Pardo v Psychology Board of Australia (Occupational Discipline)
[2022] ACAT 106
•15 December 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PARDO v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Discipline) [2022] ACAT 106
OR 9/2021
Catchwords: OCCUPATIONAL DISCIPLINE – general registration for psychologists – conditions for general registration – overseas qualification – conflict of interest with the place of placement – duty to disclose previous relationship with the supervisor – Tribunal’s power to grant registration.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 57, Dictionary
Health Practitioner Regulation National Law (ACT) ss 3, 3A, 4, 5, 160, 166, 167, 178, 194, 199, 200, 201, 202
Legal Profession Act 2006
Subordinate
Legislation cited: National Registration and Accreditation Scheme
Cases cited:Herron v Conservator of ACT Flora and Fauna [2021] ACAT 120
Kaye v Psychology Board of Australia [2017] ACAT 27
M v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
Pardo v Psychology Board of Australia [2020] ACAT 32
Tribunal:Senior Member T Warwick
Senior Member Dr R Davies
Date of Orders: 15 December 2022
Date of Reasons for Decision: 15 December 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 9/2021
BETWEEN:
NADIRA PARDO
Applicant
AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent
TRIBUNAL:Senior Member T Warwick
Senior Member Dr R Davies
DATE:15 December 2022
ORDER
The Tribunal orders that:
The appellable decision is confirmed.
………………………………..
Senior Member T Warwick
For and on behalf of the Tribunal
REASONS FOR DECISION
In these reasons a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, and ‘Tribunal’ refers to the Members hearing this matter.
The applicant
The applicant is Dr Nadira Pardo. The applicant’s name at birth was Paula Tidwell. In the past, when the applicant was working in China, for business convenience, she was known as Xiu Fang Dai. At the time of the hearing, the applicant was known by her second married name, Nadira Pardo. In her professional life, the applicant is known as Professor Pardo and Doctor Pardo. The applicant nominated “Doctor” as her preferred title in these proceedings. Each of the above names appear on various documents that have been filed in these proceedings. The date of birth is consistent across the documents.
In these reasons, for convenience, the Tribunal will refer to the applicant as Dr Pardo, regardless of the name she was using at any particular time, and regardless of the name shown on the various documents.
The National Law and the Respondent
In 2010, the Health Practitioner Regulation National Law (the National Law) commenced in all Australian states and territories. The National Law established the National Registration and Accreditation Scheme (the National Scheme) as a national approach to the regulation of health professionals. In 2010, the National Scheme applied to ten health professions, including psychology. As of 2022, the National Scheme applies to 15 health professions, including psychology.
The respondent is the Psychology Board of Australia (the Board). The Board was established in 2010, as part of the National Scheme.
The Board is responsible for regulating the profession of psychologists in Australia. The functions of the Board include:
(a)registering psychologists and provisional psychologists;
(b)developing standards, codes and guidelines for the psychology profession;
(c)handling notifications, complaints, investigations and disciplinary hearings;
(d)assessing overseas trained practitioners who wish to practise in Australia;
(e)approving accreditation standards and accredited courses of study.
The Board carries out its functions in partnership with the Australian Health Practitioner Regulation Agency (AHPRA), which was also created in 2010 under the National Scheme.
The objectives of the National Scheme include:
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
…
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners….[1]
[1] Health Practitioner Regulation National Law section 3(2)
The guiding principles of the National Scheme include:
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
…
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[2]
The relevant provisions
[2] Health Practitioner Regulation National Law section 3A
The relevant provisions of the National Law include the following:
Section 4 – How functions to be exercised
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
Section 5 – Definitions
In this Law — “responsible tribunal” means a tribunal or court that—
(a) is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, or
(b) is declared, by a law that substantially corresponds to this Law enacted in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of the law of that jurisdiction.
Section 160 – When investigation may be conducted
(1) Subject to section 150, a National Board may investigate a registered health practitioner … if it decides it is necessary or appropriate—
(a)because the Board has received a notification about the practitioner or student; or
(b)because the Board for any other reason believes …
(ii)for a practitioner—
(A)the way the practitioner practises the profession is or may be unsatisfactory; or
(B)the practitioner's conduct is or may be unsatisfactory; …
(2) If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.
Section 166 – Investigator's report about investigation
(1) As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation.
(2) The report must include—
(a)the investigator's findings about the investigation; and
(b)the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation. …
Section 178 – National Board may take action
(1) This section applies if—
(a)National Board reasonably believes, because of a notification or for any other reason—
(i)the way a registered health practitioner … practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory; …
(2) The National Board may decide to take one or more of the following actions ( relevant action ) in relation to the registered health practitioner or student —
…
(c)impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner—
(i)a condition requiring the practitioner to complete specified further education or training within a specified period; …
(3) If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition. …
Section 194 – Parties to the proceedings
The parties to proceedings relating to a matter being heard by a responsible tribunal are —
(a) the registered health practitioner or student who is the subject of the proceedings; and
(b) the National Board that referred the matter to the tribunal.
Section 199 – Appellable Decision
(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 —
…
(e)a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration …
(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is —
(a)for a decision to take health, conduct or performance action in relation to a registered health practitioner or student —
(i)the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii)if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(b) for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or …
Section 200 – Parties to the proceedings
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are —
(a) the person who is the subject of the appellable decision; and
(b) the National Board that —
(i)made the appellable decision; or
(ii)established the panel that made the appellable decision.
Section 201 – Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
The relevant provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) include the following:
Section 9 – Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
Note A registrar may help a person make an application to the tribunal as the registrar considers appropriate — see section 112.
Section 57 – Powers and decisions in authorising laws
An authorising law may set out the powers of the tribunal, and the decisions it may make on an application made under the authorising law.
Section 4 – NOTES
Dictionary
"application" —
(a) for this Act generally — means an application under section 9; and
(b) for parts 5 to 9 includes —
(i)a matter referred or appealed to the tribunal under any authorising law; and
(ii)a matter heard or dealt with by the tribunal on its own initiative.
Examples — authorising laws under which a matter may be referred to the tribunal
1.Crimes Act 1900, s 331 (Referral to ACAT)
2.Human Rights Commission Act 2005, s 53A (Referral of discrimination complaints other than commission-initiated discrimination matters)
"authorising law" means —
(a) a territory law that provides that an application may be made to the tribunal; and
(b) for a civil dispute — includes this Act.
"occupational discipline", in relation to a person who is licensed, or registered, under an authorising law —
(a) means any action the tribunal may take in relation to the person under the authorising law and
(b) includes action the tribunal may take under section 66 (Orders for occupational discipline).
The relevant provisions above are set out in full in Attachment 1 to this decision.
Overview of the relevant provisions, the investigation, and the decision under review
Section 160 of the National Law provides that the Board may investigate a registered practitioner, if the Board decides it is necessary or appropriate to do so, because the Board has received a notification about the practitioner, or because the Board for any other reason believes that the way the practitioner practices the profession of psychology is or may be unsatisfactory, or that the practitioner’s conduct is or may be unsatisfactory.
Section 178 provides that the Board may take action if the Board reasonably believes, because of a notification or for any other reason, that the way the registered practitioner practises the profession of psychology, or that the practitioner's professional conduct, is or may be unsatisfactory. The Board may decide to take action, including imposing conditions on the practitioner’s registration, including, for example, a condition requiring the practitioner to complete specified further education or training within a specified period. If the Board decides to impose a condition or conditions on the registered practitioner’s registration, the Board must also decide a review period for the condition/s.
Section 199 of the National Law provides a right to appeal to the responsible tribunal against certain decisions. Section 199 covers a broad range of decisions that can be appealed. Section 199(1)(e) is the relevant provision in this matter which provides:
(e) a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than —
(i)a condition relating to the person’s qualification for general registration in the health profession; and
(ii)a condition imposed by section 112(3)(a).
‘Responsible tribunal’ is defined in section 5 of the National Law in a manner that includes the ACT Civil and Administrative Tribunal.
The present proceedings arose in about mid-2020, when AHPRA provided certain materials to the Board, and recommended that the Board consider initiating an investigation on the Board’s own motion. At that time, Dr Pardo held provisional registration as a psychologist.
On 2 June 2020, the Board considered the materials provided by AHPRA, and decided to investigate the applicant, to obtain further information, to consider whether the applicant’s conduct is or may be unsatisfactory. The Board directed AHPRA to carry out an investigation. During the course of the investigation, Dr Pardo communicated extensively with AHPRA by email. On 8 January 2021, AHPRA provided an investigation report to the Board (the Investigation Report).
On 8 February 2021, the Board considered the Investigation Report. The Board recorded that it formed a reasonable belief that the way the applicant practices the profession of psychology is or may be unsatisfactory. The Board proposed to impose education conditions on the applicant’s provisional registration.
On 13 April 2021, AHPRA notified Dr Pardo that the Board proposed to take action and invited her to provide her response. Dr Pardo provided further submissions and documents to AHPRA by email.
On 10 May 2021, the Board considered further information received from AHPRA, including Dr Pardo’s response. The Board determined to take action, that is, to impose education conditions on the applicant’s provisional registration. AHPRA notified the applicant of the decision of the Board, and the reasons for the decision, to Dr Pardo by letter dated 12 May 2021.
The applicant has applied for review of the decision made by the Board on 10 May 2021, that is, the decision to impose education conditions on the applicant’s provisional registration as a psychologist. The grounds of the application, and the orders sought, are discussed below.
Over the course of the hearing, Dr Pardo challenged a number of historical decisions by the Board. Importantly, these decisions are not under review in the present application.
The ACT Supreme Court considered the nature of an appeal in Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory.[3] That matter arose under the Legal Profession Act 2006, which contains similar provisions to the National Law. Justice Refshauge relevantly said:
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.[4]
[3] [2015] ACTSC 312
[4] [2015] ACTSC 312 at [105]
The tribunal has followed this authority, in proceedings arising under the National Law, in Kaye v Psychology Board of Australia.[5]
The hearing
[5] [2017] ACAT 27
The matter proceeded to hearing on 22 September 2021, 8 October 2021 and 27 October 2021. Dr Pardo represented herself. Ms Bindon appeared as counsel for the respondent, instructed by Ms Easdale of Minter Ellison.
The Tribunal received 14 exhibits. A detailed list of the documents in each exhibit is at Attachment 2 of this decision. The exhibits contained many documents in duplicate, triplicate, or more copies. The exhibits exceeded 3,000 pages.
During the hearing, the applicant affirmed the contents of her witness statement, and was cross-examined. Additionally, Mr Daniel Hillier, an employee of AHPRA, affirmed the contents of his witness statement, and was cross-examined. On 27 October 2021 at the conclusion of the hearing, the decision was reserved.
Background
Dr Pardo has impressive academic qualifications, including:
(a)Bachelor of Science, University of Memphis, 1985.
(b)Master of Science, Psychology, University of Memphis, 1989.
(c)Doctor of Philosophy, Psychology, University of Memphis, completed 1993.
(d)Bachelor of Teacher Education, Secondary, Charles Sturt University, 2014.[6]
[6] Exhibit 1 page 327
After completing her psychology studies, Dr Pardo worked in the United States and other countries for some years, before moving to Australia.
