Pocock v Psychology Board of Australia - [2014] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

POCOCK v PSYCHOLOGY BOARD OF AUSTRALIA
(Occupational Discipline) [2014] ACAT 54

OR 07 of 2014
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner – registered psychologist – agreed finding of unprofessional conduct – imposition of conditions - complaints from public about controversial public utterances - no complaints from patients - unscientific claims- religious claims - human rights- freedom of expression – right to take part in public life - freedoms not absolute –protections and freedoms do not apply to corporations and not for example to managed care companies that employ registered practitioners - professional associations may impose restrictions on public statements – balance to be struck- extremely rare that Boards can justify imposing conditions on public utterances where failure to observe conditions might result in suspension or loss of registration – reluctance to express standard views alongside personal views justify condition requiring supervision by mentor
Legislation:Health Practitioner Regulation National Law (ACT) s 5
Human Rights Act 2004 (ACT) ss 16, 17, 28, 30

Subordinate Australian Psychological Society Code of Ethics (2007) General
Legislation:Principle A: 1.2, 2.1, 2.4, 5.1; General Principle B: 1.1, 1.2(a), 1.2(b), 3(c); 12.1;
Cases:Mojgani v Aerial Taxi Cabs Co-operative Society Ltd t/as Canberra Cabs [2001] ACTSC 120
A Solicitor v Council of the NSW Law Society [2004] HCA 1
R v General Medical Council, ex parte Colman [1990] 1 All ER 489 Colman v United Kingdom (1994) 18 EHRR 119
Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232
Stambuk v Germany (2003) 37 EHRR 845

Tribunal: Professor T. Faunce - Presiding Member

Ms J. Greagg – Member

Assessor: Dr W. Warren

Orders:24 July 2014
Reasons for Decision: 13 August 2014

AUSTRALIAN CAPITAL TERRITORY )

CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/07

RE:PHILIP POCOCK
Applicant

AND:PSYCHOLOGY BOARD OF AUSTRALIA
Respondent

ORDERS

Tribunal: Professor T. Faunce – Member (Presiding)
Ms J. Greagg – Member

Date of Order: 24 July 2014

The Tribunal finds as follows:

We confirm by consent the finding of the panel of the Psychology Board of Australia (the Board) on 7 February 2014 that the applicant had engaged in unprofessional conduct.

The Tribunal orders that:
The following conditions be imposed, in addition to the applicant’s usual continuing professional development (CPD) requirements, as conditions of the applicant’s registration:

The applicant enter in a 12 month mentoring educative relationship with a psychologist approved by the Board as fulfilling the requirements set out in paragraph 6 (a), (b), (c) and (d) of the reasons of the panel dated 7 February 2014.
Such mentoring/educative sessions should be face to face, for 1 to 2 hours per month, and involve review of video or audio recordings of a number of consultations by the applicant over the preceding period of time. Reports should be written and forwarded by the mentor/educator to the Board every 4 months in the 12 month period.
The mentor/educator should specifically focus on enhancing the applicant’s understanding of and capacity to work within the Ethics Code requirements of the Board.

The mentor/educator should receive a copy of the decision of the Tribunal in this matter, and also be briefed in writing by the Board as to the issues to be addressed in the mentoring educative relationship.

At the conclusion of the mentoring/education relationship (after 12 months), the applicant should provide to the Board and the Tribunal a report on what he has learnt from that mentoring/education.
Within 28 days of this decision, the applicant is to provide to the Board the name or names of proposed mentors/educators. In the event the Board does not agree to three so proposed mentor/educators, the Board will select a mentor/educator of its own within 28 days of receipt of the last nomination by the applicant. Mentoring/education is to commence within 28 days of the applicant’s receipt of notification by the Board of the approved mentor/educator.

