ordered at the restaurant had been consumed. The Tribunal first correctly (contrary to PWS [73] - [74]) recorded that the practitioner had (initially) accepted that "all of that alcohol" (being the drinks identified on the bill for the evening) had been consumed (at [113]). The practitioner's evidence was:

The Tribunal then set out his clarifications on that evidence (at [115]), which was to the effect that he had allegedly not consumed the scotch that apparently had been ordered for him, and that Patient A had not consumed the entirety of the bottle of wine that had been ordered. The Tribunal in that paragraph extracts the same transcript that is contained in the plaintiff’s written submissions at [75], and which it is alleged by the practitioner that the Tribunal failed to take into account.

There was no "subsequent finding" by the Tribunal that all of that alcohol (if by that is meant that the entire contents of each drink ordered) was consumed. The Tribunal never resolved that, likely because it was irrelevant to its decision.

The misconduct allegedly arose from the taking of a patient with alcohol use issues to dinner and providing her with alcohol; not from whether or not either the practitioner or Patient A completed their drinks.

The findings of the Tribunal needed to be taken in context as the findings in relation to complaints one, two and three were either to be taken individually or cumulatively. The Tribunal set out the events of the evening as follows: The practitioner organised the Uber rides, paid for the bill, they were at the restaurant for 4 hours and Patient A’s consistent evidence was that it was the practitioner who ordered the alcohol and had consumed alcohol at the restaurant. The Tribunal was entitled to view the practitioner’s assertion that he did not drink alcohol in the context of the events that occurred during the evening.

While the practitioner’s submissions highlight the unreliability of Patient A’s evidence, in some circumstances where she did not agree with the practitioner’s evidence, so too did the Tribunal regard the practitioner’s evidence as unreliable to make those findings, the Tribunal carefully analysed the evidence and the documentary evidence. After carrying out this process, the Tribunal is entitled not to accept the practitioner’s version of events given by him to the effect he did not partake in consuming any alcohol at the restaurant that evening. Importantly, the practitioner failed to mention alcohol consumption by either him or Patient A in his file note created the next day. The Tribunal had made findings as to the behaviour of the practitioner and Patient A at the restaurant. The practitioner’s account of abstinence from alcohol was given during cross-examination.

While the practitioner submitted that at times, Patient A’s evidence was unreliable, at [157]-[161] of its decision, the Tribunal found the practitioner’s evidence to be that he "did not always give responsive answers", gave "inconsistent" and "unpersuasive evidence" and, with respect to at least one aspect of his evidence, considered it "wholly unconvincing, unpersuasive and simply not credible." The Tribunal made a finding that Patient A’s evidence was always consistent that the practitioner ordered the alcohol. The Tribunal did not rely on personal experience, but rather upon the evidence. In my view, the Tribunal carefully analysed the evidence of both the practitioner and Patient A and the documentary evidence in the form of the file note and the practitioner’s evidence given to the psychology council. In analysing this evidence, the Tribunal paid due attention to the Briginshaw test.

In these circumstances, the Tribunal was entitled to reject the practitioner’s evidence as to his non-consumption of alcohol in circumstances where he knew that Patient A had alcohol issues and went on to make a positive finding that he did consume alcohol at the restaurant.

The practitioner’s evidence in summary was that he found Patient A’s consumption of alcohol at the restaurant problematic, but he did choose not to mention the subject to her as it may have caused her to react adversely. That leaves appeal grounds 3, 4 and 7 that can be dealt with briefly as they all concern the consumption of alcohol.

Appeal ground 3 is that the Tribunal erred in findings (Decision [6] and [269]) that Complaint Two, Particular 5(b) was established. Appeal ground 4 is that the Tribunal erred in finding (decision at [6], [182], [226] and [232]) that on 9 July 2016… alcohol was consumed by the plaintiff. Appeal ground 7 refers grounds 4, 5 and 6 asserts they are errors of law on the face of the recorded and jurisdictional errors. All of these grounds of appeal relate to the consumption of alcohol. That issue has been dealt with in detail in appeal grounds 5 and 6. As with grounds 5 and 6, the Tribunal made no error of law, nor a jurisdictional error in its finding that the practitioner and Patient A consumed alcohol at the restaurant and that the practitioner ordered and paid for that alcohol. Grounds 3, 4 and 7 also fail.