In 2006, Dr Pardo applied to the Australian Psychological Society for assessment of her psychology qualifications. The Society determined her application as follows:
On the basis of the evidence submitted in your application, the qualifications from Memphis State University in the USA, in the name of Paula Tidwell, are judged to be equivalent to a six year accredited sequence of study in psychology completed in Australia. Thus you are eligible to become a full member of the Australian Psychological Society.[7]
[7] Exhibit 1 page 310
In 2007, Dr Pardo applied for Registration to the South Australian Psychological Board.[8] On 13 March 2007, the Registration Committee of the South Australian Psychological Board considered her application. An extract from the Report of the meeting of the Registration Committee shows:
B Sc Memphis 1985, M Sc (Psych) (Memphis) 1989, PhD (Memphis) 1993
APS – qualifications comparable to Australian 6 year degree in psychology (14 years ago).
Worked primarily as an academic for the last 10 years apart from some claimed experience in Saudi Arabia.
Recommendation: Refuse. Insufficient experience in the practice of psychology.
Needs one (1) year practice in psychology under an approved supervision plan given no (or very little) experience in psychology in the last 10 years.[9]
[8] Exhibit 1 page 94
[9] Exhibit 1 page 108
Following the meeting of the South Australian Board, Dr Pardo obtained provisional registration under South Australian law, and engaged in supervised practice in that state.
In 2010, the National Law commenced in relation to the registration of psychologists. As at the date of commencement of the National Law, Dr Pardo had not obtained general registration under the South Australian law, or another state law. Dr Pardo was now required to obtain registration under the new registration scheme that was created under the National Law.
Under the National Scheme, in very broad terms, general registration may be granted to individuals who meet the following requirements:
(a)Qualification requirement:
1.1 Completion of a four year accredited sequence of study in psychology that has been approved by the Board; or
1.2 An overseas qualification that in the Board’s opinion is substantially equivalent to the above.
(b)Eligibility requirements:
2.1 The individual must be a suitable person to hold general registration.
2.2 The individual must not be disqualified from applying for registration, or being registered, in the psychology profession, under the National Law or the law of another relevant jurisdiction.
2.3 All other requirements stated in the approved registration standards.
2.4 The individual must have passed the National Psychology Examination (unless exempt).
(c)Eligibility requirement – supervised practice and training program:
2.5 The individual must have successfully completed a Board approved supervised practice and training program while registered as a provisional psychologist – this means one of the following:
2.5.1Completion of a Board approved post graduate qualification accredited as a fifth and sixth year of study in psychology.
2.5.2All fifth and sixth year level coursework and practicum of a Board approved postgraduate qualification accredited as a fifth, sixth and seventh year of study, and having made sufficient progress in the research thesis.
2.5.3A Board approved qualification accredited as a fifth year of study followed by successful completion of a board approved 5+1 internship program.
2.5.4A Board approved 4+2 internship program.
2.5.5An overseas qualification and supervised practice assessed by the Board as substantially equivalent to the above paragraphs 2.5.1 to 2.5.4.
Under the National Scheme, in very broad terms, individuals who are not granted general registration may be granted provisional registration, with a view to satisfying any outstanding eligibility requirements.
The difference between general and provisional registration is profound –
(a)A psychologist with general registration is permitted to work independently, or to establish an independent private practice, that is to operate as a sole trader, contractor, or similar. A psychologist with general registration is permitted to use the title “Psychologist”.[10]
(b)A person with provisional registration is not permitted to work independently or establish an independent private practice as a psychologist, because general registration is needed for independent practice. A person with provisional registration must undertake an internship, with guidance, support and supervision from one or more suitable psychologists.
[10] Exhibit 3 at [9]
Over the years, Dr Pardo has made many applications for general registration. AHPRA records show that Dr Pardo made various applications for general registration including under a state law in 2007 and 2010; and under the National Law in 2012 and 2018. Dr Pardo has not been successful in obtaining general registration, although she has at times been granted provisional registration.[11] Dr Pardo submitted that she has made 13 applications for general registration in Tasmania and 3 in ACT, all without success.
[11] Exhibit 3 DH1 pages 1-4
Dr Pardo asserts that her overseas academic qualifications, and her supervised practice and training program, satisfy the qualification and eligibility requirements in 1.2 and 2.5 above, and that she is entitled to general registration.
In support of her claim to general registration, Dr Pardo asserts facts and circumstances including the following:
(a)that she obtained her Bachelor, Masters and PhD, all in psychology, at the University of Memphis, from about 1981 to 1993;
(b)that she gained years of independent psychological practice in the US and other countries before she arrived in Australia;
(c)that the correct pathway for her to obtain general registration is 5+1, and that she has completed the +1 component;
(d)that she was assessed as competent in all six competencies by a former supervisor, Ms Armstrong (Note, Ms Armstrong supervised Dr Pardo from 20 June 2010 to 29 February 2012, being about 20 months. Ms Armstrong assessed Dr Pardo as being competent in all six competencies. Dr Olsen then supervised Dr Pardo from 1 March 2012 to 7 August 2012. Dr Olsen assessed Dr Pardo as deficient in two competencies.);
(e)that she has received many letters of support for her work at many schools and universities.[12]
[12] Exhibit 4 pages 575-616
The Tribunal notes that:
(a)there is no evidence before this Tribunal as to the assessment of Dr Pardo’s degrees under the National Law;
(b)there is no evidence before this Tribunal as to the assessment of Dr Pardo’s supervised practice and training program under the National Law (noting the conflict in the assessment by Ms Armstrong and Dr Olsen);
(c)there is no evidence that Dr Pardo has successfully completed the National Psychology Examination or is exempt.
The Tribunal notes that, on 3 September 2019, the Board refused Dr Pardo’s 2018 application for general registration, but granted provisional registration with the 4+2 internship program. Based on this decision of the Board, the Tribunal infers:
(a)the Board has accepted Dr Pardo’s qualifications are substantially equivalent to four years of approved study as described at paragraph 1.2;
(b)the Board has not assessed Dr Pardo’s qualifications and supervised practice and training program as substantially equivalent to paragraph 2.5.
Dr Pardo objects to the 4+2 internship program. In her written submissions and her oral evidence, she has expressed her profound personal offence arising from the Board’s refusal to assess her academic qualifications and supervised practice and training program, as entitling her to general registration under the National Law.
As noted above, there is no evidence before this Tribunal as to the assessment of Dr Pardo’s qualifications, or supervised practice and training program, under the National Law. The Tribunal will make no further comment on the grant of provisional registration with the 4+2 internship program.
The decision of the Board made on 3 September 2019 and notified on 18 September 2019
In 2018, Dr Pardo applied for general registration as a psychologist in the Australian Capital Territory. After assessing the Application, the Board proposed to grant the applicant provisional registration, subject to conditions. The Board invited the applicant to make submissions regarding the Board’s proposal. The applicant made submissions. On 3 September 2019, after considering the applicant’s submissions, the Board determined to grant the applicant provisional registration, subject to conditions. On 18 September 2019, AHPRA notified the applicant of the Board’s decision.
The decision of the 2020 Tribunal
On 8 October 2019, Dr Pardo applied for review of the above decision made on 3 September 2019 to this tribunal (the 2020 Tribunal). The 2020 Tribunal identified the appellable decision as being the grant of provisional registration (that is, the exercise of power under section 82(1) of the Health Practitioner Regulation National Law (ACT) (to grant registration of a type not applied for) and the imposition of conditions on the applicant’s provisional registration (that is, under section 83).
After hearing, the 2020 Tribunal confirmed the appellable decision.
The 2020 Tribunal published reasons for decision. Under the heading “Conclusion”, the 2020 Tribunal said:
The applicant is not eligible for general registration as a psychologist because she does not satisfy the requirements of section 52(1) of the National Law.
In the circumstances, the applicant is eligible to be granted provisional registration as a psychologist, subject to conditions, the nature of which adequately address the applicant’s eligibility for general registration.[13]
[13] 2020 Tribunal decision at [86] and [87]
Dr Pardo filed an application to appeal. However, the application to appeal was filed after the expiry of the appeal period. The Tribunal understands that Dr Pardo had delayed filing her appeal, because she had referred certain matters to the Ombudsman. Dr Pardo applied for leave to appeal out of time, but leave was refused.[14]
[14] Exhibit 6 at [29.e]
The 2020 Tribunal confirmed the Board’s decision to grant to the applicant provisional registration subject to conditions. The decision of the 2020 Tribunal finalised that matter.
The decision of the Board made on 4 November 2019, and notified on 22 November 2019
On about 30 October 2019, the applicant lodged the following four documents with AHPRA:
(a)Form SPPR-76 Internship Program Plan;[15]
(b)Form PLPD-76 Plan for professional development and re-entry to practice;[16]
(c)Ethos Institute Pty Ltd Position Description;[17] and
(d)Ethos Institute Pty Ltd Professional Practice.[18]
[15] Exhibit 1 page 590
[16] Exhibit 1 page 597
[17] Exhibit 1 pages 588, 433
[18] Exhibit 1 pages 589, 434
The contents of these documents are extracted at Attachments 3, 4, 5 and 6 to this decision, and are discussed in detail below. These documents will be referred to as “the 30 October 2019 documents”.
On 4 November 2019, the Board considered the applicant’s proposed Internship Program Plan (the Plan). The Board decided not to approve the Plan.
On 22 November 2019, AHPRA notified the applicant of the above decision of the Board, and the reasons for the decision.[19]
[19] Exhibit 1 pages 76, 77
AHPRA advised, in summary, that the Board formed the view that the Plan and Position Description submitted by the applicant were not suitable. In very general terms, the Board was concerned that the Plan contained significant time devoted to reading, research, private study, teaching, and work as a Minister. The Board was unable to determine how the proposed position would allow the provisional psychologist to undertake supervised psychology practice, and to develop and acquire the core competencies required for general registration. The Board noted that the applicant is not permitted to practice as a provisional psychologist until appropriate supervised practice arrangements are approved.
The notification
On 12 November 2019, AHPRA received an email in relation to Dr Pardo (the notification email). In these proceedings, AHPRA has provided the notification email, but has redacted the author’s details. The author will be referred to as “the unidentified notifier”. The email stated in part:
… please find attached some information concerning this matter as previously discussed. Please note that Xiu Fang Dai, Director of the Ethos Institute, appears to have the same date of birth and address as Nadira Pardo.[20]
[20] Exhibit 1 page 12
The email attached five documents: Nadira Pardo Facebook page, Ethos Institute Facebook Page, extract from Electoral Roll, ASIC Current and Historical Company Extract for The Ethos Institute, and four screenshots from Google Maps (the notification documents).[21]
[21] Exhibit 1 pages 13-29
AHPRA reviewed and compared the notification email, and the notification documents, and the 30 October 2019 documents. AHPRA noted a number of potential inconsistencies.
AHPRA provided the notification email, and the notification documents, to the Board. AHPRA recommended that the Board consider initiating an investigation on the Board’s own motion.
The decision of the Board made on 2 June 2020, and notified on 18 June 2020
On 2 June 2020, the Board considered the documents and recommendations received from AHPRA. The Board also considered relevant documents already held by the Board, including the Internship Program Plan (SPPR-76) and Position Description, filed by the applicant on 30 October 2019. The Board was concerned that the notification documents, and the applicant’s Plan, were not consistent in two respects:
[first] The Applicant stated she would be employed by the Ethos Institute, and report to the company directors. However, the notification documents included an ASIC Current and Historical Company Extract for The Ethos Institute, showing that the Applicant is a director and the secretary and sole shareholder of The Ethos Institute.
[second] The Applicant nominated that her principal place of practice would be 181 Moroney Street Iron Knob South Australia. However, the unidentified notifier documents included google satellite images of 181 Moroney St Iron Knob South Australia, showing the address to be a vacant block of land.
