KAYE v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Discipline)
[2017] ACAT 27
•18 April 2017
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)
Legislation
cited: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 266
Eastwood v Psychology Board of Australia [2016] ACAT 52
Helmy v Medical Board of Australia [2016] ACAT 97
Hocking v The Medical Board of Australia [2014] ACTSC 48
Hocking v Medical Board of Australia [2015] ACAT 22
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
Council of the Law Society of the Australian Capital Territory “M” v The Council of the Law Society of the ACT [2014] ACAT 18
MLNO v Medical Board of Australia [2012] VCAT 1613
Reeve v Aqualast Pty Ltd [2012] FCA 679
Syme v Medical Board of Australia [2016] VCAT 2150
Tribunal: Senior Member B Meagher SC
Date of Orders: 18 April 2017
Date of Reasons for Decision: 18 April 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 24/2016
BETWEEN:
SANDRA KAYE
Applicant
AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent
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.
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.
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 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
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:
140Definition of notifiable conduct
In this Division—
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.
144Grounds 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.
155Definition
In 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
(c)accepting the surrender of the health practitioner’s or student’s registration.
156Power 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
157Show 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.
160When 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 ...
199Appellable 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; ...
201Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
202Decision
(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 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 cases[2] 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 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:
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 Australia[5] [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 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 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 Grounds[6] 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 AC[7] 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.
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, 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 following[10]:
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 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 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 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. 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.
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 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 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 Zedmed[15] 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.
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 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 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 psychogeriatrician[20] 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.
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 POA[22], 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 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. 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.
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 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 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 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.
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
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]
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 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.
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 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 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 Conditions[30]
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.
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:
(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
(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.
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 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
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
[1]In 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
[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
[3] At [22]
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]
[5] Followed in Syme v Medical Board of Australia [2016] VCAT 2150
[6] This is not verbatim but is rewritten, hopefully, to avoid grammatical mistakes
[7] The names of notifiers and patients have been anonymised
[8] Privacy and Reputation and Fair Trial
[9] Director of Housing v Sudi [2011] VSCA 266 at [30]- [32], Hocking v Medical Board of Australia [2015] ACAT 22 at [63]-[65]
[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
[11] The ACT Disability, Aged and Carer Advocacy Service
[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 her
[13] Transcript page 3 line 28, page 6 lines 28-30
[14] Transcript page 12, lines 31-40 to page 15. There may well have been but that is not suspicious in itself
[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
[18] This is an accurate outline of what is in Exhibit A1
[19] She is Gwen D referred to in the notification
[20] AT 7
[21] TR1 page 14
[22] Power of Attorney
[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
[25] This seems inconsistent with the purpose of showing it to the receptionist
[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 irrelevant
[27] 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
[28] Section 144
[29]Hocking v Medical Board of Australia [2015] ACAT 22 [18]-[21]
[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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