Review of Prohibition Order for Unqualified Mental Health Services Provider

The Tribunal reviewed a decision by the Commission to prohibit a counsellor from providing mental health services due to persistent misrepresentation of qualifications and unprofessional conduct. The Tribunal upheld the Commission's decision, finding that the counsellor posed a risk to public safety and welfare.

OUTCOME: Other

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME_1] v [NAME_2] Commission [2017] NSWCATOD 157 Hearing dates: 28 February 2017, 2 May 2017, 18 October 2017 (final submissions) Date of orders: 31 October 2017 Decision date: 31 October 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member [NAME_3], Member Decision: The application is listed for further directions on 21 November 2017 at 9:15 am. Catchwords: TRADES AND PROFESSIONS — Unregistered health practitioner — whether Code of conduct for unregistered health practitioners established — whether health practitioner poses a risk to the health and safety of the public

STATUTORY INTERPRETATION — meaning of expression "mental health services" — whether counselling is a mental health service — whether diagnosing a person referred by medical practitioner is a health service

STATUTORY INTERPRETATION — scope of powers conferred by s 41(2) of the [NAME_2] Act 1993 to place conditions on the provision of health services by a health practitioner Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Decisions Act 2013 (NSW) [NAME_2] Act 1993 (NSW) Mental Health Act 2007 (NSW) Health Practitioner Regulation 2012 (NSW) Australian Consumer Law (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN [PHONE]) [2009] FCA 682 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) Campomar Sociedad Limited v Nike International Limited [2000] HCA 12; 202 CLR 45; 169 ALR 677; 74 ALJR 573. Texts Cited: Macquarie Dictionary, 7th edition Category: Principal judgment Parties: [NAME_1] (applicant) [NAME_2] Commission (respondent) Representation: Applicant: [redacted] In person (2 May 2017)

Respondent:

[redacted] [NAME_2] Commission (Solicitors) File Number(s): 2016/00378460

Reasons FOR

DECISION 1. [NAME_7] (aka [NAME_1]) applies to the NSW Civil and Administrative Tribunal (NCAT) for review of the decision made by the [NAME_2] Commission on 6 October 2016, which, among other things prohibited him from providing mental health services for a period of six months. The trigger for the decision was a complaint made to the Australian Health Practitioner Regulation Agency (AHPRA) and subsequently referred to the Commission by one of [NAME_1]'s former clients, [NAME_8]. [NAME_8] alleged, among other things, that [NAME_1] had misrepresented that he was a registered health practitioner, that he provided her with care and treatment he was not qualified to provide and that he overcharged her for services.

2. Following an investigation conducted as required by the [NAME_2] Act 1993 (NSW) (the [NAME_2] Act), the Commission found that [NAME_1] had "persistently over a considerable period of time" misrepresented his educational and professional qualifications, was not qualified to carry out counselling services, provided health services in an unsafe and unethical manner, and posed a risk to the health and safety of the public. The Commission made an order under s 41A(2)(a) of the [NAME_2] Act prohibiting [NAME_1] from providing counselling of any description and any other mental health services in a paid or voluntary capacity for a period of six months. In addition, the Commission decided that at the end of the six-month period, [NAME_1] must not provide counselling or any other mental health services unless he satisfied the Commission that he had successfully completed a Level 5 qualification in counselling (for instance, a Diploma of Counselling) from an accredited institution. In addition, the Commission issued a public statement pursuant to s 41A(2)(b) of the [NAME_2] Act. (A copy of that statement at Attachment A to these Reasons). In these reasons we will refer to the decision made by the Commission as "the original decision". 3. [NAME_1] applied for a stay of operation of the original decision. That application was refused: [NAME_1] v [NAME_2] Commission [2016] NSWCATOD 149.

Statutory framework for determining a complaint 1. Any person can make a complaint under the [NAME_2] Act concerning the professional conduct of a "health practitioner": ss 7(1), 8 of the [NAME_2] Act. A health practitioner is defined to mean a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law): s 4 of the [NAME_2] Act. A complaint may be made against a health practitioner even though, at the time the complaint is made, the health practitioner is not qualified or entitled to provide the health service concerned: see s 7(3) and definition of "health service provider" in s 4 of the [NAME_2] Act. 2. "Health service" is defined in s 4 of the [NAME_2] Act to include "mental health services", whether provided as public or private services: para (c) of the definition of health service.

3. Section 23(1)(b) of the [NAME_2] Act requires the Commission to investigate a complaint if, following assessment of the complaint, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) if substantiated, would provide grounds for disciplinary action against a health practitioner, or (iv) if substantiated, would involve gross negligence on the part of a health practitioner, or (v) if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010 .

1. At the completion of an investigation of a complaint against a health practitioner, the Commission must do one or more of the things listed in s 39(1) of the [NAME_2] Act. These include taking action under s 41A of the Act: s 39(1)(g) of the [NAME_2] Act.

2. Section 41A states: (1) The Commission may take action under this section if: (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … (5) In this section: "code of conduct for non-registered health practitioners" means a code of conduct prescribed by regulations under section 100 of the Public Health Act 2010 "relevant offence" means: (a) an offence under Part 7 of the Public Health Act 2010 , or (b) an offence under the Fair Trading Act 1987 or the Competition and Consumer Act 2010 of the Commonwealth that relates to the provision of health services.

1. The Public Health Act 2010 (NSW) provides that the regulations may prescribe codes of conduct for the provision of health services by health practitioners who are not subject to the scheme for registration under the Health Practitioner Regulation National Law: s 101(a). A code of conduct for unregistered health practitioners has been prescribed under the Health Practitioner Regulation 2012: cl 99, Sch 3 (the Code).

2. The Code adopts the definition of health services and health practitioners used by the [NAME_2] Act.

3. Clause 3 of the Code requires health practitioners to provide health services in a safe and ethical manner: (1) A health practitioner must provide health services in a safe and ethical manner. (2) Without limiting subclause (1), health practitioners must comply with the following principles: … (c) a health practitioner must not provide services that he or she is not qualified to provide, … 1. Clauses 11 and 12 of the Code state that health practitioners must not diagnose or treat an illness or condition without an adequate clinical basis and must not engage in any form of misinformation or misrepresentation in relation to the their qualifications, training or professional affiliations: 11 HEALTH PRACTITIONERS REQUIRED TO HAVE CLINICAL BASIS FOR TREATMENTS A health practitioner must not diagnose or treat an illness or condition without an adequate clinical basis. 12 HEALTH PRACTITIONERS NOT TO MISINFORM THEIR CLIENTS (1) A health practitioner must not engage in any form of misinformation or misrepresentation in relation to the products or services he or she provides or as to his or her qualifications, training or professional affiliations. (2) A health practitioner must provide truthful information as to his or her qualifications, training or professional affiliations if asked for information about those matters by a client. (3) A health practitioner must not make claims, either directly or in advertising or promotional material, about the efficacy of treatment or services provided if those claims cannot be substantiated.

Task on review 1. Where, as in this case, the Commission has made a decision under s 41A of the [NAME_2] Act to make a prohibition order and/or a public statement in relation to a health practitioner, the affected health practitioner may apply to the NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): s 41C of the [NAME_2] Act.

2. On review, the Tribunal must make the "correct and preferable" decision having regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63(1) of the ADR Act. In undertaking that task, the Tribunal may exercise all of the functions that are vested in the Commission: s 63(2) of the ADR Act. On review, the Tribunal may affirm, vary, or set aside the Commission's decision: s 63(3) of the ADR Act. If the decision is set aside, the Tribunal may substitute its own decision for that of the Commission, or remit the matter to the Commission together with any directions or recommendations: s 63(3) of the ADR Act.

The decision under review 1. The following history is a summary taken from the reasons for the original decision.

2. In July 2011 while travelling to work, [NAME_8] fell and injured her wrist. The following month she lodged a workers compensation claim in respect of those injuries. She alleges that on returning to work in September 2011 her employer unlawfully discriminated against her on the grounds of her work-related injuries.

3. In March 2012, [NAME_8] suffered a further injury and made a second workers compensation claim. She instructed [NAME_9] to act on her behalf in relation to this claim. Throughout 2012 and 2013, [NAME_8] consulted several health practitioners including clinical psychologists, [NAME_10] and [NAME_13].

4. In January 2013, [NAME_8] lodged a complaint with the [NAME_15] alleging unlawful discrimination on the ground of disability by her employer. The Board referred [NAME_8]'s complaint to the Administrative Decisions Tribunal of NSW, one of NCAT's predecessor tribunals. 5. [NAME_8] instructed [NAME_16] to act on her behalf in relation to the discrimination complaint. In July 2013, [NAME_16] wrote to '[NAME_1] at [NAME_1]' and requested that he provide a medico-legal report, addressing whether [NAME_8] had suffered a psychological injury as a result of the alleged discrimination.

6. On 22 August 2013, [NAME_8] attended [NAME_1]'s consulting room and was assessed by [NAME_1]. The following month, [NAME_1] arranged to meet with [NAME_8] to discuss the contents of the report and the arrangement for payment for that report. In the course of this consultation, [NAME_1] recommended to [NAME_8] that she engage the services of [NAME_17] in relation to her workers compensation claims. On 2 September 2013, [NAME_8] paid [NAME_1] $2600 for preparing the report and associated costs.

7. In addition, [NAME_8] paid [NAME_1] directly for the first four face-to-face treatment sessions she attended with him in September and October 2013. In an SMS message sent to [NAME_8] on 16 October 2013, [NAME_1] wrote that (from that point onwards) his services would be of no cost to her and invoices for his services would be sent to [NAME_17]. By this time, [NAME_17] had taken over the carriage of [NAME_8]'s workers compensation claims and referred [NAME_8] back to [NAME_1] for treatment.