If, upon receipt of the final report of the mentor/educator (after 12 months), the Board and the Tribunal are satisfied that the Applicant has met the learning objectives and demonstrated insight into the issues that required the mentoring/education, then these conditions will cease to apply to the extent notified to the Applicant.
If, upon receipt of the final report of the mentor/educator (after 12 months), the Board and/or the Tribunal is not satisfied that the Applicant has met the learning objectives and demonstrated insight into the issues that required the mentoring/education, then the Tribunal will set a hearing date to review continuing application of conditions.
The applicant is to be responsible for the costs of the mentoring education and the associated reports.
As agreed between the parties, the applicant is to undergo, within 28 days or such other time as notified to the applicant by the Board, an independent health assessment by a psychiatrist chosen by the Board and paid for by the Board. A copy of that psychiatrist’s report is to be forward to the Board and the applicant.
By consent, the applicant is to withdraw his YouTube video entries, to close his “Psychology and the Body” website and to remove from his professional website the page entitled “Sex and Marriage”.
…........................................
Ms L. Crebbin
General President
for and on behalf of
Prof. Faunce and the Tribunal

REASONS FOR DECISION
Reasons – Professor T. Faunce

This case raises the issue of how regulatory authorities for the professions should deal with a registered practitioner who makes statements in the public domain that are controversial, appear to discriminate on the basis of sexual preference, are supported by a strong religious conviction rather than a base of scientific evidence and may possibly flow on into clinical encounters with patients.
The Applicant is a registered psychologist in the ACT who has been practising in that jurisdiction since 1998; since 2002 without direct supervision, though compliant with required continuing professional development programs. The Applicant is a strong adherent of the Roman Catholic faith. The problems that precipitated these proceedings may be said to have come to a head with the Applicant's candidature for the 2012 ACT Legislative Assembly elections in which he made pronouncements after announcing he was a practising psychologist. On a radio interview, in a letter to the local newspaper, as well as on certain websites, the Applicant expressed views whose tenor and import may be gauged from examples in which he maintained that sodomy and masturbation were destructive distortions of sexuality, that adultery by a wife destroyed the sexual relationship between husband and wife in a way that could not be remedied by counselling (but that adultery by the male did not have this permanent negative impact) and that sodomy of any type should again be criminalised.
Because of his announcement in each case that he was a psychologist, the Applicant’s expression in public of these views was not solely a matter of his personal life (Mojgani v Aerial Taxi Cabs Co-operative Ltd t/as Canberra Cabs [2001] ACTSC 120 and A Solicitor v Council of the NSW Law Society [2004] HCA 1). It was open to the Applicant, upon deciding his candidature for the ACT Elections in 2012, or at any other time, to have withdrawn or cancelled (temporarily or permanently) his registration as a psychologist, thereby releasing himself from the restrictions imposed by the Australian Psychological Society Code of Ethics (2007) (the Code). He did not do so.
Numerous complaints were received by the Board about such public utterances, both from other psychologists and members of the public. The Board, after a hearing, found that those public statements breached the code of ethics registered psychologists should adhere to and found the Applicant guilty of unprofessional conduct (a standard with less serious import and consequences than professional misconduct). The relevant facts and their context within ACT law were well set out for the benefit of this Tribunal by Mr Hassall counsel for the respondent. The Tribunal adopts that statement of facts to the extent they are set out in Appendix 1 (paras 1-35).
As a registered psychologist, the Applicant is not completely free to express any or all personal opinions held by him, either in public or in the context of his provision of professional services. The Code provides the foundational norms that shape the relevant requirements for his professional conduct. It is a condition of the Code for example, that such practitioners comply with appropriate standards of professional practice, including providing psychological services to benefit, and not to harm, clients (General Principle B: Propreity); bring and maintain appropriate skills and learning to areas of professional practice (B.1.1), work within the limits of education, training, supervised experience and appropriate professional experience (B.1.2(a)), and base professional service only on established knowledge in the discipline and profession of psychology (B.1.2(b)).
