Psychology Board of Australia v Cook
[2014] QCAT 162
| CITATION: | Psychology Board of Australia v Cook [2014] QCAT 162 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Natascha Cook (Respondent) |
| APPLICATION NUMBER: | OCR189-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon JB Thomas (Judicial Member), assisted by: Dr Rebekah Doley, Dr Andrea Quinn and Mr Graeme Lawrence |
| DELIVERED ON: | 26 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. A finding is recorded under s 196(1)(b) of the Health Practitioner Regulation National Law Act 2009 (Schedule) that the respondent has behaved in a way that constitutes professional misconduct in that she engaged in a sexual relationship with a male patient; 2. The respondent's registration is suspended for 6 months, commencing on 1 July 2014 and ending on 31 December 2014; 3. The following conditions shall apply to the respondents registration as from 1 January 2015: a. The respondent must notify the board and AHPRA of all changes in her employment and conditions of employment during the suspension period; and b. in the event that she is still employed by the Brisbane Counselling Centre on 1 January 2015, the respondent must undertake the usual compulsory 10 hours of peer supervision with a supervisor external to her employer and approved by the Board. 4. The respondent shall pay the applicant Board’s costs of these proceedings fixed at $16,000.00. 5. Leave is granted to the parties to make further submissions to the Tribunal on the form of the order within seven days of notification of these reasons and orders. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGIST – where the registrant maintained a sexual relationship with a patient – where the registrant did not advise the Board of her misconduct but made full admissions when asked to show cause – where the Board sought a suspended suspension – whether the Tribunal has the power to suspend a suspension PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGIST – where the parties jointly submitted a sanction that cannot be made by the Tribunal – where the registrant now works in a larger practice with support and supervision – where the registrant has sought further training and counselling – whether the burden of a costs order is relevant in consideration of a sanction Crime and Misconduct Act 2001 s 219L Pharmacy Board of Australia v Hung [2014] QCAT 148 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | McInnes Wilson Lawyers |
| RESPONDENT: | In person (written submissions) |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Jurisdiction
This is a reference from the Psychology Board of Australia under s 193 of the Health Practitioner Regulation National Law. That law is scheduled to the Health Practitioner Regulation National LawAct 2009 (Qld) and, to the extent that it is set out in the schedule, it is binding law in this state. It will be referred to as “the adopted National Law”.
The events the subject of this disciplinary proceeding occurred after the commencement of the adopted National Law which commenced operation on 1 July 2010.
QCAT is the “responsible Tribunal” with jurisdiction to deal with references made under s 193 of the adopted National Law.[1]
[1]Health Practitioner Regulation National Law Act 2009 (Qld) s 6; and s 5 (definition of “responsible Tribunal” in the adopted National Law).
The present tribunal, consisting of a judicial member and three assessors, has been constituted under the provisions of Part 12A of the Health Practitioners (Disciplinary Proceedings) Act 1999 (“the Disciplinary Proceedings Act”), of which the most relevant sections for present purposes are ss 398C(1), 398K and 398L.[2]
[2]Cf Medical Board of Australia v The Registrant, [14].
The basis of this reference to QCAT is the Board’s belief that Ms Cook behaved in a way that constitutes professional misconduct. The conduct in question was a relatively brief sexual relationship between Ms Cook (a psychologist) and a male patient.
The decisions and orders that may be made in these proceedings are relevantly prescribed in s 196 of the adopted National Law. They include findings of “unsatisfactory professional performance”, “unprofessional conduct” and “professional misconduct”, or of conduct amounting to one or more of those terms, each of which is defined in s 5 of the Act.
Section 196(2) specifies the types of order that may be made by QCAT upon such a referral.
Main Facts and circumstances
The respondent has been a registered psychologist since 1997 and has no transgressions other than the subject incident in 2009.
Upon referral from a GP in 2007, Mr X became her patient. He was suffering from a traumatic stress disorder. The treatment continued into 2009.
She and X lived in the same street. In mid 2009 X disclosed that he had a “crush” on the respondent. They were drawn into personal contact through X submitting a tender for renovation at the local Kindergarten of which Ms Cook was the president. X estimated that he made between 100-200 telephone calls to Ms Cook between August and October 2009, during which period they had sexual intercourse on 4 occasions. He however remained her patient and their last formal psychology session was in September 2009.
X was confronted by his wife and subsequently met with the respondent. They agreed that the affair had to end, and it did.
At that time X mentioned the affair to his psychiatrist but insisted that no formal report be made. Finally in July 2012 he gave his consent for the psychiatrist to make a notification to AHPRA, which brought the misconduct to official notice.
Ms Cook did not voluntarily advise the board of her misconduct in accordance with standing ethical requirements, but she immediately made full admissions when called on to show cause.
X has said that he has felt unable to seek further professional help from an alternative psychologist because of the experience that he had with the respondent.
Very soon after notification of the complaint, the Board took “immediate action” (see sections 155-156 of the adopted National Law) and it imposed conditions upon Ms Cook’s registration. These included a requirement that she complete prescribed programs and education, and that she provide reports to the Board.
