PARDO v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Regulation)
[2020] ACAT 32
•6 May 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PARDO v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Regulation) [2020] ACAT 32
OR 29/2019
Catchwords: OCCUPATIONAL REGULATION – psychologist – whether the applicant is eligible for general registration – if not, should the applicant be granted provisional registration with conditions – whether section 82 of the National Law confers power to allow the respondent to make more than one decision under that section – whether a decision made under section 82(1)(b) is an ‘appellable decision’ under the National Law – the Tribunal’s powers under appeal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 57
Health Practitioner Regulation National Law Act 2009 (Qld) ss 52, 62, 77, 78, 79, 80, 81, 82, 199, 202
Cases cited:Adams v Tax Agents Board (1976) 1 ALD 251
Hanes v Psychology Board of Australia [2015] VCAT 886
Mirza v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
R v Moodie; Ex Parte Mithen (1977) 17 ALR 219
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Donald v Australian Securities and Investments Commission [2001] AATA 622
Tribunal: Senior Member K Katavic (Presiding)
Senior Member D Byrne
Date of Orders: 6 May 2020
Date of Reasons for Decision: 6 May 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 29/2019
BETWEEN:
DR NADIRA PARDO
Applicant
AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent
TRIBUNAL: Senior Member K Katavic (Presiding)
Senior Member D Byrne
DATE:6 May 2020
ORDER
The Tribunal orders that:
The appellable decision is confirmed.
………………………………..
Senior Member K Katavic
Senior Member D Byrne
REASONS FOR DECISION
Introduction
The applicant holds a tertiary qualification in psychology from an overseas university. She completed those studies more than ten years ago. On several occasions since, she has sought general registration as a psychologist in Australia. That registration is determined by the respondent and governed by the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). The applicant previously held a provisional registration, under the previous regime, and was required to complete the necessary components of the National Law and its standards so as to achieve eligibility for general registration.
As recently as January 2018, the applicant applied for general registration. The respondent indicated to the applicant that it intended to refuse her application and instead grant provisional registration subject to conditions addressing areas in which she did not meet the eligibility requirements. It invited further submissions from her. Following the provision and consideration of those submissions and having declined to accept the applicant’s submission that she was fully eligible for general registration, the respondent proceeded to grant the applicant provisional registration subject to conditions. The applicant was dissatisfied with that outcome and has appealed to this Tribunal.
Apart from a preliminary issue, discussed below, this appeal raises the following issues for the Tribunal:
(a)Is the applicant eligible for general registration?
(b)If not, should the applicant be granted provisional registration and if so, subject to what conditions?
Background
The applicant applied to the respondent for general registration as a psychologist in the Australian Capital Territory.[1] After assessing the application, the respondent proposed to grant the applicant provisional registration subject to conditions, however this was not the kind of registration she had applied for.[2] The applicant was invited to make submissions regarding the respondent’s proposal and did so.[3]
[1] Application for General Registration dated 2 January 2018, received by the respondent 15 February 2018, Agreed Documents pages 299-387
[2] Letter from the Australian Health Practitioner Regulation Agency to the applicant dated 8 May 2019: Affidavit of Daniel Hillary affirmed 23 December 2019, Exhibit DH2 pages 161-165
[3] Applicant’s submission dated May 2019: Affidavit of Daniel Hillary affirmed 23 December 2019, Exhibit DH2 pages 166-245
After considering the applicant’s submission, in a letter dated 18 September 2019, titled “Notice of granting provisional registration subject to conditions” (the September Letter) the respondent advised the applicant inter alia as follows:
The Board decided to grant the applicant provisional registration, a type other than applied for, under section 82(1)(b) of the National Law, subject to the following conditions under section 83 of the National Law:
1. The practitioner must only practice under the supervision of a Board approved supervisor and complete 1500 hours of supervised practice in accordance with the Internship program plan approved by the Board, and
2. The practitioner must submit two satisfactory assessment case reports and two satisfactory intervention case reports in line with the Guidelines for the 4+2 internship program, and
3. The practitioner must complete 60 hours of continuing professional development activities,
4. The practitioner must successfully pass the National Psychology Exam, and
5. The practitioner must submit an Internship program plan (Form SPPR – 76) for approval by the Board or AHP are a prior to recommencing practice, and
6. On completion of (1) to (5), an Application for general registration (AGEN – 76) can be made and must include a final assessment of competence (PPAC – 76), and
7. Unless expressly provided for within a condition, all costs associated with compliance with these conditions are at the practitioner’s own expense.
