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  • Appeal Determined (QCA)

Psychology Board of Australia v Shahinper

 

[2016] QCAT 259

CITATION:

Psychology Board of Australia v Shahinper [2016] QCAT 259

PARTIES:

Psychology Board of Australia

(Applicant)

v

Khosrow Shahinper

(Respondent)

APPLICATION NUMBER:

OCR172-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 March 2016

HEARD AT:

Brisbane

DECISION OF:

Judge Suzanne Sheridan, Deputy President

Assisted by:

Mr S Brimstone

Mr G Lawrence

Ms J Sim

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law), the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 196(2)(e) of the National Law, the respondent’s registration is cancelled, effective from 5 September 2016.
  3. Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration for a period of 3 years, commencing on 5 September 2016.
  4. The respondent is to pay the applicant’s costs of and incidental to these proceedings to be agreed, or failing agreement, to be assessed on the District Court Scale.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where psychologist engaged in a sexual relationship with a patient before adequately terminating the therapeutic relationship – where psychologist repeatedly denied conduct and misled the Psychology Board of Australia and its investigators – where conduct ultimately conceded – where psychologist had faced prior disciplinary proceedings for the same type of conduct – whether psychologist has engaged in professional misconduct – whether psychologist’s registration should be cancelled – whether psychologist should be prevented from re-applying for registration – whether psychologist should pay the costs of the proceedings

Australian Psychological Society’s Code of Ethics 2007

Health Practitioner Regulation National Law Act 2009 (Qld), ss 5, 156, 193, 195 and 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102 and 127

Medical Board of Australia v Maharajh [2015] QCAT 504

Medical Board of Queensland v Alroe [2005] QHPT 004

Psychology Board of Australia v Cicconi [2013] VCAT 516

Psychology Board of Australia v Dall [2011] QCAT 608

Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES:

APPLICANT:

Mr C Wilson of counsel, instructed by Lander & Rogers

RESPONDENT:

Mr R W Haddrick of counsel, instructed by White & Mason Lawyers

REASONS FOR DECISION

  1. [1]
    On 23 May 2012, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification regarding the professional conduct of the respondent psychologist, Mr Khosrow Shahinper.  Following an investigation, the Psychology Board of Australia (Board) took immediate action under s 156 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).  On 15 May 2014, the Board imposed conditions on Mr Shahinper’s registration, including that he must not consult, assess or treat female patients.  His registration continues to be subject to those conditions.  
  2. [2]
    On 5 August 2014, the matter was referred to the Queensland Civil and Administrative Tribunal (Tribunal) under s 193 of the National Law.  The referral to the Tribunal alleges that Mr Shahinper has engaged in conduct which constitutes professional misconduct as defined by s 5 of the National Law.  Mr Shahinper has made admissions, including that he has engaged in professional misconduct, and the matter has proceeded before the Tribunal by way of a statement of agreed facts.  However, there remain some factual disputes, and the parties have been unable to agree on the appropriate sanction.
  3. [3]
    Mr Shahinper remains registered as a psychologist and currently practises in Townsville. 

Prior disciplinary proceeding

  1. [4]
    Mr Shahinper has been the subject of prior disciplinary proceedings. 
  2. [5]
    Mr Shahinper was the subject of disciplinary proceedings before the former Health Practitioners Tribunal (HPT) by way of referral notice dated 23 April 2009 (prior proceedings).[1]  In those proceedings, Mr Shahinper was alleged to have breached professional boundaries with respect to a vulnerable patient and two junior staff members at the practice where he was working. 
  3. [6]
    Those proceedings were resolved with Mr Shahinper providing an undertaking to the former Psychologists Board of Queensland (former Board) and the HPT on 11 November 2009.  By that undertaking, he agreed to pay the former Board $10,000, practice under supervision and undertake professional development and psychological treatment.[2] 
  4. [7]
    Most significantly, Mr Shahinper was engaging in the conduct the subject of these proceedings while he was negotiating the terms of the undertaking in the prior proceedings and while he was subject to the terms of that undertaking. 
  5. [8]
    Mr Shahinper failed to comply fully with the terms of his undertaking.  In particular, he failed to engage a supervisor in the terms envisaged by the undertaking.