Appeal Ground 8 is that the Tribunal erred in finding, at [6], [232] and [269] that the practitioner misled the Psychology Council. The finding rests upon a finding that the practitioner had consumed alcohol and misled the Psychology Council in the section 150 proceedings.

It follows that at paragraph [232], the Tribunal made a finding:

Specifically, the HCCC contended that the practitioner had misled the Council in denying that he had consumed alcohol on 9 July 2016 with Patient A.

Should the practitioner establish any of the Grounds in 3–7 above, then this finding lacks evident and intelligible justification amounting to a constructive failure to properly exercise jurisdiction, a failure of lawful reasons and a no evidence finding.

In HCCC’s submissions under grounds 3—7, it specifically referred to the evidence that established that the practitioner ordered, and consumed alcohol and that practitioner’s file note the day after did not mention the consumption of alcohol.

I have already addressed the Tribunal’s finding in relation to the practitioner’s consumption of alcohol at the restaurant and the practitioner’s submissions on that topic. The Tribunal was entitled to find that the practitioner had consumed alcohol and that he did not mention the consumption of alcohol in his file note created by him the following day. At the time of the hearing before the psychology council, it did not have the benefit of the receipt of the restaurant that detailed the alcohol ordered and paid for by the practitioner. It follows that the Tribunal was entitled to find Particular 8 had been established. This ground of appeal fails.

The Tribunal erred in finding (decision at [6], [183], [231], [233] and [269]) that Complaint Two, Particular 5(d) was established.

Particular 5(d) is that the practitioner inappropriately kissed and touched Patient A in the Uber car ride back to her residence.

At [235], the Tribunal recorded Mr Rehaan’s evidence, the Uber driver from the restaurant to Patient A’s residence as follows:

The Tribunal erred in finding, at [6], [183], [231] and [269] that Complaint Two, Particular (5)(d) was established. That is to say, the Tribunal erred in finding that the practitioner kissed Patient A in the Uber Ride after the dinner event.

On 17 November 2021, after the HCCC had filed and served its evidence, the HCCC served upon the practitioner’s legal representatives disclosure material. The disclosure material included, inter alia, two separate file notes created by employees of the HCCC containing exculpatory evidence in relation to Complaint Two, Particular 6.

The exculpatory material included two separate file notes that included hearsay conversations with the Uber driver (“Mr Rehaan”) who had driven the practitioner and Patient A on the relevant night. The representations contained in the file note were irreconcilable with allegations made against the practitioner in Complaint Two, Particular 6. Despite the exculpatory evidence uncovered in the HCCC’s investigations, the HCCC maintained their complaint until after the commencement of the proceedings.

The HCCC failed to procure a statement from Mr Rehaan. Instead the HCCC drafted their own statement which Mr Rehaan did not adopt prior to the first morning of the hearing. The HCCC failed to summons Mr Rehaan until after the practitioner had made an application for summary dismissal of Complaint Two, Particular (6).

The Tribunal failed to determine the application for summary dismissal, rather the Tribunal elected to hear from Mr Rehaan who was subsequently summonsed by the HCCC.

The Tribunal was then furnished with a statement that had been prepared by the HCCC. Mr Rehaan was then asked to correct any inaccuracies in real time before the Tribunal. Based on those edits Mr Rehaan then adopted the statement that was before him.

Mr Rehaan was then cross examined which highlighted further critical inaccuracies in the statement that had been prepared for him.

The allegation of kissing is amongst the most serious of allegations in the HCCC’s complaint. The gravity of the consequence that flow from this allegation are amongst the most serious of ethical violations for medical practitioners. It was critical that, especially on this finding, the Tribunal illustrate and apply a lawful standard of proof.

In coming to their conclusion the Tribunal stated, at [183](4), that it relied on the evidence of Mr Rehaan.

The events of the night in question were some 6 years prior to Mr Rehaan giving evidence. The difficulty with the Tribunal’s reasons is that it was put to Mr Rehaan in no uncertain terms that his evidence in relation to kissing was an assumption based on previous occupants of his Uber/ taxi and not the behaviour of Patient A and the practitioner.

The practitioner had made two distinct arguments in relation to Mr Rehaan’s evidence.