The Board decided to commence an investigation, to obtain further information, to consider whether the applicant’s conduct is or may be unsatisfactory.[22] The Board directed AHPRA to conduct the investigation.
[22] Exhibit 1 pages 78-79
On 18 June 2020, AHPRA notified the applicant of the Board’s decision to commence an investigation.[23]
[23] Exhibit 1 page 87
In the course of the investigation, AHPRA requested that the applicant provide information, by emails sent on 13 July 2020,[24] 10 July 2020,[25] 6 August 2020 at 7:24pm[26] and 30 October 2020.
[24] Exhibit 1 page 148
[25] Exhibit 1 page 147
[26] Exhibit 1 page 375
Over the course of the investigation, Dr Pardo provided her response, written submissions, and other information, by emails, including:
(a)19 June 2020 sent at 8:08pm;[27]
[27] Exhibit 1 page 91
(b)19 June 2020 sent at 8:16pm;[28]
(c)19 June 2020 sent at 10:04pm;[29]
(d)20 June 2020 sent at 4:14pm;[30]
(e)1 July 2020 sent at 8:46pm;[31]
(f)10 July 2020 sent at 11:21pm;[32]
(g)15 July 2020 sent at 2:08pm, 2:15pm, 2:22pm, 2:32pm, 10:15pm, 10:16pm, 10:16pm, 10:17pm, 10:17pm, 10:19pm, 10:20pm, 10:20pm, 10:22pm, 10:23pm, 10:23pm, 10:25pm, 10:26pm, 10:27pm, 10:29pm, 10:30pm, 10:47pm, 10:58pm, 11:03pm, 11:23pm, 11:24pm;[33]
(h)16 July 2020 sent at 3:18pm;[34]
(i)5 August 2020 sent at 12:43pm and 4:23pm;[35]
(j)1 November 2020 at 3:23pm;[36]
The applicant also copied several emails to the then Prime Minister Scott Morrison and others.[37]
[28] Exhibit 1 page 105
[29] Exhibit 1 page 90
[30] Exhibit 1 page 109
[31] Exhibit 1 page 139
[32] Exhibit 1 page 146
[33] Exhibit 1 pages 150-318
[34] Exhibit 1 page 325
[35] Exhibit 1 pages 367 and 370
[36] Exhibit 1 page 488
[37] Exhibit 1 page 488
Attached to her various emails, Dr Pardo provided a number of documents, including:
(a)Application for Registration signed 5 January 2007;[38]
[38] Exhibit 1 page 94
(b)Letters of support, confirming good performance at various schools and other workplaces;[39]
[39] Exhibit 1 pages 103, 245, 248, 250, 252, 254, 258, 259, 271, 272, 274, 277
(c)Extract of Report of Psychology Board Meeting 13 March 2007;[40]
[40] Exhibit 1 page 108
(d)Three photos of Church at Iron Knob;[41]
[41] Exhibit 1 pages 110-112
(e)Provider agreement, Someone Health Pty Ltd, proposed commencement date not specified, expiry date 30 September 2020;[42]
[42] Exhibit 1 page 114
(f)Provider agreement, Pinnacle Rehab, offer of employment dated 3 October 2019;[43]
[43] Exhibit 1 page 124
(g)Fair Work Information Statement;[44]
[44] Exhibit 1 page 137
(h)Change of Name Certificate, registered 14 July 2007;[45]
[45] Exhibit 1 page 141
(i)Statutory Declaration of Desmond Collins dated 2 July 2020;[46]
[46] Exhibit 1 page 145
(j)California Southern University, Faculty Mentor Performance Review, for period 1 January 2013 – 1 February 2013;[47]
[47] Exhibit 1 page 151
(k)California Southern University, Faculty Mentor Handbook 2015;[48]
[48] Exhibit 1 page 153
(l)California Southern University, Faculty Handbook;[49]
[49] Exhibit 1 page 197
(m)Supervisor’s Declaration, Western Australia, Christine Armstrong, dated 14 September 2012;[50]
[50] Exhibit 1 page 263
(n)Letter from University of Memphis, dated 9 September 2013;[51]
[51] Exhibit 1 page 282
(o)Client list;[52]
(p)Confidential Psychological Report, Stephen M Josephs, clinical psychologist, dated 8 August 2013;[53]
(q)Academic transcript, Memphis State University;[54]
(r)Letter, Australian Psychological Society, 19 September 2006;[55]
(s)Certificate of Membership, Australian Psychological Society, 1 November 2006;[56]
(t)Extract from table called “mentors.calsouthern.edu”, undated;[57]
(u)Extract from table called “mentors.calsouthern.edu”, undated;[58]
(v)Invoice issued by SA Water to F Collins for water supply at 181 Moroney Street Iron Knob SA, date issued 31 July 2019;[59]
(w)CV of Nadira Pardo;[60]
(x)Supervision Agreement, on letterhead NewStart Psychology, signed Dan Banos Illan and Nadira Pardo on 30 September 2019.
[52] Exhibit 1 page 286
[53] Exhibit 1 page 291
[54] Exhibit 1 page 305
[55] Exhibit 1 page 310
[56] Exhibit 1 page 311
[57] Exhibit 1 page 313
[58] Exhibit 1 page 316
[59] Exhibit 1 page 324
[60] Exhibit 1 page 327
Dr Pardo’s emails also attached a large number of additional documents, for instance, covering emails, forwarded emails, historical emails, and duplicates of attachments. The Tribunal has not particularised these documents.
Renewal correspondence
On 14 September 2020, Dr Pardo lodged an application for renewal of provisional registration. There was communication regarding this application.[61] Notably, on 11 October 2020, Dr Pardo expressly refused to complete and sign the 4+2 Internship Plan form. Dr Pardo said:
I have advised you on numerous occasions, I will not be competing the incorrect form SPPR76 because it is specifically for people who have not completed both an [sic] masters and doctoral degree in Psychology. Since all three of my degrees were assessed by the authority at the time (the APS) prior to AHPRA coming into existence, and the Psychology Board of South Australia approved of all these degrees as APAC equivalent, this is essentially DEFAMATION. I will not lie… about not having completed my degrees ….[62]
The investigation report
[61] Exhibit 1 page 399
[62] Exhibit 1 page 402
On 8 January 2021, AHPRA provided their Investigation Report to the Board.[63]
[63] Exhibit 1 page 425
Together with the Report, AHPRA provided the following documents obtained during the investigation to the Board:
(a)Board record of Decision and Actions 2 June 2020.
(b)Ethos Institute Pty Ltd Positions Description, signed.
(c)Form SPPR-76 Internship Program Plan.
(d)Form PLPD-76 Plan for professional development and re-entry to practice.
(e)Email dated 12 November 2019.
(f)Facebook entry, Nadira Pardo.
(g)Current and Historical Company Extract, The Ethos Institute Pty Ltd.
(h)Electoral Roll entry.
(i)Facebook Entry, The Ethos Institute Pty Ltd.
(j)Offer of employment dated 3 October 2020.
(k)Church at Iron Knob water account dated 31 July 2019
(l)Statutory Declaration, Desmond Collins dated 23 July 2020.
(m)Response from Dr Pardo dated 23 July 2020.
(n)Response from Dr Pardo dated 6 August 2020.
(o)Witness Statement of Daniel Banos Illan dated 20 August 2020.
(p)File note of telephone conversation with Terese Schuts dated 3 September 2020.
(q)Response from Dr Pardo dated 1 November 2020.
Note: as a result of the investigation, AHPRA accepted that 181 Moroney Street was the address for the church, and that Dr Pardo was at liberty to use that address as her principal place of practice. For this reason, AHPRA did not refer the issue of the address to the Board for further consideration.
The Report contained the following recommendations for the Board: [64]
[64] Exhibit 1 page 426
(a)Consider the investigator’s report.
(b)Propose to take action.
(c)Form a reasonable belief that the way the practitioner practices the profession is or may be unsatisfactory.
(d)Decide that the matter is not required to be referred to a responsible tribunal.
(e)Decide that it is not necessary or appropriate to refer the matter to a panel.
(f)Propose to caution the practitioner in the following terms.
Proposed caution
The Board cautions Nadira Pardo “in relation to failing to disclose her personal interest as sole shareholder in the company Ethos Institute Pty Ltd when she submitted her proposed internship program plan for approval by the Board.”
The decision of the Board on 8 February 21, and notified on 13 April 2021
On 8 February 2021, the Board considered the Investigation Report, including the materials and submissions of the applicant. The Board recorded that it had formed a reasonable belief that the way the applicant practices the profession is or may be unsatisfactory. The Board proposed to impose conditions on the applicant’s registration.[65]
[65] Exhibit 1 page 493
On 13 April 2021, AHPRA notified the applicant that the Board proposed to take action, and invited the applicant to provide her response:
The Board’s investigation identified concerns about your knowledge and skills in relation to ethical practice, and in relation to your understanding of your registration responsibilities. In response to these concerns the Board proposed to impose conditions on the applicant’s registration.[66]
[66] Exhibit 1 page 426
The notification set out the proposed conditions, as follows:
Condition 1
The practitioner must undertake and successfully complete a program of education, approved by the Board and including a reflective practice report, in relation to ethics and ethical practice, and in relation to the requirements of the 4+2 internship.
Condition 2
Within 21 days of the notice of the imposition of these conditions, the practitioner must, on the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The practitioner must ensure:
(a) The nomination includes a copy of the curriculum of the education;
(b) The education consists of a minimum of 10 hours on ethics and ethical practice;
(c) The education consists of a minimum of 2 hours on the requirements of the 4+2 internship.
Condition 3
The practitioner must provide evidence to AHPRA of the successful completion of the education within 6 months of the notice of the Board approval of the education.
Condition 4
Within 21 days of completion of the education, the practitioner is to provide:
(a) Evidence of successful completion of the education
(b) A report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition requiring they undertake education and how the Practitioner has incorporated the lessons learnt in the education into the practitioner’s practice.
Condition 5
All costs associated with compliance with conditions on their registration are at the practitioner’s own expense.[67]
[67] Exhibit 1 page 87
On 25 April 2021, the applicant sent three emails containing detailed submissions, six tables, and screenshots of SMS communications with Terese Schuts.[68] The applicant sent further submissions and documents by email to AHPRA.
[68] Exhibit 1 page 534
AHPRA provided the following additional materials to the Board:
(a)Response from Dr Pardo dated 25 April 2021.
(b)Email from investigator to Dr Pardo dated 29 April 2021.
(c)Response from Dr Pardo dated 3 May 2021 with attachments.
(d)Part B submission.
(e)Application for registration as a psychologist with supporting documentation.
(f)name change certificate.
(g)AHPRA letter to Dr Pardo dated 10 July 2020.
(h)Response from Dr Pardo dated 4 May 2021.
The decision of the Board on 10 May 2021, and notified on 12 May 2021
On 10 May 2021, the Board considered the information provided by AHPRA. The Board determined to take action, that is, to impose conditions on the applicant’s provisional registration under section 167(2)(b)(i) of the National Law.
On 12 May 2021, AHPRA notified the applicant of the decision of the Board. The Board’s reasons are stated as follows:
… You have provided a response to the Board’s proposed action. We have carefully considered your submission and continue to consider it is appropriate to take the action proposed. We remain concerned in relation to your understanding of the requirements of ethical practice, as well as your understanding of your registration responsibilities, particularly in relation to the 4+2 program, and your responsibility to provide full and frank information to the Board in the context of any further proposed internship program plan.