The conduct

  1. [9]
    The grounds for the referral in these proceedings are that Mr Shahinper engaged in a sexual relationship with a patient (RW) during the course of the therapeutic relationship. 
  2. [10]
    In November 2008, RW was referred to Mr Shahinper by her general practitioner for psychological counselling.  During the course of the treating relationship, RW told Mr Shahinper she was suffering stress as a consequence of issues in her workplace, and that she was distressed following the breakdown of her relationship with a married man. 
  3. [11]
    By March 2009, Mr Shahinper had commenced a personal relationship with RW.  He exchanged personal emails with RW, which became progressively intimate.[3] 
  4. [12]
    In his response to the referral filed 18 September 2014, Mr Shahinper denied that he initiated the personal relationship.  He said RW “sent inappropriate pornographic emails and photos and behaved seductively during the sessions”.[4]  Mr Shahinper said RW expressed her feelings and kissed him without warning at the end of one of their sessions.[5]  He said RW initiated the relationship as a matter of fact.  Mr Shahinper reiterated this account of the commencement of the personal relationship in his affidavit material and in oral evidence before the Tribunal.
  5. [13]
    On 15 April 2009, Mr Shahinper responded to an email from RW, stating he had a “strong sexual desire” for her and wanted to meet with her.  Later that day he sent RW a further email saying, “9.00pm tonight at your place?  Please keep this discreet!”[6]
  6. [14]
    On 16 April 2009, Mr Shahinper commenced a sexual relationship with RW.  He attended RW’s home on the evening of 16 April 2009, and they engaged in sexual intercourse.[7]  From that date, Mr Shahinper and RW maintained a sexual relationship and continued to exchange text messages and emails of a personal and intimate nature.[8]  On or about 13 May 2009, RW travelled to Brisbane to meet Mr Shahinper, who was at that time attending a professional workshop.  She stayed overnight with Mr Shahinper in his hotel.[9]
  7. [15]
    RW attended her last counselling with Mr Shahinper on 2 April 2009.[10]  Whilst there is a dispute in the evidence of RW and Mr Shahinper as to how the treating relationship was ended, Mr Shahinper has accepted that as at the commencement of the sexual relationship on 16 April 2009, he had not adequately terminated the treating relationship, arranged for the transfer of RW’s psychological care to an alternate psychologist, nor encouraged RW to seek independent counselling.[11]  RW does not accept that there was any discussion as to why the treating relationship needed to end.  
  8. [16]
    On or about 11 December 2009, RW terminated her relationship with Mr Shahinper.[12]  Mr Shahinper said he had not had sexual relations with RW since October 2009, while RW contended the relationship remained sexual until early December 2009.[13]  At the Tribunal hearing, Mr Shahinper asserted that the sexual relationship had ended in October 2009 because he had had no further physical contact with RW after that time.  He contended that “having [a] sexual relationship … means physical contact”.[14]
  9. [17]
    Irrespective of the cessation of the physical relationship, Mr Shahinper and RW continued to exchange text messages and emails of a personal and sexual nature until about December 2009.[15]  During cross-examination, Mr Shahinper eventually conceded the relationship was appropriately described as having remained sexual even in the absence of physical contact.[16]
  10. [18]
    Between December 2009 and March 2010, Mr Shahinper deposited money into RW’s bank account, as follows:
    1. $4,000 on 21 December 2009;
    2. $3,000 on 11 February 2010; and
    3. $1,000 on 22 March 2010.[17]
  11. [19]
    On about 25 May 2010, Mr Shahinper gave RW’s son an envelope containing between $10,000 and $11,000 in cash.[18] 
  12. [20]
    In her affidavit filed in these proceedings, RW says she did not participate in any discussions about money being paid into her account.  She contends that she was not expecting to receive any money.  An affidavit has also been filed by her son.  The statements in that affidavit, perhaps not surprisingly, confirm the position taken by RW.  Her son also suggests that another doctor at the practice had a role in the decision for money to be paid to RW.
  13. [21]
    Conversely, Mr Shahinper says the payments were made following a request by RW for financial help and in an attempt to dissuade RW from informing his then wife of their relationship.[19]  In his affidavit filed 7 March 2016, the day before the Tribunal hearing, Mr Shahinper alleged RW threatened to notify his then wife of their relationship if he did not pay her.  He said:

My relationship with my then wife was very strained and riddled with problems, and I was very fearful of [RW] informing my then wife of our relationship.  I was in immense fear that this would end my relationship with my then wife and also any contact I could have with my son  …  [A]t that time, I felt that I had no other alternative but to make these payments then in order to preserve my relationship with my ex-wife and son.[20]

  1. [22]
    Mr Haddrick, counsel for Mr Shahinper, argued that the Tribunal should not accept RW’s evidence on this point.  Neither RW nor her son were cross-examined, though in the circumstances it is difficult to draw any adverse inference from the decision not to cross-examine.  For reasons discussed below, Mr Shahinper proved himself to be a most unreliable witness.  The Tribunal does not accept any of his various accounts. 
  2. [23]
    On the other hand, the version of RW that the money was paid effectively unsolicited and was provided without any prior knowledge on her part is inherently improbable.  Obviously, if there had been communication between the two prior to the payments, RW or her son would have been exposed to a criminal charge.  It is clear in the circumstances that the payments were connected to the conduct.  Whether or not they were unsolicited or motivated by Mr Shahinper’s concern to keep the relationship from his wife, the inference is inescapable that the payments were made in an attempt to keep RW quiet. 

Dishonesty

  1. [24]
    Mr Shahinper’s relationship with RW was the subject of a number of separate notifications to AHPRA.  Throughout the course of AHPRA’s investigations of these notifications, Mr Shahinper made persistent and vehement false denials of his sexual relationship with RW. 
  2. [25]
    AHPRA was first notified of Mr Shahinper’s conduct with respect to RW on 25 March 2010.[21]  Mr Shahinper denied the relationship, and in the absence of sufficient evidence, the Board decided to take no further action.
  3. [26]
    On 23 May 2012, AHPRA received a second notification that Mr Shahinper had engaged in a sexual relationship with RW.[22]  During the investigation of that notification, Mr Shahinper again vigorously denied the relationship.  In a letter to AHPRA dated 27 July 2012, Mr Shahinper said:

Facing a false allegation of sexual relationship (sic) with a client is an extremely stressful event.  I have experienced feelings of humiliation, embarrassment, anger, and fear … Why is this happening to me again?  How AHPRA could justify putting me and my family in this situation again despite all evidence of previous investigation? … I deny at any time entering into a sexual relationship with or taking advantage of [RW].  I believe [RW] refabricated the allegations of sexual relationship with me to serve purpose (sic) of revenge and attempt to essentially extort money …[23]

  1. [27]
    In a further letter to AHPRA dated 5 April 2013, he again denied any sexual relationship with RW.  He referred to AHPRA’s previous investigation in 2010 and said, “I feel betrayed, angry and hurt by [RW] … This allegation has been investigated comprehensively in 2010 and 2011 and I was cleared of any wrongdoing”.[24] 
  2. [28]
    Mr Shahinper reiterated his strong denial through his lawyers in his submissions to AHPRA dated 3 May 2013.  In those submissions, Mr Shahinper’s lawyers said:

[RW] in her recent letter of complaint to the Board alleged that our client has made inappropriate advances and inappropriate remarks during sessions and via email.  Our client however confirms that he has maintained at all times a professional boundary in the manner in which he dealt with [RW].