Firstly, that Mr Rehaan’s evidence in relation to kissing was based upon assumptions derived from historical occupants of his Uber/taxi from his career as a driver – not the actions of Patient A and the practitioner.

Secondly that 6 years had passed and that Mr Rehaan’s evidence in relation to the kissing allegation ought to have been treated with caution.

The Tribunal failed to respond to either of those substantial and clearly articulated arguments. The practitioner has been denied procedural fairness in this respect and the Tribunal has failed to provide lawful reasons. Ground 9 is established by this reason alone.

Further, read fairly, the totality of the finding rests upon two hugs (one before the Uber ride and one hug goodbye). Beyond that the Tribunal is informed by Mr Rehaan’s assumptions from over 6 years ago. It must be remembered that this allegation was presented in the HCCC’s complaint in a series of events that immediately precede a fabricated allegation of sexual assault. In coming to their finding of satisfaction in relation to this allegation, the Tribunal was required to provide lawful reasons that illustrate logical and probative reasoning to support their findings. Instead, the tribunal rely on two hugs and Mr Rehaan’s six year old assumption based on the actions of previous occupants of an uber.

There is no path of reasoning that illustrates an application of the lawful test of proof. The finding was not open to the Tribunal on the available evidence. There is no illustration that the Tribunal have considered the gravity of the consequences that flow from such a finding. The Tribunal fails to provide an appreciation or application for the lawful test of proof in reaching their satisfaction of Complaint Two, Particular (5)(d).

The practitioner relied on a selective extract of correspondence as between the HCCC and him concerning Mr Rehaan, the Uber driver.

Some background is necessary to that correspondence. An allegation of sexual assault by the practitioner on Patient A at her home after the dinner was also made by the HCCC, but was withdrawn (as had been foreshadowed by the HCCC to the practitioner's legal representatives) after Mr Rehaan gave evidence.

There were procedural complications around Mr Rehaan's evidence. The HCCC had located him and prepared a draft statement that was adverse to the practitioner in some respects (the intimate contact on the ride home) but wholly exculpatory of the allegation of sexual assault.

However Mr Rehaan became unresponsive and despite significant effort, a formalised statement of evidence could not be obtained from him.

The file notes of the HCCC investigator who had spoken to Mr Rehaan, along with all contact details known for him, were disclosed to the practitioner, and the practitioner was advised that the HCCC did not intend to summons him given his failure to co-operate.

The practitioner then summonsed Mr Rehaan and informed the HCCC that his attendance had been procured. The practitioner was then advised that if Mr Rehaan gave sworn evidence in similar form to the narrative that had been provided by him, the allegation of sexual assault would be withdrawn.

What followed was a summary application by the practitioner to strike out the sexual assault allegation (which was dismissed at [23]), followed by multiple allegations of impropriety and/ or misconduct on part of HCCC and/ or its officers, and Counsel for the HCCC, that were made in various written submissions filed by the practitioner, and which complaints were largely centred in the practitioner's complaints about the manner in which Mr Rehaan gave evidence. None of those complaints were upheld.

Mr Rehaan was the first witness to give evidence. He did so as a witness for the HCCC. Following his evidence (and prior to any cross-examination of the practitioner), the allegation of sexual assault was withdrawn.

Given that the sexual assault allegation was withdrawn, and there is no appeal to the dismissal of the strike out application, or the complaints of misconduct alleged by the practitioner, it is unclear what probative relevance that material has or why that "context of the hearing is imperative".

The Tribunal heard and dismissed the practitioner's summary strike out application on the morning of the first day of hearing (Decision at [23]).

It is somewhat disingenuous of the practitioner to impugn one part of Mr Rehaan's evidence because the events took place 6 years ago, and wholly embrace other aspects of his testimony (noting that Mr Rehaan's entire involvement in the matter occurred over about 45 minutes on a single occasion) in contending that Patient A's evidence had to be wholly disregarded. Perhaps unsurprisingly, Mr Rehaan was only sparingly cross-examined.

