YBCG v Health Ombudsman[2024] QCAT 516

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The practitioner seeks to review the Health Ombudsman’s (HO) decision dated 27 April 2023 to take immediate registration action (IA Decision).  The HO took immediate registration action pursuant to s 58(1)(a) of the Health Ombudsman Act 2013 (Qld) (HO Act).
2. [2]
   In summary, after receiving notifications involving two separate female patients several months apart raising concerns about the practitioner’s conduct in consultations, the HO decided she formed a reasonable belief that because of the practitioner’s conduct or performance, he posed a serious risk to persons and it was necessary to take immediate registration action to protect public health and safety. That action was in the form of prohibiting contact with female patients and imposing requirements as to booking, employment and practice locations on the practitioner.
3. [3]
   The Tribunal has determined that the review should be upheld and the HO’s decision to take immediate registration action should be set aside.
4. [4]
   The reasons for that decision follow.

What are the issues between the parties?

5. [5]
   The contentions between the parties that the Tribunal has to decide to determine whether the practitioner constitutes a serious risk and, if he does, what the appropriate response to that is are:

   1. Whether it is inclined to the belief that the practitioner behaved as alleged by Patient A in the last two consultations at the end of the treating relationship? In answering that question, the Tribunal has to consider what weight, if any, to give the evidence of each of Patient A and the practitioner, given the HO’s refusal to make Patient A available for cross-examination;
   2. if it is satisfied that the practitioner behaved as alleged by Patient A, what if any support is there for any inclination to a belief of inappropriate behaviour towards Patient B?
   3. If it is not so satisfied, is it inclined to the belief that the practitioner behaved as alleged by Patient B, or otherwise inappropriately towards Patient B?
   4. Does whatever the Tribunal believes involving Patient A alone, Patient B alone, or Patients A and B together, give rise to a serious risk to persons and, if so, what is that serious risk?
   5. What is the necessary response to that risk?
6. [6]
   The Tribunal has read and considered all of the material filed on the application, even if parts of it are not specifically referred to in these reasons.

What does the law say?

7. [7]
   The Tribunal, in exercising its review decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act):

   1. has all the functions of the decision maker for the reviewable decision being reviewed;^[1]
   2. has ‘to produce the correct and preferable decision’;^[2] and
   3. must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.^[3]
8. [8]
   The Tribunal can consider material beyond that considered by the HO and it can consider circumstances which have changed or developed since the IA Decision.^[4] In this case there is more material as I set out below.
9. [9]
   The Tribunal can confirm or amend the decision, set the decision aside and substitute its own decision or set the decision aside and return it to the decision maker for reconsideration with directions considered appropriate.^[5] 
10. [10]
    Section 21 of the QCAT Act obliges the HO to use her “best endeavours to help the Tribunal so that it can make its decision on the review.”  The Tribunal otherwise agrees with the observations in Pawape v Medical Board of Australia,^[6] that in a review hearing, each party has a practical onus to advance their respective positions before the Tribunal.^[7] 
11. [11]
    Section 58(1) of the HO Act provides, relevantly:

The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if—

1. The health ombudsman reasonably believes that:

1. Because of the practitioner’s health, conduct or performance the practitioner poses a serious risk to persons; and

2. It is necessary to take the action to protect public health or safety

…

12. [12]
    Reasonable belief of a serious risk requires the existence of a factual matrix sufficient to induce that belief in a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition.^[8] An immediate action order does not entail a detailed inquiry and is one which requires action on an urgent basis because of the need to protect the public.^[9] Immediate action is not a substitute for action that may be taken after an investigation.^[10]
13. [13]
    The available material should be carefully scrutinised to determine the weight to be attached to it.^[11] Self-evidently this careful scrutiny is critical to a determination of whether, in a particular case, there is a risk, whether that risk is serious and if it is, what action needs to be taken.
14. [14]
    A reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. It is not necessary to be satisfied that certain conduct will be engaged in, or that it is more probable than not that it will be engaged in.^[12] The corollary to that principle is, I would have thought, that an absence of any evidence of past inappropriate conduct is a factor which must also be weighed in making an assessment of reasonable belief, particularly for a longstanding practitioner, when allegations are disputed.  
15. [15]
    “Serious risk” is not defined in the HO Act but means:

of grave aspect, weighty or important; giving rise for apprehension; critical; to be considered as an extreme example of its kind.^[13]

16. [16]
    I agree with the observations of Judicial Member D J McGill SC that:

it is not sufficient for there to be some risk, it must be a risk which fairly merits the description “serious risk”.^[14]

17. [17]
    Whether an identified risk posed by a practitioner can fairly be described as serious can be considered through the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if it does eventuate.^[15]
18. [18]
    If the Tribunal decides it reasonably believes the practitioner, by his conduct or performance, poses a serious risk to persons and that it is necessary to take immediate action to protect public health and safety, the Tribunal must identify the serious risk posed and the particular aspects of the practitioner’s conduct or performance which cause that risk and the particular action necessary to protect public health and safety.^[16] Whilst protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.^[17] Adverse consequences to a practitioner are not relevant to the question of whether the practitioner presents a serious risk to persons but they highlight the importance of carefully considering the statutory criteria for immediate action and that any action that is taken is addressed specifically to the risk identified and is the least onerous necessary to address the risk.^[18]

The Human Rights Act 2019 (Qld)

19. [19]
    As the Tribunal is acting in an administrative capacity^[19] in the conduct of this review, it must apply the Human Rights Act 2019 (Qld) (HR Act).
20. [20]
    The practitioner is entitled to certain human rights, which may be limited because of the review process and any decision the Tribunal makes.^[20] The practitioner’s human rights include the right to recognition and equality before the law, to freedom of expression, to privacy and reputation and the right to a fair hearing.
21. [21]
    When the Tribunal is exercising its functions it must interpret statutory provisions in a way which is compatible with human rights^[21] and act or make a decision in a way which is compatible with human rights.^[22] The Tribunal does not consider there is any ambiguity in this review which requires consideration, apart from the plain meaning of the statute. The Tribunal is satisfied that this review process offers the practitioner the right to a fair hearing, and that that right has not been limited. Similarly, there has been no limitation on the practitioner’s right to recognition and equality before the law. The Tribunal’s review of the IA Decision does not unlawfully or arbitrarily interfere with the practitioner’s person, privacy, family, home or correspondence, because the review is conducted within statutory parameters.
22. [22]
    A finding of serious risk to persons may limit the practitioner’s other identified human rights. The HO Act provides that the main principle for administering the HO Act is that the health and safety of the public is paramount.^[23] The health and safety of the public is the main consideration for the HO when deciding what relevant action to take to deal with a complaint or other matter and also for QCAT, when deciding a matter referred to it under this Act.^[24]
23. [23]
    I am satisfied that any limitation on the practitioner’s rights arising because of any finding of serious risk to persons, is consistent with the paramount principle in the HO Act. These considerations outweigh the practitioner’s private interests so that any limitation which the Tribunal imposes is reasonable and justified in the circumstances.

What additional material is before the Tribunal?

24. [24]
    The material before the Tribunal which the HO did not have when she made the IA Decision is:

    1. the practitioner’s clinical records for each patient;
    2. a Clinical Advice for each patient provided by Dr Marjorie Collins, Clinical Psychologist to the HO dated 28 January 2024, approximately nine months after the Decision was taken, but before the practitioner had provided any affidavit material;
    3. an affidavit of the practitioner affirmed on 4 March 2024 (practitioner’s affidavit), without the practitioner having reviewed the Clinical Advice of Dr Collins;^[25] and
    4. a supplementary Clinical Advice by Dr Collins for each patient provided to the HO dated 25 March 2024.

What does each party contend for on the review?

25. [25]
    The practitioner seeks to have the IA Decision set aside. He concedes he erred in his treatment of each of the Patients, but contends that properly scrutinised, the material before the Tribunal does not support the contention that he is a manipulative sexual predator, or that he poses a serious risk in those terms.^[26] The practitioner contends that the Tribunal should find that he does pose a risk that:

    1. he conducts his practice in a lax or inattentive way;
    2. he fails to adequately recognise his own limitations in treating particularly complex patients.
26. [26]
    Relevantly, as the issue of risk falls to be addressed at the time of the hearing, the practitioner contends:

    1. he has taken steps to address any such risk, as set out in his affidavit, such that the Tribunal should be satisfied there is presently no serious risk; alternatively
    2. if the Tribunal finds there is a serious risk arising from the risk he concedes the material poses, he seeks to be heard on conditions.
27. [27]
    The HO opposes the application. The HO submits the appropriate way to approach the case is to consider Patient A’s complaint and determine it is credible, which gives rise to a reasonable risk that there were serious professional boundary breaches, then look at Patient B’s circumstances for some corroboration, but that if Patient A’s complaint is accepted it gives rise to a serious risk.^[27]
28. [28]
    That is a reversal from aspects of the IA Decision, where the HO in forming a reasonable belief of serious risk to persons on the information before her, relied on Patient B’s traumatic past making her particularly vulnerable and that her allegation the practitioner used her traumatic past of abuse as a tool to start inappropriate discussions with her was particularly disturbing.^[28] In fixing conditions, the HO referred expressly to the practitioner’s alleged manipulation of Patient B and creation of an environment of serious emotional confusion and anxiety for her, with an awareness of her traumatic past, as being particularly exploitative and an aggravating feature of the alleged conduct.^[29] The HO expressed her view that the practitioner had engaged in a serious breach of professional boundaries which has resulted in significant harm to a highly vulnerable female patient and that the practitioner had attempted a similar outcome with Patient A, which led her to believe that the risk of the alleged conduct occurring was high and warranted a prohibition on any contact with female patients.^[30] 
29. [29]
    In setting this out, the Tribunal is not considering whether the HO erred; rather it is highlighting the considerations which informed the conditions the HO determined were necessary on the material before her.
30. [30]
    The expert opinion (addressed further below) is, broadly, that:

