Eastwood v Psychology Board of Australia - [2016] ACAT 52

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EASTWOOD v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Discipline) [2016] ACAT 52

OR 14/2015
Catchwords: OCCUPATIONAL DISCIPLINE – psychologist – provision of inadequate, inaccurate or misleading information by the applicant in a health record of a client – conditions imposed

Legislation cited: Health Practitioner Regulation National Law (ACT) s 178, 199, 202

Tribunal: Senior Member G Lunney SC
Member Professor D Byrne

Date of Orders:  25 May 2016
Date of Reasons for Decision:         25 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          OR 14/2015
BETWEEN:
NOEL EASTWOOD
Applicant

AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent

TRIBUNAL: Senior Member G Lunney SC

Member Professor D Byrne

DATE:25 May 2016
ORDER

The Tribunal Orders that:

The following conditions be imposed on the applicant’s registration:
(a)The applicant is required to engage in monthly supervision of his practice, for a period of not less than six (6) months from 1 June 2016, from a psychologist approved by the respondent. The supervision is required to address the identification and the development of strategies for the management of:
(i)     the breadth of the three general principles listed in the Australian Psychological Society Code of Ethics; and
(ii)     the Australian Psychological Society, Guidelines on Record Keeping.
(b)The supervision and other costs of compliance with these conditions is required to be undertaken at the applicant's own expense.
(c)The applicant is required to provide to his supervisor, a copy of the conditions. The applicant is required to stipulate as part of his contract with the supervisor, that the supervisor provide written reports at three (3) monthly intervals at his own expense, to the respondent as to the applicant's progress and participation in supervision. The reports are to include the frequency and the content of the supervision.
(d)The applicant is required to provide the respondent upon completion of the period of supervision, a report written by him demonstrating:
(i)     that he has reflected on the ethical issues raised by the notification
(ii)     that he has met the objectives of the supervision
(iii)     how he will incorporate the learnings of supervision into his practice of psychology.
(e)If the respondent is not satisfied that the report demonstrates that the applicant has met the objectives of the supervision and/or he has not satisfactorily reflected on the issues that arose from the notification, he may be required to undergo further supervision as determined by the respondent.

………………………………..
President E Symons
for and on behalf of the Tribunal

REASONS FOR DECISION

This is an application made by a psychologist (the applicant) to appeal against a decision of the Psychology Board of Australia (the respondent). The decision was made by the respondent on 13 April 2015, and was communicated to the applicant on 20 April 2015. The decision was as follows:
On 13 April 2015, the Board considered your submission and decided to take action under section 178(2)(a) of the Health Practitioner Regulation National Law ACT 2010 (sic) (the National Law) to caution you and impose conditions on your registration.
The decision to impose a caution is not reviewable. However, the decision to impose conditions on registration is an appellable decision.[1] The application to appeal was lodged on 18 May 2015, and was heard on 10 September 2015.

Background

[1] Section 199(1)(e), Health Practitioner Regulation National Law (ACT)

