Charge:

A Professional Conduct Committee charged that Mr Ian Russell Geary (the Psychologist) was guilty of professional misconduct. 
The Particulars of the charge (as amended) were that:

1. In or around February 2006, the Psychologist visited the home of Mr E, the former husband of the Psychologist’s former client Ms R and, without Ms R’s consent or other lawful justification, the Psychologist:
   1. disclosed to Mr E, orally, confidential information relating to Ms R that the Psychologist had obtained about and/or in the course of working with Ms R;
   2. showed Mr E confidential information contained in documents relating to Ms R, including the Psychologist’s clinical notes of his consultations with Ms R;
   3. drew to Mr E’s attention and discussed with Mr E certain parts of the documents referred to in subparagraph (b) including certain allegations Ms R had made about sexual abuse she had suffered in the past from Mr E and others, and sought Mr E’s comments on those parts of the documents
   4.  left some, or some parts, of the documents referred to in subparagraph (b) with Mr E;
2. By an email dated 4 March 2006 the Psychologist provided Mr E, without Ms R’s consent or other lawful justification: a) a copy of a letter the Psychologist had written to the New Zealand Police about Ms R dated 8 February 2006 which contained confidential information relating to Ms R; b) a copy of the enclosures the Psychologist had provided to the Police with his letter dated 8 February 2006, which included a confidential Accident Compensation Corporation independence allowance assessment report (the ACC report) on Ms R, and other confidential information relating to Ms R;
3. By acting in the manner described in paragraphs 1 and 2 the Psychologist risked compromising Ms R’s safety in that the Psychologist had been advised by Ms R and/or were aware that: a) Mr E had previously been aggressive and/or abusive towards Ms R and/or others; b) Ms R had obtained a protection order against Mr E; c) Ms R was afraid of Mr E;
4. In May 2005 and in February 2006 the Psychologist wrote to the New Zealand Police and disclosed, without Ms R’s consent or other lawful justification, confidential information relating to Ms R, including:
   1. the confidential ACC report on Ms R;
   2. other reports to the ACC  relating to Ms R;
   3. extracts from the transcript of a hearing before the Psychologists Board in March 2005 that were subject to an order that all names and/or identifying details of the parties to the hearing (with the exception of the Psychologist’s own name), and of those named in documents referred to in the hearing, were suppressed.

Finding:

The Tribunal found the Psychologist guilty of professional misconduct. The Tribunal was satisfied that the conduct under review amounted to both serious negligence and malpractice.

Background:

On 20 November 2001 Ms R was referred to the Psychologist by the Sensitive Claims Unit of ACC for counselling with regard to past sexual abuse. The Tribunal concluded that at all material times the Psychologist was a registered psychologist and this was the basis on which he was an approved ACC counsellor.

On 16 June 2003, Ms R saw an independent allowance assessor for ACC purposes.  ACC concluded Ms R was not entitled to an independent allowance.  Ms R applied for a review of the ACC decision. The Tribunal concluded that on 15 July 2003 Ms R signed an authorisation for the Psychologist to disclose information about Ms R but only to the ACC reviewer for the purposes of the ACC review.

On 15 October 2003 an ACC review hearing was heard. The Psychologist attended the hearing with Ms R.  In his subsequent decision the reviewer recorded that there were no counselling reports on file from the Psychologist. Ms R was concerned at learning this as she believed the Psychologist had been her counsellor for approximately 18 months.  Later that day, Ms R wrote a letter of complaint to the ACC Sensitive Claims Unit about the Psychologist regarding the fact that ACC did not have any reports or updates from him. The same day she sent a copy of her ACC complaint to the NZ Psychological Society.

On 17 November 2003, Ms R lodged an official complaint with the Psychologists Board, in relation to the Psychologist’s conduct.

On 14 and 15 March 2005, the hearing of a disciplinary charge (based on the complaint lodged on 17 November 2003) took place before the Psychologists Board. On 6 May 2005 the Psychologists Board issued its liability decision, and requested submissions on penalty.  On 22 June 2005 the Psychologists Board issued its penalty decision.

On 16 May 2005, the Psychologist placed an entry on the NZ Police website, stating he had information about a former client who in his view had committed multiple acts of perjury over at least 19 years.  On 30 May 2005, the Psychologist wrote a detailed letter to the Police, naming and providing information relating to Ms R.  He stated she had made false claims with the ACC, had misled the Psychologists Board when giving her evidence, and had lied under oath.  He asked the Police to investigate his allegations.

On 27 June 2005 a series of email exchanges took place between the Psychologist and the Police, following the Psychologist’s earlier letter of complaint.

On 30 June 2005 the Psychologists Board had concerns about the Psychologist’s competence and his failure to engage in a competence review process.  It determined it would not renew his practising certificate.  On 21 July 2005 the Psychologist filed an appeal against the decisions of the Psychologists Board in the High Court.

In September 2005 the Psychologist approached a Sergeant at the Police Station to seek an opinion from the Police relating to Ms R and the evidence she had given at the Psychologists Board hearing.  On 17 November 2005 the Psychologist followed up this visit with a written complaint stating that he wanted complaints of fraud and perjury investigated.  On 8 February 2006 the Psychologist wrote to the Police again outlining his concerns about Ms R.