These conditions have been complied with, and Ms Cook has undergone useful supervision and has undertaken further education as prescribed.
Discussion
In the present matter the parties have presented a statement of agreed facts and also a joint submission on sanction. It is of course for this Tribunal to make its own decision on the appropriate order, but will give due respect to the considered view of the parties, including the responsible Board.
The agreed proposal is in effect that there should be a period of 12 months suspension of registration, but a complicated series of conditions and requirements have been superadded. Specifically the Board has proposed that a 12 month suspension be imposed, that the first 2 months of the suspension be suspended to enable an orderly transfer of patients, that there then be 6 months actual suspension, that there should then be a further 4 months suspension of the suspension during which she may return to practice, and that there should then be another 8 months of practice during which any misconduct or failure to observe prescribed conditions will activate the remainder of the suspension.
Can suspensions be suspended?
In my opinion a suspension of a suspension is not within the powers of this Tribunal to make in proceedings under the adopted National Law. The power of suspension of registration given by s 196(2)(d) simply permits QCAT to “suspend the practitioner’s registration for a specified period”.
This gives power to suspend the registration, but there is no express power to suspend the suspension. It is true that many instances may be found in health practitioner disciplinary cases, and in cases involving other professions, and indeed in the criminal law, where orders of been made suspending suspensions for stated periods, but these appear to have been based on different legislation which gave express power to do so.[3]
[3]See for example Health Practitioners (Disciplinary Proceedings) Act 1999 s 242(1)(g) and s 247; Crime and Misconduct Act 2001 s 219L; Penalties and Sentences Act 1992 ss 144 - 146.
Instances of past orders include orders of suspension for a stated period, with the inclusion of a suspension of the suspension for part of that period, and a further order that the suspension operate for an extended operational period greater than the period of the suspension. Orders of those kinds seem to be based either on particular legislation or on analogy with criminal practice in relation to suspended sentences.[4]
[4]See for example the following cases involving medical practitioners - Ibrahim v Medical Board of Australia [2005] QHPT 302; Medical Board of Australia v Yasin [2011] QCAT 300; Medical Board of Australia v Namdam [2011] QCAT 65; Medical Board of Australia v North [2012] QCAT 546; Medical Board of Australia v Jones [2012] QCAT 362; Medical Board of Australia v Mallon [2010] QCAT 311; Medical Board of Queensland v Thurling [2003] QCA 518.
I can see no source of power in s 196 of the adopted National Law for the imposition of extended operational periods. The adopted National Law may well have been designed to simplify the increasing complexity of orders being made by disciplinary boards in the various states and territories. Be that as it may, the power granted by the adopted National Law to this tribunal is limited to suspension for a specified period, and it contains no added reference to operational periods, or to any regime such as that specified in criminal procedural statutes such as the Penalties and Sentences Act 1992,[5] or to an express power to suspend decisions (including suspension itself) such as that in the former Health Practitioners (Disciplinary Proceedings) Act 1999[6], or to the express powers in that behalf in the Crime and Misconduct Act 2001.[7]
[5]Sections 144 - 146 of the Penalties and Sentences Act contain specific reference to operational periods and to the regime under which a suspended sentence may be activated.
[6]See Health Practitioners (Disciplinary Proceedings) Act 1999 ss 242(1)(g) and 247.
[7]See Crime and Misconduct Act 2001 s 219L.
The power of suspension does not naturally include the power to suspend its operation for a stated period, and to require the balance of the suspension to be carried in the event that stated conditions are not fulfilled. Nor can I see any warrant for the imposition of any ‘operational period’ beyond the period of the suspension during which breach of a stated condition will result in reactivation of a period for which the suspension was lifted.
I respectfully agree with and adopt the similar reasoning and conclusions reached by Horneman-Wren DCJ in Pharmacy Board of Australia v Tavakol [2014] QCAT 112 and Pharmacy Board of Australia v Hung [2014] QCAT 148.
It seems to me that a simple and direct suspension for a stated period is now intended, and that orders that might make the period of actual suspension look longer than it really is, or which would involve Boards in cumbersome supervision and bureaucratic exercises during operational periods are no longer intended.
The Tribunal may of course specify a date from which its order will take effect. Such a power is expressly conferred by section 127 of the Queensland Civiland Administrative Tribunal Act 2009. Section 196(2)(d) of the adopted National Law in any event would seem to enable the Tribunal to specify the period of the suspension, by specifying a starting and ending date for any suspension. The ability to make an order in this form is useful and convenient, as it permits a delayed date to be specified for commencement of an order so that a reasonable period may be allowed for arrangements to be made for the transition of patients to a practitioner or practitioners.
In short, there is no power in the present matter to suspend a suspension or to order any extended operational period, and I cannot make the orders of the kind which the parties seek in relation to suspension.
Conclusions
The main substance of the complicated suspension of which the parties have agreed (see [18] above) is in effect one of 6 months, with the possibility of increase upon various contingencies. The parties were further agreed that there should be an imposition of various conditions on Ms Cook’s registration, and that she should pay the Board's costs of $16,000.