In this decision:
(a)‘the Agency’ refers to the Australian Health Practitioner Regulation Agency;
(b)‘the report’ refers to a medical report written by the applicant on a Centrelink standard form relating to an application for a disability support pension made by the client;
(c)‘the complaint’ refers to the notification (complaint) completed by the complainant on a form issued by the Australian Health Practitioner Regulation Agency;
(d)‘the client’ refers to the client of the applicant who is the subject of the report written by the applicant; and
(e)‘the complainant’ refers to the former partner of the client who made a formal complaint to the Agency on a form issued by the Agency for that purpose.
The complainant and client separated approximately four years before the complaint was made. They had four children who remained in the care of the complainant. There were disputes regarding the former family home and finances. There was litigation in the Family Court, and involvement of the Child Support Agency. At one stage the client ceased work and applied for bankruptcy.
The client gave evidence at the hearing and said that he had been referred to the applicant by his general practitioner regarding depression in the context of the family issues. He commenced treatment in 2013 for depression and on about 9 September 2013 asked the applicant to provide him with a medical report for the purposes of his application for a disability support pension. He delivered the form and asked for urgent attention to it. He picked up the completed form later the same day and submitted it. He said that he had not given consent for the report to be released to the complainant. It seems that the report came to the complainant as a result of the processes of the Child Support Agency (CSA).
In a section of the report headed ‘Condition 1-condition with most impact’ under a sub-heading ‘Clinical Features, part H History’, the applicant provided the following assessment in response to a question: ‘Provide details of underlying causes and contributing factors, results and dates of investigations/procedures and specialist consultations’.
In 2009 (the client’s) wife destroyed him and took everything he had including turning his children against him – this is the worst nasty divorce I have encountered – he is shattered by it.
Still under Condition 1 under the sub-heading ‘K Impact on ability to function’, the applicant provided the following details of his opinion that the client’s ability to function would fluctuate over the next two years.
(The client) loves his children, they have been turned against him methodically (aka Parental Alienation Synd) he now is only seeing one child the others only occasionally will talk to him – this affects him on a regular + fluctuating basis.
When the complainant received a copy of the report she complained to the Agency. In her complaint she referred specifically to the above statements and said that she found them inaccurate, distressing and hurtful. She had never met the applicant and had no opportunity to answer or counter his statements in any effective way. She asserted that his statements would have been one factor that the CSA would have taken into account in assessing the applicant’s application for reduction in support payments.
The AHPRA Manager of Notifications wrote to the applicant on 22 January 2014. She enclosed a copy of the complaint which attached a copy of the medical report.
The applicant was asked to respond to the notification. The applicant was advised that the Psychology Board would conduct an assessment of the notification to decide whether or not further action was required. He was asked to provide a written response to the notification together with any relevant material. That material would be considered by the Board. The response might be passed to the complainant, but he could identify confidential or sensitive material which would not be passed to her. After consideration of the response, he would be notified of the Board’s decision.
The applicant responded by letter of 12 February 2014. He stressed that the report had been provided to Centrelink. He made the following statement in the course of that response.
The report in question, a Disability Support Pension Medical Report provided to Centrelink, is an earnestly expressed opinion of my client’s psychological and functional condition and accurately describes the external factors which impact his condition and prognosis, in accordance with self reporting and my observations in consultations and counselling sessions.
This report was preceded by an earlier report addressed ‘to whom it may concern’ dated 3 July 2013. Omitting formal parts, it read as follows.
I have been seeing (the client) for some months for psychological support, he has been seriously psychologically affected by his divorce and is currently unfit for work. I believe he will remain unfit for work for some time while he continues to undertake counselling.
A minute of a board meeting indicates that the Board met on 17 March 2014 and determined that an investigation should be commenced, and the Director of Notifications appointed an investigator. The investigator wrote to the applicant on 7 August 2014 notifying him of his appointment and telling him that the issue for investigation was:
… the provision of inadequate inaccurate or misleading information by you in a health record of (the client).
The investigator invited a written response to that issue including but not limited to addressing the applicant’s choice of wording in the Centrelink report in which he commented on the client’s relationship with his former wife and children.
An investigation report was prepared, and was presented to a meeting of the Board on 8 December 2014 together with a recommendation from the ACT Notifications Director of AHPRA. The Board’s decision was to propose to caution the applicant and to impose conditions on his registration relating to supervision in his practice and education. The conditions were:
1. Mr Eastwood is required to engage in monthly supervision of his practice, for a period of not less than twelve (12) months, from a psychologist approved by the Board. The supervision is required to address the identification and the development of strategies for the management of:
a. the breadth of the three general principles listed in the Australian Psychological Society Code of Ethics; and
b. the Australian Psychological Society, Guidelines on Record Keeping.
2. The supervision is required to be undertaken at the psychologist's own expense.
3. Within 28 days of being informed of the Board's decision, Mr Eastwood is required to provide to AHPRA the names of at least three proposed supervisors and their Curriculum Vitae. If the proposed supervisors do not meet the requirements of the Board, Mr Eastwood may be directed to submit details of alternative supervisors.
4. The proposed supervisor should (a) have held general registration as a psychologist for a period of not less than seven (7 years); (b) not be in a close collegiate, social or financial relationship with the psychologist; (c) have not less than five (5) years experience as a supervisor of registered psychologists; and (d) have training, experience and/or qualifications in
the relevant area of practice specified by the Board.
5. Further, if the psychologist intends to propose an existing or previous supervisor for this purpose, the psychologist and the supervisor must be willing to attest in writing that the supervisor did not have significant knowledge of the subject matter of the complaint at the time it allegedly occurred.
6. The supervision should commence within 28 days after receiving notification of approval by the Board of the proposed supervisor. Mr Eastwood is required to provide to his supervisor, a copy of the conditions. Mr Eastwood is required to stipulate as part of his contract, that the supervisor provide written reports six (6) monthly interval at his own expense, to AHPRA as to the psychologist's progress and participation in supervision. The reports are to include the frequency and the content of the supervision.
7. Mr Eastwood is required to provide AHPRA upon completion of the period of supervision, a report written by him demonstrating:
a. that he has reflected on the ethical issues raised by the notification
b. that he has met the objectives of the supervision
c. how he will incorporate the learnings of supervision into his practice of psychology.
8. If the Board is not satisfied that the report demonstrates that Mr Eastwood has met the objectives of the supervision and/or he has not satisfactorily reflected on the issues that arose from the notification, he may be required to undergo further supervision as determined by the Board.
9. The costs associated with the compliance of these conditions are to be met by Mr Eastwood.
This proposed action was notified to the applicant by letter on 29 January 2015. He was invited to provide written or oral submissions to the Board.
The applicant provided a written response on 20 February 2015. In this response he complained that he had not been asked to address any specific statements that reflected the issue alleged. He alleged that he had thus not been afforded an adequate opportunity to comment and explain.
The Board then met on 13 April 2015 and confirmed the proposed action.

