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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