As to the "two hugs (one before the Uber ride and one hug goodbye)", the practitioner's affidavit evidence was that he had never got out of the Uber. His prior written evidence never referred to hugging Patient A at any time before or after the dinner. In the section 150 hearing, he expressly denied hugging Patient A at the dinner:

However, in cross-examination, he admitted getting out of the Uber and hugging Patient A. He also denied understanding the exchange set out above at [92] as being questioned specifically about hugging (in a non-sexual way) Patient A (at [142]).

It is simply wrong to contend that the Tribunal's finding that the practitioner and Patient A kissed in the Uber rested solely on "two hugs" and "Mr Rehaan's six-year-old assumption based on the actions of previous occupants of an Uber".

Firstly, Mr Rehaan gave clear evidence that he saw the practitioner and Patient A hugging and behaving in an intimate fashion before he picked them up from the restaurant and that he observed that behaviour to continue in the Uber ride; and that they hugged when the practitioner dropped off Patient A.

He acknowledged (unprompted and in chief, not cross-examination, judgment at [76]) that he did not see their "lips lock" but fairly read, his evidence was that based on their body language and the way they were behaving, they were kissing and hugging. There is nothing extraordinary about that evidence. That evidence directly corroborated Patient A's evidence as to those events.

Secondly, that was only one strand among several that placed the events of that night into context, and which were relevant to determine, on the balance of probabilities, what conduct occurred that night.

The HCCC unreasonably failed to summons the only material witness who had provided probative representations which were wholly exculpatory of the allegation of sexual assault.

The HCCC had, for a couple of years, possession of phone location data and an expert report that demonstrated the inherent improbability of the allegation of sexual assault against the practitioner. The HCCC then spoke with Mr Rehaan twice and made file notes containing the wholly exculpatory material. The practitioner had categorically denied the allegation. The allegation was extremely serious. The HCCC failed to call the only material witness. The HCCC proceeded to maintain the complaint until Mr Rehaan would cooperate.

It can be readily accepted that the HCCC did not want to withdraw the complaint against the practitioner unless the HCCC could obtain evidence that was adverse to the practitioner.

It is this conduct that has put the practitioner at a material disadvantage. There were directions and timetables for service of evidence. The practitioner was entitled to know the content of the case he was required to meet before it was heard before the Tribunal. The proceedings were serious, and the practitioner ought to have been able to prepare his case and be cross examined in accordance with those directions. Instead, on the day of the hearing, the practitioner was left to be surprised by what Mr Rehaan’s evidence might be.

From the time of the creation of the file notes, the HCCC ought to have withdrawn the complaint of sexual assault. Instead, in a bizarre reversal of onus the HCCC refused to withdraw a complaint without positive disproof of an allegation. In doing so, the HCCC departed from the objects of the CAT Act and abandoned of the requirements of a model litigant.

The Tribunal is of the view that the application was not heard or determined on a summary basis not dismissed:

The improperly maintained allegation of sexual assault is inherently relevant in circumstances where a core allegation against the practitioner, and a finding subject to challenge in these proceedings (Ground 11) was that he had engaged in conduct of a sexual nature toward Patient A.

It is of note that the HCCC do not point to where the Tribunal have responded to the substantial and clearly articulated argument.

The HCCC appear to contend that if a witness is reliable on one fact, then they should be wholly accepted as to the balance of their evidence. Such a position is inherently disingenuous. It can be readily accepted that the probity of a witness’ evidence depends largely on the facts, corroborating contemporaneous records and a myriad of other factors. Mr Rehaan had stated with certainty that the practitioner did not depart the vicinity of the Uber car, thereby providing exculpatory evidence for a sexual assault allegation that should never have been maintained. On other matters, Mr Rehaan relied on assumptions and was not nearly as authoritative. This is not surprising or unique. The practitioner was entitled to call into question Mr Rehaan’s evidence where: the allegation was serious, Mr Rehaan was the only material witness and Mr Rehaan’s evidence was that he never saw the practitioner or Patient A kiss; and was otherwise based on assumptions informed by historic occupants of his car not the conduct of Patient A and the practitioner.

The HCCC appear to substitute the practitioner’s inconsistencies (over a six-year period) as witness for probative reasoning on behalf of the Tribunal. The HCCC otherwise heavily rely on the evidence of Mr Rehaan, emphasising the importance of the Tribunal responding to the substantial and clearly articulated arguments in relation to his evidence. There is no escaping that Mr Rehaan was fundamental to the HCCC’s case on this allegation. It was a key battleground between the parties. The Tribunal simply fail to respond. The Tribunal have failed to exercise their jurisdiction and, in doing so have denied the practitioner procedural fairness.