The hearing

At the hearing, the applicant tendered a statement of the client and he was called to give evidence and be cross examined.
In accordance with directions of the tribunal, each party filed a statement of facts and contentions.
The applicant devoted most of this document to asserting failures of the original decision maker in respect of specification of its findings and in respect of his submissions. It is perhaps appropriate to note at this stage that this Tribunal is less concerned with the methodology of the original decision as it is to identify the correct or preferable decision.
During submissions, counsel for the applicant did make some concessions. She said that the applicant did accept that in relation to the material in Section H he should have indicated that he was reporting what he had been told by his client, and that rather than repeating the client’s words, the material in this section should have been his assessment of the underlying factors. The reference to parental alienation syndrome was a term used by his client in discussions with him, and was most likely coined by the client himself. It has no accepted validity or common usage in psychiatric terminology and is not a term that a trained psychiatrist or psychologist would be likely to use.
However, there is no hint of those concessions in the applicant’s reply to the respondent’s statement of facts and contentions which was filed on 7 September 2015, three days before the hearing.
The applicant did however take issue with the period for which the conditions on his registration were imposed and what he regarded as the open ended nature of the conditions. These were submissions developed effectively by his counsel at the hearing.
Dr Christopher Boyle gave evidence as an expert, on behalf of the respondent. He lectured in Ethics in Applied Psychology at Monash University in Victoria, is currently at the University of New England in NSW, and is the co-author of a book Ethical Practice in Applied Psychology published by Oxford University Press. His qualifications were not challenged.
Shortly put, his evidence was supportive of the respondent’s decision. Interestingly he said that parental alienation syndrome was not a recognised psychological disorder according to DSM-V. He said that “a psychologist’s report will have some opinion and interpretation as part of the report, however this must be clearly based on evidence.”
The respondent in its submissions set out the chronology of the matter, and then the provisions of the Australian Psychological Society Code of Ethics, (the Code) and the Australian Psychological Society Guidelines, (the guidelines) which apply to this case.
In particular it quoted from the Guidelines on Record Keeping, Guideline 9, the relevant parts of which follow:
9.1….All reports present material precisely so that facts can be distinguished from hearsay, professional opinions and interpretations. Reports are written in respectful and non-discriminatory language, and are sensitive to cultural, contextual, gender and role considerations.
...
9.3When compiling reports psychologists provide accurate information, separate fact from opinion, distinguish between fact and inference, and make clear what are data and what are conclusions.
The respondent contended that these guidelines had been breached by the material contained in parts H and K referred to above, and set out at length its reasons for supporting that contention

