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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KAYE v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Discipline) [2017] ACAT 27
OR 24/2016
Catchwords: OCCUPATIONAL DISCIPLINE – psychologist – immediate action – matters to be satisfied - Health Practitioners Regulation National Law (ACT) section 156 – nature of appeal from board – Health Practitioners Regulation National Law (ACT) section 199(h)
Legislationcited: Health Practitioners Regulation National Law (ACT) ss 140, 144, 150,
151, 155, 156, 157, 160, 199, 201, 202
Cases cited: Bernadt v Medical Board of Australia [2013] WASCA 259 Director of Housing v Sudi [2011] VSCA 266Eastwood v Psychology Board of Australia [2016] ACAT 52Helmy v Medical Board of Australia [2016] ACAT 97 Hocking v The Medical Board of Australia [2014] ACTSC 48Hocking v Medical Board of Australia [2015] ACAT 22Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312Council of the Law Society of the Australian Capital Territory “M” v The Council of the Law Society of the ACT [2014] ACAT 18MLNO v Medical Board of Australia [2012] VCAT 1613Reeve v Aqualast Pty Ltd [2012] FCA 679Syme v Medical Board of Australia [2016] VCAT 2150
Tribunal: Senior Member B Meagher SC
Date of Orders: 18 April 2017Date of Reasons for Decision: 18 April 2017
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 24/2016
BETWEEN:
SANDRA KAYEApplicant
AND:
PSYCHOLOGY BOARD OF AUSTRALIARespondent
TRIBUNAL: Senior Member B Meagher SC
DATE: 18 April 2017
ORDER
The orders that the Tribunal makes are as follows:
1. The decision of the respondent to suspend the registration of the applicant notified
by letter of 24 November 2016 is set aside.
2. In substitution for that decision the registration is subject to the requirements of
the following conditions.
3. The conditions be imposed on the applicant’s registration are:
A Definitions
For the purposes of these conditions, 'practise' is defined as any role, whether
remunerated or not, in which the individual uses his or her skills and knowledge
as a psychologist in his or her profession. It is not restricted to the provision of
direct clinical care and includes using the knowledge and skills of a psychologist
in a direct non clinical relationship with a client, working in management,
administration, education, research, advisory, regulatory or policy development
roles and any other roles that impact on safe, effective delivery of services in the
psychology industry.
For the purposes of this condition, ‘supervised' is defined as so as to require that
the practitioner must consult the supervisor, who is accessible by telephone or
other means of telecommunication and available to attend the practitioner’s
workplace to discuss the management of all clients and/or performance of the
practitioner, when necessary and for not less than a one hour session at weekly
intervals.
B Supervised practice
1. The applicant (the practitioner) must be supervised by another registered
health practitioner (the supervisor) when practising as a psychologist.
2. The practitioner must not recommence practice as a psychologist until she
has received written notice from the Board approving her supervisor(s).
3. The practitioner must nominate a primary supervisor and at least one, up to
five, alternate supervisor(s) to be approved by the Board.
4. The practitioner must ensure that each nomination is from the list of
approved supervisors on the respondent’s website and who practise in the
ACT area.
5. The consent of any proposed supervisor must be obtained. This may be done
by the practitioner at the time of nomination and any consent should
accompany the nomination. It should be an acknowledgement, on the
approved form (HPNA13), from each nominated supervisor that they are
willing to undertake the role of supervisor and are aware that AHPRA will
seek reports from them or by the Board. Alternatively the Board should seek
the consent of any proposed supervisor that it would approve.
6. The practitioner must ensure that:
(a) the nominated supervisors are registered psychologists who hold
unrestricted registration and who have suitable training, experience
and/or qualifications in order to provide the supervision required; and
(b) that the nominated supervisors are not relatives or friends of the
practitioner or in a close collegiate or financial relationship with the
practitioner.
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7. The nomination is to be accompanied by written authorisation from the
practitioner permitting AHPRA to communicate with each supervisor for
the purposes of monitoring compliance with the condition and to obtain
reports from the supervisor(s) as follows:
(a) a report must be provided one month from the date that the
supervisor is approved;
(b) after the first month, subsequent reports are to be provided every
three months thereafter;
(c) a report must be provided whenever the supervisor has a concern
or becomes aware of a concern regarding the practitioner's
conduct, health or professional performance; and
(d) when requested either verbally or in writing by AHPRA or the
Board.
8. The Board must approve a nominated supervisor or if none nominated
by the practitioner is suitable then nominate an ACT based supervisor
on its list of approved supervisors that it does approve and who
consents to supervise. The approval should be completed as soon as
possible
9. The supervision conducted must consist of:
(a) a review conducted by the supervisor of every current client the
practitioner provides psychological services to within one month
from the date the supervisor is approved;
(b) a review conducted by the supervisor of each client’s treatment
plan prepared by the practitioner; and
(c) advice provided by the supervisor on action and systems needed to
establish and maintain appropriate professional boundaries with
regards to each client.
10. The supervision must be on the basis that the patients of the client
consent to the supervisor having access to their health records and
information and the supervisor is bound to treat the information
relating to patients as confidential.
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11. Within fourteen days (14) days of recommencement of practice as a
psychologist, the practitioner is to provide to AHPRA, on the approved
form (HP10) acknowledgement that AHPRA may:
(a) obtain information from relevant authorities (such as but not limited to
Medicare)
(b) obtain a report from the approved supervisor on a monthly basis.
C Attend for counselling
12. As part of the practitioner’s supervised practice the practitioner must
also undergo counselling, which is a form of supervision, by the
supervisor in relation to the Psychology Board of Australia’s Code of
Ethics focussing on the following issues:
(a) the identification, development and maintenance of strategies for
boundary setting with clients in psychological practice, including
home visits;
(b) the role of an expert witness;
(c) the difference between an expert report and a psychological
assessment;
(d) assessing mental and legal capacity of clients;
(e) privacy law;
(f) obtaining consent from clients;
(g) preparing documentation;
(h) professional communications;
(i) record keeping; and
(j) responding to subpoenas and other legal requests.
13. The counselling must occur on a monthly basis for a minimum of twelve
(12) sessions with each session being of one hour's duration.
14. The supervision should be separate from the practitioner’s general
supervision, relating to her area of practice, which is a general practice
requirement for a registered psychologist.
15. In the event the supervisor is no longer willing or able to provide the
supervision required the practitioner must provide new nominations to
AHPRA in the same terms as previous nominations. Such nominations
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must be made by the practitioner within twenty one (21) days of becoming
aware of the termination of the supervision relationship.
16. The practitioner must consult the supervisor, who is accessible by
telephone or other means of telecommunication and available to attend the
practitioner’s workplace to discuss the management of all clients and/or
performance of the practitioner, when necessary and for not less than a
one hour session at weekly intervals.
17. Within fourteen (14) days of the conclusion of the minimum period of
supervision the practitioner must provide to the Board a report
demonstrating, to the satisfaction of the Board, that the practitioner has
reflected on the issues that gave rise to the condition requiring they
attend for supervision and how the practitioner has incorporated the
lessons learnt in the supervision into their practice and confirming that
the practitioner has not used the hours spent with the supervisor and the
preparation of the report as part of the continuing professional
development requirements for registration.
18. The minimum period of supervision is 12 months.
19. All costs associated with compliance with the conditions on their
registration are at the practitioner’s own expense.
D Location of practice
19. The practitioner may practise only in place(s) of practice approved by the
supervisor.
E Undertaking /Condition re legal/forensic report or evidence
20. It is a condition also that the practitioner not take on any new forensic/legal
matters whilst she is subject to these conditions.
4. The parties have liberty to apply concerning clarification of the conditions or their
practical implementation.
………………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
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REASONS FOR DECISION
Introduction
1. The applicant (the practitioner) has been a registered psychologist. Her registration has
been suspended by the respondent pursuant to section 156 of the Health Practitioners
Regulation National Law (ACT) (the National Law). She has appealed to the ACT
Civil and Administrative Tribunal (the ACAT)1 against that decision under section
199(h) of the National Law. The application is dated 21 December 2016. It relates to a
decision of the respondent (the Board) made on 23 November 2016 and notified by a
letter of 24 November 2016. The application lists nine grounds.
Applicable Law
2. The National Law is briefly explained by President Crebbin in Hocking v Medical
Board of Australia [2015] ACAT 22 at [8] and [9] as follows:
[8] This is a law that establishes a national registration scheme for health professionals with an objective, amongst others, to protect the public by ensuring that only ‘health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’ to practise. National Boards are set up for various health professions to ‘register and, if necessary, to impose conditions on the registration of persons in the (associated) profession.’ The National Law is adopted in all states and territories although the law is not identical in each place because each jurisdiction has made modifications to it.
[9] The National Law applies as a law of the ACT because of section 6 of the Health Practitioner Regulation National Law (ACT) Act 2010 (the adoption Act). Section 8 of the adoption Act declares the ACAT to be the ‘responsible tribunal’ for the ACT for the purposes of the National Law. Section 7 defines a small number of generic terms used in the National Law for the purposes of its use in the ACT and Schedule 1 provides for a number of modifications to the National Law in its application in the ACT. The definitions and modifications do not concern the tribunal’s role as a responsible tribunal. Section 9 of the adoption Act specifies a number of ACT laws that do not apply to the National Law including, the Legislation Act 2001. The National Law contains its own interpretation provisions in Schedule 7. (Footnotes omitted)
3. The relevant provisions include the following:
140 Definition of notifiable conductIn this Division—
1In these reasons, a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the current member
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notifiable conduct, in relation to a registered health practitioner, means the practitioner has—
(a) practised the practitioner’s profession while intoxicated by alcohol or drugs; or
(b) engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or
(c) placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or
(d) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
144 Grounds for voluntary notification(1) A voluntary notification about a registered health practitioner may be made to the
National Agency on any of the following grounds—
(a) that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;
(b) that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;
(c) that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;
(d) that the practitioner has, or may have, an impairment;
(e) that the practitioner has, or may have, contravened this Law;
(f) that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board;
(g) that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.
155 DefinitionIn this Division—
immediate action, in relation to a registered health practitioner or student, means—
(a) the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or
(b) accepting an undertaking from the health practitioner or student; or
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(c) accepting the surrender of the health practitioner’s or student’s registration.
156 Power to take immediate action(1) A National Board may take immediate action in relation to a registered health
practitioner or student registered by the Board if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
157 Show cause process(1) If a National Board is proposing to take immediate action that consists of
suspending, or imposing a condition on, a registered health practitioner’s or student’s registration under section 156, the Board must—
(a) give the practitioner or student notice of the proposed immediate action; and
(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2) A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
160 When investigation may be conducted(1) Subject to section 150, a National Board may investigate a registered health
practitioner or student registered by the Board if it decides it is necessary or appropriate—
(a) because the Board has received a notification about the practitioner or student; or ...
199 Appellable decisions(1) A person who is the subject of any of the following decisions (an appellable
decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
...
(h) a decision by a National Board to suspend the person’s registration; ...
201 CostsThe responsible tribunal may make any order about costs it considers appropriate for the proceedings.
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202 Decision(1) After hearing the matter, the responsible tribunal may—
(a) confirm the appellable decision; or
(b) amend the appellable decision; or
(c) substitute another decision for the appellable decision.
(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
Nature of the Appeal
4. It is useful to describe the nature of such an appeal to ACAT. Submissions from the
Board helpfully referred to relevant authorities that examined the position.
5. In Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656 at
[119] it was expressed as follows:
[119]...The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error.