In late February 2006 the Psychologist telephoned Mr E. The Psychologist stated he had been dealing with his former wife, Ms R, and had been treating her for historical matters. The Psychologist said Ms R had accused him of various things and that she had cost him a lot of money.  Mr E agreed to meet the Psychologist to discuss the details.

By 28 February 2006, Ms R had learned of the contact which the Psychologist had with Mr E.  Ms R sent an email to the Psychologists Board stating she felt very threatened by this development because she was scared of Mr E.  In late February 2006, the Psychologist visited Mr E, and showed him documents relating to Ms R. On 4, 6, and 14 March 2006 the Psychologist sent a series of emails to Mr E, the first of which attached a document.

On 1 March 2006, Ms R complained to the Psychologists Board and to the Police.

The Police spoke to Ms R and her daughter as a result of the complaint by Ms R, and on 2 April 2006 the Police spoke to Mr E.  Mr E provided a statement as to what had occurred with the Psychologist.

The Police stated that they would not be taking Ms R’s claim or the Psychologist’s claim any further.

On 7 November 2006, Ms R lodged a complaint with the Psychologists Board stating that sensitive and confidential information had been shown by the Psychologist to Mr E, and to the Police.

Reason for Finding:

The Tribunal was satisfied that:

*   each of the Particulars were made out, apart from Particulars 1(b) second limb, and 2(b);

*   there was no consent or authorisation to disclose for the purposes of Particulars 1, 2 and 4; and

*   there was no legal justification for the disclosures for the purposes of Particulars 1, 2 and 4.

In regard to Particular 1, the Tribunal said it was well established that in or around February 2006, the Psychologist visited the home of Mr E. The purpose of the visit was to discuss information relating to Ms R that the Psychologist had obtained whilst working with her. The Tribunal concluded that the focus of the discussion was on the ACC report, and that report contained extensive references to information Ms R had conveyed during her independence allowance assessment. The Tribunal also found that there was oral discussion of information relating to Ms R, that the Psychologist had obtained when working with her.  However, the Tribunal considered it unlikely that Mr E was shown copies of the Psychologist’s own case notes about Ms R.

The Police uplifted a copy of the ACC report from Mr E. The Tribunal concluded that it was more likely than not that the copy of the ACC report was left with Mr E at the end of the visit from the Psychologist.

The Tribunal was well satisfied that all the documents involved, and in particular, the ACC report, were of a highly confidential nature. The Tribunal held that the information did not lose its confidential status at the ACC hearing.

In regard to Particular 2, the Psychologist accepted that the document attached to the email to Mr E was a copy of the letter he had written to the Police about Ms R.  However, the Tribunal held that there was no evidence that the Psychologist gave Mr E any other documents beyond the ACC report and the letter to the Police.

The Tribunal held that the letter of 8 February 2006 referred to details derived from the ACC report and that this sensitive information was conveyed by Ms R to the Psychologist when he was working with her.  The Tribunal was well satisfied that the information was confidential.

In regard to Particular 3, the Tribunal had no doubt that the totality of the evidence did show that Ms R did reveal to the Psychologist when she was his client very personal information concerning Mr E, particularly alleged abuse by him.  The Tribunal also said there was no doubt that Ms R was afraid of Mr E.

However, neither the ACC report nor the case notes referred to Ms R having obtained a protection order against Mr E.  Therefore, the Tribunal was not satisfied that Ms R had obtained a protection order against Mr E.

The Tribunal held that the Psychologist ran a significant risk in light of the information he had been given by Ms R, when he contacted and visited Mr E and when he sent further information by email. The Tribunal said that the tenor of the communications was unprofessional and exacerbated that risk.

In regard to Particular 4, the Tribunal held there was no doubt that the Psychologist wrote the two letters identified on 30 May 2005 and 8 February 2006.  The Tribunal also determined from the letter what enclosures the Psychologist supplied to the Police.  It was found that the ACC report with Ms R’s personal notation, other reports to the ACC relating to Ms R, and extracts from the transcript of the hearing before the Psychologists Board in March 2005 were supplied to the Police.

The Psychologist himself confirmed that a number of the reports had been provided to him at the commencement of the counseling relationship, and as such the Tribunal held they were of a confidential nature.

In regard to the Psychologist acting without lawful justification in Particulars 1, 2 and 4, the Tribunal did not consider that it was “necessary” for the Psychologist to disclose the information in the risky way that he did to Mr E, nor was it “necessary” to disclose the information in order to report possible offences to the Police.

Penalty:

The Tribunal ordered that:

*   the Psychologist’s registration be cancelled; 

*   the Psychologist be censured; and

*   the Psychologist pay $10,000 in respect of the Tribunal’s costs and disbursements, and $20,000, in respect of the PCC’s costs and disbursements. No GST was payable on either sum.

Appeal

The Psychologist appealed both the substantive and penalty decisions to the High Court. The High Court upheld the Tribunal’s substantive and penalty decisions (Geary v PCC (High Court, Wellington, CIV 2009-485-002641, 22 July 2010, Wild J)).

The Psychologist applied for leave to appeal the High Court decision to the Court of Appeal. The High Court dismissed the application (Geary v PCC (High Court, Wellington, CIV 2009-485-002641, 30 September 2010, Wild J)).