We consider that the conditions previously proposed are a proportionate response to the provision of misleading information by you, which will mitigate future risk to public health and safety.
The Board imposed the same conditions to undertake education as previously contained in the notification letter of 13 April 2021. Further, the Board specified the review period to be six months.[69]
The present application by Dr Pardo
[69] Exhibit 1 pages 5-8
On 7 June 2021, Dr Pardo filed an application for review. Dr Pardo attached a copy of the letter from AHPRA dated 12 May 2021. Dr Pardo included the following information in her application:
[Briefly describe the decision and attach a copy]
To impose further restrictions and delays on my registration; refusal to acknowledge the false allegations made against me as a way for AHPRA officials to further delay registration.
[Interim or emergency orders sought]
Immediate approval of the 2 courses submitted, not waiting six months for a review. Approval of previous education, experience, and acknowledgement that a full professor of clinical psychology, teaching and supervising students is at the top of the professional ladder in terms of profession practice.
[Reasons for applying for review]
Refusal to acknowledge degrees, experience and professional practice, creation of false allegations, defamation related to degrees, experience and professional practice. Specifically false allegations of unethical behaviour when AHPRA is the agency withholding information from the Board (white lies), twisting the truth (grey lies), misinforming the Board, and presenting false information to the Board (black lies), to undermine and prevent my applications to practice.
[Orders sought]
1. To waive the six month delay for review
2. To approve full Registration upon completion of the Ethics module from APS
3. To waive the 4+2 requirement as it is being phased out and no training is being offered to complete this – being asked to do something that is physically impossible.
The appellable decision
The applicant has appealed against the Board’s decision made on 10 May 2021, that is, the decision to impose conditions on her provisional registration as a psychologist. This is an appellable decision.[70]
[70] section 199(e) of the National Law
In conducting the review, the Tribunal is empowered by section 202 of the National Law to confirm or amend the original decision or to substitute another decision for the appellable decision.
In Pardo v Psychology Board of Australia [2020] ACAT 32 the 2020 Tribunal said:
Scope ofTribunal powers
34. The applicant (the practitioner) submitted the Tribunal had the power to grant general registration, as the Tribunal has available to it all the powers vested in the respondent (the Board). The respondent submitted that the exercise of the Tribunal’s power was confined to the decision under appeal, such that if the appellable decision was confined to imposing conditions the Tribunal could not revisit the question of whether to grant general registration. In the event the Tribunal decided a decision had been made under section 82(1)(c), then it was unquestionable the Tribunal could consider whether or not to grant general registration.
35. In accordance with section 57 of the ACAT Act, an authorising law may set out the powers of the tribunal and the decision it may make on an application made under that authorising law. Accordingly, the Tribunal’s powers are set out in section 202 of the National Law as follows …
36. The Tribunal therefore concludes that when considering whether to substitute the appellable decision for another decision, by reason of section 202(2) of the National Law, the Tribunal has the same powers available to the respondent in relation to the applicant’s application for registration.
37. We accept that the Tribunal stands in the shoes of the respondent, exercising the powers of the respondent under the National Law, subject to the same discretion, constraints and limitations. It is akin to the power conferred on tribunals in merits review whereby the Tribunal, after identifying the decision under review and its jurisdiction to review such a decision, identifies the powers and discretions that vested in the decision-maker when the decision was made. It is these powers and discretions that then rest with the Tribunal.
38. The applicant seeks an order substituting the appellable decision with one granting her general registration. The Tribunal is satisfied that it has the power to do so, provided the Tribunal is satisfied such power can be exercised in the circumstances of this case. The respondent seeks an order confirming provisional registration subject to conditions. [footnotes omitted]
The appellable decision in these proceedings is the decision made by the Board on 10 May 2021, that is, the decision to impose conditions on Dr Pardo’s provisional registration as a psychologist under the Board’s delegated power under section 167(2)(b)(i) of the National Law. This decision arose from the investigation of the documents provided by the applicant on or about 30 October 2019.
The Tribunal has the same powers available to the respondent in relation to the appellable decision.
Over the course of the hearing, Dr Pardo challenged a number of historical decisions and actions by the Board and AHPRA. It is important to note that the various historical decisions and actions by the Board and AHPRA are not appellable decisions in this proceeding. For instance:
(a)the assessment of Dr Pardo’s overseas qualifications;
(b)the assessment of Dr Pardo’s supervised practice and training programs;
(c)the assessment of Dr Pardo’s experience and expertise, gained over the course of her employment as an academic and teacher;
(d)the decision not to grant general registration on 3 September 2019 and on previous dates;
(e)the decision to grant provisional registration with the 4+2 internship program on 3 September 2019 and on previous dates;
(f)the decision not to approve the Internship Program Plan on 4 November 2019.
On 25 August 2021, Dr Pardo filed an Application for Interim or Other Orders (the Interim Application), seeking declarations, fines and compensation orders, costs orders and other orders against the Board and AHPRA. The orders sought in the Interim Application are beyond the scope of this appeal and therefore the Tribunal lacks jurisdiction to make such orders. The Interim Application is dismissed.
Consideration of Dr Pardo’s assertion that certain materials were obtained unlawfully or improperly
Both parties produced a large volume of documents. All but four documents were tendered without objection. Dr Pardo objected to the tender of four of the notification documents.
Dr Pardo objected to a document that appears to be a photocopy of a page from the 2007 Electoral Roll (the Roll). The Roll is available to the public. According to the website of the Australian Electoral Commission, the Roll is published as a book, and held at State and Territory Libraries. The Roll may be accessed and photocopied by members of the public at those libraries.
Dr Pardo objected to a document that appears to be a Current and Historical Company Extract obtained from the Australian Securities and Investments Commission (ASIC). ASIC maintains a register of Companies. According to the ASIC website, a person may obtain information about a company, including a Current and Historical Company Extract, by making an application online, and paying the applicable fee.
Dr Pardo objected to documents that appear to be taken from Facebook. Facebook posts may be available to the public, unless or until privacy settings are activated.
Dr Pardo argued that the above documents were obtained in contravention of the Privacy Act 1988, and/or other laws. Dr Pardo argued that she has taken action to prohibit the public having access to her voting and company records, and social media. Dr Pardo has not provided any evidence as to what action was taken, or when such action was taken, to prevent the public having access to the relevant information.
The Tribunal is satisfied that the relevant documents comprise public information, and were not obtained unlawfully or improperly. Dr Pardo’s objection is not sustained. The documents are admitted into evidence.
The contents of the documents lodged by the applicant on or about 30 October 2019
As noted above, on or about 30 October 2019, the applicant lodged four documents:
(a)Form SPPR-76 Internship Program Plan.
(b)Form PLPD-76 Plan for Professional Development and Re-Entry to Practice.
(c)Ethos Institute Pty Ltd Position description.
(d)Ethos Institute Pty Ltd Professional Practice.[71]
[71] Exhibit 1 pages 433, 434, 588, 590, 597, 599
The Form SPPR-76 Internship Program Plan is intended for use by persons with provisional registration, or persons seeking provisional registration. By completing this form, applicants may nominate a work role, and a professional supervisor, and seek approval for that work role and supervisor for the internship. Importantly, persons with provisional registration are not permitted to enter into independent practice. The form is specific to the 4+2 internship program.
The Form SPPR-76 Internship Program Plan, as submitted by Dr Pardo, included the following relevant questions and answers:
Q5 What are the details of your proposed work role(s)?
Please provide details of each proposed work role, psychological practice refers to client contact and client related activities as defined in the Guidelines for the 4+2 Internship program. Please ensure that an official position description on the employer’s letterhead is attached for each position. The position description must include position, title, reporting requirements, responsibilities, tasks and activities to be undertaken, and hours of work. Position descriptions must be signed by the principal supervisor or employer (i.e. HR manager, line manager, business owner) to verify the attached position description is correct.
Proposed position 1
Organisation name Ethos Institute Pty Ltd
Position title volunteer consultant and subcontractor
Psychological practice hours per week 20
Total hours per week 35 …
The Form PLPD-76 Plan for Professional Development and Re-entry to Practice is intended for use by persons who have previously practiced as a registered psychologist, and who are returning to work as a psychologist after a period of absence. By completing this form, applicants may nominate a work role, and a professional supervisor, and seek approval for that work role and supervisor for the psychologist’s return to practice.
The Form PLPD-76 Plan for professional development and re-entry to practice, as submitted by Dr Pardo, included the following relevant questions and answers.
Details of proposed employment
Name of employer/organisation Ethos Institute Pty Ltd
Employer/organisation practice address c/o PO Box 1303 Bathurst NSW
You are required to provide a description of employment. You must attach:
(1) An official position description for your proposed work role(s) on the employer’s letterhead, signed and dated by an authorised person. The position must include:
·position title
·reporting requirements
·tasks and activities to be undertaken
·hours of work per week
·percentage of duties that are psychological practice, and
·approximate amount of direct client contact.
(2) Written confirmation of job offer (if applicable) on the proposed employer’s letterhead, signed and dated by an authorised person.
Provide any required details of the position(s) that are not included in the position description or job offer as outlined in the letter attached to this form.
The Ethos Institute Pty Ltd Position Description: Consultant and/or Psychologist, as submitted by Dr Pardo, relevantly includes:
This position reports directly to the Board of Directors at quarterly meetings mandated by ASEC. The Principal Place of Practice for the purpose of this contract shall be 181 Moroney street, Iron Knob, SA 5611, however, services will be performed globally as needed.[72]
[72] Exhibit 1 pages 433, 588
The Ethos Institute Professional Practice document, as submitted by Dr Pardo, relevantly includes the following relevant paragraphs:
1. To provide a range of psychological and consulting services as required to clients globally via the Employee Assistance Program and Pastoral Counselling Program. Clients will include individuals working within government agencies, religious organisations, community centres and clinics, private and public hospitals, private and public schools, universities, prisons, NGOs, and corporations.
…
3. Provision of Psychological services as defined under the Federal and State regulations in Australia and will not commence until AHPRA and the Board approves the Plan for Professional Development and Re-entry into Practice, Form PLPD76; however, other consulting and advisory services that do not require registration can be conducted globally in accordance with international law as a qualified Doctor and Professor of Psychology in accordance with the original state regulation afforded to the APA accredited University of Memphis programs governing professional practice in the discipline, as the US is a signatory member of the WTO agreements governing GATS and the Lisbon, Tokyo, Bangkok and Bali accords.[73]
[73] Exhibit 1 pages 434, 589
Dr Pardo was extensively cross-examined in relation to the contents of the four documents provided to AHPRA on 30 October 2019. At times, Dr Pardo denied the obvious and asserted the implausible. At times, Dr Pardo’s evidence was evasive, or argumentative, and not convincing. At times, the internet link was “lost” during her cross-examination.
Consideration of material provided by the unidentified notifier
The Tribunal has considered the contents of the notification documents.
The ASIC extract for the Ethos Institute Pty Ltd was obtained on 8 November 2019, and shows the following relevant company details as at that date:
(a)The Ethos Institute was registered on 22 August 2006.
(b)Directors: Dr Pardo, Desmond Collins, Fred Collins.
All directors were appointed on 22 August 2006, and remained directors as at 8 November 2019.
(c)Secretary: Dr Pardo.
Dr Pardo was appointed on 22 August 2006, and remained secretary as at 8 November 2019.
(d)Ordinary shares issued: 1 share for $1 dollar.
Registration shares: 1 share for $1 dollar.
