Islam v Kocak
[2015] ACTSC 120
•29 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Kocak |
Citation: | [2015] ACTSC 120 |
Hearing Date: | 29 April 2015 |
DecisionDate: | 29 April 2015 |
Before: | Mossop AsJ |
Decision: | The proceedings are dismissed with costs. |
Category: | Principal Judgment |
Catchwords: | ADMINISTRATIVE LAW – Psychological assessment of sentenced prisoner while in custody – access to and use of clinical notes recorded in psychological assessment – no cause of action articulated COSTS – Impecuniosity of sentenced prisoner not an appropriate basis for avoiding adverse costs order |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) Health Practitioner Regulation National Law (ACT) Health Professionals Act 2004 (ACT) Mental Health (Treatment and Care) Act 1994 (ACT) Health Professionals Regulation 2004 (ACT) |
Parties: | Isa Islam (Plaintiff) Ahu Kocak (Defendant) |
Representation: | Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) |
File Number: | SC45 of 2015 |
Application
The plaintiff is a sentenced prisoner at the Alexander Maconochie Centre. The defendant is a psychologist who is employed by ACT Corrective Services at the Centre. By originating application filed 9 February 2015 the plaintiff seeks the following orders:
(1)The defendant provide the plaintiff with the clinical notes relating to the interview between them on 26 May 2014;
(2)The defendant be instructed not to use any information gathered without permission on 26 May 2014;
(3)Any other orders the Court considers appropriate.
The grounds identified in the application are:
1.The plaintiff asserts the defendant attempted to conduct a psychological assessment on him without taking reasonable steps to obtain the plaintiff’s permission (consent) in accordance with section 17(2) of the Mental Health (Treatment and Care) Act 1994 (ACT).
2.Moreover, that the [defendant] misrepresented herself as working for Relationships Australia during the interview rather than ACT Corrections Mental Health (interview occurred 26 May 2014).
The defendant did not bring any application to strike out the proceedings on the basis that they did not disclose a cause of action or were otherwise defective.
On 31 March 2015 I listed the proceedings for hearing today.
At the commencement of the hearing today Mr Islam made an oral application seeking leave to amend his originating application so as to amend the orders sought to include orders for occupational discipline under sections 65 and 66 of the ACT Civil and Administrative Tribunal Act 2008 (ACT). For reasons which I gave at the time I refused leave to file the amended originating application essentially because I was not satisfied that this Court had any jurisdiction to make orders under those provisions of the Act and hence the amended originating application would not disclose a reasonable cause of action.
The hearing then proceeded on the basis of the originating application.
In the plaintiff’s case evidence was given by custodial officers Swinbourne and Passalla as well as by the defendant herself. Each of these persons attended pursuant to subpoenas issued by the plaintiff. I gave leave to the plaintiff during the course of the examination in chief of officer Swinbourne and the defendant to cross-examine those witnesses on the basis that the evidence they gave was unfavourable to the plaintiff’s case. The plaintiff also gave oral evidence and was cross-examined.
The plaintiff tendered the notes that were made by the defendant immediately following their interview the subject of these proceedings. Those notes had in fact been provided by the Superintendent of the Alexander Maconochie Centre to the plaintiff several weeks prior to the hearing. That had the effect of rendering order 1 sought by the plaintiff otiose.
The defendant tendered a letter from the Australian Health Practitioner Regulation Agency dated 17 December 2014 (Exhibit 2) which disclosed that the Psychology Board of Australia decided on 10 November 2014 to take no further action in relation to a notification received from the plaintiff under the Health Practitioner Regulation National Law. That was a complaint related to the subject matter of the present case although the complaint itself was not in evidence.
During the course of oral submissions the plaintiff explained that his concern about the use to which the notes might be put is that they may form the basis for some adverse comment or conclusion by either ACT Corrective Services or an external agency such as the Sentence Administration Board when considering how he should be managed or accommodated within the Alexander Maconochie Centre or alternatively a possible parole application. He explained that at present he would not be entitled to make an application for parole until 2019 but that the sentence which imposed that non-parole period either is or will be the subject of an appeal to the Court of Appeal.
Findings of fact
I found both of the custodial officers who gave evidence to be impressive witnesses. Their evidence, although brief, was given to the full extent of their recollection honestly and carefully. I also accept the evidence of the defendant who appeared to me to honestly and carefully explain the transactions with the plaintiff to the best of her recollection. Her evidence was consistent with the contemporaneous records that she made immediately following the conclusion of the interview with the plaintiff. I do not consider the minor difference between her oral evidence and her contemporaneous note which I will refer to below to be of any significance.
In relation to the evidence of the plaintiff I accept that it was given honestly but consider that it is likely that the plaintiff’s perception of events and his recollection of what occurred may have been affected by his lack of trust in the management of the Centre. Insofar as there were differences between the recollection of events by the defendant and the plaintiff I prefer the evidence of the defendant.