Further, registered psychologists, according to the Code, should appreciate that the welfare of patients and the public “and the standing of the profession, take precedence over a psychologist’s self-interest” and “take reasonable steps to prevent harm occurring as a result of their conduct.” (B.3 (c)) Such service provision must demonstrate “a high regard for the diversity and uniqueness of people” (General Principle A: “Respect for the rights and dignity of people and peoples”); and an understanding of the consequences for people of unfair discrimination and stereotyping based on their sexuality (A.1.2).
When a registered practitioner moves outside the practitioner-patient relationship, to make statements to the public, the Code also requires that the practitioner demonstrate an understanding of the consequences for people of unfair discrimination and stereotyping based on their sexuality (A.1.2); not denigrate the character of people by communicating in a way that demeans them as people (A.2.1); comment on the qualifications, competencies or work of a colleague in psychology only in an objective and respectful manner (A.2.4); safeguard the confidentiality of information obtained from patients during his provision of psychological services (A.5.1); and avoid engaging in disreputable conduct that reflects on his or her ability to practise as a psychologist or which reflects negatively on the profession or discipline of psychology (C.1).
At the opening of this hearing, counsel for the Applicant announced that the Applicant had accepted the Board’s finding of unprofessional conduct. The Applicant agreed with the Board’s conditions requiring that he undergo a health assessment by a psychiatrist and that he undertake additional education. He argued however that there was no need for a supervisory relationship of the type proposed by the Board (a fortnightly session with a senior psychologist and review of clinical notes over the intervening period).
There was some force to this argument of the Applicant. This was not a matter that had arisen as a result of a complaint about the Applicant's conduct in a professional relationship. This Tribunal was not made aware of any such complaints by the Applicant’s patients. The impugned comments were made by the Applicant chiefly during a political campaign, a field in which he had considerably less experience and learning than psychology. The Tribunal was asked to infer that there was a risk those public utterances characterised comments that would be made in clinical encounters and thereby endanger patient safety. Further in my view, the Applicant was entitled to reasonable expression of his religious faith in the course of his clinical practise; though where such faith led to constraints on standard practise it was appropriate to advise patients in advance of such limitations, or if they arose in the midst of a clinical encounter, to ensure continuity of care by appropriate referral.
There are considerable perils facing a Tribunal that is too ready to make adverse inferences about clinical practise from a registered professional’s public utterances. The governing bodies of professions have many times in the past become cliques that have punished outsiders, including those with unusual views that were subsequently proven scientifically to be correct, or those willing to fight injustice despite the unpopularity of that cause amongst the profession. The Applicant, in his evidence before this Tribunal, put himself in the former category.
The Applicant relied on the freedoms set out in sections 16 (freedom of expression) and 17 (right to take part in public life) of the Human Rights Act 2004 (ACT). The Applicant’s case appeared to be that, because of the statutory requirement in the Human Rights Act 2004(ACT) to interpret ACT legislation consistently with human rights such as those set out in sections 16 and 17 (section 30), the definition of unprofessional conduct in section 5 of the Health Practitioner Regulation National Law (ACT) – namely, “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers” – should be interpreted as not encompassing the public statement by the Applicant of his opinions.
Yet such freedoms are not absolute and may be subject to reasonable limits that can be demonstrably justified in a free and democratic society (s 28, Human Rights Act 2004 (ACT)).
It is accepted that professional associations may be able to impose restrictions on public statements by members without breaching human rights such as freedom of expression: see for example R v General Medical Council, ex parte Colman [1990] 1 All ER 489, Colman v United Kingdom (1994) 18 EHRR 119; Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232 (Rocket); Stambuk v Germany (2003) 37 EHRR 845. Likewise, such human rights protections and freedoms do not apply to artificial persons such as corporations and so do not apply, for example, to managed care companies that employ registered practitioners or utterances and actions on behalf of such corporate entities.