Under section 83 (2) of the National Law, the Board set a review date of 12 months to apply to the above conditions from the date of imposition.
The September Letter went on to set out the reasons for the decision, which were based on a finding by the Board that the applicant was not eligible for general registration as she does not hold a Board-approved qualification in psychology accredited at the fifth and sixth year level. The Board went on to conclude that the applicant’s overseas qualifications had been assessed as not being substantially equivalent to a postgraduate degree accredited as equivalent to a fifth and sixth year of study in psychology in Australia.
The September Letter also included a statement in relation to the applicant’s right of appeal. Under the heading “Appellable decision”, the September Letter stated as follows:
Your registration subject to conditions has now been finalised. Under section 199 of the National Law, a person who is the subject of an appellable decision by a National Board, may appeal against the decision to register in a type other than applied for, and/or to grant registration subject to conditions. An application for appeal must be made with the ACT Civil and Administrative Tribunal (ACAT) within 28 days of this notice of decision.
The applicant then commenced proceedings in this Tribunal in relation to the respondent’s actions.[4]
[4] Application dated 8 October 2019, Agreed Documents pages 1-10
At the hearing, the parties relied upon an agreed list of documents[5] and their respective written submissions.[6] The applicant did not provide a witness statement and did not give oral evidence before the Tribunal. The respondent relied upon an Affidavit of Daniel Hillary affirmed 23 December 2019.[7] Mr Hillary also gave oral evidence before the Tribunal.
Legislative framework
[5] Filed on 19 February 2020 referred to in these reasons as Agreed Documents
[6] Applicant’s submissions dated 31 January 2020 and Respondent’s submissions dated 23 December 2019 and 14 February 2020
[7] Exhibit R1
Part 7 of the National Law governs the registration of health practitioners. In particular, section 52 of the National Law sets out the eligibility requirements for general registration. All the requirements of section 52 must be met.
Section 52 states:
52Eligibility for general registration
(1) An individual is eligible for general registration in a health profession if—
(a)the individual is qualified for general registration in the health profession; and
(b)the individual has successfully completed—
(i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and
(c)the individual is a suitable person to hold general registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
Individuals may apply to the relevant board for registration in a particular health profession.[8] The relevant board also has powers to undertake checks and investigations, require applicants for registration to provide further information, and/or require applicants to attend and answer questions.[9]
[8] Section 77 of the National Law
[9] Sections 78 to 80 of the National Law
In some circumstances, after considering an application for registration, the relevant board may propose to refuse to register the applicant or register the applicant subject to a condition.[10] In those circumstances, the board must give the applicant written notice of such a proposal setting out the reasons for the proposal and invite the applicant to make written or oral submissions to the board by a specified date.
[10] Section 81 of the National Law
Section 82 of the National Law requires the relevant board to decide the application after considering the application and any submissions made in accordance with a notice issued under section 81.
Section 82 states:
82Decision about application
(1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must—
(a)decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or
(b)decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or
(c)decide to refuse to grant the applicant registration in the health profession if—
(i)the applicant is ineligible for registration in the profession under a relevant section because the applicant—
(A)is not qualified for registration; or
(B)has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual’s ability to practise the profession; or
(C)is not a suitable person to hold registration; or
(D)is disqualified under this Law from applying for registration, or being registered, in the health profession; or
(E)does not meet a requirement for registration stated in an approved registration standard for the profession; or
(ii)it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular.