8. Between 3 September 2013 and 28 May 2014, [NAME_8] had 17 face-to-face consultations with [NAME_1]. According to [NAME_8], while the purpose of these consultations was to receive treatment for her psychological injuries, [NAME_1] frequently gave her advice about the discrimination complaint and workers compensation claims and, among other things, drafted documents in relation to the latter. 9. [NAME_8] claimed that for the following reasons she believed that from 16 October 2013 [NAME_1]'s fees for treatment would be paid at the settlement of her claims:

1. An SMS message sent by [NAME_1] to her on 16 October 2013 stating that his services would be at no cost to her and invoices would be sent to [NAME_17].

2. An "Irrevocable Authority", which she signed on 2 September 2013 stating that [NAME_1] would be paid out of the settlement of her claims.

1. On 28 May 2014, [NAME_1] sent an invoice to [NAME_8] and [NAME_17] for fees of $13,700 for 50 hrs for services provided to [NAME_8] over the previous eight months (25 October 2013 to 28 May 2014). The invoice did not itemise the services. 2. [NAME_8] told [NAME_1] she would not pay the invoice unless she received an itemised invoice, which he refused to issue. In July 2014, [NAME_1] commenced proceedings in the [ADDRESS] of NSW to recover the sum of $13,700 from [NAME_8]. [NAME_8] claimed that it was around this time she discovered that [NAME_1] was not a doctor or psychologist and did not hold any qualifications in psychology.

3. In an affidavit dated 28 August 2015, [NAME_8] claimed that in the course of the [ADDRESS] proceedings she became aware that versions of [NAME_1]'s invoices had been sent to various parties, including [NAME_16], [NAME_17] and her employer's insurer, [NAME_18].

[NAME_8] complains to APHRA 1. In a complaint made in September 2014 to APHRA, [NAME_8] wrote that [NAME_1] had misrepresented his qualifications and training and overcharged her for services.

Previous complaints made about [NAME_1]

1. In its reasons for the original decision, the Commission recorded that it had previously received two complaints about [NAME_1].

2. In the first of those complaints, made in September 2012, the complainant alleged that he consulted "[NAME_1]" as a doctor and was later asked by [NAME_1] to sign a "waiver form" stating that he had not introduced himself as a doctor. In his response to the Commission, [NAME_1] alleged the complainant had coerced him to write favourable reports for a workers compensation claim. [NAME_1]'s response to the Commission is signed off as '[NAME_1] BA(Psych) PhD Director I Trauma & Injury Management Consultant'.

3. In the second complaint made in November 2013, the complainant alleged that [NAME_1] had failed to make adequate disclosure about his fees and the nature of services provided. The complainant wrote "I initially made a complaint with the Australian Psychological Society as I believed him to be a psychologist, but have been informed otherwise". [NAME_1] denied this allegation. [NAME_1]'s letters to the complainant were signed off '[NAME_1] BA (Hons)(Psych)PhD Principal Consultant'.

4. Both complaints were withdrawn.

Findings made by the Commission 1. The Commission found that [NAME_1] knowingly misrepresented himself to [NAME_8], the Commission, the Australian Counselling Association ([NAME_19]) and various organisations who referred patients to him for psychological assessment as holding tertiary qualifications in psychology and a bachelor degree in arts with honours. In addition, the Commission found that [NAME_1]'s use of the title "Dr" and the post nominal "PhD" misled patients into thinking that he held a "legitimate" PhD and that his so called Doctor of Philosophy degree related to qualifications in psychology and/or counselling.

2. The Commission concluded that [NAME_1] breached the Code by:

1. Failing to provide health services in a safe and ethical manner: cl 3(1)

2. Providing services that he was not qualified to provide: cl 3(2)(b1)

3. Misrepresenting his qualifications and training: cl 12(1).

1. In addition, the Commission found that [NAME_1] posed a risk to the health and safety of members of the public.

2. The Commission wrote that [NAME_1] has an "astonishing lack of insight into the manner in which he misrepresents" his qualifications. The Commission pointed out that despite being informed by [NAME_20] University that he did not hold tertiary qualifications from those institutions, he continued to misinform [NAME_8], organisations who referred "psychological injury work" to him, and the public at large that he held those qualifications.

3. The Commission concluded that in misrepresenting his training, experience and qualifications and in providing treatment he is not qualified to provide, [NAME_1] posed a risk to public health and safety. The Commission reasoned: Health consumers who are likely to utilise, rely on and pay for [NAME_1]'s services are particularly vulnerable in that they are seeking assessment of and treatment for mental health conditions. The misrepresentation of qualifications and training "engenders a false belief" in those who seek assessment and treatment that [NAME_1] has the skills and ability to accurately diagnose their symptoms, design an appropriate and effective treatment regime. Incomplete training and the absence of minimum qualifications as a counsellor combined with dishonesty, means that [NAME_1] lacks the ability to act on "red flag" situations where there is a need to refer to refer the patient to another practitioner or because of the seriousness of the condition or the treatment afforded in "not getting results".

1. The Commission made orders under s 41 of the [NAME_2] Act prohibiting [NAME_1] from:

1. Providing counselling of any description and any other mental health services in a paid or voluntary capacity for a period of six months.

2. And thereafter, providing counselling of any description or any other mental health service unless he satisfies the Commission that he has successfully completed a Level 5 qualification in counselling from an accredited institution.

1. In addition, the Commission decided to issue a public statement in relation to [NAME_1] under s 41A(2)(b) of the [NAME_2] Act.

Issues 1. The key issues we must decide are: 1. [NAME_1] provided health services to [NAME_8].

2. Whether, in breach of the [NAME_1]: 1. misrepresented his qualifications and training. 2. provided health services that he was not qualified to provide. 3. provided a diagnosis without an adequate clinical basis. 1. [NAME_1] poses a risk to the safety of the public.

2. If, the answer to Questions 1, 3 and all or part of Question 2 is yes, whether orders should be made under s 41A(2) of the [NAME_2] Act, and, if so, what orders should be made.

[NAME_1] provide "health services" to [NAME_8]? 1. [NAME_1] asserts that the services he provided to [NAME_8], namely counselling services and the production of a medico-legal report, are not health services within the meaning of the [NAME_2] Act. It follows, he contends, that in providing these services he was not covered by the Code and therefore it was not open to the Commission (or the Tribunal on review) to make orders under s 41A(2) of the [NAME_2] Act. The Commission disagrees and argues that each of those services are plainly mental health services and therefore health services for the purposes of the Act.

2. Section 4 of the [NAME_2] Act defines "health service" to include the following services, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services , (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. (emphasis added)

1. The Code adopts this definition.

What was the nature of the counselling services provided by [NAME_1]? 1. Before considering whether the counselling services provided by [NAME_1] constitute a health service, it is first necessary to consider the nature of the counselling services provided to [NAME_8].

2. In a letter to the Commission dated 20 July 2015, in response to a notice issued under s 34A(1) of the [NAME_2] Act, in answer to the question "Describe what care and treatment you provided to [[NAME_8]] in relation to your opinion of her anxiety and depression", [NAME_1] wrote: My involvement in [[NAME_8]'s] care and treatment involved using CBT, psychodynamic psychotherapy and strategic outcome focused therapy. I discussed and sought input regarding [[NAME_8]'s] management with her treating clinical psychologist, [NAME_21]. I also encouraged [[NAME_8]] to return to her general practitioner and seek a referral to a consultant psychiatrist I understand that she did this and was referred to [NAME_22]. 1. [NAME_1] does not dispute that he provided counselling services to [NAME_8], in submissions made in these proceedings, he described his role as one of helping [NAME_8] "make money" and assisting her to digest and make sense of the vast amount of material generated in relation to her claims. Further, he stated that he assisted her to make decisions about various matters, including her health, family and work. He made no mention of the claim made to the Commission of "using CBT, psychodynamic psychotherapy and strategic outcome focused therapy".

2. The evidence given by [NAME_8] supports [NAME_1]'s claim that his role extended to providing advice about the management of her claims. She claims, and [NAME_1] does not dispute, that he assisted her with the drafting and review of documents and gave advice on the management of her claims and instructions given to her lawyers. In addition, she describes the services provided as "helping me to overcome a great deal of my stress and anxiety".

3. It seems likely that some of the services provided by [NAME_1] strayed into what could loosely be described as claims management or quasi-legal advice. Nonetheless, on the basis of his admissions and the evidence of [NAME_8], we are satisfied that in addition to those services, [NAME_1] provided or purported to provide, counselling services of the type described in his letter to the Commission of 20 July 2015. In reaching that conclusion, we note that [NAME_1] had accepted a referral from [NAME_8]'s GP for the "opinion and management, re: anxiety and depression".

Are counselling services of the type provided to [NAME_8] health services? 1. [NAME_1] argues that counselling is not a health service because it is not one of the services listed in the definition of health services in s 4 of the [NAME_2] Act. The Commission disagrees. The Commission is correct in our view.

2. That counselling is not listed in the definition of health services is not determinative of whether it is a "health service". Counselling will constitute a "health service" if, as submitted by the Commission, it constitutes a mental health service.

3. The expression "mental health services" is not defined by the [NAME_2] Act or the Code. Its meaning is to be determined by reference to its text and statutory context. The conventional starting point is the text itself. What is the ordinary and natural meaning of the expression "mental health services"? The Macquarie Dictionary, 7th edition, defines "mental" to include "denoting a disorder of the mind", "designated for or relating to the care of those with disordered minds: mental hospital; mental nurse." The Macquarie Dictionary defines the term "mental health" to mean "the branch of medicine or the health services that deal with people with mental illnesses". In its ordinary and natural meaning the term "mental health" relates to the psychiatric or psychological condition or status of people, that is, to the health of their minds. Given the context in which the term appears, it is clear that the term is intended to be distinguished from a person's medical, dental or physical condition or status.