A total of two shares have been issued, Dr Pardo is the holder of both issued shares.
(e)Previous directors are:
(i) Andrew Thomson from 4 October 2017 to 21 September 2019
(ii) Nathan Scott-Williams from 4 October 2017 to 28 November 2018
(iii) Mark Dearing from 4 October 2017 to 13 March 2018
(iv) Phillip Pardo from 22 August 2006 to 4 October 2019
The Facebook page of Dr Pardo relevantly shows that she manages Ethos Institute Pty Ltd.[74]
[74] Exhibit 1 page 449
The Facebook page of Ethos Institute shows ‘Nadira Pardo’ as a team member, including a photograph of her on the “About” page. The Facebook page of Ethos Institute also has a photo of Dr Pardo with someone posted with the text “Board member [Dr Pardo] attends Soroptimists meeting and discusses potential future projects with Mongolian visitor.”[75]
[75] Exhibit 1 pages 460-461
The Electoral Roll shows the following person as enrolled to vote in 2007:
Pardo, Nadira, female, (date of birth omitted)
On the basis of the above materials, the Tribunal is satisfied that, as at 8 November 2019, Dr Pardo had an interest in the Ethos Institute that was significant. She was the only continuous director from the creation of the company, she was the only Secretary of the company from the creation of the company, and she was the sole shareholder at 8 November 2019. The Facebook post shows she “manages” the company, and that she discussed potential future projects on behalf of the company.
Consideration of other evidence in relation to The Ethos Institute Pty Ltd
The Tribunal received a Statutory Declaration by Desmond Collins, declared on about 23 July 2020. As noted above, Mr Collins was a Director of The Ethos Institute. Mr Collins declared:
In September 2019 I received a phone call from one of the Board members of Ethos Institute Pty Ltd advising me that as Vice Chair of the Board of Directors I would need to be ready to take on the role of Acting Chair to avoid a conflict of interest arising from one of the Board members needing to work as a subcontractor with other agencies. We discussed the proposed arrangements and contingency plan, should AHPRA decide to finally admit its admin error and affirm the 2006 Psychology Board approval of her overseas qualifications as APAC equivalent.[76]
[76] Exhibit 1 pages 478
In her Outline of Submissions, Dr Pardo says:
Similarly, the proposed place of practice was given for the address for the church where I had been offered a job, once again, on the condition that I would be approved for General Registration. The wording of the contract specifically mentions this condition before the contract can commence. The proposed shift in my roles was discussed with the Board members in the company, documents have been provided to AHPRA officials to prove this, and would only take place if my application was APPROVED.[77]
[77] Applicant’s Outline of Submissions dated 24 August 2021 at [3]
Mr Collins was not required for cross-examination. The obvious inference is that Dr Pardo was “the Chair” of the Board of Directors of the company in September 2019, and that she continued to be “the Chair” as at 23 July 2020 and subsequently.
The Professional Practice document is signed by Kyle Davis. His signature block is “Executive Assistant to the Chair on behalf of the Board Members”. In her oral evidence, Dr Pardo said that Mr Davis was an “intern”. The Tribunal notes that Form SPPR-76 requires a signature by “a principal supervisor or employer”.
Dr Pardo was extensively cross-examined in relation to her association with the Ethos Institute. At times, Dr Pardo denied the obvious and asserted the implausible. At times, Dr Pardo’s evidence was evasive, or argumentative, and not convincing. At times, the internet link was “lost” during her cross‑examination.
The Tribunal notes that the Ethos Institute Position Description and Professional Practice documents are closely related to Dr Pardo’s proposed personal activities. The Tribunal notes that there is no evidence that the company was involved in any activities that were not closely related to Dr Pardo’s proposed personal activities.
The Tribunal finds that, on or about 30 October 2019, when Dr Pardo completed the relevant four documents, Dr Pardo was the only continuous director, the Secretary, the Chair of the Board, and the sole shareholder of the company. The Tribunal finds that she exercised sole or shared control of the company.
During the course of the proceedings, on 22 September 2021, an updated ASIC extract was tendered, showing that Dr Pardo continued to be a director, the secretary, and the sole shareholder of the company.[78]
Consideration of Dr Pardo’s assertion that she had previously advised AHPRA and the Board of her association with the Ethos Institute
[78] Exhibit 11
Dr Pardo argues that, on one or more occasions before 30 October 2019, she advised AHPRA of her association with The Ethos Institute. Dr Pardo argues that such information should be taken to be known to the Board in November 2019. The Tribunal notes the following:
(a)On the first day of hearing, Dr Pardo denied knowledge that she was a director, sole shareholder, and secretary of the Ethos Institute Pty Ltd.
(b)Dr Pardo repeatedly asserted that information regarding the Ethos Institute is of a private nature.
(c)Dr Pardo did not identify any previous correspondence to AHPRA regarding her association with the Ethos Institute.
(d)Dr Pardo has filed over 1,000 pages in these proceedings, it appears that most of these pages were previously provided to AHPRA, but these pages do not include an ASIC extract or similar.
(e)It appears that many other documents were previously provided to AHPRA, but the documents are not in evidence before this Tribunal.
Dr Pardo was extensively cross-examined in relation to her assertion that she had previously notified AHPRA and the Board of her association with the Ethos Institute. At times, Dr Pardo denied the obvious and asserted the implausible. At times, Dr Pardo’s evidence was evasive, or argumentative, and not convincing. At times, the internet link was “lost” during her cross‑examination.
The Tribunal is not satisfied that Dr Pardo had previously advised AHPRA of her association with The Ethos Institute Pty Ltd.
Consideration of whether the documents provided on 30 October 2019 are misleading
The Form SPPR-76 is an application for approval of an Internship Plan. The Form is for use by a provisionally registered psychologist who proposes to engage in supervised practice under an internship. In the Form SPPR-76, as lodged on 30 October 2019, Dr Pardo nominated The Ethos Institute Pty Ltd as her proposed employer. The position description stated that the employee will “report to the Board”. The address “c/o PO Box 1303 Bathurst” appears to be the address of the company’s accountant.
The applicant’s Form SPPR-76 proposed that the applicant would engage in work as an employed psychologist with the Ethos Institute. At that time, the applicant held provisional registration under the 4+2 internship program, and she was prohibited from engaging in unsupervised or independent practice.
Importantly, the Tribunal has made findings above that, as at 30 October 2019, the applicant had sole or shared control of the company. However, this close association between Dr Pardo and her proposed “employer” was not disclosed in the 30 October 2019 documents.
The Form PLPD-76 Plan for Professional Development and Re-entry to Practice was not applicable to Dr Pardo, because she had not obtained registration on the basis of re-entry to practice.
Dr Pardo argues that the four documents must be read together. She relies on the Professional Practice document, which contains a broad caveat, to the effect that the person occupying the position will only perform work that is permitted for an unregistered person, unless and until that person is granted general registration as a psychologist.
Regardless of any caveat on the work to be performed, the four documents, read together, propose that Dr Pardo would be employed by the Ethos Institute as a psychologist with provisional registration. That is, the relationship between The Ethos Institute Pty Ltd and Dr Pardo was to be that of employer/employee.[79]
[79] Exhibit 1 page 434, 589
Dr Pardo says the form SPPR-76 was lodged under protest. She appeared to suggest that she was permitted to provide misleading information in a form if the form was lodged under protest. The Tribunal rejects this suggestion.
The Tribunal finds that the 30 October 2019 documents are misleading, because Dr Pardo failed to disclose the close association between herself and her proposed “employer”, the Ethos Institute. Based on this finding, the Tribunal is reasonably satisfied that the way that the applicant practices the profession of psychology, or the applicant’s professional conduct, is unsatisfactory.
The Tribunal notes that the conditions, as imposed by the Board, are educational. The Tribunal finds that the conditions are a reasonable and appropriate response to the provision of misleading information by Dr Pardo, and that the conditions will mitigate future risk to public safety.
The Tribunal notes that Dr Pardo must bear the cost of the relevant education courses. Nevertheless, the Tribunal finds that the conditions are not punitive, unfair or excessive.
Dr Banos proposed as supervisor
The Form SPPR-76, as lodged by Dr Pardo, was also signed by Dr Daniel Banos Illan (Dr Banos). Dr Banos was previously supervised by Dr Pardo, when he was a PhD student. In the course of the investigation, AHPRA obtained a statement from Dr Banos dated 20 August 2020.[80]
[80] Exhibit 1 page 392
Dr Banos relevantly states:
… In 2018, Prof Pardo became the panel chair for my doctoral thesis. This meant she mentored me in research and was the primary contact on my supervisory panel. She could be considered the primary supervisor for my research.
After I successfully defended my thesis, Prof Pardo offered to assist in publishing the work and she mentioned she had experience in publishing scholarly books. …
In early 2019, Prof Pardo contacted me and asked me to supervise her for the purposes of registration in Australia. I agreed to be the supervisor. After considering a potential conflict of interest, I agreed to be her supervisor because our previous relationship had been solely professional, and I could maintain an objective view. …
I had discussions with Prof Pardo about how I would conduct the supervision. … We agreed that most of the supervision would occur by telehealth. … Prof Pardo arranged to engage Therese Schultz as her secondary supervisor. …
… it became apparent that she was subject to practicing conditions. I needed to be aware of the details of these to ensure I could supervise her with the limitations of her practice – hence I contacted AHPRA to ensure I understood such conditions as I believed this would help me to serve her best as a supervisor. … After a delayed response, I was advised by AHPRA … that no information could be released to me and to contact my supervisee directly …
During my contact with AHPRA I have made Prof Pardo aware of such interactions as I perceived such actions to be a fair and transparent process.
We developed a professional learning development plan which broadly defined competencies for Prof Pardo to meet during the internship. Prof Pardo submitted an AATP76 form in lieu of the standard internship program plan as she mentioned to me that she perceived that such pathway for registration was more pertinent to her skills set and experience.
I have rescinded my offer to supervise Prof Pardo … I opted to rescind as the complexities of Prof Pardo’s registration application became apparent and ongoing, and I perceived that this goes beyond the scope of my supervisory skills …
At the hearing, Counsel for the Board made submissions that Dr Pardo had a duty to disclose her previous professional relationship with Dr Banos. However, the Tribunal notes:
(a)on the day that Dr Banos signed the relevant documents, he was of the opinion that he had the capacity to provide effective and independent supervision for Dr Pardo;
(b)there is no evidence that the Board has any concerns regarding the ability of Dr Banos to provide effective and independent supervision for Dr Pardo;
(c)the Board did not rely on this alleged issue in its decision of 10 May 2021.
The Board, in its role as a registering authority, relies on full and frank and accurate disclosure of information by all applicants. In light of the Tribunal’s findings below, it is not necessary to consider this issue further.
Black, white and grey lies and other issues
In the application, and in her submissions, Dr Pardo alleges that AHPRA have committed “black, white and grey lies”. Dr Pardo provided a lengthy list of alleged lies, mainly arising from communications between Dr Pardo and AHPRA and the Board in relation to her many applications for general registration.
A ‘lie’ is a false or untrue statement, made by a person who knows that the statement is false or untrue, and intends to deceive.
Dr Pardo disagrees with the contents of many of the communications issued by AHPRA. Dr Pardo is angry and offended by those communications. Dr Pardo holds her views very strongly, and characterises any contrary views to be “lies”.