While those restrictions must comply with the reasonable limits test contained in section 28 of the Human Rights Act 2004 (ACT), it is accepted that in assessing whether such restrictions are reasonable, a balance must be struck between the right (and on occasion, the responsibility in conscience) of a person to communicate information and opinions to the public on the one hand, and the legitimate aim of a professional association to maintain standards among its members, on the other. Moreover, it is accepted that a dominant consideration in assessing reasonableness should be the extent to which such standards serve to protect vulnerable patients served by the profession: see for example Rocket at [34]-[35].
In the present case, the limits on complete freedom of expression arguably imposed by the Health Practitioner National Regulation Law (ACT), in so far as it indirectly applies or adopts the Code in respect of psychologists, must be read in the context that:
a.the Applicant was free to withdraw or cancel his registration as a psychologist when he decided upon his candidature for the 2012 ACT Elections, or at any other time;
b.the Applicant’s position and status as a registered psychologist conferred benefits on him, including the ability to earn an income as a professional;
c.the public statements made by the Applicant were in no way necessary for, or even conducive to, his professional practice as a psychologist;
d.it is reasonably foreseeable that the public statements made by the Applicant would cause offence and/or harm to persons who are vulnerable;
e.it is reasonably foreseeable that any offence and/or harm caused to such persons would be exacerbated by the Applicant's position and status as a registered psychologist and the express links drawn by the Applicant between those statements and his professional opinion; and
f.it is in the public interest for health professional associations to maintain high standards of conduct for their members.
Nonetheless, Tribunals should guard against Boards relying on findings that public utterances by a registered practitioner bring the profession into disrepute in order to impose a deleterious political orthodoxy that is destructive of conscience and responsible participation in a democracy, or the generation of innovative hypotheses that are critical to allowing scientific progress. The instances are extremely rare in which such Boards can be justified in imposing conditions on practitioners speaking or writing in public where failure to observe those conditions might result in suspension or loss of professional registration. Constraints on advertising for the profit of the practitioner or the company he or she works for, might be one example of an appropriate instance. Members of learned professions have an obligation to occasionally engage in vigorous debate when their knowledge and experience may bring unique insights upon major issues that are important to disclose to the public. There are other laws that more generally and appropriately aim to ensure that public comments do not express discriminatory views.
It became clear in the course of the Applicant’s evidence however, that he admitted to expressing his controversial views on the matters mentioned above in clinical consultations with a proviso in general terms “these are my personal views, they are not yet supported by scientific evidence”. The capacity to express personal opinions to patients (for example based on anecdotal clinical experience rather than book knowledge) is part of the robust critical analysis that a professional must bring to bear on the scientific data that forms the bedrock of his profession’s knowledge. Such opinions often form the nub of a hypothesis that drives the creation of new scientific knowledge through clinical trials with good experimental design, resultant publications, and debate particularly at professional conferences. Yet, standard professional practise should ensure that such personal opinions are preceded by a careful presentation of what the profession regards as the standard view based on the scientific evidence. It was the Applicant’s reluctance to express this standard view before or alongside his own personal views that most strongly suggested his patients would benefit and be less at risk if he undertook a process of mentoring and education with a senior psychologist. Accordingly, the Tribunal agreed that conditions should be imposed on the Applicant’s registration requiring his supervision by a mentor.
We are indebted to Dr Warren, the assessor who sat with the Tribunal and provided guidance upon request, for the suggestion that such mentoring/education involve the review of consultations that are videoed or audio recorded with patient consent.
Additional Comments – Ms J. Greagg
I agree with the Orders made. I am also in general agreement with the Presiding Member’s Reasons for Decision, but analyse the application of the relevant professional code differently from the approach suggested by comments in paragraphs 9 and 17 above.
In paragraph 9 it is noted that no complaints were received about the Applicant’s practice. All the complaints were linked to media statements made by the Applicant during his campaign in the ACT election in 2012. It was on this basis that the Applicant sought to have conditions on his registration requiring him to undergo ‘supervision’ that were imposed by a Performance and Professional Standards Panel at a hearing on 7 February 2014, dropped.