6. This was cited in the ACT Supreme Court in Hocking v The Medical Board of Australia
[2014] ACTSC 48, (2014) 287 FLR 54 at 71, [121] where Murrell CJ said:
[121] The judicial nature of the supervisory jurisdiction of the Court that is invoked differs from the administrative nature of the ACAT’s jurisdiction to review on its merits the Board’s decision to take the “immediate action” of suspending Dr Hocking’s registration. Kozanoglu v Pharmacy Board of Australia is authority for the proposition that in exercising its jurisdiction, the ACAT is to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.
7. Earlier the Chief Justice had said at [104] “For the purposes of the appeal, under section
202 of the National Law the ACAT acts as if it was the Board, hears the evidence
afresh, and exercises the Board’s powers in reaching a new decision on the merits.
8. In Legal Practitioner “M” v Council of the Law Society of the Australian Capital
Territory [2015] ACTSC 312 Refshauge J examined these authorities as well as High
Court authority and concluded that what was being conferred was original jurisdiction
and the role of ACAT was to reach the preferable decision afresh considering the
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evidence before the Board as well as new evidence. He expressed some dissatisfaction
with the Kozanoglu decision. He summed up his conclusions at [105] saying:
[105] In this case, it seems to me that a consideration of the authorities shows that the “appeal” to the ACAT is to be undertaken on the following basis:
1. The ACAT should have regard to the material before the Council.
2. The ACAT is not limited to that material and can receive further or other material, including material that relates to matters that occurred after the decision was made by the Council.
3. The ACAT may limit the material to be adduced if it addresses issues that are not properly before it.
4. The ACAT is not limited to finding error in the decision of the Council.
5. The ACAT should make the correct or preferable decision at the time that it makes its decision.
9. This related to an appeal under section 416 of the Legal Profession Act 2006 (ACT).
Whilst the decision in this case relates to immediate action and not the final disposal
after investigation, it seems to me that this is the correct approach. It may vary slightly
from Kozanoglu in that it does not focus on the time the decision of the Board was made
but the time the ACAT decides the appeal. It also means that ACAT has to have the
reasonable belief of the kind described in section 156. Counsel for the Board did not
disagree with this proposition when asked in submissions. Kozanoglu has been followed
uncritically in several cases2 and is a decision of the Victorian Court of Appeal.
However, it is in part different from the analysis of Refshauge J who points out that at
least two significant High Court cases were not referred to by the Victorian Court of
Appeal. I am bound by the decision of Refshauge J and I agree with it. The distinction is
that the Tribunal is not deciding whether it was correct for the Board to have the
requisite belief having regard to the evidence before it and any new evidence but
whether the Tribunal should have that belief. As will be seen I have come to the view in
this case that either way the same answer is arrived at.
10. I should add that it seems to me that weight would be given to the opinion of the Board
as it is constituted by eminent practitioners with specialist knowledge. The cases above
2 Legal Practitioner “M ” v The Council of the Law Society of the ACT [2014] ACAT 18; Hocking v Medical Board of Australia [2015] ACAT 22; Helmy v Medical Board of Australia [2016] ACAT 97 and Syme v Medical Board of Australia [2016] VCAT 2150
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do not mention this, but it is not inconsistent with them and seems sensible. During the
hearing the Board tendered a list of the members of the Board with a short description
of who they were and a Curriculum Vitae of the chairman. This reinforces the respect
that should be given to it.
How is section 156 to be construed
11. There are different approaches evident from the cases. It is a difficult provision because
it appears to require that some conduct, performance or health exist that is the basis for
the reasonable belief. In Helmy v Medical Board of Australia [2016] ACAT 97 the
allegations were of sexual misconduct by a doctor with three patients who were
unrelated. There was ample reason for a belief that there was a risk to persons that
warranted immediate action but no findings were made as to what conduct had been
engaged in by the practitioner. The Tribunal said:
the nature of the decision under section 156 of the National Law does not require the decision-maker to determine what has happened in relation to the current notification but rather to form a view as to risk, and then consider what, if any, action should be taken to address that risk. Secondly, the question of what, if anything, occurred during each incident may ultimately fall to a future tribunal or a Court to determine.3
12. By contrast in Hocking v Medical Board of Australia [2015] ACAT 22 (Hocking) there
was an enquiry as to what had occurred. The Tribunal had referred to authority that that
this was not necessary at [31] - [33]4. President Crebbin added at [34] that this should
be:
compared to the level of certainty required to make a decision beyond reasonable doubt, or on the balance of probabilities. It is, … consistent with a legislative scheme providing for preliminary assessment, immediate protective action, further investigation and where appropriate, referral for orders in the nature of disciplinary orders. However, the Tribunal accepts the applicant’s submission that for a decision to suspend, the probative value of the evidence relied on should be at the high end of the scale.
13. However later at [69] the issues were described as follows:
3 At [22]4 “Definitive findings of guilt or innocence do not need to be established. The primary focus is the protection of the public. Nevertheless, the belief must be reasonably founded. It must be based on more than innuendo and suspicion”: MLNO v Medical Board of Australia [2012] VCAT 1613 at [4]While the notion of reasonable belief may set the threshold “at quite a low level”, there must be some tangible support that takes the existence of the alleged right beyond mere “belief” or “assertion” Reeve v Aqualast Pty Ltd [ 2012] FCA 679 at [65]
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What are the questions to be determined in this hearing?
Taking into account the legislative framework described above, the questions to be determined by the Tribunal are:(i) What did the applicant do? What was the relevant conduct?(ii) Having regard to the evidence before the Board when it made its decision and further evidence before the Tribunal that can be said to bear directly on the decision, does the Tribunal reasonably believe that because of the conduct:
(a) the applicant poses a serious risk to persons? and
(b) is it necessary to take immediate action to protect public health or safety?
(iii) If yes to (a) and (b), what is the risk?
(iv) If yes to (a) and (b), what immediate action is required to provide protection.
14. This formulation seems more consistent with the words of the section and seems
inconsistent with the earlier observations, The Tribunal in Hocking heard evidence from
the practitioner and others and they were cross examined and findings were made about
what the conduct had been. In that case, however, there was not much doubt about what
the practitioner had done but a major issue was whether it was a risk to persons or his
patient.
15. McLure P in Bernadt v Medical Board of Australia5 [2013] WASCA 259 described the
legislative scheme in great detail noting that the National Law lacked the clarity of its
predecessor in Western Australia. The point of the case was a rejection of an argument
that failure to initiate an investigation made the immediate action invalid. This is an
argument that is repeated in the application in this case. In respect of section 156 she
said:
[65] It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:
(i) (1) because of (that is, by reason of) the practitioner's conduct, performance or health
(2) the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety.
66 The 'reasonable belief' requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative
5 Followed in Syme v Medical Board of Australia [2016] VCAT 2150
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assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities: George v Rockett [1990] HCA 26; (1990) 170 CLR 104. However, there must be proven objective circumstances sufficient to justify the belief.
16. This is a decision of a Court of Appeal about the same section and unless I think it is
clearly wrong I should follow it and I do. It also has a more satisfactory description of
the test for reasonable belief. The reference in Hocking v Medical Board of Australia
[2015] ACAT 22 to Reeve v Aqualast Pty Ltd is not particularly useful and is taken
from a case about preliminary discovery.
17. In any event in this case there is quite a lot of evidence and some certainty about some
of what happened and it is possible to resolve the matter even if it is necessary to have
more certainty about what the conduct was.
Approach to the type of immediate action if any to be imposed if there is such a belief
18. In Hocking v Medical Board of Australia [2015] ACAT 22 [18]-[21] this was
considered and I respectfully adopt what President Crebbin said namely:
[18] The question of what decision should be made if a responsible tribunal is satisfied that the criteria for taking immediate action are met, has been considered by other responsible tribunals. In Pearse v Medical Board of Australia (Pearse), QCAT agreed with a submission made by the respondent Board that:
...any conditions imposed ought address the relevant risk specifically, and otherwise be the least onerous possible.
[19] In MLNO v Medical Board of Australia cited with approval in Pearse, the tribunal said:
While the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.
[20]Because the taking of immediate action involves the identification of specific risks and both suspension and the imposition of conditions can have a significant adverse impact on a practitioner, the approach identified in Pearse is appropriate. Without compromising public health or safety, the action taken should be limited to that which is necessary to address the identified risk pending investigation and where relevant, further action - nothing broader or more onerous.[21] It follows that a decision to suspend – the most onerous of the decisions that may be made – should be made only where the serious risk is so significant or broad ranging, that nothing short of suspension can protect public health and safety; in other words, that suspension is necessary. In my view, a Board
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considering suspension as an immediate action should ensure that the option of using conditions to protect public health or safety has been considered and found to be inadequate for that purpose”
The application by the practitioner
19. The application seeks orders that the decision of the Board be set aside, costs and any
other appropriate order. It also seeks interim relief allowing the practitioner to continue
to practise.
20. The Grounds6 are that
1. The Board erred:
(a) in determining that:
(i) the conduct of the practitioner posed a serious risk to persons;
(ii) immediate action was necessary to protect public health and safety;
(b) in failing to take into consideration properly or at all the evidence, the
personal circumstances of the practitioner and her submissions.
2. The Board failed to provide natural justice and procedural fairness in particular:
(a) refusing to identify the members of the Committee who made the decision
preventing the practitioner from knowing if they had been properly
appointed;
(b) giving greater weight to the information provided by the notifiers than to the
evidence provided by her such that the decision was contrary to the
evidence and not reasonably supported by it;
(c) failing to consider her personal circumstances;
(d) relying on allegations made by the notifier AC7 that it knew to be false and
had been withdrawn;
(e) relying on the unsubstantiated facts provided in the other three notifications
which could only amount at best to a suspicion of boundary failures; and
(f) relying on the notification of CM when it had determined not to investigate
it further.
3. The Board erred in concluding that there had been a pattern of conduct based on
multiple boundary failures when each matter was unique and substantially
different.
6 This is not verbatim but is rewritten, hopefully, to avoid grammatical mistakes 7 The names of notifiers and patients have been anonymised
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4. The Board erred in finding there was a risk to persons where it did not and could
not identify the persons at risk.
5. The Board erred in finding the practitioner had failed to demonstrate any insight
and deserved to be punished because she did not admit fault but challenged the
truth of the notifications.
6. The Board erred in not considering that the investigations would not be concluded
in a timely fashion especially as the notification by CM was put on hold and
because it had not used its coercive powers to get documents that would enable it
to properly understand the notifications.
7. The Board erred in failing to consider alternative means of immediate action.
8. The Board erred in failing to consider sections 12 and 21 of the Human Rights Act
2004 (ACT).8
9. The Board erred in relying on section 150(2) of the National Law and considering
section 151(2) applied.
21. The ground relating to procedural fairness and natural justice appears to seek to impugn
the decision for collateral reasons which are not the function of ACAT.9 As the appeal is
not one that needs to establish error by the Board, the whole of the application is
misdirected. However, the challenge to the decision was made clear in the evidence and
submissions of the applicant.
The evidence before the Tribunal
22. Three folders of documents were filed. The first, which is now referred to as TR1 was
filed by the respondent Board and has in it the material that the Board had at the time as
well as a statement of the respondent explaining the matter pursuant to a direction of the
Tribunal. It contains an index of 40 documents and has 363 pages. The second was filed
by the Board but contains documents that were filed by the practitioner to supplement
the first folder and contains 24 documents and consists of 72 pages. It has been indexed
as T1 –T 24 but as this numbering is also used in a third folder it is referred to here as
AT1-AT24. The third folder contains recent documents obtained by the Board pursuant
its investigation and is referred to as TR2. It contains 11 documents and 132 pages. In
addition, the practitioner gave evidence and was cross examined. A notifier, AC, gave
evidence and was cross examined. Finally, an expert witness instructed by the Board,
8 Privacy and Reputation and Fair Trial9 Director of Housing v Sudi [2011] VSCA 266 at [30]- [32], Hocking v Medical Board of Australia [2015] ACAT 22 at [63]-[65]
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Mr Nicholas Gamble gave evidence and was cross examined. His report is TR2.10.