4. The World Health Organisation describes the state of good mental health as "a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community": see <http://www.who.int/features/factfiles/mental_health/en/ at 28 October 2017. 5. "Mental health services" is an umbrella term covering a wide field. It is common knowledge, in our view, that they range from services such as locked acute wards in psychiatric units for acutely ill patients scheduled under the Mental Health Act 2007 (NSW) to far less drastic measures such as GPs discussing issues of stress, anxiety, or depression with patients. The key issue is whether a service has as one of its purposes the improvement or maintenance of a person's mental health, that is, their mental capacity to "cope with the normal stresses of life", to "work productively and fruitfully, and … to make a contribution to her or his community". Any service relating to that purpose, in our opinion, falls under the umbrella of "mental health services".

6. The Macquarie Dictionary defines the word "counselling" to mean: "the provision of help and advice, especially to someone experiencing difficulty, by a person trained to do so: the survivors of the train crash were given trauma counselling. The type of care and treatment [NAME_1] claims he provided to [NAME_8] is consistent with these definitions.

7. One of the services [NAME_1] provided was counselling. One of the purposes of that counselling was to provide advice in relation to psychological issues or problems presented to him by [NAME_8]. On his account, after receiving a referral from her GP, he met with [NAME_8], took a history and conducted a number of assessments; made a diagnosis; and provided [NAME_8] with care and treatment which included CBT, psychodynamic psychotherapy and strategic outcome focussed therapy. The only reasonable inference from the fact that [NAME_1] took a history, conducted the assessments and ultimately provided the advice he did is that at least one of the main purposes of that exercise was to address [NAME_8]'s mental condition. In providing such a service with such a purpose, he provided a mental health service.

8. It is well-known that there are multiple therapies for mental health conditions. They include pharmacological therapies, physical therapies such as electroconvulsive therapy and "talking" therapies. Counselling a person with a mental health condition for which treatment is sought, as was the case in relation to [NAME_8], would appear to have a therapeutic purpose. Whether or not the counselling is effective is not the point. The question is the underlying purpose.

9. It is difficult to see on what basis it could reasonably be argued that counselling services of the type [NAME_1] claimed to provide [NAME_8] do not constitute "mental health services".

10. We find the services provided by [NAME_1] to [NAME_8] included mental health services.

In providing a medico-legal report did [NAME_1] provide a health service? 1. At the request of [NAME_16], in August 2013 [NAME_1] prepared a 13-page report, headed "confidential psychological report". [NAME_1] argues that the preparation of a report of this type, which he describes as a "medico-legal" report, is not a health service because it was a "preliminary" report prepared for the purpose of assessing the merits of the legal claims made by [NAME_8]. In addition, he submits that it could not have been the intention of Parliament to include "medico-legal services" as a health service because to do so would expose the medical practitioners preparing such a report to a negligence claim if their opinion was not ultimately accepted by the Court.

2. The Commission disagrees and points out that in the report [NAME_1] set out, among other things, his opinion about diagnosis and recommended treatment, services which can only be considered as health services.

3. In a letter dated 29 July 2013, [NAME_16] requested [NAME_1] to prepare a report and answer a number of questions, which included:

1. Has our client sustained a mental illness /injury as a result of the alleged discrimination? 2. If yes, what is the mental illness? 3. How long has the client been suffering from the mental illness and are you able to comment on the likely length of the illness? 4. How can the illness be treated (if treatment is required)? 5. Based on your professional opinion, what is the indirect/direct cause of the said illness? 1. In answer to that request, in a "confidential psychological report" dated 29 August 2013, [NAME_1] set out his findings and opinions in relation to [NAME_8]'s mental health. He recorded:

1. A detailed history taken from [NAME_8].

2. The results of psychometric assessment used to "formally assess [NAME_8]'s "emotional functioning", namely the Beck Depression Inventory and Beck Anxiety Inventory (BAI).

3. His opinion about diagnosis and prognosis.

4. His recommendations for treatment.

1. Under the heading "Diagnosis and opinion" [NAME_1] wrote: In my opinion, the present assessment based on a detailed history, clinical interview and psychometric tests indicates that [[NAME_8]] is currently exhibiting symptoms consistent with the diagnosis of both Major Depressive Disorder and Post Traumatic Stress Disorder using the Diagnostic and Statistical Manual. Her symptoms are severe and chronic at present. Her level of distress is significant enough to cause major interference in important areas of her life as outlined throughout this Report. It is also my opinion that based on the history given by [[NAME_8]], both the Depression and PTSD-like symptoms developed due to the series of stressful events she experienced at work. There is also significant presence of serious symptoms such as suicidal ideation and substantial impairment in social and occupational functioning. The assessment results are consistent with this description in [[NAME_8]'s] case.

1. With respect to the prognosis, he went on to write: Given her history, complex physical and psychological difficulties and the detailed assessment conducted, my opinion is that [[NAME_8]'s] prognosis is guarded and significantly dependent on recovering from her physical and psychological complaints.

1. Under the heading "Treatment" [NAME_1] wrote "current literature on evidence based psychological treatments points to the effectiveness of psychopharmacological treatment as an adjunct to psychotherapy including Cognitive Behaviour Therapy (CBT) for mood and anxiety disorders". He went on to recommend that [NAME_8] receive approximately 12-15 sessions of CBT from "an experienced Therapist who has a grasp of the factors involved in the development of psychopathology due to occupational stress".

Consideration 1. The extracts set out above reveal that in the report [NAME_1] gave an opinion about diagnosis, the aetiology and prognosis of the diagnosed condition and made recommendations about the treatment of that condition. He stated that those opinions were based on, among other things, history he had taken and the results of psychometric testing he had administered. 2. [NAME_1] provided a service. The question then arises: what was the nature of that service? The answer to that question is provided by the context. The service provided included the making of a diagnosis and recommending treatment of the diagnosed conditions. These are quintessentially issues relating to the mental health of the patient. In our view, these services could properly be characterised as either "medical services" or "mental health services", within paragraph (a) and (c) of the definition health services. Whether, as claimed by [NAME_1], the opinions he expressed in the report were "preliminary" and/or prepared for the purpose of providing guidance to [NAME_8]'s lawyers, is irrelevant to the proper characterisation of the services.

3. It is irrelevant that the report was preliminary or that the report was sought for legal purposes or that, in theory, a practitioner producing such a report could be held liable in negligence in some circumstances. In producing that report, purporting to exercise his specialist expertise, [NAME_1] provided a service that materially related to the mental health of a person and therefore provided a mental health service. While the service might also be described as a form of legal service, that does not extinguish its character as a mental health or indeed "medical service".

[NAME_1] breach the Code by engaging in a form of misinformation or misrepresentation as to his qualifications and / or training?

Educational qualifications 1. Until August 2016, when he received a copy of the Commission's draft statement of decision, in various documents including business cards, letterhead, CVs, and invoices [NAME_1] used the title "BA (Hons), and/or BA (Psych)", and/or "BA (Hons) (Psych)". Emails sent by [NAME_1] carried the following electronically generated signature: [NAME_1] BA (Hons) (Psych) (PhD)

1. In all versions of [NAME_1]'s CV, including the one provided to [NAME_8] in August 2014, he listed his qualifications as follows: 1986 Bachelor of Arts. Major in Sociology and Politics (Hons) Monash 1996 Bachelor of Arts. Major in Psychology. [NAME_20] 1988 Graduate Diploma in [COMPANY_24] (Royal Melbourne Institute of Technology). Completed Fourth year Thesis: The link between irrational beliefs and anger. [NAME_25] 2000 Completed PhD. [NAME_27] USA 2014 Student-at Law UNE, Currently discontinued until 2014 1. In a letter dated 8 September 2016, in response to the draft statement of decision prepared by the Commission, [NAME_1]:

1. Acknowledged he was not a psychologist or a "medical doctor" and did not hold a doctorate in psychology.

2. Denied telling any client that he was a psychologist, medical doctor or held a doctorate in psychology.

3. Denied telling [NAME_8] that he was a psychologist, rehabilitation psychologist or medical doctor.

4. Described himself as a counsellor and psychotherapist with 30 years counselling experience.

1. In submissions to the Commission dated 8 September 2016, (then) Counsel for [NAME_1] asked the Commission to take into account the following matters when making its decision: First, [NAME_1] denies he told [NAME_8] he was a psychologist. He informs [NAME_8] and other clients that he was not a psychologist. Second, [NAME_1] fully accepts that the claims he has made about his qualifications were apt to mislead clients and the public generally, particularly when taken together. This is so when working in a health setting alongside health practitioners and dealing with vulnerable clients with mental health issues. He accepts it is not good enough to refrain from actually saying he is a psychologist. Third, [NAME_1] gives an undertaking that he will not use the post-nominal "Dr" or post nominal "PhD" or state that he has a Bachelor of Arts majoring in psychology from [NAME_20] University (or elsewhere) in the absence of the award of the same …

Qualifications from Monash University 1. As noted, in various documents, including a number provided to [NAME_8], [NAME_1] described himself as holding a BA (Hons), and/or BA (Psych), and/or BA (Hons) (Psych).

2. Records obtained by the Commission in the course of its investigation into the Complaint, reveal that [NAME_1] graduated from Monash University in 1986 and was awarded a Bachelor of Arts (BA), not a BA (Hons).

3. In these proceedings and in his response to the Commission dated 8 September 2016, [NAME_1] acknowledged that he did not hold a BA (Hons) from Monash University and claimed to have ceased claiming to hold such qualification since May 2016. [NAME_1] stated that his use of the "Hons reference" was an "honest mistake" because five of the six subjects in his third year of study at Monash were "honours subjects".