    1. Patient B’s claims of sexual impropriety cannot be relied on;^[31]
    2. Patient B’s complaint is unconvincing;^[32] and
    3. the practitioner was out of his depth in treating Patient B.^[33] 
31. [31]
    In oral argument the HO contended that the risks were:

    1. a competency issue dealing with a clinically difficult patient, with the treatment provided to Patient B demonstrating serious risk to that patient, which is a risk that, alone, gives rise to a serious risk of harm;^[34] and further
    2. consistent with the IA Decision, a serious risk that the practitioner lacks the ability or willingness to comply with his ethical and professional responsibilities to refrain from engaging in inappropriately intimate or sexually charged communications with patients.^[35] That risk is represented by comments with innuendo, that are suggestive, flirtatious, that are precursors to the end of that risk, which is the risk of pursuing a relationship with a patient.^[36]  This arises from Patient A’s complaint, which is credible and reliable, as corroborated by the uncontroverted material that exists from Patient B’s complaint.^[37] The HO accepts there are problems with Patient B’s account but contends that what arises from Patient B’s treatment is enough to give rise to the reasonable belief of the identified risk.^[38] 

What is the practitioner’s background?

32. [32]
    The practitioner, a 57 year old psychologist, holds an honours degree in Psychology from Griffith University. He was first registered as a psychologist in 1997 and has remained continuously registered since that time. Until early 2023, he practiced from a rented office at a medical practice in a suburb of the Gold Coast.  Prior to the events the subject of this review, he has no notification or disciplinary history.
33. [33]
    His practice is predominately focussed on the use of cognitive behavioural therapy to treat depression and anxiety related disorders, noting that his patients present with a variety of conditions.  Most of his patients are referred to him by general practitioners under subsidised or bulk-billed pathways, including Medicare and the Gold Coast Primary Health Network psychological services program. He conducts sessions with patients in person, by telehealth and video conferencing.  Prior to the start of 2023, 62% of his practice involved female patients.

The practitioner’s clinical records

34. [34]
    The parties agree the Tribunal can proceed on the basis that the clinical notes likely record matters which were discussed at or around the time of the particular consultations but are not a complete account of what occurred.^[39]
35. [35]
    Having reviewed the clinical notes, the Tribunal accepts the practitioner’s submission that:

    1. his notes disclosed a consistent pattern where he receives a referral, completes a number of sessions and refers back to the doctor with a progress report setting out the outcomes of the treatment.^[40] Plainly, a review of the notes indicates this was occurring for each patient. He was receiving a referral, writing to the treating doctor to confirm an initial appointment, meeting each patient on a regular basis (with some evidence of a system of upcoming generic SMS reminders of appointments), administering psychological tools to each patient at intervals and he was reporting back to their general practitioners with some updates and, typically, with requests for further referrals;
    2. the matters recorded in his clinical notes are important contextualising factors in weighing the statements of the two complainants.^[41] The practitioner sets out that whilst his usual practice is to write his notes at the end of the day for in person sessions, on occasion he may write those notes at the end of the week and he may write notes of telehealth session at the time of the session.^[42]  The notes are typically in sentences cast as “[x] reported” where the patient has told the practitioner something. Other parts start with words such as ‘explored’ or ‘normalised’ which seems to document an approach taken by the practitioner. The notes contain the types of minor typographical errors that might be expected to be seen in documents which are being kept as records for the practitioner’s benefit as to what transpired at a particular session.
36. [36]
    The HO submits that what is not recorded in the clinical notes for consultations with Patient B is significant and tells against the practitioner. This relates specifically to the fact that whilst in his affidavit the practitioner says there was an occasion when Patient B stated she was attracted to him, which he thinks was prior to a text message Patient B sent him about her husband agreeing to an open marriage, (and to which he says he responded that Patient B’s statements were inappropriate, that he did not carry on relationships with clients and that he explained the boundaries of the patient/therapist professional relationship), his clinical notes contain no reference to Patient B’s disclosure or his response to it.  The HO submits that this failure suggests at least a laxness of practice, but in view of other allegations, there was something more going on between the practitioner and Patient B.  That is because once you know that Patient B has told him of her attraction to him, it is much harder to read the Telegram message as entirely innocuous.^[43] I deal with this submission further below. 
37. [37]
    The practitioner in his affidavit has sworn that he does not consider that complimenting patients or disclosing personal information is necessarily inappropriate in all cases. He does sometimes compliment patients on their physical appearance as a part of his therapeutic approach. He uses examples from his own life to relate to patients’ experience and issues and to help them to disclose information to him so he can assist them with their issues. The information he shares is not extremely personal or intimate and he would not and does not discuss intimate details of his life or personal relationships with patients.^[44]  

The factual matrix, so far as it can be discerned, concerning Patient A

38. [38]
    Patient A was referred to the practitioner by her treating general practitioner on about 7 July 2020. Patient A consulted the practitioner approximately monthly with further referrals by her general practitioner to him on 2 March and 20 October 2021. Her last consultation with him was on 7 October 2022.
39. [39]
    Thereafter, on 12 and 14 October 2022, Patient A discussed with her general practitioner concerns about the practitioner’s conduct, specifically in her last two consultations with him on 16 September 2022 and 7 October 2022. Her general practitioner noted those discussions and made a mandatory notification to the HO on 17 October 2022. 
40. [40]
    Patient A’s GP told her he had made the notification and, the next day, Patient A made a complaint though the HO’s website. Patient A provided a statement to the HO on 2 December 2022, almost five months before the IA Decision.
41. [41]
    Patient A says she consulted the practitioner to assist her in managing her stress in relation to her husband having a mental health break down and separating from him due to those issues. The practitioner broadly agrees, noting her anxiety was exacerbated by reason of medical conditions suffered by her husband and children.
42. [42]
    The essence of Patient A’s complaint is:

    1. approximately 18 months into the treating relationship the practitioner started commenting on what she was wearing. Whilst she did not think much of it initially, these comments became a normal thing at every appointment. Whilst the comments did not feel right at first, she did not have concerns, but as they became more frequent they started making her feel weird;
    2. in a session around December 2021 when they were discussing how she felt about exploring new relationships, but she said she was not interested he said she should just sleep with a married man, as it would be non-committal and they would each be busy with their own lives. As she had, on her version, only been pursuing treatment for a short amount of time she did not pursue this with her GP;
    3. the tone of the conversation took a dramatic turn in the last two sessions. Patient A stated that when she was discussing separation from her husband and her thoughts that it was better to continue the relationship in the second last session the practitioner said he would not advise that the relationship continue. She said he sounded extremely frustrated. He said she would be better off finding a no strings attached sexual relationship with a married man. Whilst he had given her this advice at other sessions, on this occasion she says he became insistent that she listen to him.  Patient A said there was conversation about his family, his marital problems and his own personal life. When they were discussing her anniversary dinner he wrote down on a piece of paper what she liked to eat and he said he did not think it was a good idea to go out for dinner with her husband, in fact he thought it was a terrible idea. He asked if she agreed with him and she said she didn’t. Patient A said they finished the consultation and he told her that her referral would be finished at the next session in three weeks and there was something she needed to fill out at the appointment. Patient A states that whilst she was feeling uncomfortable she decided to go back because she had to fill out the paperwork and she thought she might be misinterpreting the situation;
    4. then, in the final session in early October 2022, the practitioner opened the consultation complaining about his wife and kids, discussed her kids and the dinner date she had had with her husband and what she was going to do. She alleges the practitioner discussed a diet he was on and said words to the effect that she had a great body and that he enjoyed hanging out with her, which made her feel uncomfortable. She completed the questionnaire and he entered it into his computer. Patient A alleges he then leaned in towards her and asked her if she remembered the conversation they had on the last appointment. She said yes and he then asked her if she would like to come to that sort of arrangement with him, which she then realised was having sex with a married man. She quickly said no, and he clarified and asked her if she was sure. When she said no for a second time, he was silent for a moment then looked at her, backed off in his chair and said he must have misunderstood her.  He asked if she would get another return referral, she said she was really busy and she’d think about it in the new year, they discussed the referral process, he wished her well with her kids and she left his office.
43. [43]
    The practitioner’s unchallenged sworn evidence is that:

    1. whilst he cannot recall doing so, he may have complimented Patient A, consistent with his usual practice to compliment patients on their physical appearance as part of his therapeutic approach. He doesn’t recall saying that Patient A was “looking pretty” and says it is not something he would usually say to a patient or in general conversation. He concedes his clinical notes do not record any specific clinical justification for paying Patient A specific compliments or any particulars of how it was employed;^[45]
    2. he sometimes shares information about himself and his family with his patients in the context of therapy. That information is not extremely personal or intimate. The practitioner’s evidence is that he used examples from his own life as a way of relating to Patient A’s experience and helping her to disclose therapeutically relevant information, and that some of those things related to his relationship with his wife. He denies ever saying he and his wife were experiencing marital problems: “That was not the case and it is not something I would say to a patient”.
44. [44]
    As to his consultations with Patient A, relevantly, he deposed that:

    1. Patient A’s sessions were largely “debrief” discussions about events and issues as they arose in her life and strategies to assist her to cope with them. The sessions frequently involved discussion of the breakdown of Patient A’s marital relationship and her options to move on with her life (which I note is supported by the contents of the clinical notes). This included her moving on romantically and sexually;
    2. as a consequence of Patient A reporting to him at some point that she was not ready for a romantic relationship, she had some sexual needs emerging and she was reporting not being sexually attracted to her husband at that point, he and Patient A explored various options she might have to meet men with a view to a sexual relationship. Options included online dating, meeting a sexual partner somewhere other than her home as this would enable her to keep her home life and family separate from a man she had just met;
    3. whilst he cannot recall specifically suggesting Patient A pursue a sexual relationship with a married man he accepts it is possible he did in the context of the discussion. He says he raised improbable options to help Patient A to structure her thinking about what she really wanted or needed in her life moving forward and to prompt her to generate and consider options that might be more practical;
    4. as to a reconciliation between Patient A and her husband, Patient A’s reports suggested a new dynamic in the marital relationship which they explored. That included discussing how she might reconcile with her husband, which he was surprised by as many of the sessions had been about her moving on with her life. He did not recall saying to Patient A that reconciling with her husband was not a good idea, a terrible idea for Patient A and not fair on her husband;
    5. he denies telling Patient A not to reconcile with her husband or suggesting she should choose a different option. He denies telling Patient A she should not be reconciling with her husband and that she would be better off finding a no strings attached sexual relationship with a married man.
45. [45]
    He can recall one occasion when Patient A reported to him that she felt she needed to lose weight and he was surprised and recalled suggesting to her that she did not seem to be overweight or need to lose weight. He does not recall saying Patient A “had a great body” and does not think he used those words. He cannot recall specifically telling Patient A that he felt he needed to lose weight, but he was self-conscious about his weight and accepts that in the context of Patient A’s report he may have referred to his own efforts to lose weight.  There is no record in his clinical notes of any discussion of or reference to Patient A’s weight. 
46. [46]
    He sets out his own account of the last two consultations. Specifically:

    1. during the second last session Patient A mentioned that she was attracted to an intelligent man that she couldn't approach. He asked Patient A whether that man was her doctor, and she indicated that was not the case;
    2. after that session, it occurred to him that Patient A may have been suggesting she was attracted to him. Because of this he thought it was necessary to determine if that was so and if so whether it was necessary to address any issue of transference;
    3. at the session on 7 October 2022 he asked Patient A if he was the person to whom she had been referring in the previous session and he sets out, to the best of his recollection that the conversation was:
       1. he said: “When you mentioned that tall intelligent man that was unapproachable in our last session, was that me?”;
       2. Patient A said: “no”;
       3. he asked Patient A if she was sure; and
       4. Patient A responded that she was sure.
47. [47]
    He recalled feeing awkward about this conversation because he was anticipating having to discuss transference with Patient A because his familiarity with transference is limited.  He accepts his awkwardness may have affected his posture or affect although he cannot say if it did. He was relieved by what Patient A told him and reverted to his usual end-of-session process. He cannot recall anything unusual about how the consultation ended: Patient A said it was a very busy time of year and she would like to leave the sessions until the New Year. He cannot recall there being anything unusual about how the session ended and he was left with the impression that Patient A would book new sessions in the new year.  
48. [48]
    These specific conversations he deposes to having with Patient A in the consultations of 16 September and 7 October 2022 in his affidavit do not appear in his notes of those consultations. His notes do not contain any reference to Patient A saying she was attracted to any person; rather they say she was not wanting to get back with her ex, she was unsure how to proceed and she needed her intimate needs satisfied without drama.   The practitioner’s notes of the final occasion record, relevantly, her husband had arranged a nice anniversary dinner, without kids and flowers and meal, however, no romantic talk or affection. Patient A completed a diagnostic tool, reported it was a very busy period and she would like to leave the sessions until next year.
49. [49]
    On that day the practitioner wrote to Patient A’s general practitioner, confirming the number of sessions Patient A attended, the focus of the treatment, that Patient A had responded well^[46] and reported significant benefit from her sessions. He stated Patient A would benefit from ongoing intervention and support and asked for a referral for further sessions with a new Mental Health Care Plan. 
50. [50]
    The expert had available to her:

    1. Patient A’s health complaint and signed statement;
    2. an unsigned addendum statement of Patient A;
    3. the mandatory notification from Patient A’s general practitioner, his handwritten notes and his clinical records;
    4. the practitioner’s clinical records for Patient A; and
    5. the APS Code of Ethics and ethical guidelines on the prohibition of sexual activity with clients.
51. [51]
    As to making compliments to Patient A on her appearance the expert opined:

    1. a client feeling ‘weird’ after a psychologist’s comment may or may not be as a result of an inappropriate action by the psychologist;
    2. where the psychologist’s case notes record Patient A as saying “her wardrobe was all grey singlets and she needed to buy better clothes and make more of an effort to look nice” there is the possibility that comments on her appearance when she made an effort “to look nice” may have had therapeutic utility;
    3. complimenting a client on appearance regularly across multiple sessions sits outside ethical guidelines with respect to maintaining appropriate professional boundaries unless there is clear clinical justification for doing so. Patient A’s presentation in the clinical notes does not appear to justify regular comments on her appearance, which may suggest inadequacy in the clinical notes although the formulation provided in the reports to the general practitioner suggests that regular comments on appearance was not therapeutically warranted;
    4. saying Patient A had a great body is outside the bounds of professional practice unless there is a very clear therapeutic reason or doing so, which does not appear to be a factor in Patient  A’s case.
52. [52]
    As to making disclosures about his own personal circumstances concerning his wife and family Dr Collins opined:

    1. there are differences of opinion as to the extent to which a psychologist can usefully include self disclosure as part of the therapeutic process;
    2. it is a consistent view, though, that professional and personal boundaries are to be maintained and it is necessary to consider the therapeutic utility and timing of any self-disclosures by the practitioner;
    3. judicious comments about a spouse or children may, at times, be therapeutically justified, but it would be unusual to raise such comments at different times in the same psychology session or across multiple sessions. If Patient A’s description of the events is accurate, this would constitute a blurring of personal boundaries. Whilst it would be outside the professional boundaries for the practitioner to ‘complain’ about their spouse or children, in the documentation provided it is uncertain, objectively speaking, whether the practitioner’s comments about his spouse or children were complaints.
53. [53]
    The expert opines, relevantly (and unsurprisingly) that if the practitioner attempted to solicit a sexual relationship with Patient A, this would constitute a gross breach of the professional standards expected of a psychologist.
54. [54]
    If the practitioner interacted with Patient A in a manner which blurred professional boundaries and/or was flirtatious or implicitly suggestive of sexual attraction, the expert’s opinion is that this is inappropriate behaviour for a psychologist.  The expert also states it is not possible, from the documents, to determine whether this occurred (emphasis added).  The expert expresses the view that the coherence of Patient A’s report, absence of indicators of exaggeration in her report and her discussions with her general practitioner after becoming concerned place greater credibility in Patient A’s report that the practitioner behaved towards her in a manner that, at a minimum, blurred boundaries and possibly more. 
55. [55]
    As to the advice provided by the practitioner to Patient A regarding sexual relationships the expert’s opinion is that the advice taken from the statements in the clinical notes and Patient A’s statement is probably inappropriate for a psychologist’s practice, although it may be that within the broader context of the therapy the advice was appropriate for the particular client, given her marriage and possible future intimate relationships were central to therapeutic goals. It is not possible to differentiate between the possibilities on the basis of the information present. The practitioner’s clinical notes and reports to Patient A’s general practitioner do not provide sufficient detail to determine whether, within the broader context of therapy, these comments were appropriate. The expert observed that recommending a client engage in extra-marital affairs is unusual and inappropriate advice for a psychologist to give a client.
56. [56]
    As to the adequacy of the clinical records Dr Collins opines:

    1. three recorded sessions are entirely missing notes and it is unclear whether the patient did not attend those sessions, or there are no notes of them;
    2. the level of detail in the clinical notes is just adequate;
    3. the reports to the general practitioner are sparse in detail and do not provide formulation which would assist the general practitioner’s understanding or patient management. Two of the reports to the general practitioner are inadequate, one sits within the clinical notes and is incomplete, but one, which is a draft, provides an appropriate level of detail and formulation, demonstrating that the practitioner is capable of writing an adequate and informative clinical report and is capable of developing and recording a reasonable case formulation;
    4. if the facts are upheld (by which, from the context, the Tribunal understands Patient A’s allegation of the facts is what is referred to), the information provided indicates that the practitioner’s conduct falls below the reasonably accepted standard of a registered psychologist with respect to maintenance of records and professional boundaries. The coherence of the statements Patient A provides and the fact that her concern about advice to commence an extra marital affair and comments about her appearance led her to approach her general practitioner adds weight to the possibility that inappropriate suggestions were made in some of the sessions with the practitioner.  
57. [57]
    In the supplementary clinical advice, Dr Collins confirmed that her opinion was that if the facts demonstrate the practitioner attempted to solicit a sexual relationship with Patient A and/or was flirtatious or implicitly suggesting sexual attraction, this is inappropriate behaviour and substantially below the standard reasonably expected of a psychologist.

Whether it is inclined to the belief that the practitioner behaved as alleged by Patient A in the last two consultations at the end of the treating relationship?