There were five more documents tendered. They were a referral letter from a GP. Dr M
Abeya. to the practitioner – Exhibit A1; an email from the practitioner to a Mr R
Mooney asking that the AC complaint be withdrawn Exhibit R1; an email identifying
professional expertise of the deliberating tribunal – Exhibit R2; Curriculum Vitae of
Professor Anthony Love – Exhibit R3, Statement of Chemist – Exhibit R4 and Zedmed
script reports generated by AC – Exhibit R5.
Suppression order
23. I made suppression orders in respect of the identities of patients and notifiers for the
same reasons as President Crebbin in Hocking v Medical Board [2015] ACAT 22 at
[36]- [39].
The notifications and how the Board dealt with them
24. On 8 June 2016, the Board received the first of four notifications. It was from JA in
respect of her sister who had been a patient of the practitioner. The notification is
document 1 in TR1.
25. JA complained that the practitioner had breached the ethics and guidelines of the
Australian Psychology Society and was unfit to practise. She told the Board the
following10:
26. Her sister, who was in her late 60s had been diagnosed with Alzheimer type dementia
and previously with schizophrenia, when she was young. She had an aged care package
which was a high level one with a dementia supplement. Her provider was Calvary
Health. JA provided medication support to ensure adherence. JA and another sister GC
had been appointed enduring guardians on 23 May 2012. The appointment was
provided to the Board. It is at page 18 of TR1. JA managed care and GC looked after
finances. On 4 September 2015, the sister and JA met with a doctor, who is described as
a psychogeriatrician, to conduct a routine medication and treatment review. JA told the
doctor that she was moving away from Canberra and would not be able to manage her
sister’s care. It was agreed (presumably by JA and the doctor) that the sister would need
to move to a residential aged care facility when the opportunity arose. JA suggested and
the doctor agreed that it would be helpful to have the services of a psychologist to assist 10 Because the information may well identify the persons concerned and is highly sensitive the facts have not been set out comprehensively but a brief description is given and the source identified
17
with the adjustment. A week later JA and the sister saw a GP in a medical practice
where the practitioner then had rooms.
27. In October 2015 JA and her sister first saw the practitioner. About one week before JA
had left a package of information with the reception at the medical centre for the
practitioner. It contained a note from JA, a “neuropsych” assessment by Calvary and the
most recent occupational therapy assessment and the enduring guardian appointment.
The covering letter is at TR1 pages 12 and 13. It provides background as above and
explains that the sister moved to Canberra in 2012 when their mother died and was
confused agitated and very unwell and had been in hospital for about three months.
28. The assessment in 2012 by ACT Health is at TR1 pages 14-15. It does not mention
Alzheimer’s but noted a history of schizophrenia with multiple hospital admissions
(based on a history provided by her sisters) and poor cognitive ability on testing. The
report suggested several reasons for it, one of which was a neurogenerative process
noting a family history of dementia. There were three other possible causes including
her recent traumas such as her mother’s death, foot surgery and marital breakdown. A
change of environment may have been added. Further investigation was suggested. The
occupational therapy report was done in March 2015 and was addressed to an aged care
facility. It is at TR1 pages 16-17. It seems to accept there is impaired cognition and
support JA. The occupational therapist wishes that the patient be assisted with transition
into an aged care facility. JA is referred to but called an incorrect name.
29. There was no report from the psychogeriatrician or GP. This has been remedied by
evidence from the practitioner at the hearing and by AT document 7.
30. The first consultation with the practitioner was on 13 October 2015. JA and her sister
were left waiting and the practitioner was described as having arrived in a flustered state
and did not know of the package. JA explained the reason why they were there as
support for the sister to transition into an aged care facility. The practitioner without
having read anything then announced that the sister was too young and there must be
some alternatives. JA got frustrated and asked if the practitioner had read a referral from
the GP and she said she had not. The practitioner then left the room and returned with a
sealed envelope that JA believed was the package. By the end of the meeting the
practitioner said she would look at other options. JA believed that this would result in
choosing the aged care facility that she had planned. JA heard nothing further but
18
understood her sister had seen the practitioner a few times over the next few months. In
May, the next year, the sister rang JA for help with her computer and noticed three legal
documents in an email from a lawyer that JA knew nothing about. The documents, all
unsigned, were an enduring power of attorney to the Public Trustee, a will naming GC
as executor instead of MF (another sister) and IA (husband of JA) and an advanced care
directive. JA provided an earlier will which was otherwise much the same in that the
residue went to the three sisters and the testatrix’s ex-husband was not included. JA felt
that her sister had forgotten that she had already made a will that excluded her ex-
husband as that was the reason she said she had wanted a new will. JA questioned her
sister about the documents and was told that the practitioner had driven her to see the
lawyer who was not a lawyer known to the sisters previously. The practitioner had sat
with her in the lawyer’s room while this was done and drove her home. JA described
this as her sister being under the influence of the practitioner. The sister, when
questioned, believed she was appointing MF as her attorney when the document named
the Public Trustee. She was not aware that this would involve fees. She said she had
signed a document when she saw the lawyer but did not have a copy of it. She also told
JA that the practitioner had phoned MF on the way home and said “It’s all done.
Everything is fixed”. MF had not been involved in helping since 2012 but JA thought it
was good if she now was. JA felt that her sister was not capable of entering into such
transactions based on a reading of an Alzheimer’s guide and her lack of understanding.
She then asserted that the lack of capacity would have been evident and without the
practitioner’s help the documents could not have been prepared. However, she said that
this was being checked by getting a geriatrician and a lawyer to advise about capacity
and the need for ACAT to make a guardianship order. It was asserted that this expense
would not have been necessary but for the activity of the practitioner. Her sister had told
JA that the practitioner has said she did not like JA. JA spoke to Gwen D of ADACAS 11
on 31 May 2016 who had met with the practitioner and the sister. Gwen said the reason
for the will change was to keep it safe from her ex-husband but JA noted that this had
been already done under an earlier will, that she provided to the Board. On the same
day, the practitioner tried to deliver the documents to the sister but was told to go away.
31. On 24 June 2016, the Board wrote to the practitioner about this notification and invited
a response. This letter is TR1.7 page 91. The practitioner responded by email dated
8 July: TR1.10. The board sought further information by email dated 12 July: TR1.11
11 The ACT Disability, Aged and Carer Advocacy Service
19
and she responded by email dated 21 July: TR1.13. On 16 August, the Board told the
practitioner that it had decided to investigate TR 1.16. On 3 November, the Board made
a decision to take immediate action TR1.20. This was in respect of this notification and
two others from CM and from RC. The decision was to impose conditions requiring
supervision. The reasons of the Board in respect of a decision to impose supervision
conditions are at TR1 page 160. The practitioner was told by letter of 7 November
2016: TR1.21 and 22. Before this decision was put into effect a further notification was
made by AC who was a manager at the medical practice where the practitioner worked.
This notification asserted that the practitioner had written a script for Panadol Forte for
a patient and had argued with doctors in the practice about medications for their mutual
patients. The Board then decided that this last notification was so significant that it
should change the decision to a suspension order. The decision after the AC complaint
is at TR1 page 208 and the letter to the practitioner informing her and giving her an
opportunity to show cause is dated 14 November and is at page 234 of TR1. The
applicant responded on 21 November (TR1 page 272) and the final letter advising the
decision to suspend is dated 24 November and is annexed to the application to ACAT.
The decision was on 23 November and is at TR1 page 285.
32. It is not proposed to set out in detail the contents of the various communications or the
reasons for the Board’s decision but all the information is contained in the
TR documents. It is necessary however to set out the contents of the other three
notifications. The information given to the Board by the practitioner is consistent with
her evidence at the hearing and her explanations are described by reference to her
evidence.
The second notification – CM
33. The notification was dated 6 June 2016. CM was the former partner of a patient that the
practitioner was seeing. There was a custody dispute between CM and that patient. The
practitioner wrote an emergency needs assessment review to the Family Court that
made a number of adverse comments about CM including that she was a polydrug user,
had an eating disorder, a negative mental health cycle with little parental engagement.
CM said that the practitioner had never met her and that she was not a drug user and had
urine tests to prove it (and she forwarded a copy to the Board). Further she said she did
not have an eating disorder and she had only recently sought help for anxiety depression
which she suffered because of the dispute with her former partner and his new partner.
20
The report said that the father was the primary carer and this was untrue. There were
other criticisms of the report. A copy of the report was provided. It is at TR1 pages 79-
81. The report advocates that the child have the opportunity to reside with her father and
their “loving household’. The complainant points out that the practitioner was seeing the
father and the new partner professionally and was taking sides.
34. In addition, she complained about an attendance certificate citing a medical condition
written to the Magistrates Court by the practitioner causing an adjournment when this
was beyond her expertise. A copy of the certificate was provided and it is at page 78 of
TR1. It is dated 29 April but refers to a visit on 4 May. The Board also received a
cogent criticism of the report to the Family Court written by CM’s mother in July. It is
at TR1 pages 97-102. The mother also provided police documents that dealt with the
practitioner’s interaction with the police about the behaviour of CM. It seems to conflict
in part with elements of the practitioner’s responses and evidence.
35. The Board also invited a response and received one from the practitioner and these
documents are TR1 pages 87 and 95. The Board decided to have an investigation and
communicated that by letter of 17 August: TR1 pages 131-133.
The third notification - by RC
36. RC was an HR manager at the Department of Defence and was overseeing the
rehabilitation of a Defence employee who was the practitioner’s patient. The complaint
was about the tone of the email communications received from the practitioner and the
statement that the patient was not to be contacted and confining such communications to
be made via the practitioner. The complaint was made on 6 October 2016. It is at TR1
pages 138-144. The notification complained that “she failed to maintain professional
boundaries as a Psychologist by emailing the Department/Rehabilitation provider
directly on behalf of her patient exceeding what is required as a treating practitioner.”
and further by her email correspondence displayed “unprofessional and aggressive
conduct and her blatant disregard for legislation, agency policy and procedure...”
37. The emails were provided and are at TR 1 pages 146-152.
38. The Board invited a response at TR1 page 153 on 13 October 2016. The response is
dated 24 October and is at page 157.
21
The fourth notification by AC
39. AC is the practice manager at the medical centre where the practitioner had worked. Her
complaint is dated 10 November 2016. It was made after the practitioner had left the
practice. She said that the practitioner has given medication advice that contradicted that
of the doctor who had prescribed it. She had questioned the doctors about medication.
She had printed a script for it to be filled by the pharmacist. She had breached patient’s
confidentiality by discussing them with staff at the centre. Her consultation notes were
inappropriate. There were other matters mentioned that seem to refer to the other
notifications. It would seem that the other notifiers may have complained to the practice
first and this may have prompted AC to contact the Board to establish what should be
done and it may have led to the other notifications but that is not clear.
The hearing
40. The practitioner represented herself. The Board was represented by a barrister and a
solicitor. The practitioner made an application for adjournment. After some discussion,
the hearing proceeded and the practitioner was told she may renew the application, if
need be, after the matter had gone as far as it could. The matter then proceeded for two
days and no renewed application was made nor was it apparent that it was needed.