4. When cross-examined in May 2016 about his claim to hold a BA with honours from Monash University in proceedings in the Supreme Court of NSW, [NAME_1] conceded that the copy of the degree tendered on his behalf made no mention of the word "Honours" but stated that the reference to honours degree is found in the transcript of the degree. Those proceedings were commenced by [NAME_1] against the State of NSW claiming he had been the subject of malicious prosecution by NSW Police.

Qualifications from RMIT 1. In 2005, [NAME_1] applied to become a member of the Australian Counselling Association ([NAME_19]). In his application for membership, [NAME_1] listed his qualifications as including a Graduate Diploma in Counselling. In addition, as noted, that purported qualification in the version of the CV provided to [NAME_8] and others. 2. [NAME_1] was enrolled at RMIT in the Graduate Diploma in Counselling in 1987 and 1988. The certificate of academic transcript produced to the Commission by RMIT reveals that [NAME_1] passed each of the nine subjects in which he was enrolled in his first year, and, eight of the nine subjects in which he was enrolled in the second. In addition, the certificate records: 1989 Research Project 2 DNS [Did not sit- fail] 1990 Research Project 2 NN [Fail]

1. In 2009, NSW Police conducted an investigation into an alleged invoicing fraud involving [NAME_1]. As part of that investigation, police investigated claims made by [NAME_1] about his academic qualifications. A record of interview with [NAME_1] conducted, by police on 25 May 2009, reveals that when questioned about the claim of holding a diploma in counselling from RMIT, [NAME_1] conceded he had not been awarded such a diploma but claimed he had "completed every single subject in that course" and later "not to have been credited for one subject".

2. In submissions made to the Commission dated 8 September 2016, it was acknowledged for [NAME_1] that he did not complete a graduate diploma in counselling. In cross-examination in these proceedings, [NAME_1] stated he cannot remember ever claiming to hold a graduate diploma in counselling and if he had, he would have added it was not completed.

Qualifications from [NAME_20]

1. As noted, the CV provided to [NAME_8] and others states that [NAME_1] holds a "Bachelor of Arts, Major in Psychology" from [NAME_20] University.

2. In a statement provided at the request of the Commission, [NAME_20]'s Director of Governance and Integrity wrote that the records of the University reveal that [NAME_1]: 1. has not completed a degree from [NAME_20] 2. was a student at [NAME_20] for one semester in 1996, and completed one unit of study, the Psychology of Personality 3. received exemptions from [NAME_20] for three subjects: Psychological Measurement, Psychological Foundations of Counselling and Design and Measurement.

1. Records produced to the Commission by the University record that [NAME_1] applied to graduate from [NAME_20] in 2008 and was advised he had not satisfied the requirements for a BA. In a letter to [NAME_1] dated 22 December 2010, the University rejected [NAME_1]'s application to enrol in a BA (Honours) psychology.

2. In a letter provided by [NAME_1] to the Commission dated 7 September 2016, [NAME_20] Director (Psychology), [NAME_28], wrote that [NAME_1] completed a Bachelor of Arts (Psychology) and that "the above named degree completed by [NAME_4] [[NAME_1]] in 1997 [Bachelor of Arts (Psychology)]" is an accredited AQF Level 7 Bachelor degree". In a subsequent letter dated 28 September 2016, Dr [NAME_29] retracted that statement and wrote that the University's records reveal that [NAME_1] had not completed a BA (Psychology) at [NAME_20]. The original letter was apparently based on material provided to Dr [NAME_30] by [NAME_1].

3. In support of his claim to have completed the course requirements for a BA (Psychology), [NAME_1] relies on a letter from [NAME_26] of [NAME_20], dated 2 May 1997, in which [NAME_26] [NAME_26] congratulates [NAME_1] on completing his "three year sequence of subjects in psychology". [NAME_26] [NAME_26] wrote "we would like to present you with a certificate stating that you have satisfied the Australian Psychological Society requirements for an accredited sequence of subjects". 4. [NAME_20]'s Director of Governance informed the Commission that a search of the University's records was unable to locate a copy of the letter from [NAME_26] [NAME_26]. In addition, the Director claimed that [NAME_26] [NAME_26] has no recollection of writing the letter.

5. In cross-examination in the Supreme Court proceedings in relation to the malicious prosecution claim, [NAME_1] stated that he held a Bachelor of Arts from [NAME_20] University with a major in psychology. He stated that he was invited by [NAME_26] [NAME_26] to attend a "certification of the Bachelor of Arts with a major in psychology at [NAME_20] University" but was unable to attend. When asked about the electronically generated signature he used in emails —"BA (Hons) (Psych) (PhD)" — [NAME_1] stated he believed it to be an accurate description of his educational qualifications.

6. As noted, in submissions dated 8 September 2016, it was conceded for [NAME_1] that he had not been awarded a BA from [NAME_20] but it was asserted that he "completed an accredited sequence in psychology equivalent to a degree in psychology". In these proceedings he appeared to retract the concession that he not been awarded a BA from [NAME_20] and stated he had instructed his lawyers to take steps to "set the record straight".

PhD from [COMPANY_31]

1. In a letter to the Commission dated 20 July 2015, [NAME_1] wrote that he was conferred a Doctorate of Philosophy by the [COMPANY_31] ([NAME_27]) in February 2000, after completing a thesis, titled "Cross Roads "Your Journey Within", under the supervision of consultant psychiatrist, [NAME_32].

2. In a statement dated 17 September 2009, an officer involved in the 2009 NSW Police investigation in relation to [NAME_1] wrote that an internet search revealed that a PhD could be purchased from the [NAME_27] for $249. In that statement the officer reproduced the following notices said to have been downloaded from the [NAME_27] website: Licences and credentials [COMPANY_31] degree programs are not designed to meet any particular local, state or national licensing or credentialing laws, nor to meet any requirements established by any private independent associations. If you are seeking a degree for licensing purposes, the [COMPANY_31] advises you to check with that association, state or specific school district to determine if it is acceptable.' Accreditation Accreditation of any college, school or university is strictly voluntary. The America College of Metaphysical Theology is not accredited. It is an incorporated religious non-profit organisation and a non­secular school. Theology, like religion, is recognized and protected under the first amendment of the United States Constitution, which guarantees any citizen the right to practice and to teach it to others. This is the essence of our type of degree. Thus accreditation is of minor importance.

1. NSW Police were provided with material obtained by the Victoria Police in the course of an investigation into allegations about [NAME_1] made by the Psychological Registration Board of Victoria. That material included documents relating to the claim made by [NAME_1] that consultant psychiatrist, [NAME_32] was his thesis supervisor. 2. [NAME_32] practised in Melbourne until he retired in 2003. He died in 2007. In a statement provided to Victorian Police, [NAME_32]'s personal assistant wrote that she knew [NAME_1] [aka [NAME_1]] to be a patient of [NAME_32], who attended his practice each week for treatment. She wrote that throughout the period she worked for [NAME_32], 1997 to 2003, [NAME_32] did not train [NAME_1] nor indeed anyone else. She stated that Mr [NAME_1] paid by credit card or cheque on issue of accounts for treatment provided by [NAME_32].

3. In a statement provided to Police in 2010, [NAME_32]'s widow wrote that she knew [NAME_1] and recalled seeing his name on her husband's accounts as a patient. She wrote that neither [NAME_1] nor [NAME_1], worked for or studied under her husband. She claimed that she would "definitely recall" if a person of the name [NAME_1] or [NAME_1] had been employed by her husband as she prepared the accounts for her husband's practice.

4. Records produced to the Commission by Medicare reveal that Medicare rebates were issued for payments for claimed regular treatment provided by [NAME_32] to [NAME_1] between June 1997 and 2002. In addition, those records reveal that on a number of occasions throughout this period, [NAME_32] prescribed [NAME_1] the anti-depressant, Sertraline.

5. In cross-examination in these proceedings, [NAME_1] denied being a patient of [NAME_32] although he conceded that from time to time [NAME_32] assisted him with "health and family problems". He claimed that for a period of two to three years he saw [NAME_32] for the purpose of receiving supervision for his clinical practice. He stood by the claim made to the Commission in a letter dated 20 July 2015, that he paid [NAME_32] the sum of $4,800 for providing that supervision.

6. In the course of its investigation, NSW Police obtained two references purportedly written by [NAME_32]. Each was on [NAME_32]'s letterhead, signed "[NAME_33] [NAME_34]" and bearing the date 19 August 2003. One reference was handwritten; the other was typed. The handwritten reference reads: I have known [NAME_1] personally and in depth for seven years. He is dedicated to his profession and to his continuing education and the development of his several skills, these include clinical practice, administration and the development of psychological services. He has a warm and engaging personality and good interpersonal skills. I find his book "Cross words" very suitable for its purpose. I believe he will add to the status of his profession. I have confidence in his future. I find his book "Crossroads" very suitable for its purpose.

1. The content of the typed letter is identical in all material respects save for the inclusion of the following sentence, appearing at the end of the first paragraph: [[NAME_1]] came to see me weekly to provide supervision for his on-going clinical work and I was very impressed with his knowledge and skill as a therapist.

1. In these proceedings, [NAME_1] denied creating the typed reference or forging [NAME_32]'s signature. He claimed that the reason [NAME_32] gave him two written references on the same date was because he had asked for a personal and a professional reference as he was moving to Sydney.

2. The Commission submitted that there is a "very real doubt" that [NAME_32] supervised [NAME_1]'s thesis as claimed. Counsel for the Commission contends that it is inconceivable that the claimed thesis was produced under the supervision of [NAME_32], contending that the document is "essentially rubbish". She points out that the thesis contains no footnotes and is replete with typographical errors and sentences without verbs.