(2) In this section—
relevant section means section 52, 57, 62, 65 or 73.
A preliminary issue arises regarding the decision/s made by the respondent and the Tribunal’s subsequent powers.
Appellable decision and scope of powers
In its written submissions dated 23 December 2019, the respondent noted it was unclear whether “Dr Pardo is appealing against both parts of the board’s decision (that is, the decision to refuse to grant general registration and the decision to grant provisional registration subject to conditions)”.
At the commencement of the hearing, the Tribunal raised an issue regarding which “appellable decision” the respondent had made and the subsequent powers available to the Tribunal on appeal.
Both parties made oral submissions on which decision or decisions the respondent had made under section 82 of the National Law. The parties differed in relation to which appellable decision had been made and consequently the powers available to the Tribunal.
The applicant submitted that the respondent only had the power to make one decision under section 82 of the National Law and in the applicant’s case the respondent exercised the power under section 82(1)(b), being the decision to grant a different type of registration.
The respondent submitted that under section 82 of the National Law, it had the power to both decide to refuse to grant the applicant general registration as well as a power to grant the applicant a different type of registration to the one she had applied for.
The issue of which decision the respondent made and whether or not it is open to the respondent to make more than one decision under section 82 is a significant one when the right of appeal to the Tribunal is considered. The right to appeal to the Tribunal is not unfettered and the decisions from which an appeal lies are determined by section 199 of the National Law.
Section 199 relevantly provides as follows[11]:
[11] The parties agreed these were the only relevant parts in section 199.
199Appellable decisions
(1) A person who is the subject of any of the following decision (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;
…
(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);
Several issues flow from correctly identifying the appellable decision and determining the Tribunal’s jurisdiction. Resolving those issues is relevant to the consideration of the substantive matter and the orders the Tribunal might make:
(a)Does section 82 of the National Law confer power to make only one of three independent decisions or is the respondent empowered to make more than one decision under section 82?
(b)If a decision is only made under section 82(1)(b) of the National Law, is it an ‘appellable decision’ under section 199?
(c)In circumstances where the power under section 82(1)(b) is exercised together with the power under section 83 to impose conditions on registration, what is the Tribunal’s power on appeal?
What is the appellable decision?
The Tribunal does not have a general jurisdiction. Its jurisdiction is derived from authorising laws which provide for an application to be made to the Tribunal.[12] It can only exercise the jurisdiction conferred on it.[13] It is a matter for the Tribunal to determine its jurisdiction[14] and it is not for parties to agree as to the Tribunal’s jurisdiction or for the Tribunal to simply accept what is put to it by parties in relation to its jurisdiction.[15] This requires a careful approach to interpreting provisions which confer jurisdiction upon the tribunal.
[12] Section 9 of the ACAT Act; Dictionary ‘authorising law’
[13] Mirza v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
[14] Adams v Tax Agents Board (1976) 1 ALD 251
[15] See R v Moodie; Ex Parte Mithen (1977) 17 ALR 219 at 225; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195
There is no question the National Law is an authorising law for the purposes of this matter and that the tribunal is vested with jurisdiction via section 199 of the National Law.
It is not disputed that if the respondent has in fact exercised the power under section 82(1)(c), refusing general registration, an appeal to the Tribunal lies pursuant to section 199(1)(a). The situation is less clear if the respondent only exercised the powers under section 82(1)(b) and section 83. Section 199 does not confer jurisdiction on the Tribunal in relation to decisions made under section 82(1)(b). Section 199(1)(e) provides for an appeal in relation to the imposition of conditions on registration provided that such conditions do not relate to an individual’s qualifications.
Nowhere in the September Letter does the respondent refer to ‘refusing’ general registration nor does it identify the exercise of power pursuant to section 82(1)(c). The September Letter identifies the respondent’s requirement for the applicant to complete certain conditions in order to meet the eligibility requirements for general registration but does not otherwise expressly state that it has decided to refuse the application for general registration.