41. The practitioner gave evidence and was cross examined. The cross examination was not
far ranging and did not seek to establish that where her version differed from others that
she was not telling the truth. No doubt this was because of the limited nature of the
enquiry as discussed above. With some exceptions, notifiers or patients or other relevant
providers of information were not called and the factual conclusions that the Tribunal
can make are necessarily limited. Having said that both from her evidence and her
submissions to the Tribunal, in the opinion of the Tribunal, the practitioner was
basically an honest person and believed what she was saying. There are matters of detail
that may well be wrong and there was understandably an endeavour to place the best
slant on what happened. There was not corroboration of many of her statements and it
would not be surprising if they were later amended where such material was available.
However, clearly the Tribunal cannot find that potential uncalled witnesses are wrong
about what they say, where it differs from the evidence of the practitioner.
42. There were at least two instances, pointed out by counsel for the Board, where the
practitioner made statements that she had to withdraw and they were described as
22
confounding. They were her assertion that the reason why RC complained about her
was in retribution for her complaint about RC. The practitioner backed down from this
when the Tribunal pointed out that the timing of events was such that RC would not
have known of the complaint against her at the time she complained.12 Another instance
was when after giving evidence in the morning about why she wrote a medical
certificate, the subject of the complaint in the notification by CM, in the afternoon
challenged its authenticity in a declamatory manner. Again, she backed away from this
when reminded of her earlier evidence.
43. In addition, in her submissions and some of her written responses she described
allegations as lies and this extended to statements made by the expert witness
Mr Gamble.13 This in the Tribunal’s view was an extreme reaction. Also, she sought to
suggest that AC and the Board had been in discussions before the notifications and that
the number and timing of the four notifications was suspicious.14 This is said by the
Board to indicate a worrying degree of irrationality. As the evidence about this was
never fully explored – because the Tribunal ruled that it was irrelevant, as even if there
had been such collusion, the notifications still had to be dealt with on their merits – it is
not obvious what inferences must be drawn from this assertion by the practitioner. As
will be seen her explanations of why she acted in the way she did in respect of the
notifications, were also indicative of strong beliefs formed about what was in the best
interests of the patients. Her desire to protect her patients and work in, what she saw, as
their best interests is commendable. It can however lead to the danger of losing
impartiality which must be essential in her profession and may lead to mistakes. At the
risk of trespassing on the expertise of the profession concerned, this conduct seems to
be emotional rather than completely objective. It is speculative to guess at the reasons
for this but it may be something that can be easily addressed. It may not necessarily
pose a risk to persons and the facts of each notification in so far as they can be
established need to be considered to determine whether the Tribunal has a reasonable
belief that there is such a risk and the nature of it so as to determine what if any
immediate action is necessary. The other observation is that the practitioner is articulate,
caring and intelligent. There is criticism of the practitioner in written submissions by the
12 Having reviewed the emails between RC and the practitioner she did tell RC that she would complain about her before she did and before RC complained so the Tribunal was wrong to have corrected her13 Transcript page 3 line 28, page 6 lines 28-3014 Transcript page 12, lines 31-40 to page 15. There may well have been but that is not suspicious in itself
23
Board made after the hearing in respect of conditions of supervision. That will be dealt
with later.
The practitioner’s evidence about the JA complaint
44. The practitioner met the complainant for 15 minutes about a year ago, when she
accompanied her sister, to her clinic on the first occasion. When a new patient arrives,
they usually come with documents in hand for her, a mental health care plan and/or any
additional information that the doctor may wish to provide to her. On this occasion, they
turned up without that information in hand. She checked the Zedmed15 system. There
was nothing on there to help.16 At that point she could have asked them to leave and
come back but instead, she went up and had a look in the scanning pile and found the
mental health care plan in the scanning pile. She retrieved it and came back to them and
continued discussions. It was common practice to look at documents in the first five
minutes of the session because often she doesn’t have them before that. What she found
was the treatment plan from the referring practitioner, Dr Manisha Abeya. This
document which was not part of the documents provided was produced and tendered
eventually as Exhibit A1.17
45. She was told by JA that the purpose of the therapy – which was not mentioned in the
referral – was, in her view, to get her sister used to the idea of going in to a nursing
home and to persuade her that was the right course of action and to reduce her stress
about that, because she was vehemently opposed to it. The practitioner said this was not
the role of a psychologist to talk someone into anything but she would be happy to
explore the alternative options with the sister but not to persuade her on any one course
of action.
46. A very passionate conversation then occurred between JA and her sister. JA grabbed her
sister and screamed at her and the practitioner. The practitioner felt that they worked
that through, and calmed it down. She said that this was not appropriate. The sister
continued with the consultation and JA left. Until the time of notification, in June 2016,
approximately nine months later – the first meeting being on 15 September 2015 – she
did not hear any further from JA. In the meantime, she met with the sister.
15 This is an internal computer application with medical records accessible by some members of the practice. Its working is explored in more detail in the AC complaint
16 It seems likely that JA did deliver the package but it is also likely that the receptionist did not give it to the practitioner
17 It supports the practitioner’s evidence as to what she was expected to do and it was not expressed as supporting the sister to adjust to going into a home
24
47. They discussed the sister’s concerns. No one else was present. The practitioner tried to
enhance her leisure activities and well-being in relation to activities. That was what was
one of the items on the agendas that the general practitioner had in her referral and had
asked the practitioner to attend to. The goals in the referral letter were set out in seven
points that constituted the recommendations from the GP. Number one was “to achieve
better mental and physical well-being”. Number two was “symptom resolution”.
Number three “maintain comfortable mental state by adhering to prescribed treatment
therapy programme”. Four, “identify and address stress and precipitants such as family
problems, negative thinking, loss and grief”. Five, “be aware of symptoms and size of
relapse and to seek early intervention”. Six, “encourage lifestyle enhancing activities
such as healthy eating, exercise, social activities and hobbies and avoid social
isolation”. And number seven, “encourage better communication with family, friends
and work mates”. That was the agenda she worked with.18
48. They particularly focussed on just maintaining and increasing her well-being. The
patient was achieving some excellent weight loss goals; exercise was difficult because
of her foot surgeries but they looked at alternative ways to promote upper body strength
and some other things that might enhance that area of her physical well-being.
49. She saw her ten to twelve times over that period and saw her about once a month or
every three or four weeks. They explored her current living situation and her supports as
asked. The practitioner attempted to bolster her support in terms of just clarifying her
weekly routine. Sometimes people were turning up to pick her up and there was chaos
and she made arrangements with someone to follow that up. There were issues with
personal hygiene – such as chafing – causing her great distress regarding having support
people who were doing an inadequate job. The practitioner gave her a list of the
numbers to contact and helped her to access supports in those areas. That was consistent
with the GP’s agenda as it was anxiety provoking. She was primarily looking at how to
increase her psychological well-being.
50. In the course of this, there were many disclosures about the appropriateness of the
behaviour of her sister towards her – physical abuse, emotional abuse. As those
disclosures came in, the practitioner contacted the advocate that JA had employed. This
18 This is an accurate outline of what is in Exhibit A1
25
was Gwen D.19 She was from ADACAS. So, Gwen became involved again. She had
already been involved at a previous time.
51. Gwen met with the patient. Initially the patient asked if she could meet with the
practitioner there too. She was frightened of all those services that she saw as strange.
So initially they both met Gwen. After introductions, the practitioner was able to share
information from her perspective on service provision and from then Gwen met with the
patient without the practitioner at her house. The next event of significance was a
request from the patient to attend a meeting at her house, which Gwen had organised.
Present at the meeting was the practitioner, Gwen, the patient and another one of her
sisters, MF who was from Sydney and not involved with the patient in recent times. MF
was a nurse and had a lot to offer in care for the patient.
52. The practitioner understood that the patient had been a midwife and only retired three
years or so before the practitioner had met her due to her feet problem. The practitioner
was not privy in advance to what was going to be talked about at the meeting with
Gwen and MF. As the patient’s psychologist, she was happy to be part of the meeting.
That occurred at the patient’s house, again but not by the choice of the practitioner and
she had offered her rooms. The meeting was chaired by Gwen. The agenda had already
been organised and before the practitioner arrived most of the discussion, she could see,
had occurred. They filled her in on the outcomes. The practitioner wasn’t present for all
of the preliminary discussion but the gist of the decisions was that the patient was no
longer happy with JA and GC handling her affairs and she had asked for Gwen to
arrange for a power of attorney to be transferred over to a different sister. The only
concern was that MF was not prepared to look after the patient’s finances. That was an
issue that they were to follow up with a lawyer. It was something that none of them had
the expertise to answer. They were looking at the options of whether a private financial
manager was appropriate, or whether that would have to go to the Public Trustee. It was
agreed that the patient would, as a matter of urgency consult with a lawyer to try to sort
out those financial aspects and she had other personal concerns to do with her will and
wishes for medical care in the latter part of her life and she wished to discuss that as
well.
53. The practitioner had not seen any evidence of a power of attorney with anyone. There
was nothing on her file. JA said she had the power of attorney but the patient said she
19 She is Gwen D referred to in the notification
26
didn’t. The practitioner did not know who was telling the truth, or whether the patient
had forgotten.
54. She became increasingly aware that there were so many issues that were not the role of
a psychologist and she made every effort to refer it on. She rang every helpline for
advice because there were the allegations of abuse.
55. She had asked Gwen and did not see herself as having the expertise to deal with it. She
said she was a child expert, not so much a geriatric expert. She was looking at what the
legislation offered to the elderly, to try to clarify her understanding of the legislation
related to elder abuse, and to understand what the criteria was for elder abuse and did
this meet it.
56. She had discussed with Gwen the patient’s medical condition. They both felt she had
cognitive losses but they were not sure of the extent of it.
57. From the medical reports that became available to the practitioner over time, there was
concern that she was being over medicated and they weren’t sure what the
consequences were of that. She was having falls. The hospital’s records suggested that
that was related to an inappropriate use of medication but they weren’t qualified to
assess that in full. They could see no evidence of a diagnosis of schizophrenia or a
complete diagnosis of her cognitive function. There were question marks everywhere.
She did not then have a copy of the report of the psychogeriatrician but she obtained it
and put it on the file. She discussed it with the GP frequently and she was also seeking
further information.
58. She was asked about the fact that the report of the psychogeriatrician20 says that she had
schizophrenia and cognitive impairment (possible dementia). The practitioner
understood that the sister said that (meaning JA) and it was not the diagnosis of the
doctor and there was no diagnosis from someone who'd done the assessment. There was
hearsay only. They were aiming to have a full and comprehensive assessment done; one
session was done and then the patient was removed from the state by JA before it was
completed.
20 AT 7
27
59. She did not have on file the ACT Health Mental Health Neuropsychology report.21 She
responded to its contents which she now had access to, again repeating that the
reference to schizophrenia was a history rather than a formal diagnosis and she did not
accept that the patient had it. She had the same view that there was cognitive loss but
that it was possibly due to a variety of causes. By way of comment contrary to the
notification and the Board’s reasons there was no evidence produced that the patient had
Alzheimer’s disease. The practitioner said that these reports did not verify that the
patient’s condition prevented the patient from living independently.
60. The patient had told the practitioner that her sister(s) were stealing her money, bruised
her arm and were emotionally abusing her. The practitioner had made calls seeking
help. Gwen had told them she was unwell and there was no one else in Canberra to
follow through so the practitioner made enquiries and obtained the name of a lawyer
and maintained contact with MF in Gwen’s absence. MF had indicated there was
urgency because of the concern about abuse. The lawyer’s appointment was intended to
be at the patient’s residence and the practitioner had no plans to be present. The patient
had a fall off her scooter and then the lawyer was unable to come to her. The patient
rang the practitioner and asked for help. The practitioner was going down to Civic for
another matter so she agreed to drive her. She took her safely up there and went to leave
and the patient objected. The lawyer said "You can come, but you've got to sit there, not
a word.” Whilst she was in the room with the patient and the lawyer, she was not
involved in the discussion. The patient needed transport back so the practitioner drove
her. On the way back she did ring MF and tell her that it had been done.