Dr Pardo alleges a range of procedural defects leading up to the relevant decision of the Board. For instance, she alleges that APHRA communicated “black, white and grey lies” to the Board, and withheld documents and information from the Board. Such alleged procedural defects are not issues with which this Tribunal needs to be concerned. In this proceeding, Dr Pardo has had the opportunity to provide any and all information, submissions and documents on which she wishes to rely. The function of this Tribunal is to determine, on the evidence before this Tribunal, whether the way that the applicant practices psychology, or the applicant’s professional conduct, is or may be unsatisfactory.[81]
[81] Herron v Conservator of ACT Flora and Fauna [2021] ACAT 120 at [24]
Over many years, AHPRA and Dr Pardo have held very different positions regarding her qualifications, supervised practice and training, and other requirements for registration. These communications are not relevant to the present application for review.
In relation to the various communications between the Board and AHPRA that are relevant, the Tribunal does not accept Dr Pardo’s characterisation of AHPRA’s various communications as “lies”. Her disagreement with the content of such communications does not mean that they are “lies”. She has failed to establish that any statement is knowingly false or untrue.
Consideration of orders sought by Dr Pardo in relation to the two courses she has completed
The Board imposed conditions including that Dr Pardo must complete programs of education in relation to ethics and ethical practice (minimum 10 hours) and requirements of the 4+2 Internship (2 hours).
Dr Pardo completed two online courses through the Australian Psychology Society, namely “Ethical Decision Making in Psychology”, and “Building Skills in Self-Evaluation and Reflective Practice”. Dr Pardo submitted two Reflective Practice Reports.[82]
[82] Exhibit 4 page 731
On 13 September 2021, the Board considered the learning objectives of the above two courses, and the two Reflective Reports. The Board decided that the course Ethical Decision Making in Psychology addressed the required topic of the conditions, that is, ethics and ethical practice. However, the Board found the Reflective Practice Report was not satisfactory. The Board decided that the course “Building Skills in Self-Evaluation and Reflective Practice” did not address the remaining topic, that is, the requirements of the 4+2 internship program.
The relevant Reflective Practice Reports were in evidence in these proceedings. In the Reflective Practice Reports, Dr Pardo expressed her strong anger that her academic qualifications were considered equivalent to 4 years, and that she was required to complete 2 years supervised practice. The Reflective Reports confirm Dr Pardo’s strong emotional response to the 4+2 internship program. The Reflective Reports do not reflect Dr Pardo’s learning (if any) on the courses, on the topics of ethics and ethical practice, or the 4+2 internship program.
The Board invited Dr Pardo to provide a new reflective practice report in relation to the course Ethical Decision Making in Psychology, and to nominate a suitable program of education in relation to the topic “Requirements of the 4+2 Internship”.
Dr Pardo seeks the following orders:
immediate approval of the two courses submitted, not waiting six months for a review
As discussed above, the appellable decision is these proceedings is the decision made by the Board on 10 May 2021, that is, the decision to impose education conditions on Dr Pardo’s provisional registration as a psychologist.
Dr Pardo’s request that the Tribunal “approve” the two courses relates to the decision of the Board on 13 September 2021. That decision is beyond the scope of this appeal and therefore the Tribunal lacks jurisdiction to make such orders. Further, if the Tribunal did have jurisdiction, on the available evidence, the Tribunal is not satisfied that the courses should be “approved”.
Consideration of orders sought by Dr Pardo in relation to the 4+2 internship program
Dr Pardo is seeking the following order:
To waive the 4+2 requirement as it is being phased out and no training is being offered to complete this – being asked to do something that is physically impossible.
The 4+2 internship program will be available as a pathway to general registration until 31 December 2028. The 4+2 internship program will not be available from 1 January 2029. Training continues to be available for the 4+2 internship program, facilitated by private training providers. On 13 August 2021, details of these private training providers were provided by AHPRA to Dr Pardo.[83]
[83] Exhibit 1
As discussed above, the appellable decision is these proceedings is the decision made by the Board on 10 May 2021, that is, the decision to impose education conditions on Dr Pardo’s provisional registration as a psychologist.
Dr Pardo’s request that the Tribunal “waive” the 4+2 internship program is beyond the scope of this appeal and therefore the Tribunal lacks jurisdiction to make such orders. Further, if the Tribunal did have jurisdiction, on the available evidence, the Tribunal would confirm the decision of the Board. As discussed above, this Tribunal is not satisfied that Dr Pardo is eligible for general registration.
Consideration of orders sought by Dr Pardo in relation to general registration
Dr Pardo argues that the Tribunal has the power to make an order granting general registration, in the present proceedings.
As discussed above, the appellable decision is these proceedings is the decision made by the Board on 10 May 2021, that is, the decision to impose education conditions on Dr Pardo’s provisional registration as a psychologist.
Dr Pardo’s request that the Tribunal grant general registration is beyond the scope of this appeal and therefore the Tribunal lacks the jurisdiction to make such orders. Further, if this Tribunal did have jurisdiction, on the available evidence, the Tribunal would decline to grant general registration. As discussed above, this Tribunal is not satisfied that Dr Pardo is eligible for general registration.
Final consideration
The Tribunal has considered the contents of the four documents provided by Dr Pardo to AHPRA on 30 October 2019, and the other relevant materials. The Tribunal has found that the four documents were misleading. The Tribunal has formed a reasonable belief that the way the practitioner practises psychology, or the practitioner's professional conduct, is unsatisfactory.
The Tribunal has formed a reasonable belief that the conditions imposed were proportionate.
The Tribunal has decided that the Board’s decision is confirmed.
Order
The appellable decision is confirmed.
………………………………..
Senior Member T Warwick
For and on behalf of the Tribunal
| Date(s) of hearing: | 22 September 2021, 8 October 2021 and 27 October 2021 |
| Applicant: | In person |
| Counsel for the Respondent: | Ms Prue Bindon |
| Solicitors for the Respondent: | Ms Kristy Eastdale; MinterEllison |
ATTACHMENT 1
Health Practitioner Regulation National Law (ACT) – Section 3
Objectives and guiding principles
The object of this Law is to establish a national registration and accreditation scheme for—
(a)the regulation of health practitioners; and
(b)the registration of students undertaking—
(i) programs of study that provide a qualification for registration in a health profession; or
(ii) clinical training in a health profession.
The objectives of the national registration and accreditation scheme are—
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
(b)to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c)to facilitate the provision of high quality education and training of health practitioners; and
(d)to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e)to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f)to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
The guiding principles of the national registration and accreditation scheme are as follows—
(a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b)fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Health Practitioner Regulation National Law (ACT) – Section 4
How functions to be exercised
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
Health Practitioner Regulation National Law (ACT) – Section 5
Definitions
In this Law— …
"responsible tribunal" means a tribunal or court that—
(a)is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, or
(b)is declared, by a law that substantially corresponds to this Law enacted in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of the law of that jurisdiction.
Health Practitioner Regulation National Law (ACT) – Section 160
When investigation may be conducted
Subject to section 150, a National Board may investigate a registered health practitioner or student registered in a health profession for which the Board is established if it decides it is necessary or appropriate—
(a)because the Board has received a notification about the practitioner or student; or
(b)because the Board for any other reason believes—
(i) the practitioner or student has or may have an impairment; or
(ii) for a practitioner—
(A)the way the practitioner practises the profession is or may be unsatisfactory; or
(B)the practitioner's conduct is or may be unsatisfactory; or
(c)to ensure the practitioner or student—
(i) is complying with conditions imposed on the practitioner's or student's registration; or
(ii) an undertaking given by the practitioner or student to the Board.
If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.
Health Practitioner Regulation National Law (ACT) – Section 166
Investigator's report about investigation
As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation.
The report must include—
(a)the investigator's findings about the investigation; and
(b)the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation.
The National Board to which the report is given must give a copy of the report to the health complaints entity as soon as practicable.
Health Practitioner Regulation National Law (ACT) – Section 178
National Board may take action
This section applies if—
(a)a National Board reasonably believes, because of a notification or for any other reason—
(i) the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory; or
(ii) a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment; or
(iii) a student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(iv) a student has or may have contravened a condition of the student's registration or an undertaking given by the student to a National Board; and
(b)the matter is not required to be referred to a responsible tribunal under section 193; and
(c)the Board decides it is not necessary or appropriate to refer the matter to a panel.
(1A)This section also applies if—
(a)on jointly considering a notification, complaint or other matter, the health complaints entity is satisfied on reasonable grounds that the National Board should take action under subsection (2) (a), (b) or (c) in relation to a registered health practitioner or student registered by the board; and
(b)the action proposed by the health complaints entity to be taken by the board is more serious than any other action proposed by the board to be taken.
The National Board may decide to take one or more of the following actions ( relevant action ) in relation to the registered health practitioner or student—
(a)caution the registered health practitioner or student;
(b)accept an undertaking from the registered health practitioner or student;
(c)impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner—
(i) a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(d)refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition.
If this section applies in relation to a registered health practitioner or student registered by the board because of subsection (1A), the National Board must—
(a)jointly consider with the health complaints entity the action to be taken under subsection (2) (a), (b) or (c); and
(b)take the action agreed after joint consideration.
Health Practitioner Regulation National Law (ACT) – Section 199
Appellable decisions
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—
(a)a decision by a National Board to refuse to register the person;
(b)a decision by a National Board to refuse to endorse the person's registration;
(c)a decision by a National Board to refuse to renew the person's registration;
(d)a decision by a National Board to refuse to renew the endorsement of the person's registration;
(e)a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than—
(i) a condition relating to the person's qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);
(f)a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
(g)a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)a decision by a National Board to suspend the person's registration;
(i)a decision by a panel to impose a condition on the person's registration;
(j)a decision by a health panel to suspend the person's registration;
(ja)a decision by a health panel not to revoke a suspension;
(k)a decision by a performance and professional standards panel to reprimand the person.
For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is—
(a)for a decision to take health, conduct or performance action in relation to a registered health practitioner or student—
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii) if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(b)for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(c)for another decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or
(d)for a decision in relation to another person—
(i) the responsible tribunal for the participating jurisdiction in which the person lives, or
(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
Health Practitioner Regulation National Law (ACT) – Section 200
Parties to the proceedings
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are —
(a)the person who is the subject of the appellable decision; and
(b)the National Board that—
(i) made the appellable decision; or
(ii) established the panel that made the appellable decision.
Health Practitioner Regulation National Law (ACT) – Section 201
Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
Health Practitioner Regulation National Law (ACT) – Section 9
Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
Note A registrar may help a person make an application to the tribunal as the registrar considers appropriate—see section 112.
Health Practitioner Regulation National Law (ACT) – Section 57
Powers and decisions in authorising laws
An authorising law may set out the powers of the tribunal, and the decisions it may make on an application made under the authorising law.
ACT Civil and Administrative Tribunal Act 2008 - Notes
Dictionary
"application"—
(a)for this Act generally—means an application under section 9; and
(b)for parts 5 to 9 includes—
(i) a matter referred or appealed to the tribunal under any authorising law; and
(ii) a matter heard or dealt with by the tribunal on its own initiative.
Examples— authorising laws under which a matter may be referred to the tribunal
1. Crimes Act 1900, s 331 (Referral to ACAT)
2. Human Rights Commission Act 2005, s 53A (Referral of discrimination complaints other than commission-initiated discrimination matters)
"authorising law" means—
(a)a territory law that provides that an application may be made to the tribunal; and
(b)for a civil dispute—includes this Act.
"occupational discipline", in relation to a person who is licensed, or registered, under an authorising law —
(a)means any action the tribunal may take in relation to the person under the authorising law and
(b)includes action the tribunal may take under section 66 (Orders for occupational discipline).
