Counsellor who engaged in inappropriate relationship with former client refused stay on prohibition from providing health services: Black v Health Complaints Commissioner [2022] VCAT 964

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By Stuart Eustice, Partner & Holly White, Lawyer

Mr Black is a counsellor in Frankston, Victoria, who is subject of a notification to the Health Complaints Commissioner (HCC). The notification was made by a doctor of one of Mr Black’s former clients who disclosed she had engaged in a sexual relationship with Mr Black while he was providing her with counselling services.

The HCC made an interim prohibition order (IPO) prohibiting Mr Black from providing health services while the investigation was undertaken. Mr Black applied to VCAT for a stay on the IPO given the impact it would have on his business and patients.

The Tribunal considered the following relevant matters from the complaint:

  1. The client first attended counselling with Mr Black and her then boyfriend seeking assistance to resolve relationship issues in February 2020.
  2. The client continued with individual sessions and in October 2020 disclosed feelings she had for Mr Black. Mr Black responded any relationship would be unethical but they hugged at the end of the session.
  3. The client and Mr Black commenced a sexual relationship at his office on 17 October 2020. The client continued to have weekly counselling sessions where they would engage in sexual intercourse before or after each session. The sexual relationship continued until approximately February 2021, ceased, and resumed in August 2021.
  4. The client did not pay for the counselling sessions.
  5. The client developed a reliance on Mr Black. She was self-harming and considering suicide.
  6. Mr Black gave the client $50 for food when the client ran out of money. He also lent her $200.

Mr Black accepted he failed to ‘appropriately manage a complex client and to maintain and assert appropriate professional boundaries’ however he denied the allegation of sexual misconduct. Before the Tribunal, Mr Black conceded his evidence demonstrated there had been some breaches of the Code of Conduct.

The Tribunal considered a number of factors and ultimately refused the stay. The IPO therefore remains in place. Importantly, the Tribunal noted Mr Black provides counselling to clients who may be extremely vulnerable. Based on the information provided, the community interest in ensuring only those who can provide services safe and ethically outweighed any impact on Mr Black’s financial position.

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