Charge:

A Professional Conduct Committee (PCC) charged that James Reginald David Ross (the Psychologist) was guilty of professional misconduct. The particulars of the charge were that:

1. On or about 7 April 2006 without the consent of his patient, the Psychologist telephoned the complainant.
2. On or about 7 April 2006 the Psychologist arranged to see the complainant on her own without the patient being present and without the patient’s consent.
3. On 7 April 2006 the Psychologist met with the complainant, and discussed personal matters relating to his patient without his patient’s consent.
4. On 7 April 2006 the Psychologist persuaded the complainant to meet with him for purposes that were:
   1. not consented to by the patient; and/or
   2. not professionally appropriate purposes within the therapeutic context of the Psychologist’s professional relationship with the patient.
5. On or about 7 April 2006, the Psychologist conducted himself in an inappropriate manner in ways including the following:
   1. He informed the complainant that the patient had been sexually abused as a child.
   2. He asked questions about the sex life of the patient and the complainant.
   3. He asked the complainant questions about her business.
   4. He touched the complainant in a sexual manner.
   5. He communicated with the complainant in a way that gave the impression of him having a sexual attraction for her.
   6. He communicated with the complainant in a way that conveyed that he wished to pay her, whether for sexual services or otherwise.
   7. He communicated with the complainant using words to the effect that he wished to take her out for a drink.
   8. He invited the complainant to see him privately in his house.

Finding:

The Psychologist accepted Particulars 5.2 and 5.3 but denied the other particulars and sub-particulars.  The Tribunal was satisfied that the Psychologist was guilty of professional misconduct.

Background:

There was a conflict in evidence between the Psychologist and the complainant.

The Tribunal resolved that the following occurred:

At all material times, the Psychologist was the psychologist for, and in a therapeutic relationship with, the patient and that the complainant was the partner of the Psychologists’ patient.

The Psychologist knew, or ought to have known, that the patient: had issues of trust within relationships; had definite issues about the complainant’s work; was concerned about the impact the complainant’s work was having on the relationship between him and the complainant; was vulnerable; was known to self harm; and was known to harm others.

On 7 April 2006, the patient failed to show up for an appointment with the Psychologist. The Psychologist phoned the patient’s home later that day to follow up on the missed appointment and spoke to the complainant and invited her to come to his office and talk to him about the patient.  He convinced the complainant that this would be of help and benefit to the patient.

The complainant went to the Psychologist’s office later that day.  The Psychologist discussed information about the patient with the complainant and asked questions about the patient’s violence issues, sexual behaviour and the business which the complainant and patient ran together.  The complainant was uncomfortable at being asked these questions and left. The complainant went home and told the patient what had occurred. The patient did not believe the complainant so it was arranged for the complainant to call the Psychologist and discuss what occurred at the interview while the patient listened on another phone.

During the telephone conversation, the Psychologist apologised for what had happened at the interview and invited the complainant around to his house that night for a drink.

After the telephone conversation the complainant and the patient made a complaint to the Police about the Psychologist.  Months later the complainant sent an email, on behalf of the patient, to the Registrar of the New Zealand Psychologists Board (the Board).  The patient only drafted some of the email.

Reason for Finding:

The Tribunal found that Particular 1 was established. The Tribunal said that the issue was one of consent. The Tribunal held that the Psychologist was aware that the formal consent of the patient was needed to disclose information about the patient and that the Psychologist did not obtain written consent nor was he able to explain why there was no record of oral consent in his clinical notes. The Tribunal held that express knowledge and consent from the patient would be needed and a specific agreement as to what information was to be elicited, how it was to be used, and what information, if any, was to be shared. The Tribunal found that the Psychologist did not do any of these things.

The Tribunal found that Particular 2 was established. The Tribunal held that there was no dispute that the Psychologist saw the complainant on her own, without the patient being present.

The Tribunal found that Particular 3 was established. The Tribunal said that it was readily apparent from the Psychologist’s interview with the PCC and from his evidence before the Tribunal that he did discuss personal matters with the complainant relating to the patient. The Psychologist discussed with the complainant the patient’s violence, sexual behavior, and the couples business, and in doing so breached the patient’s privacy and confidentiality.