ATTACHMENT 2
List of Exhibits
EXHIBIT 1
T-Documents, filed by the respondent on 6 July 2021.
The T-Documents were provided to the Tribunal as a PDF. The PDF file constituted 768 pages.
The Statement of Facts and Reasons was filed together with the T-Documents on 6 July 2021.
See Index accompanying the T-Documents. The Tribunal will refer to the page numbering on the PDF document.
EXHIBIT 2
Schedule of correspondence between AHPRA and Dr Pardo, between 13 August 2021 and 14 September 2021, including emails and attachments to emails, filed by the Board on 21 September 2022, 60 pages.
EXHIBIT 3
Statement of Daniel Hillary dated 16 August 2021, and annexures marked DH1, 5+346 pages, filed by the respondent.
Exhibit DH1 consists of 346 pages, including the following documents:
·List of applications and appeals by Dr Pardo from 2006 to date [DH1].
·General Registration Standard [DH5].
·Accreditation Standards [DH9].
·Overseas Applicants Guidelines [DH53].
·Provisional Registration Standard [DH59].
·Guidelines for the National Psychology Exam [DH63].
·Guidelines for the 4+2 Internship Program [DH78].
·Form HPN24, Undertake Formal Education, nomination of a formal educator, submitted 20 May 2021.
·Form HPN24, Undertake Formal Education, nomination of a formal educator, and accompanying documents, submitted to AHPRA on 16 June 2021, [DH123].
·Reflective report, submitted to APHRA on 12 July 2021 [DH197].
·Certificate of completion of course, submitted to APHRA on 25 July 2021 [DH250].
·Reflective report, submitted to AHPRA on 10 August 2021, [DH254].
·Together with Appendix A Table 1 rejected applications; Table 2 Roles in Ethos Institute Pty Ltd; Table 3 hours and competencies completed in supervised practice; Table 4 Assessment of qualifications; Table 5 how many times ? Table 6 offers of potential employment never activated due to AHPRA rejection of applications/forms; Appendix B screenshots of email between Dr Pardo and Terese Schuts [DH277].
·Part B Table of events [DH283].
·Dr Pardo to Lucinda Taylor, copy to Stacey Yeates, email [DH288].
·Together with CV [DH291].
·Equilibrium Health letter of offer dated 22 January 2018 [DH332].
·Someone Health provider agreement [DH333].
·Certificate of completion: masterclass: building skills in self-evaluation and self-reflective practice dated 23 July 2021 [DH342].
·MCA health practitioner education provider, webpage extract [DH344].
·Tailor Made Training Plans, health practitioner education provider, webpage extract [DH344].
·AHPRA to Dr Pardo, inviting her to resubmit her reflective practice report, providing guidance on preparing a reflective practice report, and education program providers, sent 13 August 2021 [DH342].
EXHIBIT 4
Exhibit 4 is the contents of a folder filed by Dr Pardo by hand.
The folder contains “Submission to ACAT July 2021 by Professor Pardo” and 774 pages with tabs indicating Appendix 1 to 7.
In her Submission, Dr Pardo describes the attached documents as follows:
·Appendix 1 Original letter instigating the Investigation/Notification
·Appendix 2 Responses to AHPRA requests
·Appendix 3 Letters of support from colleagues
·Appendix 4 Job offers
·Appendix 5 Certificates of completion for mandated CPD
·Appendix 6 Reflective report on completion of CPD
·Appendix 7 Documents from previous ACAT appeal
During the course of the hearing, Dr Pardo confirmed that she had provided a copy of the documents to APHRA, and had kept a copy for herself. However, the documents in the three copies were not in the same order.
In these reasons, the Tribunal has numbered each page consecutively, in the order that the documents were provided in the Tribunal’s folder. Blank pages have been numbered. Page numbers are shown in square brackets [ ] below.
The Tribunal notes that many documents in the folder are duplicates or triplicates, are missing pages, and/or are poor quality reproductions and difficult to read.
Appendix 1
Email sent by Dr Pardo on 16 May 2021 to National Health Complaints, with hyperlink to APS document entitled “retirements of the 4+2 internship pathway to general registration” [1].
APS submission to the APHPRA consultation paper on Definition of Practice 2011 [3].
APS submission to the Psychology Board on Public Consultation Paper 27 Proposed guideline for transitional program, September 2016 [15].
email sent by Dr Pardo on 25 December 2019 with hyperlink to document “doctoral programs in psychology” [23].
Grad School Hub, Top 25 Doctoral Programs in Psychology in 2021 [25].
APHRA letter to Dr Pardo, 30 October 2020, Notice of investigation progress, signature block Lucinda Taylor, Regulatory Advisor, Notification (Investigations) [33] [35].
APHRA letter to Dr Pardo, Notice of proposed action, 13 April 2021, signature block Lucinda Taylor, Regulatory Advisor (Investigator), enclosing schedule of proposed conditions [37].
AHPRA form “Your Practice Information”, partially completed, not signed, not dated [42].
AHPRA Information Sheet for Practitioners about Relevant Action [45].
APHRA letter to Dr Pardo, 12 May 21, Notice of Board decision to take action, signature block Madeleine Morrisby, Regulatory Advisor (Investigator), enclosing schedule of conditions [49].
APHRA letter to Dr Pardo, 10 June 2020, Notice of receipt of notification and investigation, signature block Lucinda Taylor, Investigator, [53] [79] [217] and enclosures:
·regulatory principles for the National Scheme [56] [82] [220].
·Section 161 of the National Law [57] [83] [221].
·Practice Information Form, not completed [59] [84] [222].
Appendix 2
Emails from Dr Pardo to AHPRA, last dated 25 July 2021 [63] [151].
Two documents submitted by Dr Pardo to AHPRA on 25 April 2021:
·Cover letter [67] [111].
·Response [73] [117].
Email from Dr Pardo to APRA, copied to the Prime Minister, 11 October 2020, responding to email of 9 October 2020 [91], [99], [141].
Email from Dr Pardo to APRA, 1 November 2020, copied to the Prime Minister [107] [254].
Further documents submitted by Dr Pardo to AHPRA on 25 April 2021:
·Appendix A, Table 1, rejected applications [123].
·Appendix A, Table 2, Roles in Ethos [124].
·Appendix A, Table 3, hours and competencies completed in supervised practice [126].
·Appendix A, Table 4 assessment of qualifications [126].
·Appendix A, Table 5 how many times should I have to demonstrate competency? [128].
·Appendix A, Table 6, offers of potential employment never activated due to AHPRA’s rejections of applications/forms [129].
·Appendix B, screenshots of emails between Dr Pardo and Therese Schuts [132].
SA Water, utilities account, Mr F Collins, PO Box 76 Iron Knob, dated 31 July 2019 [139], [243].
Email from Dr Pardo to AHPRA, 10 July 2021 [151].
Document with heading “Part B Professor Pardo’s response to AHPRA” including “chronology of events relevant to false allegations being made against me by AHPRA …” [153], [287].
email Dr Pardo email to APRA, 16 July 2020, response to APRHA letter dated 10 July 2020 [159], [245], [293].
CV (49 pages) [161], [295], [353].
Change of name certificate, from Dai Xiu Fang to Nadira Pardo, dated 14 August 2007 [203], [337], [387].
South Australian Psychological Board, Application for registration as a psychologist, Xiu Fang Dai, dated 5 January 2007 [205], [339].
South Australian Psychological Board, Summary of experience [209], [343].
Birth certificate, Paula Tidwell [210], [344].
Change of name certificate, from Nadira Tidwell to Xiu Fang Dai dated 7 June 2006 [211], [345].
South Australian drivers licence Xiu Fang Dai expiry 3 July 2015 [212], [346].
Passport, expiry 30 June 2007 [213], [347].
Letter of support, dated 5 January 2007, signed Alibek Bissembaev [214], [348].
South Australian Psychological Board, Classification of agencies [215], [349].
Pinnacle Rehab, offer of employment [229], [286], [617] and attachments:
·standard conditions of employment [232], [621].
·Fair Work information statement [241], [630].
Statutory declaration, Desmond Collins, 23 July 2020 [244].
Email Dr Pardo to AHPRA, 6 August 2020 [247].
Witness statement, Daniel Banos Illan, dated 20August 2020 [250].
File note of call between APHRA and Schuts, 3 September 2020 [253].
Position description, Consultant and/or psychologist, The Ethos Institute [257].
Professional Practice, The Ethos Institute, 28/ October 2019, signed by Kyle Davis EA to the Chair on behalf of Ethos 28 October 2020, handwritten note and signed by Dan Banos [258].
Form SPPR-76 Internship Program Plan, completed by Dr Pardo, dated 26 October 2019 [259].
Form PLPD-76 Plan for professional development and re-entry to practice, completed by Dr Pardo, dated 28 September 2019 [266].
Email to AHPRA, sender’s details deleted, 12 November 2019 [272].
Facebook extract, Nadira Pardo [273].
ASIC extract as at 8 November 2019 [275].
Extract from electoral roll [282].
Facebook extract, The Ethos Institute Pty Ltd [283].
Letter from Dr Pardo to AHPRA, dated 21 June 2020, with list of 18 Attachments [351].
Notes prepared by Dr Pardo, undated, containing text and extracts from documents,(marked “without prejudice” pages 12, 11, 9, 10, 13-20) [391].
Form HPN24, Undertake formal education, Nomination of formal educator, 22June 2021, [401], [407], [417], [423], [537].
Unity Worldwide Spiritual Institute, Learner transcripts [403].
Notes prepared by Dr Pardo, undated, containing text and extracts from documents (marked “without prejudice” pages 21-28) [391].
University of Memphis, Department of Psychology, MSGP Required courses [418].
Memphis State University, academic transcript [421], [441]
Board of Examiners of Psychology in Tennessee [425].
University of Memphis, Graduate Catalog [427].
Form HPN24, Undertake formal education, Nomination of formal educator, 19May 2021 [451], [633].
APS course description, Ethical decision making in psychology [452], [634].
Screenshot, message from Anna Makao [454], [636].
APS course description, Building skills in self-evaluation and reflective practice [455], [637].
AHPRA diagram All pathways to general registration [459].
Form HPN24, Undertake formal education, Nomination of formal educator, 16 June 2021, [461].
Certificate of completion for the course Ethical decision making in psychology, completed on 10 June 2021 [463].
Certificate of completion for course APS Practice certificate in disaster support course A: Disasters in context, completed 6 September 2020 [465].
Certificate of completion for course APS Practice certificate in disaster support course B: Level 1 early intervention, completed 6 September 2020 [467].
Certificate of completion for course APS Practice certificate in disaster support course C: Level 2 psychological strategies, completed 7 September 2020 [469].
Certificate of completion for course APS Practice certificate in disaster support course D: Ethical and Professional issues in disaster response, completed 6 September 2020 [471].
Certificate of completion for course Supervision for Registration, competed 3 November 2012, [473].
Notes prepared by Dr Pardo, undated, containing text and extracts from documents (marked “without prejudice” pages 3-8) [475].
APS, CPD report, dated 21 June 2021 [481].
Notes prepared by Dr Pardo, undated, containing text and extracts from documents (marked “without prejudice” pages 30-64) [539].
Appendix 3
Gail Bellotti, chairperson of Carnarvon Aboriginal Congress, 26 July 2021, letter of support [575].
Letter to AHPRA, from Professor Arthur Graesser, University of Memphis, Department of psychology, 6 November 2021 [414], [577], [720].
email series between Dr Pardo and Maureen Dollard, 25 July 2021 [579].