In contrast, the September Letter expressly identifies the board deciding to grant provisional registration pursuant to section 82(1)(b), subject to conditions under section 83. It seems to the Tribunal that the September Letter may be interpreted in such a way that the reason for the respondent’s decisions pursuant to section 82(1)(b) and section 83 was the applicant’s ineligibility for general registration, but that does not equate to expressly deciding to refuse general registration and the exercise of power under section 82(1)(c).
Section 82 requires the respondent to make a decision. Paragraphs 82(1)(a), (b), and (c) give the respondent alternatives after it has considered an application and any submissions made in accordance with a notice under section 81. The use of the disjunctive “or” after each paragraph supports such a conclusion. There is no reason why its use in section 82 should be interpreted in a way other than its intended disjunctive use. If, on the respondent’s argument, it may exercise more than one power, clearly a decision to grant an application for the type of registration applied for cannot be exercised in conjunction with the power to refuse the application for the type of registration applied for. This again reinforces the independence of each power available under section 82. It also reinforces why reading ‘or’ in a conjunctive way in section 82 would be inconsistent with a purposive approach to its interpretation.
The respondent must decide to either grant the registration applied for, or grant a different type of registration, or refuse the application for registration applied for. Each may be decided independently of each other and there is nothing in the provision which causes the Tribunal to infer that the power to grant a different type of registration is conditional upon or dependent upon the respondent first deciding to refuse the application for registration applied for. The reason behind exercising the power under section 82(1)(b) may well be that a person is ineligible for the registration applied for, which is a better reflection of the present circumstances and the September Letter. It also gives effect to the drafting of section 82. While this may be an unintended consequence of drafting, we are obliged to interpret the provision according to its ordinary construction and meaning.
The respondent therefore exercised the power under section 82(1)(b) and also made a decision under section 83, to impose conditions on the applicant’s provisional registration. This is the appellable decision.
Such a conclusion still affords the applicant a right of appeal to this Tribunal under section 199(1)(e) thus vesting the Tribunal with jurisdiction. The parties agreed. The parties disagreed however on the scope of the Tribunal’s powers in those circumstances.
Scope of Tribunal powers
The applicant 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 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.
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:
202Decision
(1) After hearing the matter, the responsible tribunal may—
(a)confirm the appellable decision; or
(b)amend the appellable decision; or
(c)substitute another decision for the appellable decision.
(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
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.
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.[16] 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.[17]
[16] See Hanes v Psychology Board of Australia [2015] VCAT 886 at 63
[17] See discussion in Donald v Australian Securities and Investments Commission [2001] AATA 622 at [48]
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.
It is therefore necessary to consider whether the applicant can be granted general registration and if not, whether to confirm the conditions imposed on the applicant’s provision registration.
Is the applicant eligible for general registration?
Each of the requirements of section 52 are addressed below, except section 52(1)(d) which was not applicable.
We pause to note that much of the parties’ submissions referred to the standards, guidelines and policies made by the relevant Board under the National Law. We were referred to the discussion in Hanes v Psychology Board of Australia[18] and concur with the observations therein as to the status of the standards and the role of the guidelines and policies in interpreting a particular standard.
Is the applicant qualified?
[18] [2015] VCAT 886 at [55]-[60]
An individual is qualified for general registration if, relevantly, the individual holds a qualification the Board considers to be substantially equivalent, or based on similar competencies, to an approved qualification.[19] The parties confined their submissions, appropriately, to section 53(b).
[19] Section 53(b) of the National Law
The Registration Standard: General Registration (General Registration Standard) establishes a six-year sequence of education and training in order to meet eligibility requirements for general registration. The minimum qualification required to be qualified for general admission is:
(a)a four-year accredited sequence of study in psychology that has been approved by the Board as providing a qualification for registration in the profession, and
(b)has been completed within the last 10 years, or
(c)an overseas qualification that in the Board’s opinion is substantially equivalent.