Membership of the [NAME_19]

1. In his application made in 2006 to become a member the [NAME_19], [NAME_1] answered no to the question "Have you ever been convicted of a criminal offence"? In the 1990's [NAME_1] was convicted of multiple of multiple offences of "obtain property by deception".

2. In addition, in that application [NAME_1] listed his qualifications as "BA, Grad Diploma in Counselling and PhD".

3. In January 2012, following a random audit of the qualifications held by its members, the [NAME_19] wrote to [NAME_1] and informed him that it did not recognise the doctorate he had been awarded by the [NAME_27]. The [NAME_19] pointed out that the [NAME_27] is recognised on "several government and private websites" as being a "non-accredited training provider" and also is listed as an "Accredited Degree Mill". The [NAME_19] wrote that the only USA qualifications it recognises are those that meet the criteria established by the Council for Higher Educational Accreditation ([NAME_35]), the leading private accreditation body in the USA. The [NAME_19] wrote that the [NAME_35] classifies the [NAME_27] as a non-accredited organisation.

4. The [NAME_19] wrote that as a consequence of the [NAME_27]'s status, [NAME_1]'s use of the title "Doctor" or "Dr", is deemed to be "unethical and potentially misleading". In a letter to the Commission dated 20 July 2015, [NAME_1] explained that he continued to refer to himself as "Dr" after receiving the advice form the [NAME_19] because he had been given legal advice that he was entitled to do so providing "I did not lead people into thinking I was medical doctor".

[NAME_8]'s account of the representations made by [NAME_1] about his qualifications 1. In August 2015 [NAME_8] was referred by a solicitor from [NAME_16] to [NAME_1] for the purpose of obtaining a "medico-legal report". The solicitor requested [NAME_8] to obtain a letter of referral to "[NAME_1]" from her GP. In an affidavit dated 28 August 2015, prepared for the purpose of defending the [ADDRESS] proceedings commenced by [NAME_1] (the 2015 affidavit), [NAME_8] wrote that her solicitor told her that [NAME_1] was a psychologist.

2. In an email to the Commission sent on 21 July 2015, the solicitor wrote that he was aware that [NAME_1] was not a psychologist or psychiatrist. He did did not the claim that he told [NAME_8] that [NAME_1] was a psychologist.

3. At [NAME_8]'s request, her GP provided a letter of referral addressed to "[NAME_1], [NAME_1]". In that letter, the GP thanked [NAME_1] for seeing [NAME_8] for an "opinion and management, re: anxiety and depression". In a statement prepared at the request of the Commission dated 21 December 2016, the GP wrote that when asked to provide that letter she had not heard of [NAME_1] and was told by [NAME_8] that he was a psychologist. The GP stated that in March 2014 [NAME_8] said she was "happy with psychologist [NAME_1]".

4. In the 2015 affidavit, [NAME_8] wrote that at all material times throughout the period when she saw [NAME_1], she believed him to be a doctor, a doctor of psychology and/or a counsellor with qualifications in psychology, for the following reasons:

1. I was required to get a referral from my GP before seeing [NAME_1]; 2. [NAME_1] referred to himself as a doctor in our consultations; 3. [NAME_1] referred to himself as a doctor or "Dr" in his correspondence with me; 4. [NAME_1] referred to himself as a doctor and psychologist in his resume; 5. [NAME_1] referred to himself as a doctor on his business card, which he gave to me during our consultations (a copy of which is at tab 51 of exhibit [NAME_36]); 6. [NAME_1] referred to himself as a doctor or "Dr" in the invoices he issued to me; and 7. [NAME_1] requested that I get a referral from [NAME_37] [[NAME_8]'s GP] to [NAME_1] in relation to the Worker's Compensation Claim.

1. In her initiating complaint to the Commission, [NAME_8] pointed out that in her dealings with [NAME_1] he described himself as "Doctor". She stated that she first became aware he was not a registered health practitioner when she checked the APHRA register in September 2014.

2. In cross-examination in these proceedings, [NAME_8] claimed that when she first met [NAME_1] he introduced himself as a psychologist and throughout the period she consulted him she believed him to be a psychologist and a counsellor with a degree in psychology. In a document headed "psychological treatment" prepared in March 2014, [NAME_8] listed the practitioners who provided her treatment between 2011 and 2014. That document described [NAME_39] and [NAME_40] as "psychologists" and [NAME_1] as "counsillor" (sic). ([NAME_13] and [NAME_12] are clinical psychologists who treated [NAME_8] at various times between 2011 and 2014.)

Consideration 1. Clause 12(1) of the Code provides that a health practitioner must not engage in any form of misinformation or misrepresentation as to his or her qualifications, training or professional affiliations.

2. The Commission contends that [NAME_1] misrepresented to [NAME_8] and others that he held qualifications relevant to the field of psychology and/or mental health. [NAME_1] disagrees.

Interpretation of cl 12 of the Code 1. We are not aware of any authorities which have considered the operation of cl 12(1) of the Code. While there are differences between the terms of that provision and s 18 of the Australian Consumer Law (NSW) (ACL NSW) (formerly s 52 of the Trade Practices Act 1974 (Cth)), nonetheless in our opinion the authorities that have considered the latter provide helpful guidance about the meaning and application of cl 12(1).

2. Section 18 of the ACL NSW (and s 52 of the TPA) relevantly provide: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. In Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN [PHONE]) [2009] FCA 682, the Federal Court set out a useful summary of the principles developed in relation to s 52 of the TPA. We set out below those relevant to this matter (citations removed):

1. A contravention of s 52(1) of the TPA is established by "conduct" which is misleading or deceptive or likely to mislead or deceive. The "conduct", in the circumstances, must lead, or be capable of leading, a person into error and the error or misconception must result from "conduct" of the corporation and not from other circumstances for which the corporation is not responsible. "Conduct" is likely to mislead or deceive if there is a "real or not remote chance or possibility regardless of whether it is less or more than fifty per cent".

2. Section 52(1) is concerned with the effect or likely effect of "conduct" upon the minds of that person or those persons in relation to whom the question of whether the "conduct" is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context. 3. "Conduct" can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive.

4. By making a statement of past or present fact, a corporation's state of mind is irrelevant unless the statement involved the state of the corporation's mind. Contravention of s 52(1) does not depend upon the corporation's intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.

1. For a contravention of s 52 of the TPA, intent is not necessary. All that is relevant is whether the conduct, tested objectively, was misleading or deceptive or had an intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191. Nonetheless, while intent is not necessary to establish a contravention of s 52, a review of the authorities indicates that the courts are generally more ready to find that a person has engaged in misleading or deceptive conduct where an intent to mislead can be inferred: Campomar Sociedad Limited v Nike International Limited [2000] HCA 12; 202 CLR 45; 169 ALR 677; 74 ALJR 573.

2. Neither party addressed in their submissions whether an intention to engage in a form of misinformation or misrepresentation qualifications, training or to establish a breach of cl 12. While different in terms, cl 12(1) like s 52 of the TPA (and s 18 of the ACL (NSW)), does not expressly state that an intent to misinform must be established. Clause 12(1) simply states that the practitioner "must not engage in any form of misinformation or misrepresentation". The Code is intended to protect consumers of health services. The underlying principles are the same as those that apply in relation to the consumer protection parts of the TPA and ACL. Consumers (or patients or clients of health practitioners) are entitled to rely on representations made to them. Misinformation or misrepresentations, intentional or otherwise, can seriously disadvantage or even jeopardise the safety and health of consumers of health services. In our view, an intention to misinform or misrepresent is not required to establish a contravention of cl 12(1) of the Code.

Consideration 1. The issue we must determine is whether having regard to all contextual circumstances, [NAME_1] engaged in any form of misinformation or misrepresentation as to his qualifications and training. The alleged misrepresentation and misinformation, includes the documentary material as to his qualifications and training provided by [NAME_1] to [NAME_8] and others and the alleged statements made by [NAME_1] to [NAME_8] during the first consultation.

The alleged verbal misrepresentation 1. We accept [NAME_8]'s claim that prior to the first consultation she believed [NAME_1] to be a psychologist. That is consistent with the information she gave to her GP and her email to [NAME_16] sent on 15 August 2013, which referred to [NAME_1] as "a psychiatrist". That she held this view is unremarkable given that she had been told by her solicitor that a referral from her GP was necessary to see "[NAME_1] at the [NAME_1]", and the reason she would be seeing "[NAME_1]" was to obtain a medico-legal report to use in support of her claim of suffering a psychological injury.

2. However, for the purpose of cl 12(1), the relevant enquiry is whether [NAME_1], not some third party, engage[d] in "any form of misinformation or misrepresentation as to [[NAME_1]'s] qualifications or training". Nor will a contravention of cl 12(1) be established if, independently or any representation made by, or information provided by, [NAME_1], [NAME_8] made an assumption about his qualifications or training.

3. We accept that prior to meeting [NAME_1], [NAME_8] had assumed he was a psychologist. However, on the available material we could not be satisfied to the requisite standard that at their first meeting [NAME_1] stated that he was a psychologist. In reaching that conclusion we note that in the document prepared in March 2014 before the relationship with [NAME_1] soured, [NAME_8] described [NAME_1] as a "counsellor". In addition, we note the absence of any reference in the 2015 affidavit to [NAME_8]'s claim that [NAME_1] said he was a psychologist at their first meeting.

4. However, this does not dispose of the issue. Clause 12(1) is not restricted to express statements and extends to "any form of misinformation or misrepresentation". We will return to consider, having regard to all relevant circumstances, whether [NAME_1] misrepresented that he was a qualified psychologist.