This Tribunal does not have the power to suspend a suspension, or to make provision for extended operational periods, or for the activation of further suspension upon breach of stated conditions.
It will therefore be necessary to fashion an order in compliance with the provisions of section 196(2)(d).
Among other mitigating factors and collateral disadvantages I take into account the fact that the parties have agreed that Ms Cook should be ordered to pay the Board’s costs, fixed at $16,000.
What conditions should be imposed when registration resumes?
As the practitioner’s registration is still subsisting, it will revive after the period of suspension has taken place. Accordingly it will be possible to impose various conditions upon that registration under section 196(2)(b) of the adopted National Law. The problems associated with dealing with practitioners who are no longer registered, or whose registration is cancelled, mentioned in Pharmacy Board of Australia v Arulogun [2014] QCAT 165 and Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 39 do not arise here.
It is noted that the transgression occurred more than four years ago and that Ms Cook has remained in practice as a psychologist, without further trouble. After the relevant events she moved to a larger well-established practice where 12 registered psychologists work, and there has been support and supervision, including that of the director who provides quarterly updates to the Board and to AHPRA. This employment seems to have been beneficial.
It may transpire that she will remain in some type of employment with this employer, even during and after suspension. Both she and her employer, whoever it may be, will need to make firm arrangements that ensure that she does not practise directly or indirectly as a psychologist during the suspension period.
With the uncertainties of future employment in mind, we have fashioned two conditions to be imposed on her registration, which overall seem to us to be less burdensome to the respondent than those proposed:
(i) The respondent must notify the board and AHPRA of all changes in her employment and conditions of employment during the suspension period; and
(ii) in the event that she is still employed by the Brisbane Counselling Centre on 1 January 2015, the respondent must undertake the usual compulsory 10 hours of peer supervision with a supervisor external to her employer and approved by the Board.
It is also noted that Ms Cook sought training and counselling of her own accord with Dr Brian Kable, a medical professional who has studied the conduct of professionals who engage in inappropriate relationships with patients. He has expressed the opinion that she does not represent a danger to the public in any way and that she is most unlikely to reoffend. Similar favourable views have been expressed by her supervisor Ms Donkin and other professional associates.
Initially the respondent strongly contended that there ought not to be any suspension at all. However eventually she concurred with the Board in the rather complicated proposal in [18] above, which involved at least six months suspension and the possibility of additional suspension. Her original submission opposing suspension was not realistic, as such an order would provide insufficient general deterrence for such a serious and obvious violation of professional practice.
Reference was made to a number of cases including Medical Board of Australia v Yasin [2011] QCAT 300, and Psychology Board of Australia v Dall [2011] QCAT 608. The proposed six months suspension seems appropriate and consistent with past levels of sanction when points of distinction are taken into account. In my view the appropriate order should include suspension for a period of six months from a deferred date that will enable a short time for future employment arrangements to be negotiated.
Request for non-publication order
The respondent sought an order under s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 “preventing publication of my details”.
She submitted that such publication might be seen by patients and undermine her professional relationship with them. She also contended that it would amount to a punitive measure going beyond the purpose of disciplinary proceedings, and contrary to the interests of the administration of justice.
I reject those submissions. The criteria justifying such an order are exhaustively stated in section 66(2), and none of them is made out. The fear of exposure seems to be a strong deterrent factor in the maintenance of ethical standards by health professionals in cases of this kind, and to remove it, or weaken it, would not be desirable. It is neither in the public interest nor in the interests of justice that any order be made for suppression of the respondent’s misconduct and the outcome of these proceedings.[8]
[8]Compare Psychology Board of Australia v Duangpatra [2012] QCAT 541 [35] - [39].
A procedural matter
I do not think that the proposed orders depart in substance from the basis upon which the parties made their submissions to the Tribunal. However, as the conditions which we have formulated differ from those upon which the parties earlier agreed, leave will be granted to the parties for a period of seven days to make further submissions if so advised on the form of order. A short period (seven days) is desirable because further delay would operate to the disadvantage of the respondent. If submissions are made within that time, the matter will be reopened; otherwise the orders will stand.
Proposed orders
With the assistance of the assessors in this matter I have concluded that the orders should be in the following terms:
1. A finding is recorded under s 196(1)(b) of the adopted National Law that the respondent has behaved in a way that constitutes professional misconduct in that she engaged in a sexual relationship with a male patient;
2. The respondent's registration is suspended for 6 months, commencing on 1 July 2014 and ending on 31 December 2014;
3. The following conditions shall apply to the respondent's registration as from 1 January 2015:
(i)The respondent must notify the board and AHPRA of all changes in her employment and conditions of employment during the suspension period; and
(ii)in the event that she is still employed by the Brisbane Counselling Centre on 1 January 2015, the respondent must undertake the usual compulsory 10 hours of peer supervision with a supervisor external to her employer and approved by the Board.
4. The respondent shall pay the applicant Board’s costs of these proceedings fixed at $16,000.00.
5. Leave is granted to the parties to make further submissions to the Tribunal on the form of the order within seven days of notification of these reasons and orders.
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