58. [58]
    In answering this question, the Tribunal has to consider what weight, if any, to give the evidence of each of Patient A and the practitioner, given the HO’s refusal to make Patient A available for cross-examination.
59. [59]
    The practitioner contended that, as he made himself available for cross-examination, his evidence should carry more weight where there was a dispute between himself and Patient A as to what had occurred in the consultations.
60. [60]
    The practitioner relied on Zaphir v Health Ombudsman^[47] to support the proposition that whether cross examination should occur depends on a criterion of urgency.
61. [61]
    Zaphir was a proceeding seeking the review of a decision to impose immediate action in the form of an interim prohibition order on an unregistered health practitioner. The complaint arose from an allegation that advice and treatment provided by an unregistered health practitioner, and conduct of that practitioner after treatment ceased, constituted a serious risk. In that case, the patient had died and the complainant (who was his de facto partner and a witness to much of the factual matrix) and the practitioner were each cross examined. Ultimately, that went very poorly for the practitioner. Relevantly, however, the Tribunal stated about the issue of cross-examination on a review proceeding:

In some cases, the appropriate course may be to require the parties to put before the Tribunal sworn evidence and for the parties to be permitted to cross-examine. There may be other occasions where the urgency of the decision and the review do not enable that to occur. 

…  

The process to be adopted must be determined on the facts of each case. In this case neither party had approached the case with any degree of urgency and no question of criminal misconduct has arisen. The delays which had occurred are such that it was appropriate to require sworn evidence and to permit some cross-examination.

The process of scrutinising the material requires the Tribunal only be satisfied on reasonable grounds that the conduct alleged actually occurred and that, because of that conduct, the practitioner poses a serious risk. In previous decisions, the Tribunal has accepted that it may be sufficient if the Tribunal is left “with something to surmise or conjecture” in terms of its determination as to whether the conduct alleged occurred.^[48]

62. [62]
    How a review proceeding is to occur depends on the factual circumstances and consequent issues which the review proceeding raises.  Parties can agree that the matter will be dealt with by filing material and having it dealt with on the papers.^[49] Oral evidence may be given, including by expert witnesses.^[50]  Witness, including expert witnesses, can be subject to extensive cross-examination.^[51]
63. [63]
    This proceeding, like Zaphir, does not involve any question of criminal misconduct and neither party has approached it with any particular urgency. The expert’s opinion about Patient B’s complaint does not support a finding of serious risk. Further, her opinion is that it is not possible to tell from the documents whether the practitioner has blurred boundaries concerning Patient A. These opinions bear upon whether the Tribunal can form a reasonable belief of serious risk to persons.
64. [64]
    Patient A was not present at the hearing. The HO contended that the review proceedings are interlocutory and there is no automatic right of cross-examination in the Tribunal. She further contended that the practitioner could have applied to the Tribunal to have Patient A available to give evidence and be cross-examined. Both propositions are true as general statements, but not particularly helpful in resolving the difficulty the Tribunal faces in determining, in this particular case, the issue of serious risk on the legal principles already set out. As earlier noted, the HO’s statutory responsibility is to use her best endeavours to help the Tribunal in coming to a decision.
65. [65]
    Here:

    1. the HO made her decision that the practitioner presented a serious risk with a specific reference to Patient B’s particular vulnerabilities,^[52] observing that the alleged manipulation of Patient B was particularly exploitative and an aggravating feature of the alleged conduct;^[53]
    2. expert evidence received after her decision suggests that Patient B’s complaint may be very difficult to accept at face value;
    3. the HO now seeks to argue that ‘serious risk’ arises predominately on the strength of Patient A’s complaint, supported by some relatively minor parts of Patient B’s complaint;
    4. Patient A’s complaint involves an allegation of general compliments allegedly made by the practitioner on unspecified occasions and an alleged oral proposition of Patient A by the practitioner during the final consultation. The practitioner disputes that. There is no physical conduct alleged;
    5. against the backdrop of a treating relationship of more than two years, when recounting the practitioner’s alleged conduct, Patient A reported to her general practitioner that she did not feel physically or psychologically harmed by the alleged conduct but it was important to tell her general practitioner what had occurred for the sake of other parties;^[54]
    6. the notification of Patient A’s complaint was a mandatory notification made by the general practitioner, followed by Patient A making her own complaint;
    7. the clinical records of the consultations with Patient A over the treatment period contain information which demonstrates that a regular topic of discussion in the therapeutic relationship was Patient A’s personal and intimate relationship needs, with her husband or other adult male person;
    8. the expert’s opinion is that she cannot tell from the documents whether the practitioner interacted with Patient A in a manner that blurred professional boundaries, was flirtatious or implicitly suggestive of sexual attraction;
    9. whilst confirming the investigation was ongoing, the HO could not inform the Tribunal whether there was any end in view to that investigation;
    10. the practitioner has deposed to the financial impact of the current conditions, including that he is in significant financial stress; and
    11. the practitioner, whilst accepting he conducts his practice in a lax or inattentive way, and failed to adequately recognise his own limitation in treating particularly complex patients, denies on oath any impropriety in his dealings with Patients A or B.
66. [66]
    To adopt a position that the process is an interlocutory one with no automatic right of cross-examination without considering whether cross-examination may assist the Tribunal to apportion weight in the exercise of making a determination on the issue of serious risk, is not helpful to the Tribunal. This is particularly so in this matter where:

    1. there are no allegations of criminal conduct;
    2. the matter has not proceeded urgently;
    3. the more serious of the complaints on which the HO acted appears, based on the expert’s evidence, to be unlikely to be substantiated, at least as alleged against the practitioner;
    4. the expert has expressed the opinion that she could not discern from the documents she had whether blurring of professional boundaries or more serious conduct had occurred involving Patient A; and
    5. the consequence of the immediate action decision will be on foot for many months, prior even to any outcome of the investigation and any decision to make a referral to the Tribunal.
67. [67]
    In these particular circumstances, and for the foregoing reasons, the Tribunal will give the practitioner’s affidavit more weight than that of Patient A on matters of direct conflict.
68. [68]
    The Tribunal is not satisfied on all of the material that the practitioner has inappropriately commented on Patient A’s appearance or her weight. The practitioner does not, in accepting he may have commented on her appearance, accept that he made the comment Patient A specifically alleges. Patient A’s general practitioner does not record Patient A raising any of these matters as matters of concern in her consultations with him.
69. [69]
    The Tribunal is not satisfied on all of the material that the practitioner has inappropriately referred to his own personal circumstances in using examples of his relationship with his wife and family in consultations with Patient A. This is particularly so where Patient A’s evidence is internally contradictory being variously:

    1. during the entire course of the sessions he would say he was having issues with his own marriage and complain about domestic duties;^[55]
    2. that these conversations always seemed at the time to be appropriate with no concerns;^[56] and
    3. the type of conversation about his personal issues was only in the last two sessions.^[57]
70. [70]
    The practitioner’s clinical notes of the consultation of 16 September 2022 immediately before the final consultation is to the effect that Patient A:

is confused about her ex wanting to get back with her. She feels it is the right thing to do however does not want to do it. Explored this in depth and she is still somewhat unsure how to proceed.

71. [71]
    This note, specifically that she did not want to reconcile, on its face, is inconsistent with Patient A’s statement in her complaint to the OHO that she told the practitioner in this consultation that she had decided that she would be better off to continue the marriage.^[58] The note is more consistent with the practitioner’s evidence that he was surprised about the possibility of reconciliation, given the focus of earlier sessions and he explored it with her. The practitioner swears he did not tell Patient A not to reconcile with her husband or suggest she choose a different option or say to Patient A she would be “better off finding a no strings attached sexual relationship with a married man”.  Patient A’s ambivalence about getting back with her husband as recorded in the note is also more consistent with the possibility that the practitioner’s evidence that Patient A said to him that she was attracted to an intelligent man who she could not approach but who was not her doctor is correct than that Patient A’s evidence is correct.  For these reasons the Tribunal prefers the practitioner’s version of what occurred in this consultation to that of Patient A.
72. [72]
    The practitioner’s clinical notes of the final consultation are brief. Four of the five points recorded relate to something that Patient A reported to the practitioner.  Three of those points are about uncontroversial matters and another of them records Patient A completing the psychological assessment tool which the practitioner used at the end of a series of sessions.
73. [73]
    The practitioner ‘s evidence is that in the final session he did ask her if the tall intelligent and unapproachable man she had referred to in the earlier session was him and Patient A said no; he asked her if she was sure and she said no. The practitioner’s evidence is that he felt awkward about having this conversation because he anticipated having to discuss transference with Patient A and his familiarity with that subject is limited. There is, therefore, on each person’s version, some part of the consultation which involved Patient A and the practitioner having a conversation about whether she was attracted to him.
74. [74]
    The only point recorded in the practitioner’s notes of any potential relevance to the disputed conversation is that Patient A:

…reported no rest, however [her husband] was helping more, [her husband] arranged nice anniversary dinner without kids and flowers and meal, however no romantic talk or affection.