In addition, an individual must have also completed a postgraduate degree accredited as fifth and sixth year of study in psychology, or another approved program of supervised practice and training as detailed in the eligibility requirements of the General Standard.
One of the ways in which successful completion of the six-year sequence can be achieved is a Board-approved 4+2 internship program which involves a four-year sequence of study plus a two-year internship program.
The applicant argued that because the respondent had granted provisional registration, it followed that it accepted she was qualified. This was submitted on the basis that section 62 required the respondent to be satisfied as to qualification prior to granting provisional registration. The submission did not have regard to section 62(2) which gave the respondent a discretion to grant provisional registration other than in accordance with the requirements of section 62(1). The applicant accepted this construction.
In order to consider whether the applicant is ‘qualified’ and satisfies the General Registration Standard it is necessary to revisit some of her history with the respondent.
Since 2007, the applicant has made several requests of the respondent (and its predecessor) for general registration. All of those have been refused. In 2010, the applicant was granted conditional registration in Western Australia which was on condition that she undertake a two-year Board-approved internship. Later in 2010, as part of the transition to the National Scheme, the applicant was granted provisional registration as a 4+2 intern under the National Law. It is this internship that the respondent considers is incomplete. In 2013, the respondent refused general registration on the basis that the applicant was yet to be declared competent in two out of six competency areas and thus required an additional six months of supervised practice to complete those two competencies.
Educational requirements
The applicant holds academic qualifications from the University of Memphis in the United States of America. She obtained these academic qualifications between 1985 and 1993. The respondent accepts that these are substantially equivalent studies for the purposes of the educational requirements, but only for a four-year degree from an Australian university based on independent reviews. The applicant disagrees with that assessment.
The applicant submitted that her academic qualifications were comparable to a six-year Australian Psychology Accreditation Council (APAC) accredited sequence of study in psychology completed in Australia. She relied upon a Statement of Psychological Qualifications by the Australian Psychological Society Ltd (APSL) dated 15 September 2006 which stated her tertiary studies were comparable to the APAC six-year sequence.[20] In a letter dated 19 September 2006, APSL confirmed the assessed comparability was for the purposes of the applicant becoming a member of APSL.[21] She claimed that independent reviews carried out by the respondent in respect of the equivalence of her studies were unreliable and to be disregarded.
[20] The Australian Psychological Society Ltd Statement of Psychology Qualifications dated 15 September 2006, Agreed Documents page 40
[21] Letter from the Australian Psychological Society Ltd to Dr Xiu Fang Dai (the applicant) dated 19 September 2006, Agreed Documents page 41
We find the APSL assessment was not for the purposes of registration, but for membership purposes. Further, APAC is the only body authorised under the National Law to determine equivalence. The two are not the same. The APSL assessment is insufficient to establish equivalence for registration purposes.
The decision of the Western Australian Board to provisionally register the applicant in 2010 was based on recognising four years of study but with a further two-year internship being required.[22] There is no basis upon which the Tribunal can otherwise reliably determine that the applicant has completed postgraduate qualifications accredited as fifth year and sixth years of study in psychology.
[22] Australian Health Practitioner Regulation Authority review of the applicant’s hours and progress file note dated 19 December 2012, Agreed Documents page 44
The Tribunal is therefore obliged to accept the findings of the independent reviews regarding the equivalence of the applicant’s tertiary studies. It is not for the Tribunal to go behind the findings of those reviews to determine their accuracy or correctness. For these reasons we are not satisfied the applicant holds academic qualifications equivalent to the APAC six-year sequence. Instead, we find the 4+2 internship program applies to the applicant’s circumstances and that she has met the four-year sequence of study component.
Supervision component
In July 2010, the applicant commenced the two-year component of the internship program[23]. Whether the applicant had met all the requirements of the Guidelines for the 4+2 internship program and successfully completed the two-year component was a point of contention between the parties.