Consideration

The Tribunal is in general agreement with the contentions of the respondent.
The statement under part H attributes fault and deliberately dishonourable behavior factually to the complainant, going beyond opinion or reasonable inference. It uses emotive, extreme and exaggerated language. It does not purport to give an objective assessment or opinion of the situation. It ignores the intervention of the Family Court into the marital affairs of the parties. It does not distinguish between fact, hearsay, inference or opinion. And it uses a form of terminology (Parental Alienation Syndrome) as though it were a recognised and commonly used psychiatric classification.
The statement under part K also attributes fault and dishonourable behaviour factually to the complainant. It does not attempt to distinguish between fact hearsay, inference or opinion. It promotes a diagnosis not generally accepted.
In his report Dr Boyle said:
I have read (the client’s) witness statement, which indicated that the report was done very quickly. It would seem that (the applicant) is attempting to help his client out as much as possible, but that the language used it (sic) not in keeping with a reasonable professional standard, in my opinion.
The Tribunal agrees with the latter statement. It is clear that the applicant by the time this report was prepared, had become the advocate for his client’s cause. There was little sign of an objective professional opinion. The tenor of the language used appeared to be intended to support his client’s application. It is noteworthy that his earlier report referred to above was unexceptional.
The Tribunal however accepts the applicant’s submission that the duration of the conditions imposed should be reviewed. The Tribunal takes the view that the applicant is a competent practitioner who fulfills the requirements for registration as a psychologist with the Psychology Board of Australia. This proceeding will act as a signal to him that care should be taken in preparation of reports, and there is an example of a report of 3 July 2015 which we have previously described as unexceptional. Supervision will be expensive which will act as a sanction. The Tribunal is of the view that a period of six months will be sufficient to achieve the ends that the Board seeks. However, there should be a review of the efficacy of the period at its end with the possibility of continuation if found to be necessary.
The orders of the Tribunal are as follows:
1. The following conditions be imposed on the applicant’s registration:
(a)The applicant is required to engage in monthly supervision of his practice, for a period of not less than six (6) months from 1 June 2016, from a psychologist approved by the respondent. The supervision is required to address the identification and the development of strategies for the management of:
(i) the breadth of the three general principles listed in the Australian Psychological Society Code of Ethics; and
(ii) the Australian Psychological Society, Guidelines on Record Keeping.
(b)The supervision and other costs of compliance with these conditions is required to be undertaken at the applicant's own expense.
(c)The applicant is required to provide to his supervisor, a copy of the conditions. The applicant is required to stipulate as part of his contract with the supervisor, that the supervisor provide written reports at three (3) monthly intervals at his own expense, to the respondent as to the applicant's progress and participation in supervision. The reports are to include the frequency and the content of the supervision.
(d)The applicant is required to provide the respondent upon completion of the period of supervision, a report written by him demonstrating:
(i)that he has reflected on the ethical issues raised by the notification
(ii)that he has met the objectives of the supervision
(iii)how he will incorporate the learnings of supervision into his practice of psychology.
(e)If the respondent is not satisfied that the report demonstrates that the applicant has met the objectives of the supervision and/or he has not satisfactorily reflected on the issues that arose from the notification, he may be required to undergo further supervision as determined by the respondent.
………………………………..
President E Symons
for and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	OR 14/2015
PARTIES, APPLICANT:	Noel Eastwood
PARTIES, RESPONDENT:	Psychology Board of Australia
COUNSEL APPEARING, APPLICANT	Ms J Keys
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member G Lunney SC Member D Byrne
DATES OF HEARING:	10 September 2015