75. [75]
    As the note commences “[Patient A] reports” the Tribunal assumes this to be a note which reflects what Patient A told the practitioner about the anniversary dinner. Again, the ambivalence it contains about her relationship with her husband is not consistent with Patient A’s statement that she had told the practitioner in the previous consultation that she had decided she would be better off to continue the marriage, or that she said to him that “contrary to his advice she had gone out on the date with her husband”.^[59] The details in the note (no kids, flowers) are also not consistent with Patient A’s statement to the HO that she said to the practitioner “it was fine it went well”^[60] and then she changed the subject. As the Tribunal has accepted the practitioner made his notes approximately contemporaneously with the consultation, those details must have come from Patient A, yet she does not say she told him these things. Indeed, she presents a contrary picture of not really talking about the dinner but moving to change the subject. There is also an inconsistency in Patient A’s initial complaint to the OHO in which she says she raised the subject of going out on the dinner date contrary to the practitioner’s advice, where in her statement she says the practitioner asked her how the date had gone. Whilst these matters may seem small in and of themselves, they are the sorts of matters which could have been clarified in cross examination, had Patient A been called. However where the versions of each of Patient A and the practitioner as to what occurred in the conversation are diametrically opposed on the critical points, the Tribunal is not sufficiently inclined towards Patient A’s account to form a reasonable belief necessary of serious risk to persons.
76. [76]
    Finally, the Tribunal does not accept that Patient A’s general practitioner’s notes are consistent with Patient A’s subsequent reports in the following respects:

    1. the notes of the consultation on 12 October 2022 record that the practitioner had verbally propositioned Patient A commencing sexual relationship ‘casual sex’ during psychologist sessions for her mental health. (emphasis added) That is, the notes on their face suggest that the proposition had occurred on more than one occasion. Further entrenching that possibility is that the notes go on to record “she confirmed verbally responding no on all occasions” again suggesting it occurred on more than one occasion; and
    2. The notes of the further consultation on 14 October 2022 refer again to the plural ‘appointments’.  
77. [77]
    This is inconsistent, on the documentary record, with Patient A’s complaint that the proposition occurred only in the last session.
78. [78]
    It follows that the Tribunal at this point, finds that it is not satisfied that it should accept Patient A’s evidence over that of the practitioner on this review.
79. [79]
    The Tribunal accepts the practitioner’s submission that in respect of Patient A the error is laxness or inattention in:^[61]

    1. the use of clinical techniques of paying compliments without recording when this is done or the clinical rationale for doing so and how it was done;
    2. that his clinical notes could be improved by better recording his therapeutic approach; and
    3. that his reports to Patient A’s general practitioner should have contained more detail of the interventions used, treatment formulated and progress towards goals.
80. [80]
    These are the issues arising from the practitioner’s treatment of Patient A which the Tribunal has to consider in weighing whether there is a serious risk to persons.

If it is not so satisfied, is it inclined to the belief that the practitioner behaved as alleged by Patient B, or otherwise inappropriately towards Patient B?

81. [81]
    The practitioner concedes in respect of his treatment of Patient B:^[62]

    1. he exhibited laxness in adopting his habitual approach to compliments and the use of personal information in his therapeutic approach;
    2. his advice to Patient B to use Telegram was an error in judgment;
    3. it was unwise of him to continue to treat Patient B after he learned of her attraction to him; and
    4. as became clear after ending his treatment of her, there had clearly been porosity in professional boundaries in the treating relationship. 
82. [82]
    The practitioner submits that, by reference to the expert opinion,  these issues all relate to a single fundamental error as at the end of 2022 which was that he was out of his therapeutic depth  in treating Patient B, who was a particularly complex sexual trauma patient, he did not recognise his own limitations and he did not refer Patient B onto a specialist practitioner with appropriate training and experience suitable to manage Patient B’s complex presentation.^[63]
83. [83]
    The HO accepts that the expert’s clinical advice, which supports the practitioner’s submission that Patient B’s account of events has an air of exaggerated fantasy, is relevant to take into account in assessing the complaint and risk issues. The HO also accepts that some of the matters Patient B raises in her statement recount her opinion or speculation about conduct she believes the practitioner engaged in and, on this application, they carry limited weight.
84. [84]
    The HO submits, however that much of the practitioner’s admitted conduct is consistent with or corroborative of some of Patient B’s critical allegations, which demonstrates the practitioner significantly contravened his professional obligations with a clearly vulnerable patient. Specifically, she advances the following matters to support that submission:

    1. the practitioner occasionally made comments about Patient B’s appearance;
    2. the practitioner discussed the topic of an open marriage with Patient B and responded positively to Patient B’s report that her husband had agreed to this arrangement;
    3. that Patient B reported her attraction to the practitioner during a consultation and following a consultation she sent him a text messages saying she had really wanted to kiss him;
    4. the practitioner subsequently advised Patient B to download ‘Telegram’ to send him messages, he received messages from her and responded to some; and
    5. after the last consultation on 19 October 2022, Patient B sent the practitioner messages on Telegram and points to the content of the exchange between them.
85. [85]
    These matters are advanced to support the submission that Patient B’s statement is consistent with the practitioner’s basal failures to conduct himself properly and thereby creates a serious risk to public health and safety.
86. [86]
    The practitioner’s evidence about these matters is:

    1. he recalls making a comment to Patient B about her hair being down and whilst he cannot recall what he said, he is certain he did not say anything to the effect that looked pretty with her hair down or that she should wear it down more often.^[64] Further, having noticed Patient B seemed to be making an effort with her appearance, in line with his usual practice he occasionally made comments acknowledging Patient B’s efforts in that regard;^[65]
    2. he denies suggesting to Patient B she should ask her husband for an open marriage. He says Patient B had reported to him on a few occasions that she had been in a polyamorous relationship previously and she would prefer an open marriage and that they explored this topic over a few sessions. After he received a text message from her in which she reported she had proposed an open marriage to her husband and he had agreed and she was very happy, he responded to the effect that: that’s so good for you, have a good weekend and reminded her of when her next appointment was;^[66]
    3. he recalls a session in which Patient B said she was attracted to him, which he believes was prior to Patient B’s text message about her husband agreeing to an open marriage. He swears he responded by telling Patient B her statement was not appropriate, he did not carry on relationships with clients and explaining the boundaries of the patient/therapist professional relationship, which included that psychologists are bound by professional obligations which mean there could not be any relationship during therapy or for two years after this;^[67]
    4. his suggestion that Patient B use Telegram came up in the context that he received a text message from Patient B to the effect “that she really wanted to kiss him”. He deposes he was shocked by it and immediately telephoned her in response to it. During that telephone call he said to Patient B:
       1. her text message was inappropriate and if she felt like she could not maintain professional boundaries with him then she should consider another therapist and he could refer her on. She assured him she would not send messages like that again;
       2. his wife and children saw text messages which came up as notifications on the face of his telephone. He would not want his wife or children to see messages of a personal nature;
       3. if Patient B insisted on sending messages containing personal information about processing her trauma between sessions, she should send them through the Telegram app.^[68] 
    5. as to why he told Patient B to use the Telegram app he deposes:^[69]
       1. he had recently downloaded Telegram on his phone, having seen it in an article he read;
       2. he was aware the benefits of Telegram, which might be useful in the therapeutic context, included that it was encrypted and, as he understood it, privacy focused;
       3. he knew from treating Patient B that she often reported explicit sexual material in connection with her therapy and he was concerned his family might be exposed to the material;
       4. his therapeutic relationship with Patient B had progressed quite a long way and he was concerned that it might be detrimental to Patient B’s condition if she were to change therapists at that point; 
    6. as to what he then did with Telegram he deposes:
       1. he did not regularly check it, partly because having notifications turned off meant he forgot to. When he did he saw Patient B had sent messages about once a month;
       2. the messages he saw largely said Patient B was grateful for a session and looking forward to an upcoming session. He responded to some of those messages to the effect Patient B was welcome;
       3. he never sent Patient B any other Telegram messages;
       4. on some occasions when he responded to Patient B’s messages he recalled Telegram indicating that Patient B’s account had been deleted and could not receive messages;
       5. he had deleted Telegram some time prior to swearing his affidavit as he was not using it. He did not make any record of his communication with Patient B because he did not consider there was any need to do so and by reason of the deletion and reinstatement of Patient B’s account, the record of the messages appeared incomplete in any event; 
    7. after reading the Telegram messages on 20 October 2022, he realised that Patient B had been expecting some sort of personal relationship. He never discussed, let alone agreed to a personal relationship and does not know how Patient B formed her expectation. He was aware from her earlier comments that, at some earlier point, she had been attracted to him, but he understood that had been resolved and that he had clarified the professional nature of the relationship. After reading the messages and becoming aware that Patient B had developed strong feelings for him, he felt genuine concern and sorrow that he had inadvertently hurt Patient B and he sent her a Telegram message to that effect.  The messages are in evidence and his say to her:^[70]
       1. In response to her first message:

I’m sorry [Patient B]. I believed this was an attraction, however, did not realise that you had such a strong emotional connection. I am deeply sorry that I have hurt you.

2. In response to subsequent messages from Patient B on the same day:

I really appreciate this and I am still very sorry that I have hurt you so deeply. I will always be your friend and my door is always open if you need any further therapy again. I really wanted you to thrive and be happy too. I have felt awful when I realised how this had affected you so much, and have doubted my practice. I have also learned a lot from you in therapy and as a consequence of this. I hope that I can keep improving as a therapist. I realise the boundaries were blurry and the messages were mixed. I also get that you might need to keep being angry and upset with me. Please take care and find freedom and a life full of meaning and fun.