When the Applicant was giving evidence he appeared to struggle to separate his religious and biological/scientific views from accepted psychology practice. He also demonstrated little appreciation of his obligations as a psychologist under the Code, or of the terms of the Code itself. Specifically, the Applicant appeared to fail to grasp that his obligations under the Code were not only to ‘clients’, but also to a wider group of ‘people’ and covered his ‘conduct’ as defined under the Code.
The Presiding Member expressed the view in paragraph 9 that ‘[t]he Applicant was entitled to reasonable expression of his religious faith in the course of his clinical practise, though where such faith led to constraints on standard practise it was appropriate to advise patients in advance of such limitations or if they arose in the midst of a clinical encounter, to ensure continuity of care by appropriate referral’. That view is also reflected in comments in paragraph 17. I have a different view based on my reading of the application of General Principle B.1.2 (b) of the Code.
General Principle B.1.2 requires that ‘psychologists [should] only provide psychological services within the boundaries of their professional competence’. This includes, but is not restricted to… ‘(b) basing their service on the established knowledge of the discipline and profession of psychology’.
Although paragraph (b) is only one of five elements listed, and despite the list being inclusive rather than exhaustive, the tenor of paragraphs (a) to (e) of B.1.2 does not suggest the flexibility that would allow the Applicant to express his religious views to clients and remain compliant with the Code. In my view, it is not open to the Applicant to give his clients his religious or his personal views, even with the disclaimer that ‘I have a view; there is no evidence as yet. We can talk about it if you like or I can refer you on’. On my reading of the Code, this approach is precluded by the Applicant’s obligations under General Principle B.1.2 (b).
The Applicant confirmed during proceedings that he was eager for guidance in relation to the types of statements that he could make and that would be regarded as appropriate, without infringing his obligations as a psychologist under the Code, and given the Applicant’s positive attitude in relation to this, he will benefit greatly from the mentoring/education order made by the Tribunal.
At one point in the proceedings the Applicant stated that he had not specifically held himself out to be a psychologist when he made the statements associated with his election campaign which formed the basis of the complaints. The Applicant stated that he was required to specify his occupation when he applied to run for election and that that was the reason for the inclusion of his profession in media statements, rather than any specific statement made by him. The Respondent asserted in its ‘Statement of Facts and Contentions’ [paragraph 47] that it was open to the Applicant to take action including withdrawing or cancelling (temporarily or permanently) his registration as a psychologist before the election campaign and that this would have negated any conflict for the Applicant with his professional obligations under the Code.
This point was not taken further during the hearing. However, I note that General Principle B.12.1 headed ‘Conflicting Demands’ may have provided a mechanism for the Applicant to seek advice should he have felt so inclined. It provides:
Where the demands of an organisation require psychologists to violate the general principles, values or standards set out in this Code, psychologists:

(a) clarify the nature of the conflict between the demands and these principles and standards;
(b) inform all parties of their ethical responsibilities as psychologists;
(c) seek a constructive resolution of the conflict that upholds the principles of the Code; and
(d) consult a senior psychologist.

‘Organisation’ is not defined in the Code. If the Electoral Commission is taken to be an ‘organisation’ for the purposes of the Code, and it has required the Applicant to both state his occupation and then present his electoral platform which would be likely to violate general principles, values or standards set out in the Code; then the psychologist could have obtained appropriate guidance about resolving the conflict.
Finally, I note that the Applicant stated that he was travelling from March 2012 and had no clients between that time and a date after the ACT Election. If he had suspended his registration, or taken other suggested action to ensure that he was not in breach of his obligations under the Code, it is unlikely that he would have experienced significant financial loss in those circumstances.
…........................................
Ms L. Crebbin
General President
for and on behalf of
Professor Faunce and the Tribunal
APPENDIX 1

IN THE AUSTRALIAN CAPITAL TERRITORY)
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/07

RE:PHILIP POCOCK
Applicant

AND:PSYCHOLOGY BOARD OF AUSTRALIA
Respondent

RESPONDENT’S STATEMENT OF FACTS AND CONTENTIONS

FACTS

The Applicant is a registered health practitioner practising psychology in the Australian Capital Territory (“ACT”).
The Applicant was first registered as a psychologist on 31 December 2002 and has remained registered as a psychologist since that time.
The Applicant practises under the business name “Access Psychological Services” (ABN 71 191 519 924) from premises located in Canberra.
In connection with his practice as a psychologist the Applicant maintains an internet website entitled “Access Psychological Services” ( and also has a yellow pages listing.
The Access Psychological Services website includes various links including a link to a document written by the Applicant entitled “Sex and Marriage” The text of this document among other things refers to the following “distortions of sexuality” as having a potential negative effect on a person’s well-being:
(a)“Masturbation;
(b)Oral sex;
(c)Sex before marriage;
(d)Sodomy;
(e)Exhortation to practice the above four practices through pornography.”
On 30 December 2008 the Applicant posted a “Youtube” video on the internet entitled “The Pope – Sex, Gender and Homosexuality – Philip Pocock of Canberra Australia”. The video is a recording of the Applicant in which he identifies himself as a psychologist and expresses opinions regarding homosexuality and other issues.
On 27 January 2009 the Applicant posted two further “Youtube” videos on the internet entitled:
(a)“Sexual Consent in Marriage Pt 1 Sexual Bonding – Philip Pocock Canberra Australia”; and
(b)“Sexual Consent in Marriage Pt 2 Adultery – Philip Pocock Canberra Australia”.
The videos posted on 27 January 2009 are recordings of the Applicant in which (in the first video) the Applicant identifies himself as a psychologist and expresses opinions regarding sexual consent in marriage, adultery and other issues.
The “Youtube” videos referred to above each refer to another website apparently maintained by the Applicant, entitled “Psychology and the Body” (>
In 2012 the Applicant stood as a candidate in the ACT Legislative Assembly elections in the electorate of Molonglo.
In connection with his candidature the Applicant established and maintained a website entitled “Philip Pocock – Independent Candidate for Molonglo ( (“the Philip Pocock Info Website”).
The home page for the Philip Pocock Info Website displayed the same photograph of the Applicant as is located on the “Access Psychological Services” website, and set out what appears to have been the Applicant’s election platform for the ACT Legislative Election, including that the Applicant wanted to “get rid of ACT legislation for homosexual unions”
The Philip Pocock Info Website included the following links:
(a)A link entitled “Sex and Marriage (Short Version)” which directed the user to the “Access Psychology Services” document referred to at paragraph 5 above;
(b)A link entitled “Sex and Marriage (Long Version)” which directed the user to the “Psychology and the Body” website referred to at paragraph 9 above; and
(c)A link to a website maintained by the Catholic Social Justice Commission ( which set out the Applicant’s and other candidates’ views regarding various issues including for example the issue of same-sex marriage.
The T-documents contain a partial print-out of the Applicant’s views in relation to the issue of same-sex marriage, as displayed in 2012 on the Catholic Social Justice Commission website. The Applicant’s views expressed at this location include the following statements:
(a)“As the evidence actually shows that no-one ‘is’ a homosexual but people are just engaging in homosexual acts …”;
(b)“… homosexual unions not only deserve no special rights but must be seen as the destructive behaviours that should be actively discouraged …”;
(c)“… I believe sodomy of man or woman should be regarded as a criminal offence and while people do not have the right to go ‘poofter bashing’, to use colloquial language, they should have the right to discriminate in terms of employment, accommodation etc as they do in dealing with drug addicts etc.”
In connection with his candidature for the 2012 ACT Legislative Assembly Elections the Applicant had contact with various media outlets including the following:
(a)On 24 September 2012 the Applicant was interviewed on 2CC radio in relation to the views expressed by him on the Catholic Social Justice Commission website and stated among other things:
i.His views were informed by his work as a psychologist and his concern for the mental health of gay people;
ii.He advised gay patients that “you’d be better off not engaging in sodomy” and that they needed to be protected from themselves; and
iii.“My argument is that sodomy is psychologically aversive behaviour and what I’m saying is that people need to be protected from themselves”.
(b)In late September 2012 or early October 2012 the Applicant wrote to the Canberra Times newspaper and stated among other things:
i.“When I become Prime Minister – as God as assured me I will...”;
ii.“… denial of the real effects of homosexual practices seems to be the starting point for … research [of psychologists from the Research School of Psychology at the Australian National University]”; and
iii.“… the psychologists from the Research School at the ANU are not only deeply troubled, but wrong” and should be “shipped off” to the “school of inconsequential studies”.
In September and October 2012 the Australian Health Practitioner Regulation Agency (“AHPRA”) received a number of complaints regarding statements made by the Applicant via the various forums referred to above.
AHPRA provided the Applicant with an opportunity to respond to the complaints, and on 29 October 2012 the Applicant provided a submission
AHPRA decided to refer the complaints on to the ACT-Tasmania-Victoria Regional Psychology Board for consideration (“the Board”), and after joint consideration with the Health Services Commissioner, the Board referred the complaints to a performance and professional standards panel (“PPSP”) under section 182 of the Health Practitioner Regulation National Law
On 17 January 2014 the Applicant was given notice by the PPSP of an inquiry hearing to be held on 7 February 2014, which the Applicant was invited to attend.
On 7 February 2014 the PPSP conducted a hearing in relation to Mr Pocock’s conduct during which Mr Pocock was given an opportunity to address, and did address, the PPSP.
During the hearing on 7 February 2014 the Applicant made the statements and behaved in the manner attributed to him in the Statement of Reasons and Decision of the PPSP dated 7 February 2014
In particular, during the hearing on 7 February 2014 the Applicant did the following:
(a)“He stated that if patients asked his views, he believed he had to inform them of things that would damage their health such as masturbation and sodomy; in the same context as one might explain that smoking or illicit drugs are damaging to health; except the damage is psychological. He stated that he did not believe this was a personal view but rather a scientific view that will be proven.”
(b)“He stated that instinctively people did not think homosexuality was right. His position was that he was securing psychology for the future as the evidence will emerge that these are aberrant behaviours; that homosexuals act out of ignorance and are harming themselves. He went on to outline information about how such behaviours are somatically aversive …”
(c)“He expanded on his view that women are serial monogamists and that if a woman has intercourse with another man during her marriage, this is terminal to the relationship. If a couple in this situation consults with him, he will explain this to them and offer to refer them on to another therapist if they wish to work on their relationship.”
On 7 February 2014 the PPSP determined that the Applicant had behaved in a way that constitutes “unprofessional conduct” within the meaning of section 5 of the Health Practitioner Regulation National Law (ACT), as outlined in the PPSP’s Statement of Reasons and Decision
Having determined that the Applicant had engaged in unprofessional conduct, the PPSP decided to:
(a)Caution the Applicant in relation to making public controversial statements which are likely to bring the profession into disrepute; and
(b)Impose conditions on the Applicant’s registration.
The conditions which the PPSP decided to impose on the Applicant’s registration were that:
(i)Mr Pocock is required to enter into a 12 month supervisory relationship with a supervisor approved by the Board;