No single paragraph in the HCCC’s submissions at [53] – [65] illustrates objective evidence that establishes the practitioner had kissed Patient A in the uber. The allegation is serious. The allegation is not simply that the practitioner kissed Patient A, but, on Patient A’s evidence, kissed her with ambiguity as to consent. The allegation was very serious. In place of objective evidence, the HCCC seek to rely on circumstance and an imputation of sexual conduct to other events. None of which establish to a requisite standard that the practitioner did in fact kiss Patient A in the Uber on that night.

Firstly, while the practitioner criticised HCCC’s efforts to get Mr Rehaan to sign his statement and to give evidence, in my view that is unwarranted.

Both parties, with different views, have canvassed how the Uber driver came to give evidence and they are both selective as to the evidence he gave. The Tribunal considered his evidence and made factual findings. The Uber driver conceded that he did not see the practitioner and Patient A kissing in the Uber, but in cross-examination he gave evidence “I sort of heard from the sounds that they were hugging and kissing as a couple”. They were sitting together in the back seat. He saw them hugging outside the restaurant and when Patient A got out of the Uber, it was something more than “one hug before the Uber ride and one hug goodbye”. The practitioner admitted getting out of the Uber and giving Patient A a hug goodbye. In the light of this evidence, the Tribunal was entitled to reach its conclusion.

In these circumstances, it is my view there was no error of law or jurisdictional errors made by the Tribunal. Ground 9 of the Appeal fails.

[Ground 10 has been dealt with earlier in this judgment].

This ground of appeal is that the Tribunal have erred in finding, at [6], [257] and [269] that the practitioner had engaged in conduct of a sexual nature toward Patient A.

This was a grave allegation. Especially in the context of the surrounding allegations which included a false allegation of sexual assault.

Particular 1(c) was an allegation that the practitioner Hugged Patient A at the conclusion of a number consultations. The practitioner had admitted to hugging Patient A on a couple of occasions in a human response to a distressed patient and this was not sexual in nature.

The Tribunal’s reasoning on this issue is at [257](3) of the decision where the Tribunal stated:

The Tribunal is unequivocal in their conclusion that it is the combination of the particulars that have supported a finding of sexual conduct toward Patient A. That is to say that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature toward patient A.

The practitioner always maintained that the hugs were a human response to a distressed Patient. They were devoid of sexuality.

The Tribunal did not respond to that substantial and clearly articulated argument or provide a lawful path of reasoning as to their conclusion that the hugs at the conclusion of a consultation were sexual in nature. There is an unexplained leap in the Tribunal’s reasoning between providing a hug to a distressed patient and a conclusion that the hug was sexual in nature. The two are not the same and therein lies the unexplained gap in the Tribunal’s reasoning.

The Tribunal have failed to respond to a substantial and clearly articulated argument and accordingly, constructively failed to exercise their jurisdiction.

The Tribunal have failed to provide lawful reasons amounting to an error on the face of the record.

A finding that the hugs at the conclusion of the consultation were sexual in nature are legally unreasonable. The finding is unsupported by any more than the surrounding allegations in Complaint Two, Particular (1). The Tribunal has failed to provide evident and intelligible justification for their conclusion and the finding is legally unreasonable.

The Tribunal's reasons are not "unequivocal ... that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature towards Patient A".

The Tribunal made a finding that the practitioner had kissed and hugged Patient A after their dinner at the restaurant, and on the Uber ride home.

The Tribunal found that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature towards Patient A".

That alone was plainly "conduct of a sexual nature" and not only was that characterisation open, but it likely would have been legally unreasonable to find otherwise.

Irrespective of any findings made by the Tribunal as to whether the practitioner had hugged Patient A in the course of therapy, it would almost necessarily had to have found that - by reason of his conduct as found at the restaurant - he had engaged in conduct of a sexual nature towards Patient A.

The Tribunal made a finding that the practitioner had hugged Patient A in a number of therapy sessions, in the context of other boundary crossing behaviour. Those sessions were close in time to the restaurant dinner (it having occurred less than three months after therapy had commenced) and provided an adequate basis on which to infer that the practitioner’s conduct in hugging Patient A was not "devoid of sexuality".