The Tribunal found that Particular 4 was established. The Tribunal held that the Psychologist convinced the complainant that meeting with him would be of help and benefit to the patient. The Tribunal accepted the patient’s evidence that he did not want the Psychologist talking to the complainant because the patient was considering leaving the complainant at the time. The Tribunal held it was implicit in the Psychologist’s own evidence that he did ask the complainant questions about the sexual behavior of the patient and the business the couple ran. The Tribunal placed considerable weight on expert opinion that said the questions were inappropriate as there was no legitimate basis for asking them.

The Tribunal found that Particular 5.1 was not established as the Psychologist denied this and the patient said that he had never told the Psychologist or the complainant that he had been sexually abused as a child.

The Psychologist admitted Particulars 5.2 and 5.3 and the Tribunal found on the evidence that they were established.

The Tribunal found that Particular 5.4 was not established. The complainant did not mention any inappropriate touching during the Police or PCC interviews, and the first mention of it was to the Tribunal.

The Tribunal found that Particular 5.5 was established. This was based on all the evidence, including the complainant’s distinct impression that the Psychologist had an attraction for her.

The Tribunal found that Particular 5.6 was not established. There were no witnesses present at the meeting between the Psychologist and the complainant so the Tribunal relied on the patient’s evidence. The patient said he could not remember the complainant telling him that the Psychologist had tried to have sex with her and offered her money.

The Tribunal found that Particular 5.7 was established. The Tribunal accepted the patient’s evidence that during the telephone conversation he heard the Psychologist make a reference to the complainant buying a bottle of wine on her way to see him and that the Psychologist would pay for it.

The Tribunal found that Particular 5.8 was established. The Tribunal considered the Psychologist invited the complainant to attend at his home and see him in a private capacity not in a professional capacity.

Penalty:

The Tribunal took the following mitigating factors into account:

• The Psychologist’s health issues.
• The potential for rehabilitation.
• The Psychologist apologised to the complainant and the patient through the Tribunal.
• The initial contact with the complainant was not planned; it was opportunistic.

The Tribunal imposed the following penalty:

• The Psychologist’s registration was to be suspended for six months.
• If the Psychologist wished to recommence practice at the end of the suspension, then:
  •  During the suspension he had to prepare a self-reflective review and a continuing competency plan that specifically addressed each competency for the practice of psychology in New Zealand adopted by the Board.
  • Prior to recommencing practice as a psychologist he had to provide to the Board an opinion in writing from a clinical psychologist in good standing with the Board that he was clinically fit and safe to practise as a psychologist.
• If the conditions above were met and if the Psychologist sought to resume practice following the expiry of the suspension, then the following conditions were to take effect immediately on resumption of practice and were to continue for a period of 2 years:
  • The Psychologist undergo counselling at his own cost for a period of 2 years with a clinical psychologist approved by the Board.
  • The counselling cover issues of substance abuse, mental health issues and any other issues determined by the Board.
  • The clinical psychologist report to the Board every 3 months during the first year and every 4 months during the second year about the Psychologist’s progress in respect of the specified issues.
• If the conditions to recommence practice were met and the Psychologist sought to resume practice following the expiry of the suspension, then the following additional conditions were to take effect immediately on the resumption of practice and were to continue for a period of 3 years:
  • The Psychologist was not to provide supervision for others.
  • The Psychologist was not to teach the topics of psychology.
  • The Psychologist could only practise in a professional setting with other clinicians and support staff such as in a group private practice or a mental health service.  He could see clients only in this setting (that is, he could not see clients in their own homes or practise from his home).
  • The Psychologist could only see patients with mild adjustments or mental health difficulties.
  • The Psychologist could not knowingly treat patients with personality disorders or serious mental health problems.  If it became apparent that a patient had such a disorder or health problem he must refer that patient to a suitable practitioner.
  • The Psychologist participate in clinical supervision. The nature of this supervision was to be determined by the Board including approval of the supervisor and the frequency and duration of supervision sessions.
  • The Psychologist inform any employer with whom he obtained employment in a 3 year period following the expiry of the suspension, of the outcome of this hearing regarding the charge.
• The Psychologist was censured.
• The Psychologist was ordered to pay $20,000 towards the costs of, and incidental to, the investigation and prosecution of the PCC and the Tribunal’s inquiry.

Appeal

The practitioner has appealed against the Tribunal's substantive and penalty decisions to the High Court.  The appeal was discontinued.