Documents produced by [NAME_1] relating to his academic qualifications 1. As noted above, in various documents provided to [NAME_8] and others, [NAME_1] claimed to hold a BA (Hons) from Monash University, a Graduate Diploma in Counselling from RMIT and a "BA Major in Psychology" from [NAME_20].

2. While in submissions made to the Commission in September 2016, [NAME_1] conceded he did not hold these qualifications, the CV attached to those submissions listed "APS & APAC Accredited Major in Psychology. [NAME_20] University" under the heading "qualification". In those submissions, [NAME_1] wrote that the attached CV had been amended to ensure it did not contain "any information that is misleading or factually incorrect".

3. We understand [NAME_1] now to argue that he was not awarded a BA with a major in psychology because of an error by or maladministration on the part of [NAME_20]. [NAME_20] erred in failing to award [NAME_1] with a BA with a major in psychology, which on the available material appears improbable, the incontrovertible fact is that [NAME_20] did not award [NAME_1] with any degree, a fact of which he has been on notice for many years.

4. By claiming to hold each of the three disputed academic qualifications, [NAME_1] represented that he held those qualifications. That representation was false and constitutes a misrepresentation for the purposes of cl 12(1).

Combined effect of representations made by [NAME_1] 1. [NAME_1] has been on notice since at least 2009 that the [NAME_27] is not recognised by relevant accreditation bodies in either Australia or the USA. In the same year he was advised by the NSW Medical Board and the [NAME_15] that the use of the title "Dr" was capable of conveying the impression that he was a psychologist or medical practitioner. Three years later, the [NAME_19] notified [NAME_1] that his use of the title is "unethical and potentially misleading".

2. Whether, as the Commission contends and seems likely, [NAME_32] was not [NAME_1]'s thesis supervisor, is relevant only to credit. The incontrovertible fact is that [NAME_1] was awarded a PhD in a subject unrelated to counselling or psychology, by an institution not recognised by any relevant accreditation body in Australia or the USA, and took no steps to draw these pertinent facts to the attention of [NAME_8], other clients or persons with whom he had professional dealings.

3. The representations made by [NAME_1] to [NAME_8] and others through his CV, business cards and other material went further than merely representing that he held academic qualifications which he did not hold. The combined effect of the use of the title "Dr" and the post nominals "BA (Hons) (Psych) (PhD)" was to represent that he held recognised qualifications relevant to the fields of counselling and psychology. By this conduct [NAME_1] misrepresented his qualifications and training.

4. We note that in submissions made to the Commission in September 2016, [NAME_1] accepted the claims that he made about his qualifications were "apt to mislead clients and the public generally": [M]r [NAME_1] fully accepts that the claims he has made about his qualifications were apt to mislead clients and the public generally, particularly when taken together. This is so when working in a health setting alongside health practitioners and dealing with vulnerable clients with mental health issues. He accepts it is not good enough to refrain from actually saying he is a psychologist.

1. We find [NAME_1] contravened cl 12(1) of the Code.

[NAME_1] provide health services to [NAME_8] that he lacked qualifications to provide? 1. Clause 3(1) of the Code states that a health practitioner must provide health services in a "safe and ethical manner". As part of that obligation a health practitioner must comply with a number of principles which include not providing services that he or she is not qualified to provide: cl 3(2)(c) of the Code.

2. The evidence reveals that [NAME_1] provided a number of services to [NAME_8] throughout the period, September 2013 to May 2014. Among other things, he provided: 1. counselling services, 2. assessment and diagnostic services.

Assessment and diagnostic services 1. We discussed above the nature of the services provided or purported to be provided by [NAME_1] in the course of preparing the psychological report dated 29 August 2013.

2. As will be recalled, in that report [NAME_1] stated that in his opinion [NAME_8] suffered from both a Major Depressive Disorder and Post Traumatic Stress Disorder. He wrote that his assessment was based on among other things "psychometric tests" and that he had used the Diagnostic and Statistical Manual to make that diagnosis. In addition, he expressed an opinion about prognosis, aetiology, the diagnosed conditions and made recommendations as to their treatment.

3. In evidence given in these proceedings, [NAME_1] disagreed with the proposition that only registered psychologists are qualified to administer the type of psychometric tests he administered to [NAME_8]. He claimed tests of this type are commonly administered by unregistered health practitioners, such as social and welfare workers.

4. In evidence given in these proceedings, [NAME_21] asserted that the minimum qualifications required to make a diagnosis of a Major Depressive Disorder and PTSD is a qualification in clinical psychology or psychiatry.

Consideration 1. [NAME_1] submits that by making a diagnosis of Major Depressive Disorder and Post Traumatic Stress Disorder and recommending the form of treatment [NAME_8] receive should receive, no issue arises as to whether he held appropriate qualifications because he was not providing a "health service". In addition, he submits that the report contained nothing more than a "preliminary assessment" to be used for the purpose of assisting [NAME_8]'s solicitors to prosecute her claims for compensation.

2. For the reasons discussed above, these submissions must be rejected. With respect to the second of these submissions, we note that there is nothing in the letter from [NAME_16] to [NAME_1] requesting a medico-legal report to suggest that he was being asked to provide a "preliminary" opinion. Nor is there anything in the report itself to suggest that the opinions expressed were provisional or preliminary. 3. [NAME_1] apparently believes he is capable of making a diagnosis of a psychiatric or psychological condition and recommending appropriate treatment, he has been unable to point to any qualifications which equip him to undertake those tasks. He is not a registered health practitioner and holds no formal qualifications in the field of psychiatry or psychology. 4. [NAME_21]'s opinion that the minimum qualifications required to make a diagnosis of a Major Depressive Disorder or PTSD is a qualification in clinical psychology or psychiatry is unchallenged and uncontradicted.

5. In undertaking a health assessment and providing an opinion about diagnosis and treatment, [NAME_1] provided health services he was not qualified to provide. In so doing, [NAME_1] contravened cl 3(2)(b1) of the Code.

In providing counselling services did [NAME_1] provide services he was not qualified to provide? 1. The Commission contends that [NAME_1] was not qualified to provide counselling services. [NAME_1] disagrees. Before considering this issue we will first consider whether, as asserted by [NAME_1], and disputed by the Commission, [NAME_1] holds an Australian Qualification Framework (AQF) Level 7 qualification in counselling.

[NAME_1] hold an AQF level 7 qualification? 1. The basis of [NAME_1]'s assertion that he holds this qualification appears to be: (i) the decision by [NAME_20] to grant [NAME_1] an exemption for three subjects completed at other tertiary institutions; (ii) the assertion that as a consequence he completed Stages 1 and 2 of the [NAME_20] degree; (iii) an undated letter provided by the Australian Psychology Accreditation Council (APAC), said to confirm that he had completed a "three year sequence in psychology".

2. The resolution of this issue can be simply stated. While there is no question that a BA (psychology) awarded by [NAME_20] is accepted to be an AQF Level 7 qualification in counselling, [NAME_1] does not hold a degree from [NAME_20]. When enrolled at [NAME_20], [NAME_1] completed one subject (Personality) and was given exemption for three subjects.. Completion of those four subjects does not meet the requirements set by [NAME_20] for completion of the degree. The correspondence relied upon by [NAME_1] from APAC takes the issue no further than confirming that a BA (psychology) from [NAME_20] is deemed to be an accredited AQF Level 7 Bachelor degree.

Was [NAME_1] qualified to provide counselling services? 1. The Commission claims that [NAME_1] was not qualified to provide counselling services to [NAME_8]. [NAME_1] disagrees.

2. Counsellors are not subject to the scheme of registration under the Health Practitioner Regulation National Law. Nor there is a statutory requirement that counsellors hold any prescribed qualification.

3. In support of the proposition that [NAME_1] lacks qualifications to provide counselling services, the Commission relies on the evidence given by [NAME_19], the Chief Executive Officer of the [NAME_19].

4. The [NAME_19] is the largest national peak body representing counsellors in Australia. Membership of the [NAME_19] is available to individuals who meet minimum qualification requirements, as determined by the Association. Those requirements are set out in a document produced by the Association, "Scope of Practice for registered counsellors", October 2016 (the Scope of Practice).

5. That document states that the minimum required qualification to provide health services as a registered [NAME_19] counsellor, is the completion and award of a Level 5 (diploma) qualification in a counselling course from an institution accredited under the AQF. The Scope of Practice describes a Level 5 qualification as an "entry level" qualification, and deems it insufficient to qualify a person to operate independently in private practice. To operate independently in practice as an [NAME_19] counsellor, an individual must hold an AQF Level 7 qualification.

6. According to [NAME_19], approximately 20,000 people claim to work as counsellors in Australia. Of those, about 7,000 belong to the [NAME_19] and/or the [COMPANY_43], the other peak organisation representing counsellors in Australia.

7. In [NAME_19]'s opinion, [NAME_1] does not hold an AQF Level 5 qualification and therefore is not qualified to work as a counsellor.

8. There can be no argument that [NAME_1] does not hold any formal qualification in the fields of counselling, psychology or indeed any type of health service. However, the issue raised is whether, in the absence of a statutory requirement that a health practitioner providing counselling services must hold a qualification, by providing mental health services, specifically counselling services it can be said that [NAME_1] breached cl 3(2)(b1) of the Code.

9. As [NAME_19] points out, counsellors often deal with extremely vulnerable and damaged individuals and the effective discharge of their role requires significant skill and expertise. There can be no argument that it would be highly desirable that persons providing counselling services hold appropriate qualifications. Qualifications of the type required for membership of the [NAME_19] would, among other things, ensure a degree of quality control in the services provided.