That finding is certainly not legally unreasonable. Even if it were though, no material difference arises unless the practitioner can also overturn the finding that the practitioner hugged and kissed Patient A after the dinner, and in the Uber ride home.

Finally, and rhetorically, what precisely a "platonic" hug is in the context of a treating psychologist and a patient with a history of sexual abuse is never (and was never) articulated by the practitioner.

The HCCC does not articulate where in the decision the Tribunal explain why or how the HCCC has concluded that hugging at the conclusion of a therapy session was sexual in nature. The Tribunal does not provide reasons for that conclusion.

There is a leap in the reasons that is unexplained. The finding in and of itself heightens the seriousness of accepting a hug at the end of a particularly trying therapy session. Rather than an incidental boundary violation, offering comfort in a human response, the Tribunal, without reason, has simply found that the hug(s) constitute conduct of a sexual nature.

Whilst the HCCC, no doubt, will go to some length to emphasise some context or circumstance, the Tribunal is very clear to say that the finding of sexual conduct rests upon 1(c) and 5(d) only.

If, as the practitioner contends, the findings at Ground 9 are established, then Ground 11 is successful. However, the practitioner maintains that the characterisation, without supporting reasons, that the hugs at 1(c) are incapable of characterisation of a sexual in nature and amount to no reasonable evidence findings, legally unreasonable findings and a failure to provide lawful reasons.

The practitioner admitted hugging Patient A once when the Uber arrived to pick them up from the restaurant. After picking up his passengers, the Uber driver admitted that he did not see the practitioner and Patient A’s lips lock. His evidence was based only their body language and they were sitting in the back seat next to each other.

The Tribunal made a finding that the practitioner had kissed and hugged Patient A after their dinner at the restaurant, and on the Uber ride home.

The Tribunal was entitled to reach the conclusion it did on the Briginshaw test. In these circumstances, this ground of appeal fails.

Ground 12: The Tribunal erred in finding (decision at [157]) that the dinner was never intended to be an exposure session.

The practitioner’s submissions

The Tribunal erred in finding, at [157], that the dinner event was never intended to be an exposure session.

On 7 July 2016, (the day when the “exposure session” was to take place) the practitioner’s clinical notes read:

The practitioner’s progress notes had been reviewed by the HCCC’s expert witness who considered that the practitioner had kept reasonable notes. The progress notes were before the Tribunal and had been brought to the attention of the Tribunal in oral submissions. The validity of the file note is unchallenged.

The substance of the file note describes exposure to anxiety - the very description of an exposure session. That is the substantive core of the progress note. A description of an event to expose the patient to her anxieties in a public setting.

Despite this, the Tribunal rejected that evidence because the words “exposure session” were not used. Not because the event was, in substance, intended to expose a patient to anxiety. The determinative factor for the Tribunal’s finding was a delayed description of the event, not the substance of the intention behind the event.

In this light the Tribunal appear to accuse the practitioner of retrospectively identifying the dinner event as an exposure session when it is clear from the progress note prior to the event that the substance of the event was to introduce Patient A to her anxiety in a public setting.

The Tribunal then made an adverse finding against the practitioner for not referring to the event as an exposure session until 19 February 2020, which was over a year before the HCCC had brought its complaint against the practitioner.

The Tribunal’s reasons are irreconcilable with the available evidence. The finding is not open to the Tribunal on the available evidence. The finding is a no evidence finding. In the alternative the finding lacks evident and intelligible justification. Further the finding rests upon a mistaken interpretation of the evidence that has afflicted the exercise of their decision-making power, resulting in an erroneous finding. In any of those alternatives, the Tribunal has constructively failed to lawfully exercise their jurisdiction.

Again, and similar to the challenges to findings as to the practitioner consuming alcohol, and kissing and hugging Patient A, it is highly artificial of the practitioner to treat the Tribunal's reasons setting out its conclusion (at [157]) as containing the whole of its reasoning on the issue.

The Tribunal in its reasons carefully sets out, in considerable detail, the evidence that it considered relevant. This was not done in some formulaic way, for instance by simply setting out the submissions of each side, but in a way that identifies that the Tribunal was engaged in an active, intellectual process of considering the evidence and submissions.