[23] Australian Health Practitioner Regulation Authority review of the applicant’s hours and progress file note dated 19 December 2012, Agreed Documents page 44
The applicant considers the internship was satisfactorily completed and that she was declared competent in all competencies. However, in context the applicant changed supervisors partway through the internship with the majority being supervised by Ms Christine Armstrong and the remainder being supervised by Mr Andrew Olsen.
Ms Armstrong supervised the applicant between 20 June 2010 and 29 February 2012. Despite ceasing supervision responsibility, Ms Armstrong submitted the necessary supervisor’s declarations and found the applicant satisfactorily completing each of the six competencies.
Mr Olsen supervised the applicant between 1 March 2012 and 7 August 2012. There were two competency areas in which Mr Olsen found deficiencies. In relation to Psychological Assessment, particularly “administration of the assessment tools” and “writing informed, synced, valid and well-organised reports”, he considered the applicant needed to demonstrate improvement and was not yet sufficiently skilled to independently practice psychology in these two areas. In relation to Communication, particularly “writing informed, synced, accurate and well-organised reports and other documents” Mr Olsen again found the applicant not yet sufficiently skilled to independently practice psychology.
It was the conflicting reports from both supervisors in relation to these two competencies which caused the respondent to find the internship incomplete and grant a six-month extension in which to address the outstanding competency areas. From the material available to the Tribunal, the applicant did not do so. The conflict between the two supervisors as to competency in those two areas remains.
The applicant found herself in the position of being subjected to the assessment and opinion of two different supervisors in relation to her competency. In this light, however, the respondent did not regard the applicant as having completed the 4+2 internship at the time and it is not for this Tribunal to revisit the correctness of that position. Whether the respondent should have preferred Ms Armstrong’s assessment over Mr Olsen’s is not for the Tribunal to resolve. We are satisfied that the conflicting assessments in those two competencies is sufficient to find the internship was incomplete. As we have identified above, the conflict remains unresolved.
The Tribunal is left in the same position as the respondent and finds that the applicant did not complete the 4+2 internship. We accept that she was not declared competent in relation to those two competencies and did not complete the required additional six months supervised practice in order to achieve competency. As such, the provisional registration expired, and the requirements of the 4+2 internship program were not completed.
Further, there is no evidence before the Tribunal that the applicant has submitted four case reports to the respondent or sat and passed the National Psychology Examination. These are both requirements of the second year of the 4+2 program. We accept that the exam is a gateway to general registration and applicable indiscriminately to all individuals on the 4+2 pathway. It is a requirement amongst others the applicant cannot avoid.
For these reasons the Tribunal finds that the applicant is not ‘qualified’ within the meaning of section 53 and does not meet the General Registration Standard.
While this provides background to how the applicant finds herself in her present circumstances, it also provides the fabric for affording the applicant some level of credit when required remedial action is considered below.
Having found the applicant is not qualified within the meaning of section 53, that is sufficient to deny her eligibility for general registration. However, consideration of each eligibility requirement informs the Tribunal’s consideration of the conditions imposed by the respondent.
Has the applicant completed any period of supervised practice?
Section 52(1)(b)(i) requires an individual to successfully complete a period of supervision as required by the General Standard. Section 52(1)(b)(ii) was not argued by the parties.
While the applicant was supervised as part of her previous provisional registration for the purposes of the 4+2 internship program, for reasons set out above, that program was not completed. As a consequence, the Tribunal finds that the period of supervision was not “successfully completed”. Section 52(1)(b)(i) is therefore not met.
Is the applicant a suitable person?
An individual is not a suitable person to hold general registration if the nature, extent, and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to the general registration in the profession.[24] This was the only basis upon which the respondent claimed the applicant did not meet section 52(1)(c).