87. [87]
    The expert opinion dated 30 January 2024 and obtained by the HO was based on:

    1. the HO’s initial phone call with Patient B;
    2. Patient B’s signed statement and annexures;
    3. the general practitioner’s medical records for Patient B;
    4. the practitioner’s clinical records for Patient B; and
    5. the APS Code of Ethics and ethical guidelines on the prohibition of sexual activity with clients.
88. [88]
    Relevantly, in summary, the expert concluded:

    1. it may, at times, be appropriate within the frame of therapy to compliment a client’s appearance, provided this is done carefully and within appropriate limits and does not transgress professional boundaries. A specific example given is where a client has been overweight and has made an effort to lose weight;
    2. the practitioner was out of his depth with the complexity of Patient B, was unaware of his limitations in treating someone of this complexity, possibly unaware of transference later revealed and should have referred Patient B for treatment with a specialist practitioner with better matched training and expertise. The treatment was not adequate for a client with this complexity and reported history;
    3. there was no evidence in the clinical notes, SMS messages or Telegram communications of sexual impropriety in the practitioner’s engagement with Patient B. The documents indicate transference by Patient B to the practitioner, but apart from her statement the documents do not provide indicators that the practitioner engaged in a sexually suggestive or flirtatious way with Patient B. Patient B’s letter to the practitioner makes no allusion to a relationship outside the boundaries of an appropriate Client/Psychologist relationship. It describes a relationship held entirely within the therapeutic frame. She does not see evidence supportive of Patient B’s claim that the practitioner encouraged a sexual relationship with her, engaged in a sexualized or flirtatious manner with her or suggested embarking on a sexual relationship after a break from therapy;
    4. whilst the practitioner’s clinical records could be improved, they are adequate, except for several dates on which there is no entry, where, if these were missed appointments, then DNA should have been inserted. The GP reports are adequate;
    5. the claims in Patient B’s statement cannot be relied upon as evidence of sexual impropriety by the practitioner. Taken as a whole, Patient B’s complaint is unconvincing. It appears the practitioner was out of his depth in treating Patient B, did not recognise his limitations in managing her and unwisely did not refer her on to a practitioner with depth of training and expertise suitable for her presentation. There is evidence of poor maintenance of boundaries in the therapeutic exchange, poor choices of therapeutic approach, use of some techniques that posed a risk of increasing emotional distress and potentially evoked false memories of childhood abuse. Her impression is that Patient B overwhelmed the practitioner’s therapeutic capacity and he had little awareness of this. Aspects of the practitioner’s conduct or performance are below expected standards including poor maintenance of boundaries, a failure to recognise his limitations in working with Patient B’s complex presentation, a consequent failure to refer on to a practitioner with appropriate skills and choosing and persisting with a therapeutic approach that was suboptimal to the presenting issues.
89. [89]
    Dr Collins prepared her opinion without the practitioner’s affidavit. The HO contends that Dr Collins’ opinion about the Telegram messages being entirely innocuous is difficult to accept because the practitioner’s affidavit deposes to the patient disclosing feelings to him 18 months before.^[71]  
90. [90]
    Doing the best the Tribunal can from the documents (the practitioner’s notes, the SMS messages and the parties’ statements) the following appears to be an approximate chronology in the treating relationship:

    1. the treating relationship commenced in January 2020, with an initial referral for up to 8 sessions for severe anxiety;
    2. the sessions were roughly fortnightly for about a year. During that first year:
       1. a number of the appointments were online because of COVID;
       2. two further referrals were obtained because of difficulties with COVID restrictions, particularly having children home in isolation and difficulties coping in isolation with social distancing guidelines;
       3. Patient B disclosed in only her second session that she had been sexually abused by a teacher when she was about 13;
       4. after about 6 months of sessions, Patient B told the practitioner she had been in hospital and had medical advice to lower her blood pressure by weight loss, diet and exercise;
       5. by September 2020 Patient B was discussing sexual abuse by her father initially; notes of subsequent sessions suggest the focus of the sessions was the sexual abuse by the teacher;
       6. by November 2020 Patient B’s triggers were discussed in sessions;
       7. the December 2020 referral was for ongoing counselling regarding anxiety and PTSD with potentially new mood components as well;  
    3. in January 2021, session notes included a reference to feeling a need to lose weight and that the next session will look at sexual abuse more with the teacher and the father;
    4. some time prior to 10 March 2021, Patient B made a list of triggers. Very shortly after that, the practitioner sought another referral, recording Patient B had been triggered outside therapy and was left feeling exposed as past coping tools no longer worked. The practitioner noted her as assessed at a moderate risk of harm to herself and asked specifically for a referral for a further 8 sessions. Patient B’s treating general practitioner provided such a referral on 22 March 2021, for a further 8 sessions over two months. From this time, sessions were approximately weekly;
    5. in March 2021, Patient B disclosed she was sexually abused as a 15 year old, by a counsellor, saying she had never previously disclosed this abuse. Sessions in April and May 2021 focused on Patient B’s concerns about her husband. Matters recorded in the practitioner’s notes, if Patient B’s account of them is accepted as factually accurate, include potential sexual and domestic violence towards Patient B by her husband. Consequent upon this, the practitioner sought a further referral, which the general practitioner provided, for 8 sessions over two months; 
    6. it is about this point some time in May 2021 that:
       1. both parties agree that Patient B tells the practitioner she is attracted to him. They differ about the timing of this and how he responded.  Patient B says this occurred in the session of 28 May 2021 and he responded that he was attracted to her. Patient B says he said:

he wanted to have an affair with me but had to wait until I wasn't his patient because he wanted to be ethical. He made it clear to me he had to wait two years to date me but he wasn't going to wait that long. We agreed he would wait three months after my final therapist session to begin the affair.

The practitioner denies this conversation occurred. He swears that he recalls a session, prior to Patient B’s text message about an open marriage when Patient B said she was attracted to him and he told her that her statement was not appropriate, he does not carry on relationships with clients and explained the boundaries of the patient/therapist professional relationship. As part of this explanation he told Patient A that a psychologist’s professional obligations meant that there could not be any relationship during therapy or for two years after that;

2. Patient B sent the practitioner the text message that she really wanted to kiss him in the session of 19 May 2021. Both agree that he reacted by telephoning her, angry and screaming, saying words to the effect don’t ever send him messages like that on the phone and that he told her to download Telegram which she did. The practitioner says he told Patient B her text message was not appropriate and if she felt she could not maintain professional boundaries, she should consider another therapist and he would refer her on;
3. there is a dispute between Patient B and the practitioner about his response to a text message she sent him on 19 May 2021 about having overwhelming suicidal thoughts. She says he telephoned her in response and instructed her to go and masturbate and think about him, which he denies;
4. Patient B told the practitioner by text on 21 May 2021 that her husband had agreed to an open marriage and his reply SMS is “that’s so good, have a good weekend” and he confirmed the date and time for their next session; 
5. Patient B reported in the consultation on 28 May 2021 that she is onto Fetlife. Patient B says this is at the practitioner’s suggestion and that she started getting messages from him. The practitioner denies instructing her to join Fetlife, communicating with her on Fetlife and persuading her to send him nude photos of herself or persuading her to join PornHub and recording and uploading audio erotica;
6. Patient B says that from about this time, for the next year and a half, the practitioner would talk to her about the affair they would have, the sex they would have, how, where and how often they would meet. The practitioner denies this, saying they never discussed the possibility of an affair;