Between 2011 to the time of [RW’s] notification on 23 May 2012, we are instructed that the relationship between [RW] and our client and his Clinic (My Family Doctors) had soured due to other separate issues.  …  Our client states that [RW’s] complaint to the Board against him is false and may be an extension of her frustration with the Clinic.  …  We question the validity of [RW’s] notification and allegations in light of the prior investigations conducted and the timing of this allegation being lodged.  …  Our client strongly denies that he entered into a sexual relationship with [RW] and pressured her to deny the relationship existed.[25]

  1. [29]
    In an interview with AHPRA on 21 February 2014, Mr Shahinper again denied engaging in a sexual relationship with RW.  He said that in early 2009, RW started sending him pornographic emails and was “very seductive in her dress and her talks”, but that he refused all invitations for any relationship with RW and referred her to his ethical obligations.[26]  Mr Shahinper admitted that he met with RW a few times outside of the practice at her request “as a friend”, including at his hotel in Brisbane on 13 May 2009.  He said that on that occasion, RW came to his hotel after his training was finished.  They had coffee in the hotel’s coffee shop, and RW left.[27]  However, Mr Shahinper repeatedly denied the existence of a sexual relationship.[28]  He said:

I admit that I have involved with cross-boundary violations.  I was attracted to her but I did not want to pursue.  And I told her … that if she has any inclinations to have relationship with me that will be two years after April 2009.[29]  

  1. [30]
    During the interview, Mr Shahinper was shown text messages, phone records and bank statements that irrefutably revealed the existence of an inappropriate relationship between Mr Shahinper and RW.  Over a month later, in a letter from his solicitors dated 28 March 2014, Mr Shahinper finally admitted to engaging in a sexual relationship with RW.  The statement of agreed facts states this admission was made on 21 February 2014.  However, the transcript of Mr Shahinper’s interview with AHPRA on that date and correspondence between the parties in its aftermath reveal the admission did not occur until 28 March 2014.
  2. [31]
    Mr Shahinper’s explanation of his dishonesty to AHPRA has been less than fulsome.  Initially, in his written material, Mr Shahinper said he failed to disclose his relationship with RW to AHPRA out of fear that his marriage would breakdown.[30]  That was consistent with the explanation given for his having made the payments to RW.
  3. [32]
    During cross-examination, Mr Wilson, counsel for the Board, asked Mr Shahinper to explain his motivation for continuing to lie to AHPRA throughout the course of its investigation.  Initially, Mr Shahinper said, “My motivation has always been to protect my family, my marriage and my son.”[31]  Mr Wilson reminded Mr Shahinper of his affidavit evidence to the effect that his marriage had failed in 2011, and that he had been separated from his wife since then.[32]  Mr Shahinper accepted he had separated from his wife, but contended they had “agreed to work on improving and saving the relationship.”[33]  Mr Wilson referred Mr Shahinper to his affidavit evidence that he had been “in a stable and loving relationship since 2011” with a new partner.[34]  The following exchange then occurred:
Mr Wilson:So I just want to go back, then, to this question of why it was you were saying that you were lying to the Board.  I understood you to say that was because you wanted to protect your marriage?
Mr Shahinper:That’s correct.
Mr Wilson:But your marriage failed in 2011?
Mr Shahinper:Yes.  But the consequences for my ex-wife would be disastrous if she could know that I have been unfaithful.  …
Mr Wilson:That’s why you were lying to the Board?  Not to preserve the marriage, but to – I’m not quite following that, sir?
Mr Shahinper:I lied to protect my ex-wife from drama that she has to go through.
Mr Wilson:But at the same time, you were engaged in a relationship with another woman[?] …
Mr Shahinper:Yes.  So it wasn’t saving the marriage.  It was saving my ex-wife from drama and confrontation on what has happened.[35]
  1. [33]
    I do not find Mr Shahinper to be a reliable witness.  He has consistently lied during the investigation process, and only made admissions when forced to do so by irrefutable evidence.  Even before the Tribunal, he was prepared to give inconsistent explanations with some answers indicating a continuing lack of insight into his behaviour. 
  2. [34]
    During cross-examination Mr Shahinper asserted his relationship with RW had ceased prior to his entering into the undertaking with the Board on 11 November 2009.[36]  Even once taken to sexually explicit text messages between himself and RW in November and December 2009, he still maintained the sexual relationship ended in October, insisting the physical contact finished then.  In fact, he for some time continued to maintain that a sexual relationship requires physical contact.  It was only after further persistence in cross-examination that Mr Shahinper conceded that a relationship between two people goes further than a physical relationship.[37] 
  3. [35]
    The answers given by Mr Shahinper to this questioning were particularly troubling, as was his evidence regarding the vulnerability of RW.  There seemed a flippancy in his responses that RW just “needed a talk therapy”.[38]  He said, “She didn’t demonstrate any pathology of depression or anxiety.”[39]
  4. [36]
    The responses were also indicative of a true lack of remorse.  Such a conclusion is supported by the information disclosed during his therapy sessions with Ms Dormer, a matter discussed in more detail below.
  5. [37]
    Given that Mr Shahinper’s marriage had failed and he was in a relationship with another woman at the time of his false statements to AHPRA, it is inherently unlikely that the denials were made for the sole purpose of protecting his ex-wife.  It seems more likely that Mr Shahinper lied to AHPRA to avoid professional repercussions.
  6. [38]
    In any event, whatever the motivation behind Mr Shahinper’s dishonesty, it remains a serious reflection on his character.  As stated by the Honourable James Thomas AM QC in Psychology Board of Australia v Wakelin:[40]

The respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character [than] the sexual transgression.  The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned.[41]

Expert opinion

  1. [39]
    A report was obtained from clinical psychologist Dr Fiona Black for the purposes of these proceedings.
  2. [40]
    In her report dated 12 April 2015, Dr Black referred to Mr Shahinper’s ethical obligations under the Australian Psychological Society’s Code of Ethics 2007 (Code).  She considered that Mr Shahinper’s conduct amounted to a clear violation of the Code, in that he had engaged in a sexual relationship with a patient within a period of two years after termination of their professional relationship. 
  3. [41]
    Dr Black considered that Mr Shahinper had blurred the boundaries of his professional relationship with RW even prior to the commencement of a physical relationship, in that he had begun to sexualise the relationship while the therapy continued.  She said Mr Shahinper either failed to recognise the development of an inappropriate personal relationship, or failed to take appropriate steps to prevent the situation worsening.  In Dr Black’s opinion, the professional relationship between Mr Shahinper and RW was not adequately terminated at the time of the commencement of their personal relationship. 
  4. [42]
    Dr Black considered the fact that Mr Shahinper had engaged in a sexual relationship with a patient at a time when he was subject to conditions imposed on him through his undertaking to the Board to be a concerning issue.  She referred to the bank deposits and cash being paid at a time when he was subject to the conditions.  She said:

It would be expected that such overt ethical issues that relate specifically to boundary violations should have been discussed in Mr Shahinper’s supervision, but there is no record of same.[42]

  1. [43]
    A report was also provided by Mr Shahinper’s treating psychologist, Ms Suzy Dormer.  Mr Shahinper commenced having sessions with Ms Dormer on 10 June 2014 as a condition of his undertaking to the former Board.  Those sessions have continued, with Mr Shahinper having had 22 sessions in all.  In giving evidence, Ms Dormer described herself as having been appointed as his supervisor. 
  2. [44]
    In her report dated 10 June 2015, Ms Dormer explained the sessions with Mr Shahinper were focused towards reviewing his attitudes to gender, his awareness of appropriate boundaries, his knowledge of his ethical obligations and the constant need for supervision and consultancy throughout his career.  Ms Dormer said she needed to challenge Mr Shahinper on these issues.  She said Mr Shahinper’s awareness of professional boundaries was not as strong as it needed to be for a psychologist, and he did not see women on an equal basis with men.
  3. [45]
    In her report, Ms Dormer described Mr Shahinper as having displayed a willingness to be both honest and upfront about his professional boundary issues.  Ms Dormer said Mr Shahinper had accepted responsibility for his conduct.  She said, “I have no hesitation in stating that recidivism for this matter is highly unlikely.”[43]
  4. [46]
    However, during cross-examination, it became clear that Ms Dormer was unaware of both the prior proceedings or Mr Shahinper’s undertaking to the Board, nor his repeated denials of his relationship with RW.  Ms Dormer indicated she would have expected to have been told about these matters.  Initially, when asked about the prior proceedings involving allegations by three other women, Ms Dormer said that with the work she had done, she would have hoped that she would have remained able to make the statement about recidivism.  However, when then told about the repeated denials to the Board, Ms Dormer said she would have hoped she would have been told.  When then asked whether she believed Mr Shahinper still has challenges, Ms Dormer replied, “Given what you have just told me in – in this phone call, yes, I believe he still has challenges.”[44]  In the circumstances, Ms Dormer’s report can be attributed little weight.
  5. [47]
    It is of particular concern that Ms Dormer considered Mr Shahinper to have had a “willingness to be honest and upfront” in circumstances where he had been less than fulsome and frank.  It is a clear indication of his continuing challenges and the difficulty in addressing his issues given his personality traits and lack of willingness to accept the extent of his issues.

Ethical standards

  1. [48]
    At all material times, the standard of conduct reasonably expected of Mr Shahinper as a registered psychologist was that set out in the Code, which provides relevantly:

C.4. Non-Exploitation

C.4.1 Psychologists do not exploit people with whom they have or had a professional relationship.

C.4.3 Psychologists:

  1. (a)
    do not engage in sexual activity with a client or anybody who is closely related to one of their clients;
  2. (b)
    do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client;
  3. (c)
    who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter …
  1. [49]
    The Tribunal finds that grounds exist for taking disciplinary action against Mr Shahinper.  Mr Shahinper commenced a physical sexual relationship with a patient mere days following the last counselling session with the patient and before the treating relationship had been adequately terminated.  He failed to transfer the patient to the care of an alternate psychologist, nor encourage her to seek independent counselling.  This is clearly in contravention of the Code, and constitutes professional misconduct.  Appropriately, Mr Shahinper accepts that his entering into a sexual relationship with RW amounts to professional misconduct. 
  2. [50]
    The Code also provides:

C.7. Ethics investigations and concerns

C.7.1. Psychologists cooperate with ethics investigations and proceedings instituted by … statutory bodies that are charged by legislation with the responsibility to investigate complaints about psychologists. 