[24] Section 55(1)(f) of the National Law
The Registration Standard: Recency of Practice (Recency Standard) sets out what an individual must achieve in order to demonstrate recency of practice. It speaks to the activities of an individual in the last five years, and relevantly, a minimum of 250 hours of practice as a registered psychologist or provisional psychologist (or equivalent for overseas practice). The applicant accepted the recency standard applied to her application.[25]
[25] Applicant’s submissions dated 31 January 2020 at paragraph 62
The Recency Standard further states that applicants who have not practised as registered or provisional psychologists for five years or more may be required to undertake remedial action and if granted registration may be subject to conditions on that registration requiring the fulfilment of remedial action within a specified period of time.
Both parties referred to the Policy for recency of practice requirements. The definition of ‘practice’ requires circumstances in which an individual uses their skills and knowledge as a registered psychologist in the profession and cannot apply to activities carried out while unregistered. This is reinforced by the approach taken in Hanes v Psychology Board of Australia[26] that decided when the definition of ‘practice’ did not specify registered practice as a psychologist.
[26] [2015] VCAT 886, at [88]-[92]
While there was some debate between the parties regarding the precise date upon which the applicant’s provisional registration expired in 2013, it boiled down to a matter of months. The Tribunal cannot be certain of the precise date but is satisfied it attracts the five-year timeframe required by the Standard and the Policy.
The applicant impressed upon the Tribunal a broad interpretation of the definition of ‘practice’ under the policy which would capture her activities while unregistered. The applicant also submitted she had maintained an adequate connection with the profession since her provisional registration lapsed. In the alternative, the applicant claimed any required remedial action should be minimal and what had been imposed was excessive.
The applicant submitted that she was not required to be registered while working in the United States of America enabling this unregistered practice to be taken into account. The applicant provided references to a Californian legislative code which provided an exemption from registration for employees of academic institutions who do not provide direct health or mental health services.
The applicant’s arguments are rejected for the following reasons:
(a)During the period after her provisional registration expired, the applicant carried out activities of an academic nature which was not direct clinical care and not in a direct, non-clinical relationship with clients. We find this is inconsistent with the definition of ‘practice’.
(b)Unregistered practice can only be taken into account if registration is not available in that country. Registration is available in the United States of America, and required in order to practice, subject to exemptions which may apply. We find that the applicant’s circumstances attracted one such exemption which the applicant took advantage of.
(c)The applicant relied upon a list of classes, a university letter describing her as a faculty mentor and references to co-authored papers. She did not give oral evidence elaborating on her circumstances or work in the United States of America. We find that this does not fall within the definition of “practice” or demonstrate an adequate connection. It does not establish evidence of practice.
Therefore, we are satisfied the applicant’s activities while in the United States of America, or working externally in Australia for an institution located in the US, do not qualify as ‘practice’ and her circumstances are not of a kind which would allow unregistered practice to be taken into account. For these reasons, we find the applicant does not meet the Recency Standard and therefore cannot meet the suitability requirement in section 55(1)(f) for the purposes of section 52(1)(c).
We consider remedial action below in the context of the conditions imposed.
Does the applicant meet any other requirements set out in an approved standard?
Satisfaction of section 52(1)(e) was confined to the General Registration Standard and the Recency Standard. The parties addressed these as they arose under the other requirements in section 52. For reasons already stated above, we find the applicant did not meet the requirements under either standard. Section 52(1)(e) is therefore not met.
Provisional registration and conditions
Conditions 5, 6 and 7 are administrative mechanisms and ancillary to conditions 1-4. We therefore confine ourselves to conditions 1-4.
The applicant complained the respondent had not provided adequate reasons for imposing the conditions. Even if this is correct, it is ameliorated by the de novo appeal process before the Tribunal. The applicant also submitted that at the time of her earlier provisional registration there were only six competencies which had now been expanded to eight. It was also submitted that the additional competencies were not new but could be mapped within the six areas. The applicant also submitted the conditions were excessive.
We accept that the conditions imposed by the respondent cannot conclusively be said to address qualifications alone given their significant overlap with suitability requirements and the applicable standards. The respondent’s concession in this regard was appropriate.