On the basis of the evidence given my findings of fact are as follows. On 26 May 2014 the plaintiff was accommodated in the Management Unit of the Alexander Maconochie Centre. He had two appointments booked in the programs area. One of those was with a person from Relationships Australia, one was with the defendant. He was informed of these appointments by the officer in charge of the Management Unit, custodial officer Swinbourne. Either at that time or after he had been taken to the programs area he indicated that he did not wish to participate in the interview with the representative of Relationships Australia. The second interview, that with the defendant, was then brought forward.
He met the defendant in an interview room. After the defendant arrived the plaintiff was initially reluctant to participate in the interview because he recalled that the defendant had previously worked for ACT Mental Health. The defendant explained to him that she no longer worked for ACT Mental Health but instead worked for ACT Corrective Services. While the plaintiff had initially stood up as if to leave, he subsequently sat down and, although he was irritable and not forthcoming in his answers, he did participate reluctantly in a conversation with the defendant.
The defendant was attempting to establish some rapport with the plaintiff, explaining the purpose of her visit and asking him some questions. She was successful in getting some information on his attitude to participation in programs. She subsequently recorded the details of the interview in a summary which I will refer to below.
The parties differed on how long the interview took, the plaintiff saying five minutes the defendant saying up to 15 minutes. In my view it is likely to have been somewhere between those two figures. However the interview came to an end when the plaintiff stood up again as if wanting to leave. The defendant at that stage felt intimidated and decided that she had done as much as she could in the circumstances. She tapped on the door and a custodial officer opened it and took the plaintiff away.
In a standard ACT Corrective Services document headed ‘Session Summary’ the defendant recorded what had occurred at the interview. In advance of the interview she recorded under the heading ‘Session Specific Goals’:
risk [assessment]-violence
suitability re programmes
Under the heading ‘Session Summary (Content, Themes, Issues)’ she recorded:
Not willing to engage due to prior knowledge of me working for mental health. Explained situation [regarding] Ben Naughton to me.
Irritable, not forthcoming but allowing for recommendations to be made [regarding] program and VOP [violent offender program].
Denying any prior incidents in custody, states that those are “hearsay” and just case notes from officers and staff.
Willing to do 1:1 [intervention] but not [with] psychologist maybe a program worker and willing to do violent [offender program]. Agitation increased, interview terminated.
Under the heading ‘In Session Assessments/Presentation/Engagement/Resources offered’ she noted:
Irritable, not engaging [with] me – short answers. Stated I can recommend “whatever I want” “I should know”.
I now address some of the submissions made by the plaintiff and some aspects of the evidence to which I have regard in making the above findings of fact.
The plaintiff submitted that I should not accept on the balance of probabilities that there was a Relationships Australia appointment made for him on that day. I do not accept that submission. I accept the evidence of custodial officer Passalla that such an appointment had been made and that there was then the subsequent appointment with a psychologist. The defendant was told on the day that he had refused to participate in the interview with the person from Relationships Australia and that therefore she could come for her interview earlier.
The plaintiff explained in his evidence his perception that the management of the Alexander Maconochie Centre had ‘stretched the truth’ and misrepresented to him that the appointment with the psychologist was in fact an appointment with Relationships Australia so as to persuade him to leave the Management Unit and attend the programs area where the appointment was to take place. I do not accept that such a perception is accurate. It appears to me to be more likely that having regard to the evidence given by custodial officer Passalla, with the benefit of reference to contemporaneous case notes, that there were in fact two appointments made, one which the plaintiff refused to attend and the other in which the plaintiff only participated reluctantly and relatively briefly.
In relation to what occurred during the interview between the plaintiff and the defendant I have not accepted that the defendant told the plaintiff that she was working for Relationships Australia. There was no evidence that she had ever worked for Relationships Australia. Her contemporaneous notes deal specifically with the concern raised by the plaintiff in relation to her previous work with ACT Mental Health but make no reference to any issue about Relationships Australia. She denied that she had told the plaintiff that she worked for Relationships Australia and it appears to me to be likely that that denial is correct. In any event, even on the plaintiff’s own evidence, he did not believe that she in fact worked for Relationships Australia.
Finally in assessing the evidence and making findings of fact I have not placed any significance on the minor discrepancy between the defendant’s oral evidence which referred to the plaintiff saying that the defendant could ‘say’ whatever she wanted and the record in her Session Summary that she could ‘recommend’ whatever she wanted. In my view the oral evidence of the defendant which was given without the benefit of having the Session Summary in front of her was consistent with that which was recorded in that document notwithstanding the minor difference in wording.
Consideration
The plaintiff was not able to clearly articulate the cause of action upon which he relied. The only outstanding claim for relief was a claim for an order that the defendant be instructed not to use any information gathered without permission on 26 May 2014.
Below I give consideration to both the grounds articulated in the originating application as well as other matters referred to in submissions by the plaintiff. The conclusion that I reach is that there is no cause of action which entitles the plaintiff to the relief that he seeks.
