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Claim of blackmail to mitigate licensee’s sexual misconduct fails

The Supreme Court of Queensland, Australia, in a May 19 decision, rejected the argument of a psychologist that, although he had engaged in unprofessional conduct by having a sexual relationship with a patient, his actions should be mitigated by the fact of what he claimed was a blackmail scheme by that patient against him.

(Shahinper v. Psychology Board of Australia)

In 2009, psychologist Khosrow Shahinper began a sexual relationship with a patient only days after their last session. When this indiscretion was discovered, the Queensland Civil and Administrative Tribunal initiated the disciplinary process and eventually cancelled his professional registration, prohibiting him from re-applying for three years. Shahinper appealed the decision, conceding that he had engaged in unprofessional conduct but challenging the severity of his sanction.

On appeal, Shahinper argued that the tribunal had not adequately considered the fact that, as he claimed, the patient had blackmailed him, threatening to reveal the existence of their relationship. At the end of the relationship, Shahinper provided several payments to the client or her son—at one point as much as $10,000.

Because the client was blackmailing him, Shahinper claimed, the relationship between them did not have the power imbalance often found in a professional-client relationship which the rules against sexual relationships are meant to prevent.

The court did not agree with Shahinper’s claim. The evidence before the tribunal “did not compel a finding” that the patient had blackmailed Shahinper, wrote Chief Justice Catherine Holmes. “Not surprisingly, given that it was in a position in which it found none of the witnesses credible, the Tribunal did not make, and could not reasonably have made, a finding that [the patient] was engaged in blackmail.”

Further, noting that the payments were made after the end of the relationship, Justice Holmes wrote that “the applicant’s contention for a diminution of the power imbalance between the applicant and [the patient] requires a conclusion that at the relevant time, that is, during the personal relationship, [the patient] was able to exert power herself.”

“But even if the Tribunal had been able to find that there were demands and threats by [the patient] such as to indicate a change in the dynamic between her and the applicant, it could not safely draw the retrospective influence which the applicant’s counsel urged, that events after the personal relationship ended could serve to demonstrate [the patient]’s state of mind and the state of the power balance during it.”

Regarding Shahinper’s argument that the sanctions against him were excessive, Justice Holmes noted that Shahinper had both denied the existence of the relationship until several years after the beginning of the disciplinary process and “continually minimised” the patient’s level of vulnerability.

In addition, she wrote, “the Tribunal noted a number of cases to which its attention had been drawn concerning professional boundary violations, but regarded them as involving conduct less egregious than the applicant’s, given his dishonesty, lack of insight, and prior disciplinary history.”

Further, although Shahinper attempted to downplay the seriousness of his conduct by arguing that the relationship had begun only after he had ceased treating the patient, his actions, Justice Holmes continued, “in emailing [the patient] about his sexual desire and going to her house in order to bring about sexual intercourse with her, at a time when the treating relationship had not been properly ended, were certainly predatory.”

Justice Holmes concluded that the three-year cancellation was not disproportionate to Shahinper’s offenses, and refused his application for appeal, upholding the Tribunal’s decision.