  1. [51]
    Providing false and misleading statements to AHPRA in the course of their investigation is a clear contravention of Mr Shahinper’s ethical obligations under C.7.1 of the Code. 
  2. [52]
    At the hearing, an issue arose as to how Mr Shahinper’s dishonesty should be taken into account.  In disciplinary proceedings involving breach of professional boundaries deception has generally been treated as an aggravating factor of the misconduct, rather than a distinct disciplinary ground.[45]  Irrespective of its classification, Mr Shahinper’s repeated acts of dishonesty, including the extent of the denials, is a significant factor to be taken into consideration. 

Submissions on Sanction

  1. [53]
    Having determined that Mr Shahinper has behaved in a manner which constitutes professional misconduct, pursuant to s 196(2) of the National Law, the Tribunal must decide the appropriate sanction to be imposed.
  2. [54]
    Mr Haddrick, counsel for Mr Shahinper, contended for a public reprimand and a condition requiring Mr Shahinper to continue psychological counselling with Ms Dormer for a further two years.  Mr Haddrick indicated it may also be appropriate for the Tribunal to order Mr Shahinper be prohibited from treating female patients for a further 12 months.    
  3. [55]
    It was submitted that there are a number of factors to be taken into consideration in mitigation of Mr Shahinper’s conduct. 
  4. [56]
    As Mr Haddrick said, this was a case where the practitioner has conceded his conduct.[46]  However, that admission came four years after the initial notification of his inappropriate behaviour, and only in the face of irrefutable evidence of that behaviour.  In the intervening period, Mr Shahinper vehemently denied the allegations.
  5. [57]
    Counsel contended Mr Shahinper’s family difficulties warranted recognition.  Mr Shahinper says that given the state of his marriage, he was under a great deal of stress at the time of his inappropriate relationship.  Reference was made to the humiliation he has suffered as a consequence of his professional misconduct, and its ultimate effect upon his marriage. 
  6. [58]
    Mr Haddrick says that since the admission of his conduct in 2014, Mr Shahinper has developed insight into his conduct and now understands the importance of maintaining professional boundaries in the practice of psychology.  He currently works in a busy bulk billing practice in Townsville.  He is also the main psychologist for the MFD Suicide Deterrent Line.  In his affidavit, Mr Shahinper referred to the great need for psychological services in Townsville, and said that the cancellation of his registration would have a significant impact on the community.
  7. [59]
    Mr Shahinper has provided a number of letters of reference from colleagues that attest to his contributions as a psychologist.  However, on the face of these letters, it does not appear that these practitioners are aware of Mr Shahinper’s prolonged denial of his misconduct.
  8. [60]
    Mr Shahinper says that any cancellation or suspension of his registration would negatively impact upon his PhD studies.  In his affidavit filed 23 February 2015, he said that his proposed PhD thesis necessitates ongoing contact and consultation with patients.[47]  However, Catherine Haslam, the Higher Degree Research Coordinator in the School of Psychology at the University of Queensland, has given evidence that registration with the Board is not a precondition to the acceptance of Mr Shahinper’s application for further studies. 
  9. [61]
    It is said that, as required by his undertaking, Mr Shahinper has completed an online course with the Australian Psychology Society on ethical decision-making and a workshop on key legal issues in the practice of psychology.[48] 
  10. [62]
    The Board submits the appropriate sanction in this case is that Mr Shahinper’s registration be cancelled, with a three to four year preclusion from re-registration.
  11. [63]
    The Board contends there are a number of aggravating features to Mr Shahinper’s misconduct.  Mr Shahinper engaged in the sexual relationship with RW at a time when he was subject to allegations of breach of professional boundaries in the prior proceedings, and after he had given an undertaking to the former Board arising from those prior proceedings.     
  12. [64]
    Similarly, he was making payments to RW while subject to the undertaking, and at the same time as he was attempting to negotiate a supervisor who would assist him to better understand professional boundaries. 
  13. [65]
    Mr Shahinper never satisfied the requirements of his undertaking to the Board.  He failed to engage a supervisor as envisaged by the terms of the undertaking, and has taken no responsibility for that failure.  Similarly, while Mr Shahinper has now participated in psychological counselling, it became evident during the hearing that he has not been candid with Ms Dormer.  As such, he cannot be said to have adequately reviewed his attitudes towards gender nor addressed his deficient understanding of appropriate professional boundaries and professional ethics. 
  14. [66]
    Mr Shahinper’s unwillingness to take responsibility and adopt the measures that are necessary to avoid further transgressions is indicative of a lack of insight.  In his oral submissions, Mr Wilson contended that Mr Shahinper continued to lack any insight into his behaviour.  He said:

[Mr Shahinper] was aware of his conscience, his dignity, his pride, and you did not hear one word about the patient.

You did not hear him say a thing about the vulnerable and depressed woman whom he had an affair for so many months which he then tried to pay off.[49]

He is blatantly attempting to appear remorseful because he knows the serious affect that a lack of insight and remorse will have upon the sanction which the Tribunal is likely to impose.[50]