10. However, in the absence of a statutory requirement, in our view it cannot be said that a person providing counselling services per se is not qualified to provide such services unless they hold some form of qualification, such as that recognised by the [NAME_19]. Many people, such as members of the clergy, school teachers, sports coaches, emergency workers, even family and friends, provide informal counselling to others. To require formal qualifications for all counselling services, formal or informal, would be impracticable and counter-productive.

11. However, the question of whether [NAME_1] was qualified to provide counselling services cannot be answered in isolation from the context in which he provided those services. That context was not that of informal, sympathetic support for a distressed person but what purported to be a formal, clinical, professional and therapeutic relationship following the making of a diagnosis and recommending the form of treatment. [NAME_8] was referred to [NAME_1] for management of anxiety and depression. Without reference to the referring GP or any other registered health practitioner, he reached a different opinion about diagnosis to that made by the GP and proceeded to provide counselling services on that basis. His claim of having discussed [NAME_8]'s treatment with her treating psychologist is denied by [NAME_21], is unsupported and is not accepted by us.

12. We find that by providing counselling services to [NAME_8], of the type provided, [NAME_1] contravened cl 3(2)(b1) of the Code.

[NAME_1] lack an adequate clinical basis for diagnosing [NAME_8]? 1. Clause 11 of the Code states that a health practitioner must not diagnose an illness or condition without an adequate clinical basis.

2. In the original decision, the Commission did not expressly address whether [NAME_1] contravened cl 11 of the Code. However, in these proceedings the Commission contended that [NAME_1] lacked an adequate clinical basis for diagnosing [NAME_8] with the conditions of Post-Traumatic Stress Disorder, Major Depressive Disorder and severe Borderline Personality Disorder. [NAME_1] denies making any diagnosis about [NAME_8].

[NAME_1] diagnose [NAME_8] with a severe Borderline Personality Disorder? 1. In support of the proposition that [NAME_1] diagnosed [NAME_8] with a Borderline Personality Disorder, the Commission points to the letter received from [NAME_1], dated 20 July 2015, in response to Client's A complaint. In that letter [NAME_1] requested that the letter not be provided to [NAME_8] because: [[NAME_8] had] been diagnosed with severe borderline personality disorder with aggressive and paranoid tendencies by her treating clinical psychologist and I have concerns that were [[NAME_8]] provided with this statement and a copy of her clinical file, it may be harmful to her psychological well being.

1. In that letter in answer to the question "Describe what care and treatment you provided to [[NAME_8]] in relation to your opinion and management of her anxiety and depression?", [NAME_1] wrote: Following her referral to me by her general practitioner … I conducted a comprehensive intake assessment of [[NAME_8]]. This assessment involved a detailed history from [[NAME_8]] in relation to her health, family, relationships, profession, education, finances and self. Symptomatic data was also obtained in relation to her anxiety and depression. [[NAME_8]] presented with severe underlying borderline personality disorder which had permeated all aspects of her functioning and life generally. I decided that before long term counselling and therapy could take place to assist her with the underlying personality disorder, her immediate issues relating to her allegations of workplace victimisation, bullying and harassment needed to be addressed.

1. In correspondence with various regulatory bodies in response to the complaint made by [NAME_8], [NAME_1] accused her of being "a pathological confabulator, a vexatious complainant and suffers from a server borderline personality disorder". (see for example, letter from [NAME_1] to the HCCC of 18 October 2014; affidavit made by [NAME_1] dated 18 June 2015, filed in the [ADDRESS].)

2. It will be recalled that [NAME_1] made no reference to [NAME_8] having a Borderline Personality Disorder in the "psychological report" of 29 August 2013. In that report he expressed the opinion that [NAME_8] suffered from Major Depressive Disorder and Post Traumatic Stress Disorder. He did not retract from either of these diagnoses in these proceedings 3. However, in these proceedings, [NAME_1] denied diagnosing Patient A with a Borderline Personality Disorder. He stated that in the letter to the Commission he was merely conveying that the treating psychologist, [NAME_13], had made a diagnosis of Borderline Personality Disorder.

4. The Commission contends that there is no basis for the assertion that [NAME_13] made a diagnosis of Borderline Personality Disorder. In support the Commission points to the "Psychological/Counselling management plan" completed in January 2012 in which under the heading "diagnosis", [NAME_13] wrote "depression, stress, anxiety".

5. The plan is the only document tendered in these proceedings authored by [NAME_13]. However, as [NAME_1] points out in a letter to [NAME_8], dated 24 February 2014, in relation to a complaint made by [NAME_8] about [NAME_13], the Commission wrote that [NAME_13] had made a diagnosis of Borderline Personality Disorder. The basis for that reference is unknown. Nonetheless, for current purposes we will assume but not decide that [NAME_13] made that diagnosis.

6. The letter from [NAME_1] to the Commission, dated 20 July 2016, goes further than merely pointing out that [NAME_13] had made a diagnosis of Borderline Personality Disorder. In the extract of the letter set out at [159] above, [NAME_1] expressed the opinion that [NAME_8] presented with severe underlying Borderline Personality Disorder. He wrote that at the intake assessment she presented with "severe underlying borderline personality disorder which had permeated all aspects of her functioning and life generally". He wrote that he had decided that before therapy could take place to assist her with that condition, her "immediate issues" needed to be addressed.

7. It may be that that the opinion expressed by [NAME_1] that [NAME_8] had Borderline Personality Disorder was an opinion not honestly held. It may also be that that opinion was based in part on the diagnosis made by [NAME_13]. Nonetheless, in the letter to the Commission [NAME_1] clearly states he had reached an opinion about [NAME_8]'s condition and on that basis made a decision about the appropriate form of treatment. We find that [NAME_1] made or purported to make a diagnosis of Borderline Personality Disorder.

[NAME_1] lack an adequate clinical basis for diagnosing [NAME_8]? 1. In a statement provided to the Commission dated 12 January 2017, [NAME_21] wrote that he disagreed with the opinion expressed by [NAME_1] in his report of 29 August 2013 that [NAME_8] had "complex PTSD or PTSD symptoms". He wrote that [NAME_8] was "a high functioning individual" and in most life domains her functions was "not disturbed". He wrote that he had never received information from [NAME_8] which would support a diagnosis of PTSD. Further he stated that [NAME_8] had not experienced a "traumatic event", a criterion for a diagnosis of PTSD under the DSM V.

2. In addition, [NAME_21] stated that he disagreed with the opinion expressed by [NAME_1] that [NAME_8] had a Major Depressive Disorder. He explained that such disorder has clear cognitive and physical signs which "in his opinion were never exhibited by [NAME_8]". He explained that hopelessness is a "key marker" for major depression and he saw no evidence of this in [NAME_8]. In his opinion, [NAME_8] had a reactive depressive state in the context of a work-related injury. He explained that this is a different diagnosis to a Major Depressive Disorder. 3. [NAME_21] wrote that severe Borderline Personality Disorder is the most severe type of personality disorder and almost always impairs an individual's functioning in most domains. He wrote that [NAME_8] was not so impaired and did not exhibit symptoms of a personality disorder.

4. The GP who had referred [NAME_8] to [NAME_1] stated she had not diagnosed [NAME_8] with any mental health disorder and nor was she aware of any other health practitioner having diagnosed [NAME_8] with a mental health disorder.

5. It is not uncommon for health practitioners to reach different opinions about diagnosis, especially in the medico-legal context. However, [NAME_21]'s opinion goes further than merely expressing disagreement with an opinion reached by another health practitioner, albeit one who lacked the qualifications to make a diagnosis of a mental illness or condition. In his opinion there was no clinical basis for any of the diagnoses made or purported to have been made by [NAME_1]. [NAME_1] has been unable to point to any evidence to support the proposition that he had an adequate clinical basis to diagnose [NAME_8] as suffering from PTSD or a Major Depressive Disorder. Even if it is accepted that [NAME_13] had made a diagnosis of a severe Borderline Personality Disorder, [NAME_1] has not been able to point to any evidence to support the proposition that there was an adequate clinical basis for that diagnosis.

6. We find that [NAME_1] lacked an adequate clinical basis to make a diagnosis of PTSD, Major Depressive Disorder and severe Borderline Personality Disorder, and in doing so contravened cl 11 of the Code.

[NAME_1] pose a risk to the safety of the public? 1. Having found that [NAME_1] has breached the Code, the power to make a prohibition order and/or issue a public statement can be exercised if we are of the opinion that [NAME_1] "poses a risk to the health or safety of members of the public": s 41A(1)(a) of the [NAME_2] Act. Section 41A(1)(a) of the [NAME_2] Act is expressed in the present tense.

Accordingly, the question posed is not whether [NAME_1] was but whether [NAME_1] is a risk to the health or safety of members of the public. This requires an assessment of the likelihood that any conduct found to have been in breach of the Code will be repeated and an assessment of whether that conduct poses a risk to the health or safety of the public.

2. A health practitioner who makes or purports to make a diagnosis of a mental health condition, in circumstances when they lack the qualifications and/or an adequate clinical basis to do so, places the person diagnosed at risk. Depending on the nature and severity of the condition, persons in the care of the diagnosed person, and others, might also be placed at risk. In the case of [NAME_8], on the basis of a diagnosis he was not qualified to make, [NAME_1] made recommendations about Clients A's ability to work and the types of treatment she should receive. Whether anyone acted on those recommendations is not to the point. There was a real and material risk that as a result of that diagnosis a third party (or [NAME_1] himself) might provide an inappropriate form of treatment. This placed [NAME_8] at risk. 3. [NAME_1] did not argue, and nor is there material to suggest, that [NAME_8] was a one-off or an exceptional case. The available evidence supports a finding that [NAME_1] routinely diagnosed and went on to treat clients referred to him for assessment and /or treatment.