The grounds of the application referred to section 17(2) of the Mental Health (Treatment and Care) Act 1994 (ACT). This section provides:
17 Consent for assessment orders
(1)This section applies if the ACAT is considering ordering an assessment in relation to a person mentioned in section 16 (1) (a), (b) or (c).
(2)The ACAT must take reasonable steps to find out the opinion of the person in relation to the assessment and obtain the person’s consent to the assessment.
(3)However, subsection (2) does not prevent the ACAT from ordering an assessment without the person’s consent or if the person does not appear before the ACAT.
This section has no application other than in the context of an assessment undertaken by ACAT. The circumstances in which such an assessment may be ordered are outlined in section 16 of the Act. This section has no application in circumstances such as those in the present case.
The grounds of the application also allege that the defendant misrepresented herself as working for Relationships Australia. No statutory provision or other cause of action is expressly identified in this ground. I have found that the defendant did not misrepresent herself as working for Relationships Australia. Therefore both as a matter of fact and as a matter of law this ground could not provide a basis for relief.
The plaintiff’s written submissions make reference also to section 18 of the Health Professionals Act 2004 (ACT) and regulations 136 and 137 of the regulations made under that Act. He did not however establish that those provisions continued to apply to psychologists having regard to the introduction of the Health Practitioner Regulation National Law. Nor did he establish that those provisions, if they applied would empower the making by this Court of declarations about conduct as opposed to such decisions being made by the panels contemplated by that Act or by ACAT.
Similarly, insofar as the plaintiff relied upon the Health Practitioner Regulation National Law in its application in the Territory, that law does not give jurisdiction to this Court to make determinations of compliance with professional standards. Nor is compliance with these requirements a matter which would enliven the general jurisdiction of this Court having regard to the regulatory scheme of which they form part. That scheme provides that determinations of compliance with the standards there set out are to be made by a National Board, a panel established under the Act, or ACAT: see Health Practitioner Regulation National Law part 8.
The plaintiff submitted that the Supreme Court has inherent power to grant declaratory relief and has jurisdiction to grant prohibition in cases involving health practitioners. While I accept that that is the case I am not satisfied that the plaintiff has identified an appropriate basis for declaratory relief in relation to any particular legal entitlement of the plaintiff.
Insofar as he refers to a prerogative order to the effect of a writ of prohibition, prohibition is only granted where the person the subject of the order is exercising a statutory power to affect the rights of subjects. The purpose of prohibition is to prevent those exercising statutory power from proceeding beyond power. I am not satisfied that the defendant was exercising a statutory power that had the capacity to determine the rights of the plaintiff. A statutory power may have been engaged at the point where a management or other decision was made based on any recommendations from the defendant but there was no statutory power engaged at this stage and no basis for an order for prohibition.
The plaintiff has also referred to a number of cases dealing with the requirement for a health practitioner to obtain informed consent prior to undertaking a health assessment. I do not accept that the authorities referred to by the plaintiff preclude a psychologist who is employed in a correctional facility from seeking to obtain information from a prisoner which will assist in making a management decision as to which programs are to be offered to the prisoner. What was proposed to be undertaken by the defendant was a risk assessment and an assessment of suitability for particular programs at the Centre. In the present case I have not accepted that the plaintiff refused to participate in the interview. Instead, I have found that the plaintiff, after his initial concerns about whether or not the defendant worked for ACT Mental Health, grudgingly and dismissively participated for a period in the interview with the defendant, while the defendant, by talking to him and asking questions, sought to establish some rapport with him which would allow the interview to proceed. When it became clear that the plaintiff understood the purpose of the interview but did not wish to continue with the interview then she terminated it. I am not satisfied that this set of circumstances gives rise to any entitlement for relief in this Court.
As a consequence of these matters I am not satisfied that the plaintiff has established any basis for the making of order 2 set out in his originating application.
Costs
In the event that she was successful in defending the claim, the defendant sought costs. The plaintiff pointed to the fact that he was a sentenced prisoner with other liabilities and limited resources.
In my view it is appropriate that costs follow the event. Whether or not, in the circumstances, the costs order is of any value is a matter to be assessed by the defendant.
The mere fact that the plaintiff is impecunious or a prisoner does not provide an appropriate basis for departing from the ordinary compensatory rule. The plaintiff persisted with the application even after the document to which he sought access was provided to him. I am not satisfied that he in any event had an entitlement to the document with which he was provided as the interview was for the purposes of an assessment to assist management decisions by the prison rather than to assess, record, improve or maintain the plaintiff’s health. Thus it is not a case where only after the commencement of proceedings has the defendant complied with a request to do something which she was obliged to do.
As a consequence it is appropriate to order that the plaintiff pay the defendant’s costs.
Orders
The proceedings are dismissed with costs.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 19 May 2015 |
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