  1. [67]
    Despite expressing apparent contrition for his behaviour and concern for RW in his written communications, Mr Shahinper persistently contradicted this stance by revealing his perception of RW as having the greater role in initiating the relationship and determining its course.  He continues to describe her behaviour as seductive and coercive, and describes his own capacity to effectively end the relationship as curtailed by his fear of her informing his ex-wife.
  2. [68]
    The Tribunal accepts that Mr Shahinper continues to lack insight into his offending behaviour. 
  3. [69]
    The power imbalance by virtue of the therapeutic relationship is always an aggravating circumstance in these cases.  The relationship between psychologist and patient is necessarily one involving a high degree of personal exposure on the part of the patient.  That fact alone, notwithstanding any particular psychological issues, will place a patient in a position of greater vulnerability than may be the case in other therapeutic relationships.[51]  In the circumstances, the sexual relationship was a gross violation of the responsibility and trust placed in Mr Shahinper as a psychologist.  RW and two of her children have deposed to the negative consequences the relationship has had for her mental health.
  4. [70]
    Despite this, Mr Shahinper has continually minimised RW’s level of vulnerability.  His attitude indicates he still has some way to go in appreciating the power imbalance inherent in a psychologist patient relationship.
  5. [71]
    In oral submissions, Mr Haddrick contended there was a substantial diminution in the power imbalance between Mr Shahinper and RW by virtue of her alleged demands for payment.  If there was any change, that change occurred well after the treating relationship had ceased.  It certainly cannot alter the nature of the misconduct.
  6. [72]
    Irrespective of the circumstances surrounding Mr Shahinper’s payments to RW, his decision to make the payments was undeniably self-motivated.  He was focused on the preservation of his own marriage and family, rather than the wellbeing of his patient. 
  7. [73]
    A significant aggravating feature in this case is Mr Shahinper’s dishonest conduct.  At no point during these proceedings has he been entirely candid.  Until confronted with incontestable evidence of his misconduct, Mr Shahinper had for four years continued to vigorously and repeatedly deny the sexual relationship while perpetuating detailed accusations concerning RW, her family and her motivations for making a notification to AHPRA.  Given Mr Shahinper’s repeated denial of his conduct and the circumstances in which he eventually admitted to it, the inference can be drawn that in the absence of the records produced by AHPRA at the interview on 21 February 2014, Mr Shahinper would have continued to deny his relationship with RW indefinitely.  Further, Mr Shahinper’s admissions to date have been extremely limited, and he has continued to minimise and rationalise his behaviour.

Comparative Cases

  1. [74]
    In their submissions, the parties drew the Tribunal’s attention to a number of cases involving professional boundary violations by medical practitioners.  Having regard to the extent of Mr Shahinper’s dishonesty, his lack of insight and history of prior disciplinary issues, a number of those decisions involve conduct significantly less egregious than Mr Shahinper’s.  Those decisions are of little assistance to the Tribunal.[52]
  2. [75]
    The circumstances of this case are comparable to those in Psychology Board of Australia v Wakelin.[53]  Wakelin’s case involved a psychologist who entered into a sexual relationship with a former patient immediately following the termination of the therapeutic relationship.  The psychologist provided false statements to AHPRA during the course of its investigation denying the sexual relationship in its entirety.  She made only limited admissions with respect to her conduct nearly 12 months later,[54] in circumstances where AHPRA had already received information suggesting the falsity of her prior account.[55]
  3. [76]
    By agreement, the parties in Wakelin proposed a sanction comprised of an 18 month period of suspension, a reprimand and the imposition of conditions on the practitioner’s registration.  The Honourable James Thomas AM QC expressed concern whether this was too light a response given the serious aggravation of the practitioner’s overall conduct by her attempted deception of the Board.  He said:

The comparative cases submitted by the Board suggest that a suspension of around 6 to 12 months might be suitable if the post-treatment sexual misconduct stood alone.  However, the additional deceptive conduct might itself justify a response in the vicinity of at least 18 months suspension.[56]

  1. [77]
    In the circumstances, while Mr Thomas AM QC was satisfied an 18 month suspension was within the appropriate range for the relevant conduct, he stated it may be thought to be on the light side, and that sanctions for similar conduct in subsequent cases may well exceed that imposed in Wakelin.
  2. [78]
    Mr Shahinper’s repeated acts of dishonesty make his conduct worse than that in Wakelin.  Ms Wakelin made one false statement to AHPRA, and made admissions 11 months later.  She had no prior professional transgressions.  Mr Shahinper continued to deny his conduct for four years after the initial notification, and engaged in the relevant misconduct while he was subject to an undertaking for allegedly breaching professional boundaries in the prior proceedings. 
  3. [79]
    Ms Wakelin voluntarily entered into psychological counselling.  She voluntarily ceased practice, and fully complied with an undertaking entered into with the Board.  Mr Shahinper commenced counselling and supervision with Ms Dormer some four years after giving his undertaking to the Board, having failed in the intervening period to arrange any supervision at all.
  4. [80]
    Furthermore, Ms Wakelin had provided psychological services to her patient on three occasions over a span of 16 days, whereas Mr Shahinper treated RW for in excess of five months.  Finally, there was no suggestion that Ms Wakelin had failed to adequately terminate the therapeutic relationship prior to the commencement of the sexual relationship.  This is clearly a case which calls for a sanction in excess of that imposed in Wakelin.  
  5. [81]
    In Medical Board of Queensland v Alroe,[57] a psychiatrist engaged in a sexual relationship with a former patient.  The HPT referred to the significant power imbalance between psychiatrists and their patients.  The HPT emphasised the importance of protecting the public from medical practitioners who are unable to attain the appropriate standard of professional behaviour particularly in relation to psychiatrists, “to whom patients disclose so much and in whom they place so much trust”.[58]  In that case, the patient was particularly vulnerable. 
  6. [82]
    The practitioner’s conduct was considered to have been predatory and knowingly exploitative, and he displayed no real insight into his offending conduct.  In the circumstances, the HPT considered the only appropriate order was a cancellation of the practitioner’s registration.  He was precluded from applying for re-registration for a period of four years.
  7. [83]
    In Medical Board of Australia v Maharajh,[59] a former psychiatrist made a false declaration on an employment application in Queensland to the effect that his right to practice had never been impacted by disciplinary proceedings or investigations.  However, at that time Mr Maharajh was under investigation by the Health and Disability Commission of New Zealand with respect to a complaint by a former patient. 
  8. [84]
    Ultimately, the New Zealand Tribunal found that Mr Maharajh was guilty of professional misconduct, having engaged in a sexual relationship with a former patient some 20 years his junior.  He encouraged the patient to mislead the investigators about the nature of their relationship, and paid her almost $36,000 to that end.  The patient was a vulnerable young woman with a history of anxiety, depression and suicidal ideation.  Mr Maharajh abused his position of trust as her psychiatrist for his own sexual gratification.  He exploited the patient’s vulnerability and lack of sexual experience.  Further, he took advantage of his position of power and authority to procure the patient’s denial of the relationship.  The New Zealand Tribunal took into account as mitigating factors that there was no evidence of prior complaints or professional issues, and there were many colleagues who provided references and spoke favourably of Mr Maharajh’s practice.  Mr Maharajh’s registration in New Zealand was cancelled. 
  9. [85]
    Following the cancellation of Mr Maharajh’s registration in New Zealand, the Australian authorities were notified and the Board took immediate action to suspend his registration in Australia.  By the time the proceedings came before the Tribunal, Mr Maharajh’s registration in Australia had lapsed. 
  10. [86]
    Mr Maharajh cooperated fully in his disciplinary proceedings before this Tribunal.  The Tribunal considered he expressed genuine remorse for his conduct, but continued to lack great insight.  In the circumstances, Mr Maharajh was precluded from applying for registration for a period of three years and six months.
  11. [87]
    There is nothing before the Tribunal in this case to suggest the vulnerability of RW falls anywhere near as high as that of the patients in Alroe and Maharajh, nor that the conduct of Mr Shahinper could be described as predatory or grooming in nature.  Nevertheless, these decisions would demonstrate that a lengthy period of preclusion is called for.