4. By misrepresenting his qualifications relevant to the practice of counselling and psychology, [NAME_1] misled his clients and those who referred them to his care. This misrepresentation led them to rely on him to provide relevant health services in respect of the particular mental health problems which caused the person to seek, or be referred for, counselling. That reliance was misplaced. [NAME_1] was not suitably qualified to provide the relevant health service. That conduct placed those clients at risk because he was not qualified to diagnose the clients despite purporting to do so. This created the risk of wrong diagnosis and therefore wrong treatment or therapy.

5. The undertakings offered to the Commission on behalf of [NAME_1] in September 2106 are relevant to determining whether there is a real and material risk that in the future [NAME_1] might misrepresent his qualifications. In submissions to the Commission dated 8 September 2016, counsel for [NAME_1] advised that he undertook not to use the title "Dr" or the post nominal "PhD" or state that he held a Bachelor of Arts majoring in psychology from [NAME_20] University (or elsewhere) "in the absence of the award of the same".

6. For the following reasons we are have concluded that there is a risk that [NAME_1] mightl not honour this undertaking.

7. First, for a number of years [NAME_1] has been warned about the potential of the impugned representations to mislead, yet he has continued to make those representations. For example, since at least 2009 he has been on notice that his use of the post nominal PhD has the potential to represent that he had been awarded a PhD by an accredited tertiary institution in an area relevant to his field of practice. Nonetheless, [NAME_1] continued to use that post nominal in promotional and other material. The purported [NAME_20] qualification provides a further example. [NAME_1] has been on notice for a number of years of the misleading character of the representation made about that qualification. Nonetheless, as recently as September 2016, when [NAME_1] advised the Commission that he had amended his CV to ensure it did not contain "any information that is misleading or factually incorrect", the amended CV carried this entry under the heading "Qualification": "APS & APAC Accredited Major in Psychology. [NAME_20] University". The answers given by [NAME_1] when questioned about whether in his opinion this was an accurate representation indicated that fails to acknowledge the capacity of the repletion to misrepresent his qualifications .

8. Second, the weight of evidence is that [NAME_1] is either unable or unwilling to acknowledge that by his conduct he has held himself out as having qualifications relevant to psychology and counselling.

9. Third, [NAME_1] has a history of convictions for offences of dishonesty raising concerns about his character. While it is not inevitable that as a consequence he will continue to misrepresent his qualifications, it raises doubts whether he will honour the undertaking given to the Commission. That concern is heightened by the many examples throughout the evidence of [NAME_1]'s lack of candour. For example, in the declaration made in his application for membership of the [NAME_19] he declared he had not been convicted of a criminal offence and claimed he held qualifications he did not hold. In evidence given to the Supreme Court on 11 May 2016, he gave conflicting evidence when questioned whether he held a BA with a major in psychology from [NAME_20].

10. In addition, on the available evidence we are not satisfied that in the future [NAME_1] would discontinue the practice of diagnosing clients and making recommendations about their treatment. In reaching that conclusion we note that, first, in these proceedings he steadfastly refused to concede he had made a diagnosis [NAME_8]. Second, nonetheless it is apparent he has every confidence about his ability to diagnose and treat persons with mental health problems. In 2009, when interviewed by NSW Police he said: I don't … formally diagnose patients I've spent 24 years providing counselling services. I know depression when I see it, I know schizophrenia when I see it, I know someone who's anxious when I see it. I don't need to DSM4 to diagnose, they're just labels.

1. The available evidence indicates that [NAME_1] continues to hold such views. It was apparent from the evidence given and submissions made in these proceedings that he does not appear to even entertain the possibility that the mental health of persons who come to him for assistance may be at risk because of his practice of providing health services that he is not qualified to provide.

2.

For these reasons we find [NAME_1] poses a real and material risk to the safety of the public.

Should orders be made under s 41A of the [NAME_2] Act? 1. Being satisfied that the criteria listed in s 41A(1) of the [NAME_2] Act are met, the power to make a prohibition order and/or issue a public statement can be exercised. In exercising that power the protection of the health and safety of the public must be the paramount consideration: s 3(2) of the [NAME_2] Act.

2. In the original decision the Commission, decided to make a public statement in relation to [NAME_1]; prohibit him for a period of six months from providing any other mental health services and thereafter prohibit him from providing counselling of any description or any other mental health service unless he satisfies the Commission that he has successfully completed a Level 5 qualification in counselling from an accredited institution.

3. The six-month period has now expired, and accordingly from a practical point of view the real issue to be determined is whether the correct and preferable decision is to make further orders and, if so, the form of orders.

4. The Commission submits that the original decision should be affirmed. [NAME_1] contends that no orders are necessary and, in any event, the order made by Commission prohibiting him from providing any mental health service unless he holds a Level 5 qualification in counselling, is ultra vires. He reasons that because there is no statutory requirement that health practitioners providing counselling services hold any specified qualifications, the Commission, and the Tribunal on review, lack the power to require that he hold a Level 5 qualification in counselling. 5. [NAME_1] is correct that there is no statutory requirement that a health practitioner who provides counselling services and is not subject to the Health Practitioner Regulation National Law must hold a Level 5, or indeed any form of qualification.

6. Nonetheless, the power conferred by s 41A(2)(ii) of the [NAME_2] Act to place conditions is, in our opinion, sufficiently broad in scope to enable a qualification condition of the type imposed by the Commission, to be made. It states: 41A PROHIBITION ORDERS AND PUBLIC STATEMENTS … (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: … (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, 1. Our preliminary view is that it is appropriate that orders be made under s 41A(2) of the [NAME_2] Act but that the orders made by the Commission are insufficient to protect the health and safety of the public. As set out above, in the opinion of the [NAME_19], a Level 5 qualification is insufficient to equip a person providing counselling services, to operate independently in private practice. While the opinion of the [NAME_19] is not determinative, it nonetheless warrants careful consideration. For the past decade [NAME_1] has worked exclusively in private practice apparently without supervision. There is no evidence to suggest this [NAME_1] has plans to change this arrangement. This raises the question of whether it would be more appropriate if [NAME_1] was required to hold a Level 7 qualification.

2. But a more fundamental concern is whether the type of risk [NAME_1] poses to the health and safety of the public is capable of being remedied by obtaining further educational qualifications and/or an appropriate level of clinical supervision. The long history of [NAME_1] misrepresenting his qualifications together with the evidence of providing health services he is not qualified to provide, raises concerns about [NAME_1]'s suitability to practice as a counsellor. [NAME_1]'s response when notified of the complaint made by [NAME_8] was to accuse her of having fabricated evidence and to attribute this to a severe personality disorder. His readiness to make such allegations raises further concerns about his suitability to provide mental health services.

3. At the hearing we indicated that if we were to consider making orders under s 41A(2) different in form to those imposed by the Commission, we would give the parties the opportunity to make further submissions. We have listed the matter for a directions hearing to consider the most appropriate manner to determine this issue. Attachment A Public Statement and Statement of Decision in relation to [NAME_44] (aka [NAME_7]) 10 October 2016 The [NAME_2] Commission conducted an Investigation into the professional conduct of counsellor, [NAME_44] (aka [NAME_45]). [NAME_1] represented himself to [NAME_8], the Commission and others as holding university qualifications in psychology and counselling. [NAME_1] represented himself as holding a Bachelor of Arts with honours, a Bachelor of Arts with a major in Psychology and a Graduate Diploma in Counselling Psychology. [NAME_1] also used the title doctor and the post-nominal PhD. [NAME_1] made these representations through his use of his CV, letters, reports, business cards, emails and through verbal advice to [NAME_8] and others. Further, the evidence regarding [NAME_1]'s PhD indicates that it is in theology and not related to his practice in counselling or psychology. The evidence also showed that it was obtained from an American, online, non-accredited institution called "The [COMPANY_31]" ([NAME_27]). The [NAME_27] website has been decommissioned but prior to this the website stated that "[NAME_27] programs are not designed to meet any particular local, state of national licensing or credentialing laws. [NAME_1] was warned against using the title doctor and post-nominal PhD in his work as a counsellor as it is unethical and likely to mislead clients into believing he held an accredited doctorate which related to his practise as a counsellor. Despite this advice [NAME_1] continued to use the title doctor and post-nominal 'PhD' in his practise as a counsellor. The Commission's investigation found that [NAME_1] has no formal qualifications in psychology or counselling. He does not have a Bachelor of Arts with a major in Psychology and he does not have a Graduate Diploma in Counselling Psychology. [NAME_1] has misled clients and others persistently over a number of years in to believing that he has the relevant credentials required to deliver counselling services when this was simply not the case. He has been deliberately deceptive in his conduct. The Commission's investigation has found that [NAME_1] provided counselling services to [NAME_8] when he did not hold any qualifications in counselling. On the basis of the above evidence the Commission found that [NAME_1] breached the following clauses the Code of Conduct for Unregistered Practitioners In that he: • Failed to provide a health service in a safe and ethical manner • Provided counselling services to a client in circumstances where he did not hold the appropriate qualifications • Misrepresented himself as holding university qualifications in psychology and counselling Through his actions, [NAME_1] has deprived both [NAME_8] and countless other clients over the years the opportunity to receive the care and treatment that they required from an appropriately qualified practitioner. During the Commission's investigation [NAME_1] failed to acknowledge this, or the fact that he has no formal qualifications in Counselling. However, prior to the finalisation of the investigation [NAME_1], in his final submissions, acknowledged that the claims he made about his qualifications were misleading to the client and the public generally. Further Information Access the Commission's Statement of Decisions here Access to the Commission's media release here For further information, contact the Executive Officer of the [NAME_2] Commission, on 7444.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2017