7. in early June 2021 the practitioner’s notes record that Patient B was reporting her husband was also keen to go to Fetlife events and had stated he was keen to find a playmate too. Patient B also reported abusive behaviour by her father as a teenager;
8. there is a disputed oral exchange between them on 8 June 2021. The practitioner had to stay at home because his child was ill. Patient B says he called her upset and sobbing and that she had an appointment in a few days time and him not going to work would not affect her. He denies being upset and sobbing and says it was a routine call to reschedule a planned appointment;
9. sessions in June and July 2021 focus on abuse by her father, her triggers and  Fetlife. After the practitioner’s report to her general practitioner and request for a further referral, her general practitioner provided a further referral in late July 2021 for 8 sessions over two months. Patient B says this is the occasion when the practitioner asked her to cut herself to get the referral and they both wanted to see each other weekly. The practitioner denies ever asking or advising Patient B to self harm or tell doctors she was suicidal to obtain referrals;
10. from July to early September 2021 notes of the sessions record that Patient B was feeling alone, why she cut herself, and issues about abuse from her father and mother. The notes record Patient B told the practitioner in the consultation on 25 August 2021 that she had told her father she did not want anything to do with him;  
11. in early October 2021 the notes record Patient B told the practitioner she was cutting herself in the same spots and reporting flashbacks and nightmares about the counsellor who abused her. Patient B says this is when the practitioner first gave her a hug, which was an intimate hug and the session after this is the only session where they didn’t cuddle. The practitioner denies this, saying he never hugged or cuddled Patient B and cannot recall having any physical contact with her;
12. throughout October and November 2021 the notes record ongoing discussion about Patient B’s parents, including the family’s attitude to charging her father and her contacting police about whether she can lodge a report and not press charges;
13. in the session on 1 December 2021, the notes record Patient B states her goal is to lose some weight next year, and reports she has cut her mother off, has no regrets about other issues in the family and her anxiety is a bit higher at the moment. At the last consultation in December 2021, the notes record Patient B had no further issues regarding her parents. Patient B gave the practitioner a note expressing gratitude at how much she has progressed in her life. I interrupt the chronology to observe it is likely that this note is the handwritten letter contained in the Hearing Brief, which thanks him for his treatment and makes no reference to any relationship outside the therapeutic one;
14. Patient B’s general practitioner provided a new referral at the end of January 2022 for intensive suicide prevention support of 8 sessions over 2 months. The first two consultations for the year were conducted over Zoom. In the first of them, Patient B reported weight loss in the school holidays. Otherwise, the notes of the sessions in January, February and March 2022 suggest the sessions largely concentrated on historical sexual abuse, current relationship issues with each of her husband and her brother, a prank call, exercise, diet and weight loss. The notes of the 16 March 2022 session also refer to reporting abuse to the police without prosecuting it and that her husband agrees with her not take action but they want it on the record. A further referral from Patient B’s general practitioner in mid-March 2022 is again for intensive suicide prevention support of 8 sessions over 2 months;
15. in April 2022, the notes record discussions about weight loss and exercise, and exhaustion with looking after children as well as difficulties with a former partner;
16. the first session in May 2022 is conducted over Zoom. The notes of it include a reference that Patient B reported more pressure by the police to make a statement which she continues to reject.  At the second session in May 2022, there is reference to exploring her triggers and that Patient B reports she has lost 13 kilograms and is still exercising. There are a number of communications on 18 May 2022. The consultation notes record Patient B told the practitioner there were lots of memories, triggers and flashbacks this week and that she had had numerous phone calls from the police to make her withdraw her complaint or make a statement. The consultation notes record that they explored her options and that the practitioner called a police officer too, however she called back too late. In an SMS later that morning, Patient B stated she had sent the police an email stating she is not making a statement or signing a withdrawal of the complaint and she doesn’t want to withdraw the complaint as she may change her mind in the future about making a statement. She thanked the practitioner for his help and said she doesn’t want to discuss it further as it is traumatising her. The practitioner replied some hours later with a thumbs up emoji. In an SMS exchange the next day, Patient B informs the practitioner that the police officer he knows has called her and is sending an officer to her house tonight so she can sign the form. He replies several hours later, and says he believes it is all done and can he call her now? In an SMS exchange between them the next day (20 May 2022) Patient B told the practitioner she should have been more appreciative, she was very stressed about them hassling her and he fixed it; the police officer was lovely. He replied acknowledging that it would have been very stressful and is happy that she is ok now. Patient B then stated she is feeling better and always likes talking to him.  In the statements in the hearing brief, there is now a dispute between Patient B and the practitioner over what Patient B wanted, and what she said to the practitioner she wanted, and what he said and did;
17. Patient B’s general practitioner provided another referral in late May 2022 for intensive suicide prevention support, being 8 sessions over 2 months. The first session after that referral is over ZOOM.  The notes of this session include a reference to “big breasted – DD at aged 12. Double J”. The content of the session involved Patient B raising issues about her parents, and reporting feeling relieved since the police came around to deal with her withdrawal of her complaint.  Patient B recounts that the practitioner would talk to her sexually over Zoom and gives an account that  she was rolling her shoulders back in one session, he asked if she was alright, she said her shoulder hurts and he asked if she gets that from big boobs and what her bra size was, then says that a little bit of pain for such a good thing isn’t so bad, and that he was always saying such things to her.  He denies asking Patient B what her bra size was, or saying anything about pain for gain. He says Patient B volunteered her bra size he suggested that being so large chested may be having a physically detrimental effect and raised the topic of a breast reduction. Patient B rejected that as an option and the topic never came up again;
18. the sessions in June 2022, according to the practitioner’s notes, involved Patient B reporting issues relating to the historical abuse, her parents, guilt about not taking her father to Court, fear about the Court process and that she is tired of working on the past and wants to work on her future. There is a reference that Patient B appears to have lost more weight and some reporting of health issues and issues for her husband. Patient B says that the practitioner said to her, a couple of appointments before the last appointment, that the practitioner wanted to start the three months and they could wrap it up and start the three months. She asked him if he thought she was ready to stop therapy and he asked her if she thought she was. As the time got closer, she started panicking as she didn’t think she was ready to stop therapy. In the final session in late June 2022, the practitioner’s notes record Patient B was processing the end of therapy and beginning to feel that she can do out and be independent again. At the next session, in mid July 2022, the notes record that Patient B reported feeling much better now and that her therapy had almost concluded. Her life was so much better and she attributed this to becoming estranged from her parents;
19. the final session was on 18 July 2022. The practitioner’s notes open with a recording of Patient B’s orientation, appearance, posture, speech and mood. Patient B reported improved sleep and healthier eating patterns and good future orientation. Patient B denied any current suicide or deliberate self harm ideations and significant changes to her anxiety during the interventions. Patient B reported that cutting off her parents and brother had been a godsend. The notes record that “We achieved the goals of therapy and agree to conclude the intervention”;
20. the practitioner’s evidence is that he offered to see Patient B for a three month follow up consultation, she accepted that, and he booked the follow up consultation for 19 October 2022. Conversely, Patient B says they were cuddling in the last session and she said she didn’t want to let him go because she would not see him for three months and he said don’t worry it will go fast. Patient B says they agreed to meet on 19 October 2022 to begin the affair.

91. [91]
    As to 19 October 2022:

    1. the practitioner’s notes of the session record Patient B attended follow up appointment.  He informed her he was leaving at the beginning of next year for a year of travelling with his family in a caravan. She was very upset and shocked. She asked to leave the office to process this information. Later she texted him and asked to come back in. She reported that she was upset and she was not expecting this. She apologised for her reaction and thanked him for the treatment. She still seemed moderately upset however did not want him to call her. Concluded the intervention;
    2. the practitioner’s evidence of what occurred is consistent with the consultation notes.  He says that when Patient B re-entered his office she said that: (a) she was grateful for the therapy but that she was upset because she had thought she would see him again; and (b) she didn't want to finish the sessions on that note and had just come back to say she was sorry and really grateful. Patient B then left his office and he did not see her thereafter. He recalled being taken aback by Patient B’s reaction, which seemed to have no apparent explanation;
    3. Patient B says she was very excited for this day, it had been leading up for a year and a half and there was never any other possibility in her mind it was ending in any other way other than the physical affair starting. Once in his office, he hugged her “but it wasn’t our usual hugs”. He hugged her quickly and pulled away. Immediately she thought that was strange, as she thought they would be excited as they hadn’t see each other in three months. The practitioner told her to sit down like they were in a session and she thought that was a bit weird and he began talking to her like a therapist asking her how she had been. She was genuinely confused. The practitioner told her he was going to tell her this the other day when she called but he didn't want to upset her on your birthday, and “my family and I going on a year holiday around Australia”. She says he said he only had 3 months to have an affair with her but he didn't feel it was fair to start the affair with her which was only going to last three months. He also said “I'm also worried I'll be spending all my time thinking about you every day that we are travelling” and he said “what do you think?”. She didn’t know what he expected her reaction to be. All she was hearing was she was being rejected. She couldn’t process what was going on or what he was asking. She became extremely upset and confused, said she was uncomfortable and told him she needed to leave and she left his office. She went to her car and cried. She was totally confused and no idea what was going on. It also seemed like he was different. He was always extremely friendly, flirty and that day he was cold towards her like this was a business deal;
    4. Thereafter, the Telegram messages set out above were exchanged. 
92. [92]
    In terms of contact after 19 October 2022:

    1. Patient B says the practitioner was talking to her on Fetlife after she messaged his account;
    2. there was an SMS exchange on 27 October 2022:

Patient B: I’m not feeling good since I saw you. I feel like my PTSD is set off, I feel really unsafe. 

Practitioner:  Do you want to come in for an appointment? Or talk on the phone? 

Patient B:  Sorry I’m not ignoring your question I’m just not sure at the moment.

Practitioner:  Ok

3. on 22 February 2023, there was a further SMS exchange initiated by Patient B, in which she asked the practitioner why he was at her house on Monday and  he said he was not. 

93. [93]
    As to comments about Patient B’s appearance, one specific comment on Patient B’s appearance which both parties have addressed in their material is actually recorded in the practitioner’s notes of late May 2022, towards the end of the two and a half year treating relationship. It is a notation about her breast size. The parties’ versions are set out at paragraph [90](q) above. It is improbable that, if this issue had arisen as Patient B alleges, the practitioner would have gone so far as to make a record of her breast size in his notes of the consultation. Dr Collins did not comment adversely about it in her report.  As to generalised comments about Patient B’s appearance, over the course of the treating relationship Patient B reports to the practitioner at various times about her health, her weight, and her losing weight. The genesis of this material comes quite early in the treating relationship, consequent upon Patient B informing the practitioner that she had been advised to lose weight for health reasons. Occasional comments about Patient B’s appearance, in such a context, where the practitioner perceived Patient B to have been making an effort with her appearance, according to Dr Collins may be appropriate. Given the expert’s opinion about Patient B’s complaint, the Tribunal is not satisfied this issue contributes to a reasonable belief that the practitioner presents a serious risk to persons.
94. [94]
    As to discussions about an open marriage, this needs to be considered in the context of all the available material about the treating relationship. Before Patient B’s text message she told the practitioner about unsatisfactory aspects of her relationship with her husband, including reporting things that suggest he was potentially sexually abusive and physically violent towards her or in their shared home (such as breaking kitchen appliances in anger). Furthermore, she had reported to him at some length about her sexual frustrations.^[72]  The practitioner’s clinical notes record that Patient B raised the issue of an open relationship in consultations on 21 April 2021 and 19 May 2021.^[73] His text message exchange was provided to Dr Collins, who expressly commented that “there is nothing out of the ordinary” in these communications. The Tribunal is not satisfied this issue contributes to a reasonable belief that the practitioner presents a serious risk to persons.
95. [95]
    As to Patient B reporting her attraction to him and sending him a text message, there is nothing in his notes of the consultations prior to the relevant text message which record any of this occurring. I accept on this application that this conversation occurred at about the time of the text message. The treating relationship continued until 18 July 2022 with the final consultation occurring on 19 October 2022.  Patient B does not allege she said anything further to him about being attracted to him and the practitioner’s evidence is that he believed he had addressed it. That evidence is supported by her handwritten letter to him which appears to have been given to him some 6 months or more after this expressed attraction.^[74] There is nothing in her 4-page letter which suggests any personal attraction. It is all about the help she perceives he has given her in the therapy sessions.  His reaction by text to the letter is instructive. He says:

Thank you so much for your letter! Incidentally, if you don’t have a Centrelink healthcare card you can only get the suicide prevention referral or a normal referral.