Sanction

  1. [88]
    Mr Shahinper provided a number of positive references from medical practitioners who have referred patients to him, and he has evidently done valuable work with the MFD Suicide Deterrent Line.  It is said that the regional area in which he works is in need of psychologists like him.  It is true that there is undoubtedly a public interest in having conscientious practitioners remain in practice. 
  2. [89]
    However, the public interest in a practitioner remaining in practice must always be weighed against the need to protect the community against any repetition of offending behaviour and to deter other registrants from conducting themselves in a like manner.
  3. [90]
    Given the evidence of Mr Shahinper before the Tribunal and the acceptance by Ms Dormer that Mr Shahinper still has some challenges, the Tribunal considers there to be a significant risk of recidivism.  This is particularly concerning in light of the prior proceedings and Mr Shahinper’s dishonest dealings over an extended period with both AHPRA and the Board.
  4. [91]
    In all the circumstances, having regard to the gravity of Mr Shahinper’s offending conduct, the extent of his dishonesty and his lack of insight, it is appropriate that Mr Shahinper’s registration be cancelled and he be prohibited from applying for registration for three years.
  5. [92]
    Upon the expiration of that exclusion period, it will be for Mr Shahinper to satisfy the Board that he is, at that time, a fit and proper person to be registered as a psychologist.  The Tribunal remains concerned that Mr Shahinper has yet to fully appreciate the factors underlying his misconduct, particularly his attitudes towards gender, his awareness of appropriate professional boundaries, and the need for constant supervision throughout his practice.  In order to satisfy the Board of his fitness for re-registration, Mr Shahinper would need to demonstrate he has appropriately addressed these issues.
  6. [93]
    As Mr Shahinper is currently in practice, it is desirable that his cancellation should commence on a date which will enable the care of his patients to be transferred to others.  Section 127 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) permits the making of an order for a decision to take effect on a future date.  In the circumstances, it is appropriate to delay the commencement date of the cancellation order for one month.  

Costs

  1. [94]
    The parties have agreed that Mr Shahinper should pay the Board’s costs of and incidental to the proceedings in an amount agreed, or failing agreement, to be assessed on the District Court Scale.
  2. [95]
    Such an order was regularly made under s 195 of the National Law, which conferred a broad jurisdiction on the Tribunal to “make any order about costs it considers appropriate for the proceedings”.  However, following the removal of s 195 by the Health Ombudsman Act 2013 (Qld),[60] the issue of costs falls to be determined under the provisions of the QCAT Act.
  3. [96]
    The relevant provisions of the QCAT Act provide that each party to a proceeding must bear its own costs unless otherwise provided in the QCAT Act or by an enabling Act,[61] or unless the interests of justice require it.[62]  The matters to which the Tribunal may have regard in deciding whether to award costs are set out in s 102(3). Those matters include “anything else the Tribunal considers relevant.”
  4. [97]
    In this case, the parties have consented to the making of an order awarding costs.  Funded as it is by its practitioner members, the Board has limited resources.  It has been put to expense in investigating and prosecuting these proceedings, which have been unnecessarily prolonged by Mr Shahinper’s dishonesty.  In those circumstances, it seems appropriate that the cost of the proceedings be borne by the erring practitioner.
  5. [98]
    The appropriate order is that Mr Shahinper should pay the Board’s costs.