(ii)Supervision sessions should be face-to-face and occur fortnightly with reports to the Board on progress every three months;
(iii)The supervision should involve viewing case notes and should determine the CPD activities that Mr Pocock will undertake in the next 12 months;
(iv)The supervisor should be briefed in writing by the Board in relation to the issues to be addressed; namely Mr Pocock separating his personal views from his professional personae. The supervisor should also review all material that Mr Pocock has and intends to publish regarding his practice (in hard copy and online);
(v)The supervisor is to be approved by the Board prior to the commencement of the supervision;
(vi)Within 28 days of receipt of these written reasons for decision, Mr Pocock is required to provide to the Board the names of at least three proposed supervisors and their curriculum vitae. Those proposed supervisors must be senior clinical psychologists. If those proposed supervisors do not meet the requirements of the Board, Mr Pocock may be directed to submit details of alternative supervisors.
· The proposed supervisors should:
(a)Hold general registration as a psychologist for a period of not less than seven years;
(b)Not be in a close collegiate, social or financial relationship with the psychologist;
(c)Have not less than five (5) years experience as a supervisor of registered psychologists; and
(d)Have training, experience and/or qualifications in the relevant area of practice specified by the Panel.
(vii)The supervision sessions should commence within 28 days after receiving notification of approval by the Board of the proposed supervisor.
(viii)The quarterly supervision reports must address the contents of the supervision sessions. The reports must also address how the supervision/education has changed Pocock’s practice.
(ix)At the end of 12 months, the supervisor is to provide a report to the Board within two weeks of the completion of the sessions detailing the contents of the supervision and whether Mr Pocock has met the learning objectives to a level expected of a registered psychologist;
(x)If the Board is not satisfied that Mr Pocock has met the learning objectives and demonstrated insight into the issues that required supervision, Mr Pocock will be required to undergo further supervision until the Board is satisfied that the learning objectives have been met and translated into every day practice.
(xi)Mr Pocock is responsible for the costs of the supervision and reports.
(xii)The education is not to count towards his mandatory continuing professional education obligations.
(xiii)Mr Pocock is also required to undergo an independent health assessment by a psychiatrist as the Panel reasonably believes that he may have an impairment that adversely affects his capacity to practice.
On 11 March 2014 the Applicant applied to ACAT for a review of the decision of the PPSP.
The Health Practitioner Regulation National Law, implemented in the ACT by the Health Practitioner Regulation National Law (ACT), aims to establish a national registration and accreditation scheme for the regulation of health practitioners: s 3(1)(a).
An aim of the scheme is to protect the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered: s 3(2)(a).
The establishment and processes of the PPSP were regulated by Division 11 of Part 8 of the Health Practitioner Regulation National Law (ACT).
The PPSP’s decision was made pursuant to section 191 of the Health Practitioner Regulation National Law (ACT).
The Psychology Board of Australia has adopted the Australian Psychological Society (“APS”) Code of Conduct for the profession of psychologists: s 39, Health Practitioner Regulation National Law (ACT). Accordingly the PPSP in reaching its decision was entitled to have regard to the provisions of the APS Code of Conduct as evidence of what constitutes “appropriate professional conduct or practice” for registered psychologists: s 41.
Given that the PPSP found that the Applicant had engaged in “unprofessional conduct”, the PPSP had a discretion to caution the Applicant and/or to impose conditions on the Applicant’s registration as a psychologist: s 191(3).
The Applicant’s appeal is brought pursuant to section 199 of the Health Practitioner Regulation National Law (ACT), this Tribunal being “the appropriate responsible tribunal” for the purposes of this case.
The Applicant has at various times expressed the following opinions (“the Applicant’s Opinions”):
(a)Masturbation, oral sex, sex before marriage and sodomy are each “distortions of sexuality” which have negative psychological effects;
(b)Adultery by a wife is terminal to the relationship between the husband and the wife;
(c)Individuals with homosexual inclinations need to be “protected from themselves”.
The Applicant’s Opinions appear to derive from a combination of the Applicant’s specific religious beliefs, and what the applicant has referred to as “a speculative theory of psychology” which “would in time be supported by scientific evidence”