The respondent submitted that the Tribunal must apply current standards and it was irrelevant that during the period of earlier provisional registration six competency areas existed. We accept that submission. The successful completion of four out of six competencies in 2012 had been recognised in reduced hours of supervision in the conditions imposed now.
We accept that the conditions were intended serve a dual purpose: first, completion of the final year component of the 4+2 internship program and secondly, the Recency Standard. In that context and having regard to our findings above, the conditions imposed on the applicant’s provisional registration are unremarkable.
While the conditions do not align with the Recency Policy, they do align with the 4+2 requirements, but not to the full extent. They also address the Recency Standard. Given the primary concern is eligibility for general registration, it is appropriate that conditions favour addressing those deficiencies over the recency of practice issue. The former will overcome the latter. We therefore make the following findings:
(a)The 1500 hours of supervision is half the hours required by the 4+2 internship program. While it is outside the standard range of 500-1000 hours set out in the Recency Policy, which may be varied, we do not regard it as excessive. We are satisfied that the condition imposing 1500 hours of supervision is appropriate.
(b)The requirement to submit a total of four case reports is largely driven by the requirements of the 4+2 internship program. It forms part of the last year of the program. Case reports are also a feature of remedial action under the Recency Policy, which at a minimum is at least one and usually one for every six months of FTE practice. We are satisfied the four case reports are appropriate because they are consistent with the goal of successfully completing the 4+2 internship program.
(c)CPD is an uncontroversial feature of practice. According to the Recency Policy the standard requirement is between 40-60 hours per year. The 4+2 internship program requires 120 hours. We are satisfied the requirement to complete 60 hours of CPD is in line with standard expectations and also the 4+2 internship program. Such a requirement, given the length of time the applicant was unregistered, adequately addresses the evolution of competencies and the shelf-life of knowledge in the profession, particularly in the clinical setting;
(d)The exam was introduced on 1 July 2010 and provides a mechanism to ensure practitioners who are suitably trained and qualified can be eligible for registration. This affords protection to the public.[27] The exam is a mandatory part of the 4+2 internship program and mandatory for individuals who have not practised for more than ten years. Those who have not practised for more than five years may also be required to undertake the exam. It also applies to individuals with training overseas and/or in non-accredited pathways. The applicant’s circumstances attract several of these features: she has not completed the 4+2 internship program and did not undertake the exam before her provisional registration expired; she has not practised (and has not been registered) for five years; and she has non-accredited and overseas training.[28] We are satisfied the requirement to successfully pass the exam is appropriate. It is consistent with the requirements of the 4+2 internship and meets the expectation of public protection.
[27] Guidelines for the National Psychology Exam: Affidavit of Daniel Hillary affirmed 23 December 2019, Exhibit DH2 page 135
[28] Further, the documents indicate the applicant’s particular PhD stream at the University of Memphis was not accredited by the American Psychological Association, see: Affidavit of Daniel Hillary affirmed 23 December 2019 at paragraph 56.
The conditions do not require the applicant to start the two-year component again, but complete half of the required supervision and CPD hours. As with all expectant registrants, she must complete the exam and submit the four case reports.
We find the decision to grant the applicant provisional registration subject to the conditions set out in the September Letter was correct.
Conclusion
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.
Orders
The appellable decision is confirmed.
………………………………..
Senior Member K Katavic
Senior Member D Byrne
HEARING DETAILS
FILE NUMBER: | OR29/2019 |
PARTIES, APPLICANT: | Dr Nadira Pardo |
PARTIES, RESPONDENT: | Psychology Board of Australia |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Ms P Bindon |
SOLICITORS FOR APPLICANT | Sneddon Hall & Gallop Lawyers |
SOLICITORS FOR RESPONDENT | Minter Ellison |
TRIBUNAL MEMBERS: | Senior Member K Katavic Senior Member D Byrne |
DATES OF HEARING: | 27 & 28 February 2020 |
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