61. The practitioner understood the patient was giving instructions for a will, advance
directives for her medical care and her POA22, but the POA discussion did not occur that
day. The lawyer had hoped the sister would agree to assist with the finances and that
was not resolved then.
62. Two weeks after that she received a frantic call from the lawyer saying that she had
tried to contact the patient but was unable to. A plan in writing and documents had been
sent by email but no response had been received. The plan was that before anything was
signed all documents were to go via the patient’s GP, first for discussion and approval
and if any issues were raised, they would be addressed. There was a process set in place
21 TR1 page 1422 Power of Attorney
28
to protect the patient's interests and to make sure that no one person had undue power or
influence but that was unable to get started because no one had been able to reach the
patient.
63. The practitioner, at that stage, approached the guardianship office and attempts were
made by them to contact the patient. The lawyer asked the practitioner to drop off the
legal documents at the house and she did. When she got there, she was at the front of
the residence and could see into the bedroom. She saw the patient hide the documents in
a pillow slip but she did not enter the bedroom and would never do so. The patient said,
“(JA) will come and see you there”, and seemed fearful. This was about three weeks
before the notification.
64. The practitioner said she had grave concerns for the patient’s safety, over-medication,
and the fact she was having falls. The patient had reported that her sisters threatened to
kill her cat and to ruin the practitioner’s career if the patient spoke to her again. They
prohibited her from speaking to the practitioner and Gwen and, attempted to isolate her
away from all possible support. Again, these were things the practitioner heard from the
patient. The practitioner was unable to ascertain if they were true and continued to ring
the appropriate government department for them to pick up the matter.
The practitioner’s evidence about the notification by CM
65. The report was in relation to a family law matter. It had been in the courts for many
years. The practitioner had no contact with the complainant in the last few years and
had never seen her as a patient. The practitioner had observed her prior to that on up to a
dozen occasions. It was a very complex family law matter. The context has been
provided to ACAT. The child had been kidnapped from her home by her mother CM.
At the time the practitioner was at a training program and the police called her. This was
prior to Christmas 2015. It may have been the other way around – she could not
remember which. They had been in liaison about this case for some time because there
had been several incidents.
66. The practitioner said she had been seeing the family before the child was born. She had
not treated the mother although she had tried to. She had treated the father when he was
a child, and came to treat him and his new partner and the child as a family. She was
also was a member of the care team for the child so was privy to some sharing of
communication and documents related to the case. They were not public documents.
29
From these the practitioner was aware of, the mother’s drug history and drug testing.
She had seen that paperwork, and also spoken to the doctor they use for drug testing.
67. The statements in the report about drug use were based upon documents that were
provided to the declared care team. This was set up by the Department of Human
Services for the sharing of information so that all parties had correct information that
they need.
68. In addition to that team, she also was privy to medical documents related to the drug
testing. They had been seen at the medical centre where the mother was trying to get
Endone and similar drugs. The doctors there approached the practitioner and explained
what had happened because they knew that she was seeing the child and they felt that it
pertained to her safety.
69. The child had presented at the medical centre with big shoe marks on her back, and
bruising.
70. She did not refer to this in the report. Her explanation for this was “when you write
those reports you have to be very careful what you write. I only wrote what I had seen,
or I had seen either myself physically, or I had read. There was many other things I
could have put in there that I was aware of.”
71. The care team had been told in a meeting that there had been more than 118
notifications for this child in a 12-month period to the department. Her priority was to
make sure that the child got appropriate assessment of her injuries, and of the cause of
her physical injuries.
72. The practitioner was asked by the Tribunal whether the report, the subject of the
complaint, was written to be provided as part of the family law dispute. The practitioner
said a review of the child was missing, the child had been taken, and it would be part of
an evidence base to promote expeditious return of the child to “their home”. In its
context, it was not meant to be a comprehensive report. There were other police reports
that were intended to be more targeted assessments and intended to prompt emergency
hearings to look at where the child was located, and to raise the point that there were
issues of safety in her current location. The child needed services way beyond a private
psychologist, and she was “advocating” for that to occur, and for her to have a
comprehensive report.
30
73. The practitioner was asked by the Tribunal whether the child was a patient of hers. She
said the family was a patient of hers. She was well aware of her obligations not to have
multiple relationships with clients. She had 10 years before a clinical relationship with
the father, when he was a child. That was always fully disclosed, and the issues
associated with that discussed with all the parties. But primarily the father was
overwhelmed with events, and she saw the child as part of the family, but not as a
therapist for the child. The father’s new partner attended with the father on occasion to
give her point of view. The practitioner did not treat her individually in terms of mental
health. Once she started seeing them as a family, she didn't treat the father individually
either. That again would have been messy, and inappropriate. It either had to be the
family, or it had to be an individual.
74. There was a gap of some years between when she treated the father as a child and her
next contact with him. This occurred when the complainant was pregnant with the child
and he sought assistance. The complainant was supposed to join them but she never
made it past the carpark. The practitioner went out to the carpark to try to and encourage
her to come in. Numerous notifications were made to New South Wales DOCS and
professionals at that point based on the practitioner’s concerns about the unborn child's
wellbeing. Then again when the child was an infant, there was contact with the family
again, not just the father.
75. What she wrote in the report was based upon a long history of knowing all of them, and
as well as documents that she had access to. She wrote about what she had seen in
documents, heard from the treating doctors concerned, and what she had seen with her
own eyes.
76. The child was exhibiting in front of her bulimic behaviour. Sticking her fingers down
her throat and mimicking vomiting in a toilet, et cetera. Anorexia had been discussed
with the complainant in the carpark meeting. That was enough to flag that there were
issues needing attention.
77. In respect of the medical assessment the father attended the medical centre with his new
partner, who was by then his wife, to seek a GP appointment for her. She was
hysterical, crying, screaming, clearly unable to present in court. As a psychologist, she
understood she was allowed to comment on people's fitness to work or to attend court. It
was an attendance certificate to say that she had been at the centre and had a medical
31
condition and was not in her opinion in a fit state to be in court or anywhere else at that
point in time.
78. The medical condition was that she psychologically unwell and she was pregnant as
well and was throwing up, she couldn't get any food down.
79. It was an attendance certificate not a medical certificate. It was not an uncommon
practice. The term “medical condition” was used at the medical centre. A receptionist
would put that on there, because they often actually do the attendance certificates and
they would write they were here for a medical condition. That would be written by
someone completely unqualified as well.
80. The legal hearing for which the certificate was given – the practitioner believed – was at
the initiation of the now wife of the father who was seeking a personal protection order
and not turning up was a clear disadvantage to her. The practitioner would have
preferred the doctor to have been the certifier and she was referred to the doctor – when
she could get an appointment – to follow up with an appropriate detailed certificate.
The RC complaint – the practitioner’s evidence
81. One of the practitioner’s patients had a claim for compensation or sick leave with her
employer, the Department of Defence. The Department had engaged a rehabilitation
provider. There had been a long history, with the rehabilitation providers attending the
medical centre and behaving inappropriately and it has escalated during that year. They
were barging into appointments without being invited or given permission. This was not
limited to employees of Defence. Her email to RC does not refer to one case. It refers to
a spectrum of cases over the year where her patients were off work. One of the patients
had hung himself at work. Another one had a psychotic collapse. They were “extreme
end” patients. One went out to the Brindabellas with all the equipment to gas himself in
his car immediately after being upset by a meeting with the rehabilitation provider.
82. After that the practitioner made a serious attempt to pull the behaviour in. She tried to
write to the appropriate parties, explain the consequence of their actions and go through
a negotiation process so that these behaviours would not happen on her premises but it
kept repeating.
83. This correspondence occurred at the end of a 10-month period of trying to fix it. They
were coming into the medical centre premises, trying to get people to sign things in the
32
corridors, chasing them up the corridor, barging into the practitioner’s room, “chucking
tantrums” in her room, screaming and ranting, and one of them when asked to leave the
room and leave the premises, just left and sat outside her door and he wouldn't budge
for over half an hour and wouldn't leave the premises.
84. This was extremely stressful for everybody. It caused a lot of disruption. It caused a lot
of upset for the most vulnerable of her cases and she had had enough.
85. RC at that time was responsible for the provider concerned in terms of employing them
and directing them as to their services.
86. RC only wrote her complaint after the practitioner had complained about her to
Defence. The practitioner was directed to the timing of the respective complaints by the
Tribunal and then accepted it was not tit for tat.23
87. In this matter, there was an extensive 20-year history of allegations of sexual assault and
harassment by Defence personnel. The sensitivity of it could not be over stated and then
the provider was at her premises asking about the patient’s sexual activity and she
feared suicide or another serious event.
88. She added that an email written at “2 am”24 was not her normal style of communication
or necessarily defensible, but the issues themselves were out of hand. She was trying to
establish the boundaries.
The AC complaint -the practitioner’s evidence
89. There was no prescription written then or on any other occasion for Panadeine Forte, the
contraceptive pills or for hair lotion. Her record of the attendance is at page 187 of TR1.
The original prescription was given a day or two before this by Dr Cookman, one of the
doctors at the medical centre, who was away that day. She was trying to print a copy.
Dr Ooi – another of the doctors at the medical centre– came in and tried to help. She
had trouble doing so and printed off a copy on blank paper. She did not believe her
name was on it. She gave it to her patient. She was not writing a new script but
endeavouring to provide a copy of an existing script that the patient had lost. She spoke
23 As mentioned elsewhere the timing was actually such that it could have been. The Tribunal does not believe it was and in any event it is does not affect the determination of the complaint if it is a proper one (which as will be seen it was)24 The last of these emails was over an hour earlier and the offensive one was earlier still
33
to the chemist recently who said her name was not on it. The script was destroyed by
AC and that is suspicious.
90. Before the practitioner was involved in this, the patient had attempted to approach
Dr Woon – another of the doctors there – to get an appointment (the patient thought he
had written the lost script). By the time she got to the practitioner she was a wreck. She
said she had a terrible headache. She was extremely unstable and was bipolar. There had
been mix-ups with her medication, and the practitioner was dreading there being
another one. She printed a record of it to for her to take and show the receptionist, what
was originally prescribed. She had no idea then it went to the pharmacist. Her file note
recorded “Reprinted prescription for Panadeine Forte assisted by Dr Ooi.” She did
reprint it, but on white blank paper so it would not look like a prescription, so as to get
the original prescription redone, and in the end that's what happened. Dr Woon re-did it
later in the day.
91. The practitioner had to arrange medication reviews with the patient’s treating
psychiatrist at Community Health a few times just to try to sort it out, because she was
concerned she wasn't taking the correct medication for her condition, and she was all
mixed up about when to take it. The practitioner arranged several reviews of this with
her psychiatrist to try to get this area under better control, and perhaps get her mother,
for example, to assist.
92. The practitioner’s understanding of the situation was that the patient, one or two days
earlier, had been prescribed Panadeine Forte by Dr Cookman for headaches, which
interfered with her sleep. The prescription had been lost. The practitioner wished to
provide the patient the capacity to replace the script. She couldn’t reprint it so she
reprinted a copy on blank paper and gave it to the patient. The patient took it to the
pharmacist. The pharmacist said, “No. We need the original”, so she went back and
Dr Woon eventually saw her and wrote the script.
93. Whenever she opened a document from Zedmed her profile would come up with her
name on it, and she was trying to work out if she could get it to come up with
Dr Cookman's name on it, so that's why she asked Dr Ooi to assist. Dr Ooi said he had
to go, or he would have probably seen her and organized the prescription, but he said he
had no time to do that, so in the end Dr Woon did it. Given the nature of her condition,
she was keen that she didn't have another medication mix-up.
34
94. The practitioner’s name would have been on the top because it was she that printed it
out but she expects she crossed it out as the pharmacist has told her that her name was
not there.
95. Sometimes the pharmacist has copies of the script. If the patient had actually lodged the
script they would have a record of that, and sometimes then they don't need a new
script.
96. Dr Woon was fully booked. She was trying to cover every base rather than make him fit
her in for an appointment and pay again, as there was no bulk billing at the practice. She
believed that, if the patient did show it to the pharmacist,25 the chemist may have it on
her records, but she did not.
97. The document she printed did not look like a prescription at all and it was not one. The
pharmacist would know exactly what it was. “It’s a piece of plain paper with my name
on the top. Not a prescription.”
98. In relation to the two other records extracted by AC from Zedmed she had no
recollection about them. One was for the contraceptive pill and the other was for hair
lotion that would not need script. She did not recall one of the patients at all.
99. It was possible that the Zedmed record indicates that she had opened the file but not that
she printed it as there has to be a record from the printer to actually say that she printed
it. All that means was that for some reason, she opened up that record. It may have been
by mistake or intentional. A number of legitimate reasons for opening the file were
given.
100. Anything she might print is not written on script paper and is not signed by her or
anyone. She was shown a statement from the pharmacist and explained that the
document would have had her name on it when it was printed but it may have been
taken off by being crossed out. The statement and a subsequent email that represented
an agreed set of questions to be put to the pharmacist and the response became exhibit
R4. The documents do not establish that the practitioners name was on the document
and is consistent with the practitioner’s evidence
25 This seems inconsistent with the purpose of showing it to the receptionist
35
Other matters
101. In respect of a comment by the Board that there was a frequency and pattern of matters
occurring over a short period after 20 years of no complaints the practitioner correctly
said that the Board haven’t claimed that at any point that her behaviour was on the basis
of any other condition except for poor judgment.
102. The pattern was explicable by the conduct of AC talking to the Board prior to any
complaint and continued communication. The practitioner had made formal complaints
about her use of her records management breaches with her patients. She gave out
records, even of children, without approval, to “random people”. It was a long-standing
issue and included her changing records.26
103. She felt under pressure from rehabilitation providers and one of the complainants had
waited for her with knives in her carpark. There were four incidents of her going to the
police over these threats.27 There was an impact from all these events.
104. The practitioner was cross examined. It is not proposed to set out the cross examination
here but relevant parts have been considered.
The Tribunals conclusion and the structure of the reasons
105. The Tribunal believes based on a combination of the complaints and the matters that
can be found arising from them that there is a risk to persons and immediate action is
warranted. The nature of the risk is not such that a suspension is warranted and a
supervision order is.
106. There are issues with how such an order may be implemented practically and this will
be examined later.
107. Essentially the main reason for this conclusion arises from the following. The Board
had concluded that a supervision order should be made based on the first three
complaints but the writing of a prescription was the trigger to changing that to a
suspension. Mr Gamble was of the same view. However, the Tribunal does not accept
that she did write a prescription but instead printed on a blank piece of paper an
unsigned record of a prescription already written by Dr Cookman. From the evidence of
26 Assume as is likely that the patients had talked to AC and she had enquired of the Board before any complaints had been made, the complaints were still made and this is irrelevant27 There is some material about that provided by CM’s mother including police documents. They do not support this evidence but the Tribunal accepts that the practitioner had a stressful job
36
AC, it may be described as writing a prescription in the software application or program
known as Zedmed but in reality it was no such thing. It was not misleading and the
pharmacist who obtained it was not misled. Whilst the conduct may be regarded as of
concern it does not have the same character as that assumed by the Board or Mr
Gamble.
108. The Tribunal accepts that the matters disclosed by the first three complaints and the
matters in the fourth complaint in combination warrant a supervision order. The
Tribunal does not agree with all the reasons for this conclusion that persuaded the
Board. This is because it has had the benefit of hearing in person the explanation of the
practitioner and some of the factual assumptions that the Board and Mr Gamble made
are not really open.
109. In order to prevent the reasons from becoming even longer than they are what follows
will refer to other evidence in the context of the Tribunal’s consideration of the issues.
110. As can be seen from the Act, the starting point is to see whether there is basis for
considering “that the practitioner's professional conduct is, or may be, of a lesser
standard than that which might reasonably be expected of the practitioner by the public
or the practitioner's professional peers.”28 By reference to section 156 this extends to
performance so that the enquiry may also be whether “the knowledge, skill or judgment
possessed, or care exercised by, the practitioner in the practice of the practitioner's
health profession is, or may be, below the standard reasonably expected.” If the Board
or the Tribunal reasonably believes there is, then the next issue is whether the Board or
the Tribunal reasonably believes there is a consequent risk to persons from such conduct
and thirdly whether “it is necessary to take immediate action to protect public health or
safety”.
Conduct or performance relied on by the Board and discussed by Mr Gamble
111. The Gamble report is in TR2 page 29. He is a lecturer in the education faculty at
Monash University and teaches ethics to psychology students. He was cross examined
but his evidence was unaffected by that. He gave evidence by phone but to the extent
that can be determined he appeared to be a good witness. He was asked some questions
by the Tribunal and in re-examination appeared to seek to find arguments that supported
a suspension. Apart for that reservation, his evidence appeared cogent. As is often the
28 Section 144
37
case the conclusions he makes are really questions for the Tribunal but his explanation
of what is regarded as appropriate practice and how that might apply here was helpful.
112. He was asked to consider whether particular conduct was consistent with the APS Code
of Ethics or other applicable standards for a registered psychologist.
113. The relevant paragraphs relating to the JA complaint are 1(a), 1(b), 1(c), 1(d), 1(e), and
1(g), Most of the questions put make assumptions that the Tribunal believes are not
really open. More probably than not, she did not have the letter and package from JA
and it is not her fault that she did not. 1(a) does not apply.
114. Question 1(b) asks about the practitioner questioning a medical diagnosis and mental
capacity of JA’s sister on the basis of her assessment but without a formal review,
discussion with the GP, case manager or other relevant person. This question also
assumes matters that are not established. The practitioner gave evidence that she
discussed it with Gwen from ADACAS and the GP and she correctly interpreted the
medical reports she did have as not demonstrating that the patient’s cognitive issues
arose from Alzheimer’s. In fact, the Board and JA assume that the patient had this but
the available reports do not establish it. She also gave evidence that she was trying to
get a full assessment. Having said that, the practitioner did dismiss out of hand the
diagnosis of schizophrenia. This may be correct but the full assessment mentioned by
Mr Gamble was needed and her view should have been more qualified. She also
proceeded to participate in activity that facilitated the patient making significant life
decisions about her legal position without the review occurring first. However, she says
and it seems likely that no new legal document was to occur without the GP certifying
that it was in order.
115. Question 1(c) asks whether suggesting to a client that she should get legal advice and
organising it was consistent with her ethical obligations or other applicable standards.
Mr Gamble fairly did not say that was not allowed by itself but thought she had gone
too far and by doing so had crossed the boundaries that are needed to maintain a
professional relationship. He described it as advocacy. This is understood to mean
taking on a role similar to a Public Advocate or ADACAS. To be fair to the practitioner
she had been in touch with Gwen and it was only because Gwen was ill that she had
stepped in.
38
116. In his answer to 1(d) and (g) Mr Gamble deals with recordkeeping. It seems that the
practitioner’s records may not have adequately recorded her visits to the home although
the records were not provided and this is not clear. The records would have been on the
Zedmed program and the practitioner did not have them. Mr Gamble thought that they
were not adequate because the practitioner had said the notes do not add much. The
Tribunal has no belief about that but accepts that the notes should have recorded
unusual events such as home visits. AC says they did not as well. What is clear is that,
even on the practitioner’s evidence she was pivotal in getting the legal documents
prepared and ready to be signed. She had believed that this would not be done without
the GP certifying it was in order but obviously, it would have been prudent if she had
concerns about elder abuse and the need to change the status quo to get this reviewed by
the relevant professional first. Even if the patient would not change her will or sign
other documents without the GP agreeing, there was expense incurred, and more
importantly a heightened expectation by the patient which may be harmful to her if
dashed. The problem with Mr Gamble’s conclusion is that it does not have the benefit
of all the facts. Nonetheless the conclusion he reaches is fair, if overstated. If the beliefs
held by the practitioner were vindicated by the review it would be hard to criticise her.
The Tribunal cannot know that these views are correct and in the absence of that the
Tribunal believes that the practitioner did go too far and it did pose a risk to the patient.
There is no evidence that the patient suffered harm but she may very well be
disappointed with the way things have turned out. JA and GC may have been put to
inconvenience and some expense which is undesirable. Clearly the Act is primarily
aimed at protecting patients or persons who may be harmed by patients but the interests
of close relatives and guardians must be considered as well.
117. Mr Gamble sets out a very good list of matters that should be done. He assumes that the
practitioner did not do those things. The state of the evidence does not make that clear.
Assume it was not done, what harm was caused or might have been caused? The
evidence about this is too uncertain to be capable of enabling the Tribunal to believe it
occurred and if it did that although bad practice it was a risk of any moment.
118. Question 1(e) assumes the lawyer did not know of the mental issues for the patient. She
did as the documents had to be subject to the GP approving it. The Tribunal does not
believe anything can be inferred from this issue.
39
119. In question 2 he is asked a more general question of the same kind as question 1. His
answer in respect of the JA complaint concludes that she did not maintain adequate
records, document and report assessments in a professional manner. She did not remain
objective and maintain professional boundaries. He makes it clear that her departures
were in being over protective and not for any inappropriate reasons. Apart from the
absence of information about the records the Tribunal accepts these general conclusions.
120. It seems clear from the JA notification that the practitioner formed her own view about
the capacity of the patient and that she was the subject of elder abuse by JA. She was at
pains in her evidence to describe her efforts to get an independent review but she had
not achieved this but still assisted the patient by driving her to a lawyer, that she found,
and communicating with another relative. The patient was thus being put into a position
that she would change her will and make other legal decisions that would change her
legal position. This was before there was any independent review. It may be if all the
evidence was heard and the patient was independently reviewed that the practitioner
was right but she really did not have enough information to be sure. Driving a patient to
a legal appointment is not of itself wrong but it does give rise to the issue of a lack of
impartiality.
121. In question 6 Mr Gamble says this notification on its own would not merit suspension.
By itself it may not require a supervision order either. However, because of the other
matters this seems a necessary step as will be explained.
122. The relevant parts of the Gamble report in respect of the CM complaint are questions
1(f), (k), (m), (n) and (o).
123. Question 1(f) relates to writing an attendance certificate referring to a medical
condition. Mr Gamble says this is in breach of the Code of Ethics (COE) c2.1. This is
clearly correct. Not only that, the certificate was for a week and did not appear to be
accurate. The evidence of the practitioner may explain that the reason was innocent but
it is still wrong. Its impact was to mean that the court case was adjourned allegedly. It
may have been adjourned anyway. It is theoretically capable of being misleading,
although a Court would know that a psychologist was not qualified to give such an
opinion.
40
124. Question 1(k) concerned the difficulty in representing the child and the family.
Mr Gamble does not say that this is wrong in itself. In any event the practitioner says
she had previously treated the father but was not doing so then. She seemed to have
some patient relationship with his new partner hence the attendance certificate. She also
says she was not providing psychological treatment to the child but was a member of a
care team. Mr Gamble infers from the tone of the report that she had taken sides. In
cross examination, she said she had not. The Tribunal accepts that she genuinely had
fears for the child and believed what she was writing but the language in the report was
unambiguous and she was clearly favouring her current or former patient(s), the father
and his new partner, in what seems to be a hotly contested dispute. Mr Gamble says the
tone of the report displays a lack of objectivity. This aspect of the complaint is
problematic. The practitioner believed she was treating the family and held genuine
fears for the child. Impartiality is not what is called for if the safety of a child is at risk.
Whilst there are problems for the practitioner arising from the report this does not seem
to the Tribunal to be one of them. In 1(n) Mr Gamble correctly identifies the real
problem of the report. The sources for the opinions are not disclosed. It may be in the
context some of it is known but there are extreme statements in it about CM and they
should be capable of being verified by reference to the basis of the information. Clearly,
the report is not one as an independent expert but of a member of a care team. If it is
wrong, it is capable of causing great harm for the child. It should be written so that the
Court could know whether it was right or not. It must have caused harm to CM, who if
innocent of some or all of the things said about her would be offended or worse and
have a harder time in seeking care of her child. This criticism is also dealt with in 1o. In
1m there is a question about the knives in the carpark incident. Mr Gamble’s response is
appropriately circumspect and perhaps misdirected (not due to any fault of his). There
are not enough facts known about this to say anything useful about it.
125. In respect of the RC complaint paragraphs 1 p, q and r are relevant. Mr Gamble seems
to have jumped to conclusions of fact that are not available on the evidence in 1q. This
complaint cannot be taken to involve anything more than a rant about the behaviour of
rehabilitation providers generally. It is clear from the practitioner’s evidence that she
was doing no more than protecting her client form harassment as she saw it. She was
not assuming any greater role even though her abrasive emails may have threatened
that. The language of her email communications was unprofessional and she should
have calmed down before writing and apologised afterwards. Ms Clark was an innocent
41
bystander in the anger felt by the practitioner about the behaviour of these providers
generally. The Tribunal accepts that the practitioner was provoked and that she had been
placed in an unacceptable situation by rehabilitation providers in the past. That does not
excuse her but it explains the context. What harm is done is uncertain but the extreme
nature of the emails displays a tendency to act emotionally and not rationally and
impartially as is required. This may create a risk to patients and the general public.
126. There are other generalised matters that must emanate from the AC complaint. They
include 1(h) questioning doctors about medication, 1(i) giving clients advice about
medication, 1(j) disclosing confidential information to others without consent, 1(s)
making accusations to AC about deleting appointments and 1(r), refusing formal legal
requests from AC such as subpoenas. There is inadequate evidence from which to form
any belief about these matters.
127. AC gave evidence and was cross examined. She and the practitioner clearly do not get
on. During cross examination, the witness interrupted the questioner and the questioner
interrupted the answer. There was nothing about the demeanour of AC or her evidence
that affected her credibility and she seemed a genuine person. The information about
complaints about AC record tampering, complaints about the practitioner breaching
confidentiality, not allowing subpoenas to be answered and the like all seem to be
highly subjective and lacked any detail. The Tribunal accepts that they did not get on
but from the sketchy nature of this material, cannot draw any conclusions about it. Mr
Gamble does the best he can to answer questions about this but he probably should not
have been asked. Whilst AC provides second hand hearsay about what doctors have told
her, it is too insubstantial in detail to be capable of being acted on. The allegations,
about telling clients that they should change medication, is not corroborated by any
patient and can only be assertions, based on inference from undisclosed sources. There
is simply inadequate evidence on which to base a belief about such an allegation.
Arguing with doctors is not seen as wrong by Mr Gamble assuming patient consent. The
practitioner gave evidence which the Tribunal accepts that she discussed medication
with the GPs in the practice for mutual patients. In the case of JA’s sister, there was a
highlighted concern from earlier reports that her cognitive deficits may be from the
medication. The Tribunal, like Mr Gamble, does not regard this as an issue.
128. The major problem arising from the AC complaint is the prescription. The Tribunal
accepts the practitioner’s evidence about this. It is consistent with the other evidence
42
although Dr Ooi does not remember helping. Mr Gamble in evidence said it was a red
flag. The Tribunal agrees that, if it was as interpreted by Mr Gamble in 1(j), it warranted
suspension. However, it was not. The Tribunal agrees that even as the practitioner
described it she should have waited for a GP to become available and her conduct – as it
really was – may warrant a form of immediate action but it was not such a risk that it
warranted suspension.
129. The Board and the submissions of counsel also addressed some additional factors. Lack
of insight was said to arise from an opening statement that she had not breached her
ethical obligations and her responses to the Board. This may be one interpretation.
Another is that she was stating what she hoped to prove but not that she believed that
she would. In giving evidence she appeared to appreciate where she may have gone too
far and sought to explain it. Whilst she clearly does not recognise, at least expressly,
what was wrong with some of her conduct she does in the Tribunal’s view have insight
if not perfect insight into the issues.
Conclusion
130. Whilst there are some differences between what the Board and Mr Gamble thought
about all the complaints and what the Tribunal believes, the conclusions are for the most
part the same for the same general reasons. In paragraph 2 of his report Mr Gamble lists
problems in remaining objective, providing reports and communications in a
professional manner, and maintaining appropriate boundaries as the standards not being
met. This is fair. He also lists problems with record keeping and stepping outside her
competence in prescribing medication. This aspect is not made out in the Tribunal’s
view. The Tribunal agrees that absent the prescription issue, supervision would have
been sufficient and agrees in general terms with what Mr Gamble says about the nature
of such supervision. So, to be clear, the combination of matters arising from all four
complaints warrant immediate action. It may be that the JA and RC complaint on their
own did not warrant more than some lesser form of action but the CM complaint and
aspects of the AC complaint are such when taken together with the other complaints
warrants stronger action. In considering this, the Tribunal is guided by the injunction to
impose the least onerous conditions necessary.29 For that reason conditions imposing
supervision should be substituted for suspension.
29 Hocking v Medical Board of Australia [2015] ACAT 22 [18]-[21]
43
131. It follows that the Tribunal should order that the suspension be set aside and in its place
a supervision condition should be imposed. When this was raised at the hearing the
practitioner indicated a willingness to undertake this but was concerned about
confidentiality issues and the delay that might ensue if the Board did not agree about a
suitable supervisor. Directions were made allowing further submissions about this issue.
The practitioner seemed to think there was a problem about the suggested conditions the
Board had earlier suggested.
Subsequent submissions regarding supervision
132. The practitioner has provided a very general outline of what she suggests will meet
requirements. The Board has issues with this proposal. The points emerging are as
follows.
Identity of the supervisor
133. Although the practitioner had someone in mind at the hearing she had not nominated
anyone in her submission. The Tribunal will not speculate why not. The Board helpfully
says there is a list of supervisors on its website. I have looked at it and there seem to be
a number in Canberra. The supervisors are approved by the Board but some may be
restricted to taking on new graduates. The practitioner expressed the fear that a delay
would make it self-defeating. The Board says that it approves supervisors on a case by
case basis for this type of supervision. The Board have not nominated anyone. The
suggested conditions in the Board’s submissions of 10 March make provision for the
selection of a supervisor. The order will deal with this in a similar way but hopefully be
more flexible. In general terms, it will require the practitioner to select five names from
the list in order of preference if any. The Board should either choose one being the
highest on the preference list as is acceptable and that person should be asked preferably
by the Board but if not by the practitioner with some supporting documentation from
the Board if he or she would assist. If need be the Tribunal will give liberty to apply if
this hits an impasse.
Practice Location
134. The practitioner is not specific about this but says it should be a place approved by her
and the supervisor. The Board says it should not be approved by the practitioner but by
it. The concerns the Board has are file management record keeping and supervision of
case files. Previously the practitioner worked at a busy medical centre where such
44
services would be available. If the practitioner is to start up on her own she would have
to set up such systems herself and would need a degree of administrative assistance. The
Board says there needs to be approval by it because of the practitioners asserted lack of
insight. The Tribunal does not completely share the Board’s views about that but agrees
that the administrative systems and support need to be provided for. The problem is not
the location in terms of its geographical position but what services are available there. If
there is a supervisor approved by the Board he or she could be trusted to approve it and
if the supervisor becomes concerned could refer it back to the Board as he or she will
anyway generally.
135. In it submission of 10 March 2017 the Board’s solicitor said at paragraph 15:
The Applicant’s evidence of reflection and understanding about into (sic) the notified incidents can be characterised as self-centred, focussed on her own feelings, and while not disputing that the conduct occurred, largely as alleged, not acknowledging the impact of her communications and actions on others. Her lack of insight is notable in that she appears to be unable to see her conduct from the perspective of her clients, colleagues, the profession or members of the public. The evidence of the Applicant during the hearing was consistent with either a complete lack of self-awareness or a wilful blindness, even in the face of expert evidence, to acknowledge any fault in her professional conduct or harm to her clients posed by her practice.
136. This submission is rejected. The practitioners evidence did not accept that all the events
occurred as notified and nor does the Tribunal. Her evidence gave context to the
allegations and was informative. She did not expressly make clear concessions but
many were implied by her evidence. Mr Gamble, an expert called by the Board,
correctly explained that she was not objective and was driven by a strong desire to
protect her clients and thus lost objectivity and fell into error. However, her clear
motive was not from being self-centred. On the contrary, it was a strong desire to help
her patients. If she was correct about her concern that there was elder abuse, risk to the
child in the CM matter, risk to her patients in the RC matter and a need to urgently help
her patient who had lost her script in the AC matter, she might be justified in taking the
risk of harm in order to prevent a greater harm. It may be correct to describe her as
lacking self-awareness but a lay person’s psychological assessment of the practitioner is
not appropriate or of any weight.
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Scope of supervision
137. The Board proposes that there be a review of all cases not only de-identified complex
cases as suggested by the practitioner. The Board argues that the practitioner is not a
good judge of what needs to be reviewed. The identification issue must be related to the
privacy concerns. The Board agrees that confidentiality should be maintained. The
reasons the Board gives for requiring a full review overstate the practitioner’s
shortcomings and are not completely consistent with the Tribunal’s decision.
Nonetheless the Tribunal agrees that there should be a full review. In paragraph 19 of its
submission of 22 March 2017 the Board lists the topics for supervision. Without joining
in the Board’s continued disparagement of the practitioner, the Tribunal agrees with that
list.
138. No attention was given as to how to preserve patient confidentiality in this context. The
condition has been changed to add such a requirement.
139. The Board also requires the registration to specify that in addition to the usual 10 hours
of peer consultation that the practitioner is also required to undertake remedial
supervision. This is seen as avoiding doubt. This seems reasonable.
Frequency and manner of contact reflective reporting by the practitioner, supervisor reports, measurable outcomes and changes to practice
140. The Boards submissions about that seem sensible and will be reflected in the order.
Privacy
141. The Board assumes that the contested assertions of AC about complying with
subpoenas and general criticism of the practitioner by AC are accepted by the Tribunal.
They are not. The requirements of the ACT legislation and the interaction with it and
evidence in court cases is quite complex. The Tribunal does not accept that AC knows
more about it than the practitioner. The concern of the practitioner, that AC might,
without telling her, take her client’s files and send them to a court or a litigant, is not
unreasonable. However, the suggested ethics discussion is beneficial anyway and seems
a good idea.
142. Under this heading there is inserted a further condition that the practitioner not work as
the only psychologist at the premises. It is said to be necessary to protect the personal
information of clients. The Tribunal does not accept this. The assumption that is made,
that the practitioner has disclosed confidential information of clients to others without
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the consent of the patient, is not accepted by the Tribunal. It is based on very general
criticism by AC. The Tribunal has no belief that this occurred and any conditions should
take that into account. Further whilst the notion of working with other psychologists
may well be welcome by the practitioner she may not be able to arrange it. This
condition is far too onerous and is rejected.
Purpose of Supervision
143. The respondent again criticises the practitioner for not setting out a text book definition
of supervision. The Board’s formulation in paragraph 27 is clearly definitive and
accepted by the Tribunal. The Tribunal does not share the Board’s opinion criticising
the practitioner for not making it so clear.
Monitoring
144. This has not been addressed by the practitioner and it needs to be included in any
conditions. The conditions suggested by the Board seem reasonable. The author of the
respondent’s submissions of 22 March in paragraph 31 overstates her criticism of the
practitioner. Such submissions are unhelpful.
Further Education
145. Here the Board seeks to maintain the supervision until an ethics course is undertaken as
suggested by Mr Gamble. However, Mr Gamble had made conclusions that are not
made by the Tribunal and this is not accepted by the Tribunal. The earlier discussion
had a condition requiring an ethics session with the supervisor on a regular basis and
that should suffice. If, during the supervised period the supervisor thinks it does not
then he or she should tell the Board.
Court reports
146. The Board accepts the practitioner suggestion that she give an undertaking about court
reports but says it should not be limited to six months and be unlimited. It could be
limited by the supervisor and this could be achieved by adding after “six months” the
words “or such further period that the supervisor reasonably believes is necessary.” In
any event this should be covered by the matters discussed in the next topic. The author
of the Board’s submissions in paragraph 32 is possibly confused herself about the
differences between an independent expert and a treating doctor. The practitioner saw
herself as providing a report as part of a care team but she was in effect treating the
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family group as her patient. Her report is deficient, whatever her role, and Mr Gamble
explains the matter very well. No doubt the supervisor will reinforce it.
Period of supervision
147. The Board says it is not appropriate to limit the period of the conditions. This was
explained in the submissions of 10 March 2017 paragraph 28 referring to section 159 of
the National Law. The Tribunal assumes that each year a registered psychologist is
required to renew her registration. The conditions last for the year in question. If
renewal is sought the Board may impose the same conditions again. At some point the
supervisor hopefully will report to the Board that the practitioner is fit to have the
conditions removed. The conditions could include this eventuality but otherwise there is
no need or scope to limit the conditions by a time limit. Also, as there are investigations
ongoing the Board might make a final decision about each matter that alters things.
Formulation of Conditions30
148. The orders that the Tribunal makes are as follows:
1. The decision of the respondent to suspend the registration of the applicant notified
by letter of 24 November 2016 is set aside.
2. In substitution for that decision the registration is subject to the requirements of
the following conditions.
3. The conditions be imposed on the applicant’s registration are:
A Definitions
For the purposes of these conditions, 'practise' is defined as any role, whether
remunerated or not, in which the individual uses his or her skills and knowledge
as a psychologist in his or her profession. It is not restricted to the provision of
direct clinical care and includes using the knowledge and skills of a psychologist
in a direct non clinical relationship with a client, working in management,
administration, education, research, advisory, regulatory or policy development
roles and any other roles that impact on safe, effective delivery of services in the
psychology industry.
30 An example of conditions imposed by this Tribunal is contained in the orders in Eastwood v Psychology Board of Australia [2016] ACAT 52
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For the purposes of this condition, ‘supervised’ is defined as so as to require that
the practitioner must consult the supervisor, who is accessible by telephone or
other means of telecommunication and available to attend the practitioner’s
workplace to discuss the management of all clients and/or performance of the
practitioner, when necessary and for not less than a one hour session at weekly
intervals.
B Supervised practice
1. The applicant (the practitioner) must be supervised by another registered
health practitioner (the supervisor) when practising as a psychologist.
2. The practitioner must not recommence practice as a psychologist until she
has received written notice from the Board approving her supervisor(s).
3. The practitioner must, nominate a primary supervisor and at least one up to
five alternate supervisor(s) to be approved by the Board.
4. The practitioner must ensure that each nomination is from the list of
approved supervisors on the respondent’s website and who practise in the
ACT area.
5. The consent of any proposed supervisor must be obtained. This may be done
by the practitioner at the time of nomination and any consent should
accompany the nomination. It should be an acknowledgement, on the
approved form (HPNA13), from each nominated supervisor that they are
willing to undertake the role of supervisor and are aware that AHPRA will
seek reports from them be or by the Board. Alternatively the Board should
seek the consent of any proposed supervisor that it would approve.
6. The practitioner must ensure that:
(a) The nominated supervisors are registered psychologists who hold
unrestricted registration and who have suitable training, experience
and/or qualifications in order to provide the supervision required.
(b) That the nominated supervisors are not relatives or friends of the
practitioner or in a close collegiate or financial relationship with the
practitioner.
7. The nomination is to be accompanied by written authorisation from the
practitioner permitting AHPRA to communicate with each supervisor for
the purposes of monitoring compliance with the condition and to obtain
reports from the supervisor(s) as follows:
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(a) a report must be provided one month from the date that the
supervisor is approved;
(b) after the first month, subsequent reports are to be provided every
three months thereafter;
(c) a report must be provided whenever the supervisor has a concern
or becomes aware of a concern regarding the practitioner's
conduct, health or professional performance; and
(d) when requested either verbally or in writing by AHPRA or the
Board.
8. The Board must approve a nominated supervisor or if none nominated
by the practitioner is suitable then nominate an ACT based supervisor
on its list of approved supervisors that it does approve and who
consents to supervise. The approval should be completed as soon as
possible.
9. The supervision conducted must consist of:
(a) a review conducted by the supervisor of every current client the
practitioner provides psychological services to within one month
from the date the supervisor is approved;
(b) a review conducted by the supervisor of each client’s treatment
plan prepared by the practitioner; and
(c) advice provided by the supervisor on action and systems needed to
establish and maintain appropriate professional boundaries with
regards to each client.
10. The supervision must be on the basis that the patients of the client
consent to the supervisor having access to their health records and
information and the supervisor is bound to treat the information
relating to patients as confidential.
11. Within fourteen days (14) days of recommencement of practice as a
psychologist, the practitioner is to provide to AHPRA, on the approved
form (HP10) acknowledgement that AHPRA may:
(a) obtain information from relevant authorities (such as but not limited to
Medicare); and
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(b) obtain a report from the approved supervisor on a monthly basis.
C Attend for counselling
12. As part of the practitioner’s supervised practice the practitioner must
also undergo counselling, which is a form of supervision, by the
supervisor in relation to the Psychology Board of Australia’s Code of
Ethics focussing on the following issues:
(a) the identification, development and maintenance of strategies for
boundary setting with clients in psychological practice, including
home visits;
(b) the role of an expert witness;
(c) the difference between an expert report and a psychological
assessment;
(d) assessing mental and legal capacity of clients;
(e) privacy law;
(f) obtaining consent from clients;
(g) preparing documentation;
(h) professional communications;
(i) record keeping; and
(j) responding to subpoenas and other legal requests.
13. The counselling must occur on a monthly basis for a minimum of twelve
(12) sessions with each session being of one hour's duration.
14. The supervision should be separate from the practitioner’s general
supervision, relating to her area of practice, which is a general practice
requirement for a registered psychologist.
15. In the event the supervisor is no longer willing or able to provide the
supervision required the practitioner must provide new nominations to
AHPRA in the same terms as previous nominations. Such nominations
must be made by the practitioner within twenty one (21) days of becoming
aware of the termination of the supervision relationship.
16. The practitioner must consult the supervisor, who is accessible by
telephone or other means of telecommunication and available to attend the
practitioner’s workplace to discuss the management of all clients and/or
performance of the practitioner, when necessary and for not less than a
one hour session at weekly intervals.
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17. Within fourteen (14) days of the conclusion of the minimum period of
supervision the practitioner must provide to the Board a report
demonstrating, to the satisfaction of the Board, that the practitioner has
reflected on the issues that gave rise to the condition requiring they
attend for supervision and how the practitioner has incorporated the
lessons learnt in the supervision into their practice and confirming that
the practitioner has not used the hours spent with the supervisor and the
preparation of the report as part of the continuing professional
development requirements for registration.
18. The minimum period of supervision is 12 months.
19. All costs associated with compliance with the conditions on their
registration are at the practitioner’s own expense.
D Location of practice
19. The practitioner may practise only in place(s) of practice approved by the
supervisor.
E Undertaking /Condition re legal/forensic report or evidence
20. It is a condition also that the practitioner not take on any new forensic /legal
matters whilst she is subject to these conditions.
4. The parties have liberty to apply concerning clarification of the conditions or their
practical implementation.
149. The above reasons were prepared and sent for editing before the following
correspondence was passed onto me by the tribunal registry.
150. Submissions from the applicant in reply to the respondent’s submissions of 10 and
24 March 2017 were due by 28 March but before then on 27 March 2017, the
respondent sent to the Tribunal a letter seeking leave to adduce further evidence. The
further evidence consisted of a printout from Medicare for a period from 24 November
2016 to 21 March 2016. It showed seven items of attendance by the practitioner on
patients. Three occurred on 23 January 2017. One occurred on 24 January 2017; two on
7 February 2017 and one on 13 February 2017. There was a stay order made by
Presidential Member Daniel on 13 January 2017 which enabled the practitioner to meet
a patient to refer him or her on to another practitioner. The item recorded for each
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patient was the same and it was consistent with being such a consultation. As earlier
noted the hearing was on 16 and 17 February 2017.
151. The information in the printout all predated the hearing. No evidence of this was
adduced at the hearing when clearly it was available. The printout provided now was
not sought until 21 March 2017.
152. In a court, leave to reopen is normally not given if the evidence was available before.
As the matter concerns the public interest and not just the interest of the party seeking to
adduce the evidence and as the rules of evidence do not strictly apply, the Tribunal will
allow the material to be admitted.
153. What it shows is that the practitioner saw patients only six times in a period of nearly
four months and then not until the stay orders that allowed her to hand over patients and
to see them for that purpose. It does not prove that she breached the suspension order or
the stay order although it is possible that she did on those few occasions. The most
likely explanation is that she was following up on what she understood the stay order
permitted. She may have gone further than the stay order permitted but it cannot be
inferred that she did so knowingly.
154. The practitioner sent her response to this material to the Tribunal. It is not completely
clear what she submits but it appears to be that she was doing what she thought the stay
order meant. She also made a number of other general submissions that do not assist the
Tribunal.
155. The respondent suggests that this new evidence may lead the Tribunal to conclude that
the practitioner will not comply with conditions of supervision. The evidence does not
go that far but, assuming it does, it does not do so to the extent that a supervision order
should not be ordered. If she does not comply with the conditions of supervision, then
the Board will soon know and it would not be in her interest. Any assumed risk to the
public is in the Tribunal’s view protected by the orders above.
………………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
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HEARING DETAILS
FILE NUMBER: OR 24/2016
PARTIES, APPLICANT: Sandra Kaye
PARTIES, RESPONDENT: Psychology Board of Australia
COUNSEL APPEARING, APPLICANT N/A
COUNSEL APPEARING, RESPONDENT Ms Sandra Taglieri
SOLICITORS FOR APPLICANT N/A
SOLICITORS FOR RESPONDENT Ms Boroky, AHPRA
TRIBUNAL MEMBERS: Senior Member B Meagher SC
DATES OF HEARING: 16 & 17 February 2017
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