96. [96]
    His communication is wholly focused on facilitating a therapeutic relationship. Finally, Patient B’s evidence that there was heavy sexual flirting going on between them before she told him she was attracted to him^[75] is inconsistent with the records of the earlier consultations. The records follow a methodology of making an initial assessment at the start of the treating period, administering psychological tools at the start and end of each treating period and reporting back to the referring practitioner on methodology and treatment. The Tribunal’s view, carefully scrutinising this material, is that Patient B’s account of his response to her disclosure and his subsequent actions is improbable.  The practitioner’s evidence before the Tribunal is that he now understands he was unwise to have continued the treating relationship after this occurred. He made this observation without having Dr Collins’ report. That he makes this unchallenged concession on oath, indicates a level of insight currently which is to be weighed in considering issues of serious risk and public health and safety.
97. [97]
    Finally, there is the patient’s use of Telegram, at the practitioner’s suggestion. The practitioner has no record of the exchanges with Patient B on Telegram and has deposed he has deleted it. By his account those exchanges were avuncular apart from messages on 19 October 2022 set out at [86](g); Patient B has no record of the Telegram account. The practitioner’s notes of the consultations support his evidence that Patient B often reported sexually explicit material in connection with her therapy. They do not support Patient B’s evidence that the practitioner was sexually explicit with her, or looking to enter into a relationship with her. Further, Patient B’s account is also internally inconsistent. She says that on the one hand he said he could not reply to her sexual suggestions whilst he was her therapist, whilst on other occasions he would reply with kisses at the end of his messages.^[76] The SMS exchanges do not support that and weighing all the other evidence in my view it is improbable that he would behave this way. Whilst the Tribunal accepts that suggesting the use of Telegram may have been unwise, the Tribunal is not satisfied that the weight of the evidence supports the view that the practitioner did so in order to communicate with Patient B in a sexually charged or sexually intimate way.
98. [98]
    Similarly, the suggestion that the practitioner would tell Patient B that professional standards required a gap of two years after a treating relationship concluded before any personal relationship could occur, and state he wished to act ethically, but nevertheless would agree to commencing a personal relationship three months after a treating relationship ends, is highly improbable. Patient B is also inconsistent in asserting that they would cuddle in every session after October 2021 but also in asserting that she was puzzled why they never got physical.
99. [99]
    The Tribunal does not reasonably believe that the practitioner encouraged Patient B to seek a personal and sexual relationship with him, despite her significant past trauma and particular vulnerability.^[77]
100. [100]
     For the foregoing reasons, the Tribunal is not persuaded by the HO’s arguments set out at [84] and [89] above.
101. [101]
     The Tribunal is satisfied that the issues which arise for consideration as to serious risk based on Patient B’s circumstances are those conceded by the practitioner, as set out at [79].  

Does whatever the Tribunal believes involving Patient A alone, Patient B alone, or Patients A and B together, give rise to a serious risk to persons and what is that serious risk?

102. [102]
     The Tribunal is not of the reasonable belief, on the material currently before it concerning each of Patient A and Patient B, individually or collectively, that the practitioner:

     1. lacks the ability or willingness to comply with his ethical and professional responsibilities to refrain from engaging inappropriately intimate or sexually charged communications with patients, comments that create or have inuendo, that are suggestive, that are flirtatious, that are precursors to the risk of pursuing a relationship with a patient; or
     2. cannot be relied upon to maintain appropriate boundaries.^[78] 
103. [103]
     It turns now to deal with the risks which the practitioner concedes the material establishes:

     1. that he conducts his practice in a lax or inattentive way. That relates to:
        1. his adopting a habitual approach to complimenting patients on their appearance, without considering the appropriateness of this approach specifically in each case;
        2. referring to his own personal experiences and relationships in his treatment of patients; and
     2. that he fails to adequately recognise his own limitations in treating particularly complex patients.
104. [104]
     It is not any risk, which enlivens a discretion to take immediate action. The risk must be a serious risk to persons on all the information currently before the Tribunal and it must be necessary to take action to protect public health and safety.  A serious risk is one which “fairly merits the description ‘serious risk’”.^[79] Whether an identified risk posed by a practitioner can fairly be described as serious can be considered through the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if it does eventuate.
105. [105]
     The Tribunal does not accept that the laxness of practice risks which the practitioner concedes can be regarded as “serious risks”. The expert opinion is that compliments about a patient’s appearance may be appropriate within the frame of therapy, as may judicious comments about self-disclosure.   The Tribunal is not persuaded to accept that the practitioner has acted outside the ambit of appropriate practice in a way that constitutes ‘serious risk’.
106. [106]
     The more concerning issue is the treatment of vulnerable patients.  In that regard, the practitioner’s unchallenged reflections are:

     1. that his professional boundaries with Patient B were not clear enough;
     2. it is his obligation to maintain clear and robust professional boundaries and if a patient may be challenging those boundaries, it is his responsibility to take appropriate steps; 
     3. he now recognises it was unwise to continue to treat Patient B after she had confessed her attraction to him and it was an error of judgment to ask Patient B to install Telegram.
107. [107]
     As such, he has shown comprehension that his practice was inadequate and some insight as to where he went wrong in this case. 
108. [108]
     Further, the practitioner’s unchallenged evidence, by way of explanation is:

     1. he was not functioning at his highest level professionally towards the end of 2022, he had a high caseload and had been feeling overworked and burnt out from dealing with three years of COVID and telehealth demands, which was a significant reason why he and his wife decided in about August 2022 to spend 2023 travelling around Australia by caravan;
     2. whilst he was struggling with his workload from this time, he did not take any more immediate steps to mitigate against adverse impacts on his practice and in hindsight he should have been more active in doing so;
     3. his fatigue caused him to be less focused on his work and this may have caused him to miss indications of Patient B’s feelings which may have fed into her fantasies.
109. [109]
     The practitioner submits that it is not possible to predict the seriousness of the consequences because of the different outcomes for the two patients: 

     1. Patient A told her general practitioner that she was not harmed and was mainly concerned for the practitioner’s other patients; whilst
     2. Patient B plainly formed a significant attachment to the practitioner, which might reasonably be supposed to have caused serious emotional distress.
110. [110]
     The difficulty with this submission is that it doesn’t address the risk identified in the material. Patient A was not a complex patient where Patient B plainly was. The Tribunal accepts that a practitioner’s failure to appropriately treat a particularly complex patient must come with a real risk of harm arising from inappropriate or inadequate treatment.
111. [111]
     The practitioner submits that it is not necessary to resolve this, because there is a limited likelihood of the risk occurring. This is because:

     1. he has addressed these fatigue issues by taking his family on the trip around Australia;
     2. his practice is drastically reduced in size and, for the foreseeable future, he is unlikely to suffer from equivalent pressures to those he was experiencing in his treating of each patient;
     3. there is no evidence to suggest he is incapable of satisfactory professional performance:
        1. he practiced for some 25 years, continuously, without incident;
        2. his colleagues commend him as trustworthy, reliable and the subject of consistently positive feedback from patients;^[80]
        3. one of them speaks specifically to his excellent knowledge base for adult mental health presentation, case conceptualisation and treatment planning;^[81]
        4. Dr Collins, whilst observing he is out of his depth for Patient B, has stated he appears capable of formulating appropriate therapeutic goals, developing and recording a reasonable case formulation, writing an adequate and informative clinical report, making notes of an appropriate level of detail and formulation’ and selecting and introducing appropriate emotional regulation techniques in Patient B’s case; and
     4. This is a case where the very facts of the complaints, along with their ongoing investigation, gives good reason to expect the practitioner will not fall into the same errors with future patients if allowed to practice without restrictions.^[82]
112. [112]
     The HO submitted orally that the clinical competency issue in Patient B’s treatment is a real risk which alone gives rise to a serious risk of harm. If making such a finding the HO concedes that the gender condition is not appropriate.^[83] The HO did not address the likelihood of the risk arising: submissions were limited to the singular failure to recognise the issue for the particular patient constituting a serious risk and the submission that it is unclear how the practitioner would deal with such patients prospectively.^[84] This submission does not address his incident free history for 25 years or the material provided by his other colleagues as to his knowledge base or treatment planning.
113. [113]
     So far as the Tribunal is aware, the investigation into these allegations continues: at the time of the hearing the HO said it was ongoing and could not give any indication of when there was any end in view.^[85]  As such, there is some force in the practitioner’s submission that the ongoing investigation will have a salutary effect on his approach to practice.
114. [114]
     The Tribunal is not satisfied that the risks present as serious risks to persons on the currently available information, taking into account the practitioner’s unchallenged evidence as to his reflections on his less than optimal practice. 
115. [115]
     As such, the Tribunal determines it is not necessary to take action to protect public health and safety, and the decision to take immediate action should be set aside.
116. [116]
     At the hearing of the application the HO sought that the Tribunal would make a non-publication order in favour of each of the patients, which the practitioner did not oppose.  Given the details necessarily rehearsed in these reasons, to ensure the efficacy of the non-publication order, the Tribunal will extend the operation of that order to include the practitioner.
117. [117]
     In the event that either party wishes to apply for costs, I will provide for the filing of an application and written submissions limited to two pages.
118. [118]
     The Tribunal thanks the assessors for their assistance in the determination of the review.