Letter from Robert Cohen, Professor and Graduate Programs Coordinator, Memphis University, 9 September 2021 and forwarding emails [581].
Email from June Martin, Senior Support Teacher, 12 October 2021, and forwarding emails [585].
Melanie Belotti email of support, 12 April 2013 and forwarding emails [587].
Confidential Psychological Report by Dr Stephen Josephs, 8 August 2013, and forwarding emails [591].
Notice of completion of Supervision Training Certificate, 4 December 2012, and forwarding emails [603].
Demelza Tomkins, email of support, 9 April 2013, and forwarding emails [605]
Dallas Hope, email of support, 12 October 2012, and forwarding emails [607].
Roseanne McDade, email of support, 12 October 2012, and forwarding emails [611].
Collette Harrold, email of support, 21 September 2012, and forwarding emails [613].
Fulya Sobczak, letter of support, 16 December 2019, and forwarding emails [615].
Appendix 4
Pinnacle Rehab, offer of employment [229], [286], [617] and attachments:
·standard conditions of employment [232], [621].
·Fair Work info sheet [241], [630].
Appendix 5
Form HPN24, Undertake formal education, Nomination of formal educator, 19 May 2021 [451], [633].
Appendix 6
Email from Dr Pardo to AHPRA being a reflective report 9 July 2021 [641].
APHRA letter to Dr Pardo, Notice advising of Board’s decision to investigate, 18 June 2020, signature block Stacey Yeats, Senior Regulatory advisor [653] and enclosures:
·Enclosure 1 section 161 of the National Law [656].
·Enclosure 1 regulatory principles [657].
·Enclosure 3 position description, signed [658].
·Enclosure 4 internship program plan form SPPR76, completed by Dr Pardo and signed on 28 October 2019 [660].
·Enclosure 5 plan for professional development and re-entry into practice form PLPD76, completed, signed by Dr Pardo and Daniel Banos 28-30 October 2019 [667].
·Enclosure 6 email received by AHPRA on 12 November 2019, sender’s details deleted [673].
·Enclosure 7 facebook extract, Dr Pardo [674].
·Enclosure 8 ASIC current and historical company extract, The Ethos Institute Pty Ltd [676].
·Enclosure 9 extract from electoral roll [683].
·Enclosure 10 facebook extract, The Ethos Institute Pty Ltd [684].
·Enclosure 11 street view images of proposed work location, Moroney Street, Iron Knob [687].
Appendix 7
Notes prepared by Dr Pardo, undated, containing text and extracts from documents (marked “without prejudice” pages 1-80) [695].
EXHIBIT 5
Outline of Submissions, filed by the Applicant on 24 August 2022, 15 pages.
EXHIBIT 6
Statement of Nadira Pardo, dated 21 August 2021 (references to “Exhibit NP1”, “Exhibit NP2” etc in the Statement of Nadira Pardo are references to NP1, NP2 etc as contained in Exhibit 8).
EXHIBIT 7
Revised Table of Exhibits, three page document containing links, filed by the Applicant, (except NP8, NP10, NP12 not admitted as not relevant).
EXHIBIT 8
List of Authorities and Revised Table of Exhibits, filed by the Applicant on 6 September 2021.
EXHIBIT 9
Outline of Submissions, filed by the Respondent on 17 August 2021, 19 pages.
EXHIBIT 10
List of Authorities, filed by the Respondent on 06 September 2021.
EXHIBIT 11
ASIC Business Name Search dated 22 September 2021 at 4:08pm.
EXHIBIT 12
Email sent by the Applicant on 20 October 2022 and attachments, filed by the Applicant, with the following attachments:
·Position Description, The Ethos Institute, 28 October 2019, signed by Kyle Davis, and handwritten note by Dr Banos 28 October 2019, 2 pages.
·Application for approval of a transitional program Form AATP76, signed Dr Pardo and Dr Banos, 28 October 2019.
EXHIBIT 13
Email sent by the Applicant on 24 October 2021, filed by the Applicant, with the following attachment:
·Form SPPR76, not completed, 7 pages.
·Guidelines for 4+2 program issued by the Psychology Board on 1 June 2017, 45 pages.
EXHIBIT 14
Email sent by the Applicant on 24 October 2022, filed by the Applicant, with the following attachment:
·change of name certificate, Births Deaths and Marriages Registration Office, South Australia, 14 August 2007.
ATTACHMENT 3
Form SPPR-76
Internship Program Plan
Type 4+2 internship
Psychology Board of Australia / AHPRA
This form is intended to be used by – individuals applying for provisional registration in order to undertake the Psychology Board of Australia 4+2 Internship Program …
Supervisors and supervisees are advised to refer to the Board’s Guidelines for the 4+2 Internship Program which provides a comprehensive guideline to the responsibilities of all parties to the internship program plan, and the Board’s administrative requirements relating to this plan. …
Q1What is your name Pardo, Nadira
Q3Who is your proposed/current supervisor Dan Banos Illan
Q4What is your proposed current secondary supervisor Terese Margaret Shuts
Q5What are the details of your proposed work role(s)?
Please provide details of each proposed work role, psychological practice refers to client contact and client related activities as defined int eh Guidelines for the 4+2 Internship program. Please ensure that an official position description on the employer’s letterhead is attached for each position. The position description must include position, title, reporting requirements, responsibilities, tasks and activities to be undertaken, and hours of work. Position descriptions must be signed by the principal supervisor or employer (ie HR manager, line manager, business owner) to verify the attached position description is correct.
Proposed position 1
Organisation name Ethos Institute Pty Ltd
Position title volunteer consultant and subcontractor
Psychological practice hours per week 20
Total hours per week 35 …
Q6What are the details of any previously approved work roles that you intend to continue to work in?
Please provide details of each continuing work role.
Position 1
Organisation name Universities
Position title Professor
Psychological practice hours per week 40
Total hours per week 40
Position 2
Organisation name Unity
Position title Minister
Psychological practice hours per week 40
Total hours per week 40
Q7Psychological practice agreement …
Q8Professional development agreement …
Q9Supervision agreement …
Core competencies 1-8 See previously submitted paperwork on PLPD-76
Provisional psychologist’s declaration
XI have read and agree with the internship program plan and accept the conditions of the agreement.
XI agree to abide by the requirements for a provisional psychologist under the internship program approved by the board.
XI have read and agree to uphold the responsibilities of provisional psychologists outlined in the Code of Ethics, National Law, Guidelines for the 4+2 Internship program, Guidelines for mandatory notifications
SignedNadira Pardo 26/10/20
Supervisors declaration …
Principal supervisor name Dan Banos Illan
SignedDan Banos Illan 30/10/19
Secondary supervisor name Terese Margaret Schutts
Signed(not signed)
ATTACHMENT 4
Form PLPD-76
Plan for professional development and re-entry to practice
Psychology Board of Australia / AHPRA
Full namePardo, Nadira
Q3Have you submitted a CV to AHPRA as part of an application for registration within the last three months?
No. You are required to provide a CV. Please read the information below. …
Details of proposed employment
Name of employer/organisation Ethos Institute Pty Ltd
Employer/organisation practice address c/o PO Box 1303 Bathurst NSW
You are required to provide a description of employment. You must attach (1) An official position description for your proposed work role(s) on the employer’s letterhead, signed and dated by an authorised person. The position must include position title, reporting requirements, tasks and activities to be undertaken, hours of work per week, percentage of duties that are psychological practice, and approximate amount of direct client contact. (2) Written confirmation of job offer )if applicable) on the proposed employer’s letterhead, signed and dated by an authorised person.
Provide any required details of the position(s) that are not included in the position description or job offer.
·as outlined in the letter attached
·to this form.
Psychologist statement …
Signed Nadira Pardo 30/9/19
Supervisors statement …
Signed Dan Banos Illan 26/9//19
Secondary supervisor name Terese Margaret Schutts
Signed (not signed)
ATTACHMENT 5
Position Description: Consultant and/or Psycholgist
This position reports directly to the Board of Directors at quarterly meetings mandated by ASEC. The Prinicple Place of Practice for the purposes of this contact shall be 181 Moroney street, Iron Knob, SA 5611, however, services will be performed globally as needed.
Mandatory requirements for the position:
Full member of the Australian Psychological Association, based on completion of a minimum of 6 years of ACARA accredited academic qualifications.
Evidence of registered professional practice between 2010 and 2014 is required to comply with recency of professional practice requirements in Australia.
Completion of a five-year accredited Bachelor of Science degree in Psychology.
Completion of a four-year accredited Master’s degree in Psychology by coursework, covering specialities in Clinical/Counselling, Educational/Developmental, and Industrial/Organisational Psychology.
Completion of a five-year accredited MS/PhD program in Psychology with minimum of 75% coursework, 25% master’s and doctoral theses.
Evidence of completion of an accredited professional examination, such as an accredited doctoral degree comprehensive examination covering all aspects of the profession of psychology.
A minimum of two years of professional practice in an I/O work setting, supervised by a fully Registered I/O Psychologist.
A minimum of two years of professional practice in a Clinical work setting, supervised by a fully Registered Clinical Psychologist.
A minimum of two years of professional practice in and Educational work setting, supervised by a fully Registered School Psychologist.
CPS of at least 100 hours consistently over the last 5 years, whether registered or not as evidence of recency of professional practice.
Evidence of knowledge of current best-practice in a range of professional psychological practices based on research, publications and collaborative work presented on a global scale.
A current Working with Vulnerable People Card is required for school and church-based programs with youth and children.
Professional indemnity Insurance will be paid for and obtained as an individual practitioner in the respective profession.
Ethos Institute Pty Ltd PDF433
Handwritten initials DBI
ATTACHMENT 6
Professional Practice
To provide a range of psychological and consulting services as required to clients globally via the Employee Assistance Program and Pastoral Counselling Program. Clients will include individuals working within government agencies, religious organisations, community centres and clinics, private and public hospitals, private and public schools, universities, prisons, NGOs, and corporations.
To conduct research and deliver classes, seminars, workshops and professional advice on a range of topics directly or indirectly related to Education, Business and Psychology across a wide range of age groups based on the 38 books published on best practice in Forensic, Educational, I/O and Cognitive, Clinical and Counselling Psychology.
Provision of Psychological services as defined under the Federal and State regulations in Australia and will not commence until AHPRA and the Board approves the Plan for Professional Development and Re-entry into Practice, Form PLPD76; however, other consulting and advisory services that do not require registration can be conducted globally in accordance with international law as a qualified Doctor and Professor of Psychology in accordance with the original state regulation afforded to the APA accredited University of Memphis programs governing professional practice in the discipline, as the US is a signatory member of the WTO agreements governing GATS and the Lisbon, Tokyo, Bankok and Bali accords.
Compensation will be negotiated on an individual basis with each client for corporate, organisations and individual clients. Volunteering in an unpaid position where a contract has yet to be negotiated is allowed under this agreement in accordance with standard workload calculations. It is anticipated that an average minimum of 1.0FTE across all activities will be carried out on an annual basis, varying by client need, across global time zones.
On behalf of the Board Members signed this day 28/10/19
Kyle Davis
Executive assistant to the Chair on behalf of the Board Members
Ethos Institute Pty Ltd
Handwritten note:
I have signed this position description. I have no role in this practice. I have been proposed as Ms Pardo’s principal supervisor for Psychologist registration purposes with AHPRA. (signed) David Banos Illan 28/10/19
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