Orders

  1. [99]
    Accordingly, the Tribunal orders that:
    1. Pursuant to s 196(1)(b)(iii) of the National Law, the Tribunal finds Mr Shahinper has behaved in a way that constitutes professional misconduct.
    2. Pursuant to s 196(2)(e) of the National Law, Mr Shahinper’s registration is cancelled, effective from 5 September 2016.
    3. Pursuant to s 196(4)(a) of the National Law, Mr Shahinper is disqualified from applying for registration for a period of three years from 5 September 2016.
    4. Mr Shahinper is to pay the Board’s costs of and incidental to these proceedings to be agreed, or failing agreement, to be assessed on the District Court Scale.

Footnotes

[1]Statement of agreed facts, at [3].

[2]Ibid, at [4].

[3]Statement of agreed facts, at [7].

[4]Form 36 response, at [7].

[5]Ibid, at [8].

[6]Email Mr Shahinper to RW, RAK-3 to affidavit of Rosemary Kent, p. 42.

[7]Statement of agreed facts, at [12]-[13].

[8]Ibid, at [14].

[9]Ibid.

[10]Affidavit Mr Shahinper filed 23 February 2015, at [15].

[11]Statement of agreed facts, at [11].

[12]Ibid, at [16].

[13]Ibid.

[14]T1-25, LL 27-28.

[15]Statement of agreed facts, at [16].

[16]T1-25, LL 30-33.

[17]Statement of agreed facts, at [17].

[18]Ibid, at [18].

[19]Submissions on behalf of Mr Shahinper, at [5]; affidavit of Mr Shahinper dated 18 February 2015 at [24].

[20]Affidavit Mr Shahinper dated 7 March 2016, at [12] at [19].

[21]RAK-2 to affidavit of Rosemary Kent. 

[22]RAK-3 to affidavit of Rosemary Kent.

[23]Letter Mr Shahinper to AHPRA dated 27 July 2012, Amended Bundle of Agree Documents pp. 29-30.

[24]Letter Mr Shahinper to AHPRA dated 5 April 2013; Amended Bundle of Agreed Documents p. 36.

[25]Letter CPB Lawyers to AHPRA, dated 3 May 2013; Amended Bundle of Agreed Documents pp. 40-41.  Emphasis in original.

[26]Transcript of interview of Mr Shahinper conducted by AHPRA on 21 February 2014, P-15 LL 36-40.

[27]Ibid, P-19 LL 42-47.

[28]See, for example, P-22 LL 44-16; P-23, L 3; P-23 LL 35-36; P-24 LL 37-39

[29]Transcript of interview of Mr Shahinper conducted by AHPRA on 21 February 2014, P-24 LL 42-47.

[30]Statement of agreed facts, at [19]; letter White & Mason Lawyers to AHPRA dated 28 March 2014, p.1.

[31]T1-37 LL 14-16.

[32]T1-37 LL 18-33; affidavit Mr Shahinper filed 23 February 2015, at [37].

[33]T1-37 LL 35-36.

[34]T1-37 LL 38-45; affidavit Mr Shahinper filed 23 February 2015, at [40].

[35]T1-38 LL15-30.

[36]T1-23 LL 15-27.

[37]T1-25 L 30.

[38]T1-26 L 15.

[39]T1-26 LL 15-16.

[40][2014] QCAT 516.

[41]Psychology Board of Australia v Wakelin [2014] QCAT 516 at [21].

[42]Report of Dr Black dated 12 April 2015, p. 7.

[43]Ex 3, p. 2.

[44]T1-55 LL 13-14.

[45]See, for example, Psychology Board of Australia v Wakelin [2014] QCAT 516 and Psychology Board of Australia v Dall [2011] QCAT 608.

[46]Submissions on behalf of Mr Shahinper, at [7]; T1-72 L 31.

[47]Affidavit Mr Shahinper filed 23 February 2015, at [35].

[48]Affidavit Mr Shahinper filed 27 November 2015, at [19]-[20].

[49]T1-57 LL 24-30.

[50]T1-60 LL 23-25.

[51]Medical Board of Australia v Alroe [2005] QHPT 004 at [13].

[52]Psychology Board of Australia v Cook [2014] QCAT 162; Medical Board of Australia v Blomeley [2014] QCAT 160; Medical Board of Australia v North [2012] QCAT 546; Medical Board of Australia v Jones [2012] QCAT 362; and Medical Board of Australia v Nandam [2011] QCAT 065.

[53][2014] QCAT 516.

[54]She admitted ‘I did not wait until 2 years had passed before considering my actions’, and acknowledged she had ‘not been completely forthcoming’ with the Board: ibid, at [15].

[55]Psychology Board of Australia v Wakelin [2014] QCAT 516, at [14].

[56]Ibid, at [25].

[57][2005] QHPT 004.

[58]Medical Board of Queensland v Alroe [2005] QHPT 004 at [13].

[59][2015] QCAT 504.

[60]Health Ombudsman Act 2013 (Qld), subparagraph 50 of s 326.

[61]QCAT Act, s 100.

[62]Ibid, s 102(1).

Close

Editorial Notes

  • Published Case Name:

    Psychology Board of Australia v Shahinper

  • Shortened Case Name:

    Psychology Board of Australia v Shahinper

  • MNC:

    [2016] QCAT 259

  • Court:

    QCAT

  • Judge(s):

    Suzanne Sheridan J, Deputy President

  • Date:

    05 Aug 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QCAT 25905 Aug 2016Disciplinary proceeding: appellant found guilty of professional misconduct; registration cancelled; disqualified from registering: Sheridan DCJ.
Notice of Appeal FiledFile Number: Appeal 8836/1631 Aug 2016-
Appeal Determined (QCA)[2017] QCA 9619 May 2017-

Appeal Status

Appeal Determined (QCA)
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