As to the practitioner’s clinical note of 7 July 2016, the Tribunal clearly considered it. It did so in the Tribunal’s decision at [157] which is impugned by the practitioner, but not extracted in his submissions:

In contrast the practitioner’s first written statement dated 17 January 2018 and which he adopted as being true in the course of cross-examination) said nothing about the evening being "exposure therapy" and instead said:

His second statement dated 25 May 2018 also made no mention of the dinner being for the purposes of "exposure therapy" and instead stated:

No literature about exposure therapy being conducted in this manner was ever tendered (or identified) by the practitioner. His expert expressly did not comment on this aspect of the Complaint, which must be taken to be an intentional forensic choice.

No explanation was ever provided by the practitioner as to why he would choose to engage in exposure therapy in this manner for such a complex patient; nor did he lead evidence that he consulted with colleagues or undertook research before undertaking the "therapy". He was unable in cross-examination to plausibly explain why he had chosen a licensed venue, given Patient A's alcohol issues.

It is difficult to understand the practitioner's contention that there was "no evidence" to support the finding that the dinner was not an exposure therapy session when, in a practical sense, it was on the practitioner to prove that it was so. That was his case. It certainly does not automatically arise, and on its face has an inherent implausibility.

No compelling evidence to make out that case was ever led, apart from the practitioner’s own assertions, which were at various times inconsistent, implausible or unconvincing. The Tribunal, engaging in orthodox reasoning, rejected that evidence.

The file note plainly illustrates that the practitioner had intended, for therapeutic purposes, to expose Patient A to her anxieties. Whether or not the exposure was successful, unsuccessful or misguided is not the point. The finding that the dinner was never intended to expose Patient A to her anxieties, as an exposure session, amounts to a jurisdictional error.

The practitioner failed to mention the exposure session in his first written statement. I accept that in his latter written statement that the practitioner referred to dinner being therapeutically beneficial, and he referred to exposure therapy in his file note the day before the dinner.

At [157], the Tribunal stated:

The Tribunal Member made a finding that both Patient A and the practitioner’s conduct were unsatisfactory and that the evidence of each of them must be approached with considerable caution. In addition it found that the practitioner did not always give responsive answers and gave examples at [160], such as at [160](4) and (5):

In summary, it is not to the point as the practitioner submitted that the Tribunal reached its decision on the basis that the practitioner did not refer to the dinner as an “exposure session”.

In contrast the practitioner’s first written statement dated 17 January 2018 and which he adopted as being true in the course of cross-examination) said nothing about the evening being "exposure therapy" and instead said:

His second statement dated 25 May 2018 also made no mention of the dinner being for the purposes of "exposure therapy" and instead stated:

The Tribunal was, in the light of the events surrounding the dinner at the restaurant, entitled to reach the conclusion that the dinner was not an exposure session. There is no error of law or jurisdictional error. This ground of appeal fails.

As to Complaint Two, the Tribunal made the following findings at [257]-[260]:

For completeness, it is appropriate that I set out complaint Three here. It is:

In dealing with Complaint Three (that the conduct also amounted to professional misconduct), the Tribunal accepted a submission that "if any of Particulars 1, 2, 3, 5 or 8 of Complaint Two are proved, this amounts to professional misconduct" (at [261]). The Tribunal had already found that particular 8 was established (at [231]), along with being satisfied that particulars 1 and 5 were partially established. The Tribunal did not take Particular 1(a) (kissing) or 1(b) (touching thighs) in its reasoning.

The HCCC submitted that the separate paths of reasoning constitute "separate findings that independently led" to the Tribunal's ultimate conclusion (SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31 per Bennett J at [28]; see also [34] - [41]), which in itself is a basis to dismiss the appeal.

In SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31, Bennett J stated at paragraphs [28] and [34]—[41]:

Each particular of complaints one and two individually and cumulatively form the basis to find that complaint three is made out. Overall, the practitioner’s submissions were written minutely and finely with an eye keenly attuned to the perception of error.

The result is that the plaintiff’s appeal has failed. The amended summons dated 17 February 2023 is dismissed. The orders of the Tribunal dated 18 November 2022 are affirmed.

Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs.