Beaton v Psychologists Board of Western Australia
[2008] WASCA 223
•3 NOVEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BEATON -v- PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2008] WASCA 223
CORAM: PULLIN JA
MURRAY AJA
HEARD: 28 AUGUST 2008
DELIVERED : 3 NOVEMBER 2008
FILE NO/S: CACV 69 of 2008
BETWEEN: BRUCE BEATON
Appellant
AND
PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE M L BARKER (PRESIDENT)
Citation :THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA and BEATON [2008] WASAT 149
File No :VR 48 of 2007, VR 238 of 2007
Catchwords:
Appeal - State Administrative Tribunal - Order to undergo psychiatric assessment - SAT jurisdiction to compel appellant to undergo assessment - No express power in State Administrative Tribunal Act - Whether SAT considered risk of retraumatisation
Legislation:
Psychologists Act 2005 (WA)
Psychologists Registration Act 1976 (WA)
State Administrative Tribunal Act 2004 (WA), s 82(4), s 105,
State Administrative Tribunal Rules 2004 (WA), r 10
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: In person
Respondent: Mr S D Hall SC & Ms M J Naylor
Solicitors:
Appellant: No appearance
Respondent: Tottle Partners
Case(s) referred to in judgment(s):
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Craig v Medical Board of SA [2001] SASC 169; (2001) 79 SASR 545
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
In the Marriage of GA and MA Hunt (2001) 27 Fam LR 422
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
The Psychologists Board of Western Australia and Beaton [2008] WASAT 149
PULLIN JA: This is an application for leave to appeal against a decision of the President of the State Administrative Tribunal (SAT). The order appealed against is in the following terms:
The [appellant] at the expense of the Board is to attend upon a consultant psychiatrist nominated by the [respondent] for three consultations for the purpose of examination and reporting in relation to:
(a)the state of psychiatric health of the respondent; and
(b)the respondent's fitness to participate in these vocational regulation proceedings.
There were various machinery orders which followed that order.
The facts giving rise to the order to undergo psychiatric examination
The respondent commenced two sets of disciplinary proceedings in the SAT pursuant to the Psychologists Registration Act 1976 (WA) against the appellant, to remove his name from the Register of Psychologists in Western Australia or alternatively to suspend him from practicing as a psychologist and to impose a fine. The Board sought these orders for alleged breach of s 47 of the Psychologists Act 2005 (WA) on the basis that the appellant had improperly treated a patient in the period May 2004 to March 2005 and had been convicted in the District Court of contempt of Court whilst registered as a psychologist. Some of the orders sought by the respondent may not be available to it by reason of s 78(2) of the Psychologists Act 2005; however, the appellant takes no issue as to this, so it is not necessary to address it in this appeal.
Mr Beaton failed to attend directions hearings scheduled before the SAT on 8 and 29 April, nor did he attend via telephone link. Nevertheless from material submitted by the appellant, the SAT considered the appellant to have made an application to permanently stay the proceedings on the basis of his incapacity to represent himself due to his health circumstances.
The SAT had before it a report of a Professor Lipton, consultant psychiatrist, dated 8 April 2008. Professor Lipton, in his report, said that Mr Beaton had been referred to him by Dr Knight, a general medical practitioner. Dr Knight informed Professor Lipton that she felt that Mr Beaton's condition fitted the criteria of post‑traumatic stress disorder. Professor Lipton reported that he had interviewed Mr Beaton on three occasions for a period of four hours, and the report set out what had been said by Mr Beaton and what Professor Lipton observed. Under the heading 'Diagnosis', Professor Lipton said:
Post‑traumatic stress disorder (ICD 10 F43.1)
It should be noted that whereas DSM IV stresses the life‑threatening nature of the trauma in Post‑Traumatic Stress Disorder, ICD 10 requires that 'the patient must have been exposed to a stressful event or situation (either short or long‑lasting) of exceptionally threatening or catastrophic nature, which would be likely to cause pervasive distress in almost anyone'.
This clearly describes the situation in which Mr Beaton felt himself and is more than adequate to describe his continuing symptoms, which are classical of the condition.
It appears that the trauma which is said to have occurred was the fact that Mr Beaton had been arrested and charged with criminal offences had ceased practicing as a psychologist, and that the process of arrest, the charges and the trials amount to the trauma. What is immediately observable from Professor Lipton's report is that he does not express any opinion about whether these events would cause post‑traumatic stress disorder 'in almost anyone'.
However, Professor Lipton, in his final paragraphs of his letter said:
In my view Mr Beaton, unrepresented, would not be able to co‑operate with, or defend himself in a hearing of the Tribunal. This is because his thought processes are clearly interfered with by severe anxiety and depression when he has to face issues that relate to the matter at hand.
In effect there is a very real possibility or even probability that being required to review the matters that would be the subject of the hearing might lead to further re‑traumatisation or at least severe exacerbation of the trauma he now suffers.
These views would be less applicable in the event that Mr Beaton were to be appropriately legally represented. His capacity to arrange this is beyond my purview.
The tribunal also had before it a letter from Dr J L Knight dated 23 April 2008, stating that she had been Mr Beaton's general practitioner for many years. The report says that it had taken several years to have 'his innocence vindicated by the courts'.
Dr Knight's letter continued that Mr Beaton had 'reactive hypertension', that he 'certainly fulfils criteria for post‑traumatic stress disorder based on the ICD‑10' and that she had 'asked for psychological review to confirm my diagnosis and offer management strategies for him'. The report continues:
I am fearful for his cardiovascular and emotional well‑being with his prolonged exposure to impossible stressors. As you are aware, there are many studies that implicate the role of stress on adverse cholesterol, blood pressure and blood sugar readings and the risk of prolonged exposure to stress for cardiac events.
The letter continued:
I hold grave concerns for his health if he has to present before the tribunal, and it is my strong opinion it should be avoided if at all possible.
The tribunal also had before it a document entitled 'Defence of Mr Bruce Beaton' signed by Rosemary Lyndall Wemm. Under Ms Wemm's name appeared 'Member, American Psychology Society, on behalf of Bruce Beaton'. This document discloses that Ms Wemm resides in California and was a former colleague of Mr Beaton with whom she had shared a number of patients. The defence referred to the 'precarious health' of Mr Beaton. It submitted that the respondent had been presented with 'multiple evidence that Mr Beaton suffers from [post‑traumatic stress disorder] and that the [respondent's] behaviour towards him has exacerbated these serious health problems' and that the 'case brought by the [respondent] should not be allowed to proceed'.
The appellant asked the tribunal whether Ms Lyndall Wemm, who is not a lawyer, could represent or assist him during the proceedings. The President declined to allow her to represent the respondent. Eventually, the respondent proposed that Ms Lyndall Wemm be given leave to represent the appellant in the tribunal and the appellant then offered reasons opposing the grant of leave and an order was made by the tribunal that Ms Lyndall Wemm not be granted leave to represent the respondent.
By email dated 30 April 2008, the associate to the president of the tribunal informed Mr Beaton that the president had reserved his decision in relation to the application to have the proceedings permanently stayed. The email continued:
He is also taking time to consider the submissions of the Board, namely that before any stay order is considered, you should attend three sessions with a psychologist nominated by the Board and that a hearing should be held to have that psychologist and Dr Lipton confer, and to allow the Board to ask questions of Dr Lipton.
Justice Barker has asked the Board to provide some legal argument as to whether the Tribunal has the power to permanently stay these proceedings and also whether the Tribunal has the power to order you to attend three sessions with a psychologist nominated (and paid for) by the Board. If you would like to make submissions on these, or any other issue relevant to these proceedings, please do so as soon as possible.
By letter dated 10 May 2008, Mr Beaton made submissions and during those submissions stated:
My health advisors have expressed strong opposition to the possibility of me presenting for another psychiatric assessment of my post‑traumatic condition as proposed recently by the Board.
A little further down he said, in his submissions:
There is already no doubt that I have post‑traumatic stress disorder (PTSD). Two appropriately qualified health professionals have recently diagnosed me as suffering from this condition: Dr Jennifer Knight and Prof George Lipton. Both have made my health status clear to the Board and to the SAT and this information has been repeated several times. Dr Lipton, the senior of these two, has utterly impeccable qualifications that enable him to make an objective diagnosis and the Board needs to heed this. Prof Lipton identified the Board's actions as a significant cause of the syndrome's acute re‑activation and has relayed this information in writing to the SAT. A recent letter of Dr Knight is attached. She points out again, concerns for my physical and mental wellbeing should I be subjected to another assessment for PTSD.
Attached to these submissions was another letter from Dr J L Knight (undated) which read:
I would like to emphasise the precarious nature of Mr Beaton's mental health, especially in the light of the report of Dr George Lipton, who I believe to be a part‑time member of your own board. I am unable to see the necessity of this assessment, and know it will severely traumatise this already depressed man. I am already very concerned that he is barely coping, despite relocation away from Perth and that further examination will render him functionless or at worst suicidal. Is not the report of Dr Lipton adequate? I am even more concerned as Mr Beaton finds returning to Fremantle for follow-up here traumatic leaving me little capacity to monitor his well‑being in the wake of any appointments with yourselves.
The tribunal's reasons for decision
In the tribunal's reasons for decision The Psychologists Board of Western Australia and Beaton [2008] WASAT 149, the tribunal referred to the fact that it had invited written submissions 'which it duly received in writing from each of the parties'.
As to the issue about whether the tribunal had any power to order the appellant to undergo a psychiatric medical assessment for the purpose of proceedings in the tribunal the tribunal observed that neither the State Administrative Tribunal Act 2004 (WA) (SAT Act) nor the Psychologists Act contained any express powers by which the tribunal may order a person to undertake independent psychiatric medical assessment for the purpose of proceedings in the tribunal. However, the tribunal followed Barlow J's reasoning in In the Marriage of GA and MA Hunt (2001) 27 Fam LR 422. In that case the wife said she was unable to work because she had significant health problems. The husband asked for an order that the wife undergo an independent medical examination to help the court determine the spousal maintenance application. Barlow J decided that a statutory court such as the Family Court, had the incidental and necessary power to order a wife to attend a doctor for medical examination to enable the court to determine a spousal maintenance application by the wife [18]. The tribunal adopted the same reasoning. It held that the SAT, which is a statutory tribunal with no inherent jurisdiction, had the incidental and necessary power to order medical assessment of one of the parties before it. The reasons were expressed in the following terms:
In the present case before the Tribunal, the [appellant] claims on psychiatric grounds to be unable to represent himself adequately in the proceedings brought against him by the Board and to have no-one else who can effectively assist him. He has filed a medical report from Professor Lipton in which the opinion is expressed that the problems that may exist 'would be less applicable in the event that Mr Beaton were to be appropriately legally represented'. The [appellant] relies on this expression of opinion to support his application that the Board's proceedings be permanently stayed.
It seems clear enough that, if the [appellant] wishes to maintain his submission, the issue of his capacity, or lack thereof, to represent himself can only be determined in a fair way if the Board is permitted to obtain an independent psychiatric medical assessment of the [appellant].
It is not fair, in circumstances such as these, for the [appellant] to insist that the only medical opinion the Tribunal can have regard to determining his stay application is that of the consultant psychiatrist he has consulted.
Therefore, in these circumstances, the Tribunal is of the view that it has the incidental and necessary power in relation to the determination of the question whether these vocational regulation proceedings should be permanently stayed, to order the [appellant] to undertake an independent psychiatric medical examination. [65] ‑ [68]
The appeal
The appellant filed an appeal notice on 10 July 2008. The appellant then applied for a stay of SAT's orders pending the hearing of the appeal. By consent, a stay was granted on the basis that there be an urgent appeal order which was made on 15 July 2008.
The grounds of appeal read:
1.The State Administrative Tribunal (the 'Tribunal') erred in law in holding it had jurisdiction to order by means of mandatory injunction that the Appellant attend and be examined by a psychiatrist.
2.The Tribunal erred in law in enjoining the Appellant to undergo psychiatric examination, where such examination would cause the Applicant further psychological injury, in that the danger of such injury was a necessary consideration which the tribunal failed to take into account.
3.The Tribunal erred in law by making an order which, in all the circumstances of the case and having regard to the likelihood of harm to the applicant, was so unreasonable that no reasonable authority could make it.
4.The Tribunal erred in law by making an order which, in light of fresh evidence of the danger of injury to the appellant that has since emerged, was so unreasonable that no reasonable authority could make it.
PARTICULARS OF FRESH EVIDENCE
The fresh evidence was evidence not known to the Appellant at the date of the hearing or which, given the disabling mental illness under which the appellant laboured as an unrepresented litigant, could not reasonably have been capable of having been known to be available to him. The fresh evidence comprises:
i)The medical evidence of the danger of injury in the opinion of psychiatrist Dr George Lipton dated 8th April 2008;
ii)The medical evidence of the danger of injury in the opinion of general practitioner Dr Jennifer Knight dated 10th July 2008, and;
iii)The expert evidence of the injury of harm in the opinion of psychologist Rosemary Lyndall Wemm dated 9th July 2008.
Appeals from SAT
The appeal is brought under s 105 of the SAT Act. Section 105(1) requires the grant of leave. Section 105(2) states that an appeal can only be brought on a question of law but s 105(13) states that:
Despite subsection (2), if the Tribunal's decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of a person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
The Psychologists Registration Act is a relevant Act for the purposes of s 105(13).
The power to grant leave is conferred in general terms. See generally Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. It is not restricted or qualified and leave should be granted if in all the circumstances it is in the interests of justice that there be a grant of leave. Even if there is error, it is necessary to show that if the error is not corrected, it would result in the imposition of substantial injustice. See Paridis [16] ‑ [17]. In this case the order is an interlocutory order and the principles which apply in determining whether leave should be granted from an interlocutory judgment or order, give rise to similar considerations.
Ground 1
The tribunal did not hold that it had 'jurisdiction' to order by means of a mandatory injunction that the appellant attend and be examined by a psychiatrist. In fact, the tribunal considered and discounted the possibility of granting an injunction. See the tribunal's reasons [58] to [60]. In fact no question of jurisdiction arises at all. The decision which the tribunal made was that it had the incidental and necessary power to make the order that it did for the reasons set out between [45] and [68]. The issue was one of power rather than jurisdiction. See Jackson v Sterling Industries Ltd (1987) 162 CLR 612. In effect, the tribunal considered that it had an implied power as to which see DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 and Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [130]. There being no challenge to that conclusion, it is unnecessary for the court to scrutinise the tribunal's reasoning.
Ground 1 therefore has no merit.
Ground 2
Ground 2 alleges that the tribunal erred in making the order because the tribunal failed to take into account a relevant consideration, namely whether the examination ordered would itself cause Mr Beaton further psychological injury.
This appears to be a reference to Dr Knight's undated letter which was annexed to Mr Beaton's submissions, dated 10 May 2008, which expressed 'concern' that he was 'barely coping' and that 'further examination will render him functionless or at worst suicidal'.
No reference was made to this letter in the tribunal's reasons. The question and the resolution of the question about whether or not a further examination would render the appellant 'functionless' or 'suicidal', would be relevant to the exercise of the discretionary power to make the order it did.
The fact that a reference was made to Professor Lipton's report, but no reference at all to the undated letter of Dr Knight, leads me to the conclusion that the question was overlooked. However, this does not mean that the tribunal failed to take into account a 'relevant consideration'. An objection to a decision based on an alleged failure to take into account a relevant consideration can only succeed if the decision‑maker fails to take into account a consideration which he is bound to take into account when making that decision: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
Relevant considerations the tribunal was bound to take into account are to be ascertained by implication from the subject matter, scope and purpose of s 47 and s 73 of the SAT Act read in the context of the Act as a whole: Peko‑Wallsend Ltd, 40 (Mason J). The wider the discretion the more difficult it is to list considerations which the decision‑maker is bound to take into account. The broad nature of the discretion in this instance makes it difficult to list the considerations which the tribunal was bound to take into account when making the decision. However, 'to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice': Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 [24] (Gummow & Callinan JJ), [95] (Hayne J).
While a court or tribunal is not obliged to refer in its reasons to every piece of relevant evidence in a case, the question about whether the appellant might be rendered suicidal if ordered to undergo further examination was a point which had to be considered. The tribunal's failure to refer to this question in its reasons means that it should be taken that it was overlooked, rather than taken into account, but not referred to: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, [48] (Gummow and Hayne JJ); applying Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [30] which refers to circumstances where a court fails to refer to a relevant principle of law. By analogy, the failure to refer to Dr Knight's report which was potentially highly relevant to the exercise of the discretion to be exercised means that this court should regard it as having been overlooked and a failure to accord natural justice. The tribunal therefore erred in law.
Section 105(9) of the SAT Act provides:
The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal;
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
In my opinion there would be no point in sending the matter back for reconsideration because there is no suggestion that there should be any other evidence adduced. This court is therefore in as good a position as the tribunal to have due regard to whether further examination, in itself, would cause Mr Beaton further psychological injury.
The position is this: Dr Knight referred the appellant to Professor Lipton. In the words of Professor Lipton, Dr Knight asked for his assistance 'in establishing the diagnosis and suggesting a treatment approach' for Mr Beaton. As a general practitioner, Dr Knight was clearly deferring to Professor Lipton's expertise as a consultant psychiatrist in the diagnosis and treatment of post‑traumatic stress disorder. The opinion of Professor Lipton was that the appellant was 'extremely distressed' and displayed 'overt anxiety' in the first interview, which distress emerged again later 'even when he appeared to be more comfortable with the situation.' However, Professor Lipton goes on to say that '[the appellant] was quite guarded at his first interview but as he got to know me seemed to relax in the relationship and related well.' Professor Lipton raised no issue as to further examination causing Mr Beaton further psychological injury and he offered no opinion that further interviews by other properly qualified experts taking proper care would cause the appellant to become suicidal.
As a result, it seems clear from the evidence that the stress and anxiety of having to attend consultations with a consultant psychiatrist nominated by the respondent, as ordered by the tribunal, could be appropriately managed as described by Professor Lipton. As a qualified medical professional, the consultant psychiatrist appointed would be required to observe the same standards of treatment of any other medical professional. In the same way that Professor Lipton was able to ease the patient's anxiety in order to help him relate his experiences and then deal with any re-emerging trauma, the consultant psychiatrist appointed would have strategies in place to ensure the appellant's comfort during the interviews and on-going mental well-being.
The result is that the decision of the tribunal, although in error by not dealing with the question about the effect of further examination, results in no injustice and the application for leave to appeal in relation to ground 2 should therefore be refused.
Ground 3
The tribunal's decision when supplemented by the reasons given in relation to ground 2 mean that it was not unreasonable in the Wednesbury sense. See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Ground 4
The information referred to in the three paragraphs of the particulars to this ground is not 'fresh' evidence as that word is understood in appellate proceedings. See De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. The report of Dr Lipton dated 8 April 2008 referred to, not only existed at the time of the hearing, but it was before the tribunal. The reference in particular (ii) is a reference to an affidavit sworn 10 July 2008. It does not add anything to the letter of 23 April 2008 referred to above; and it does not repeat the 'concern'
expressed by Dr Knight in her undated letter attached to Mr Beaton's letter of 10 May about further examination rendering the appellant 'functionless' or 'at worst suicidal'. The 'evidence' of Ms Wemm referred to in particular (iii) is an affidavit filed in this appeal which is in effect a submission based on Dr Lipton's and Dr Knight's reports.
Even if there had been 'fresh' evidence, then there would be no reason why Mr Beaton could not have sought a rehearing pursuant to the SAT Act s 84(2). An application to extend time to make such an application could have been made under r 10 of the State Administrative Tribunal Rules 2004 (WA). Although it would have been a matter for the tribunal if such application had been made, it would seem likely for this type of case, that an extension of time would have been granted and a rehearing granted if there had indeed been fresh evidence. That being so, the appellant would not suffer substantial injustice if it had been established that there was relevant 'fresh' evidence but the appeal was dismissed.
As a result, leave to appeal should be refused.
MURRAY AJA: In this matter I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with them. The inevitable result is, I agree, that leave to appeal must be refused.
In parting with the case, however, I wish to make the following observations in relation to matters which were touched upon in the written submissions before us, but, having regard to the terms of the application for leave and the grounds advanced in support thereof, do not strictly arise for decision on the appeal.
As Pullin JA has noted, there are before the State Administrative Tribunal (SAT) two sets of disciplinary proceedings brought against the appellant by the Board. The first is an application made on 1 March 2007 before the Psychologists Act 2005 (WA) was proclaimed to come into operation on 4 May 2007: s 2 and the Government Gazette of 4 May 2007, p 1963. That matter could be continued under the operative provision, s 78 in this case, of the 2005 Act: see the transitional provisions under s 107: Sch 2 cl 13.
That application was given the number VR 48 of 2007. It relied on the appellant's conviction for contempt of court in the District Court on 1 February 2007, for which the appellant was fined $10,000. The relief sought by the respondent was that the appellant be struck off the register
of psychologists, or alternatively suspended from practice for a period of up to 12 months.
Generally speaking, under the 2005 Act, a 'psychologist' is a person who is registered as such: s 3. A register is maintained by the Board. It is registration which entitles a person to call himself a psychologist and to undertake the practise of psychology: s 32. Registration is current for a year and always expires on 30 June: Psychologists Regulations 2007, reg 11. Registration may be renewed on payment of a fee which must be paid on or before the day upon which it falls due. Failure in that regard ends the registration and 'the person's name must be removed from the register': s 34(1).
The appellant did not seek to renew his registration. Indeed, he had applied to have it cancelled shortly after the proceedings in the District Court, telling the Board that he did not propose in future to practise as a psychologist. The Board declined to cancel the registration. It was entitled to do so under s 39. It is clear that the Board wished to have the appellant's name struck off the register and after the registration expired the Board purported to 'waive' the fees payable, under reg 20. The regulation empowers the Board to authorise 'the reduction, waiver or refund of any fee', but there was no application under s 34(5) of the Act for the remission of fees in arrears. In any event, I think it is clear, in the circumstances of this case, that the appellant ceased to be a psychologist within the meaning of the Act upon the expiry of his registration on 30 June 2007.
That did not end the disciplinary proceedings which were VR 48 of 2007, but it affected the powers that the Tribunal might exercise in respect of those proceedings by way of final order: s 78(2).
The Board wrote to the appellant, advising him of its purported waiver of the registration fee payable under the regulations, on 5 November 2007. In that letter the appellant was advised that he continued to be registered, but his future practice as a psychologist was subject to conditions.
On 4 December 2007, the Board made its second application to the SAT. It was given the number VR 238 of 2007. The relief sought was again that his registration be cancelled and his name removed from the register, or that he be suspended from practice for a period of up to 2 years. In addition, an order was sought that he pay a pecuniary penalty. The application was grounded in complaints about the appellant's conduct towards a patient, from about May 2004 to March 2005, a period when the appellant's registration as a psychologist was current. Section 51(2)(b) provides a power to lodge a complaint in relation to a disciplinary matter in respect of a person who was a psychologist when the matter allegedly occurred, but who is no longer a psychologist. The proceeding having been brought before the SAT, it would seem clear that it must be dealt with, but within the regime of limited powers preserved by s 78(2).
Ordinarily, under s 78(1), the SAT has an ample discretion conferred upon it. Even if it finds that a disciplinary matter exists, it may decline to make any order. Where appropriate in relation to a minor matter, it may caution or reprimand the person the subject of the application. Section 78(1)(d) provides for the resolution of cost disputes as between psychologist and patient. There are provisions designed to govern the continuation in practice of the respondent to the application, and a pecuniary penalty up to $25,000 may be imposed where that would be appropriate for proper disciplinary purposes: see Craig v Medical Board of SA [2001] SASC 169; (2001) 79 SASR 545, 555 [47] per Doyle CJ. For the most serious cases, the SAT may order cancellation of the person's registration and removal of the name from the register, and an order may be made suspending the person from the practice of psychology, generally or in specified circumstances, for a period not exceeding 2 years.
Putting to one side the power to decline to make an order or to issue a caution or reprimand, the power now available to the SAT, if the matter is to go on and the Tribunal should ultimately determine that, in relation to either or both proceedings, a disciplinary matter exists, would be limited to a power to impose a pecuniary penalty, a remedy not in fact sought in the matter VR 48 of 2007, which relies upon the conviction for contempt of court upon the refusal to answer questions in the criminal proceedings, which ultimately resulted in the appellant's acquittal.
As I said at the outset of these observations, the matters which I have been discussing, although touched upon in submissions before us, are not before the court for determination in the application for leave to appeal. That application relates to interlocutory processes available to the SAT, and I have expressed my agreement with the reasons of Pullin JA, for which his Honour is led to the conclusion, as am I, that leave to appeal should be refused. It is for others to determine whether, in the present circumstances, the proceedings before the SAT have a utility for disciplinary purposes which justifies their continuation.
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