Psychology Board of Australia v D

[2010] VSC 375

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 3278 of 2010

THE PSYCHOLOGY BOARD OF AUSTRALIA	Appellant
v
D	Respondent

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JUDGE:	MUKHTAR As J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2010
DATE OF JUDGMENT:	1 September 2010
CASE MAY BE CITED AS:	The Psychology Board of Australia v D
MEDIUM NEUTRAL CITATION:	[2010] VSC 375

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ADMINISTRATIVE LAW ― Natural justice ― Procedural fairness ― Disciplinary proceedings ― Suppression order of practitioner’s  name ― No such application by parties ― No prior disclosure by Tribunal of intention to do so ― Denial of opportunity by prosecuting body to insist on publication  ―  Order set aside.

ADMINISTRATIVE TRIBUNALS ― Victorian Civil and Administrative Tribunal  ― Disciplinary proceedings ― Professional misconduct ― Suppression orders preventing publication of certain identities and information ― Suppression order on publication of practitioner’s name  ― Whether suppression of name was justifiable ― Victorian Civil and Administrative Tribunal Act (No. 53 of 1998), s 101(3), (4).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr I. Freckelton SC	Minter Ellison
For the Respondent	No appearance	Galbally & O’Bryan

HIS HONOUR:

1. The respondent, a practising psychologist, was found by the Victorian Civil and Administrative Tribunal to have engaged in professional misconduct in his treatment of a patient.  It was a serious matter involving an indecent assault, for which the practitioner had been criminally convicted. 

1. After the hearing, the Tribunal published its reasons and final orders.  One of the orders prohibited the publication of any documents or information “that might enable a person who has appeared before the Tribunal to be identified”.  The outcome was to suppress the respondent’s name by anonymously identifying him as “D”.  But the Tribunal did not reveal previously to the parties its intention to make such an order as against the practitioner.  Moreover, neither the Board, nor the respondent, had requested the Tribunal beforehand to make the non‑publication order extend to the identity of the respondent, although they agreed one should be made to protect others, notably the patient.    

1. The Tribunal subsequently re‑convened at the request of the Board. It was asked to modify the suppression orders under s 119 of the VCAT Act, which is the Tribunal’s equivalent of the “slip rule”; that is, the power to correct an error arising out of an accidental slip or omission, or a defect of form. But the Tribunal said it could not do so because the decision to extend the ambit of the suppression order to reach the name of the practitioner was not accidental. It was deliberate. Yet, it appears that the Tribunal recognised that the order should not have gone that far.

1. The appellant, the Psychology Board of Australia,[1] has appealed the making of that order under s 148 of the Victorian Civil and Administrative Tribunal Act.  The Board says it was denied procedural fairness in not being told about the Tribunal’s intentions and therefore not being able to make submissions to oppose such a course.  Further, the Board says that the decision was erroneous because it was not open to be made in any event.   

   [1]Previously known as Psychologists Registration Board of Victoria, but altered under the Health Practitioner Regulation National Law (Victoria) Act 2009.

1. I granted leave to appeal, required to be on a question of law, on 21 July 2010.  The question on appeal is a confined one, and has arisen in some peculiar circumstances.  But for Board, there is an element of public importance as well as a matter of practical significance in the conduct of disciplinary proceedings.  By an order of Osborn J made on 27 July 2010, the hearing of the appeal was referred to this Court, constituted by an Associate Justice, for final determination.

1. The respondent has filed an appearance, but did not make submissions.  It was willing to abide by the order of this Court, but not as to costs.  The Board does not seek any costs. 

1. After hearing submissions on 12 August 2010 I decided to allow the appeal, set aside the relevant part of the Tribunal’s order made on 1 December 2009, and substitute a new order.  The Court decided to publish its reasons later, and now does so.  For present purposes, it is necessary to rehearse only a little of the facts concerning the respondent’s misconduct so as to set the context.  What matters are the procedural events.

The contextual facts

1. The respondent was granted general registration as a psychologist by the Board on 29 October 2004.  He specialised mainly in paediatric neuropsychology.  One of his patients was a 17 year old girl who he treated for a little over two months.  She had suffered major psychological traumas in her life.  On 7 April 2008 the respondent was charged under the Crimes Act with several offences of indecent assault against his patient.  On 18 October 2008 he pleaded guilty at a Magistrates’ Court to one count of assault and one count of indecent assault.  On the common assault, he was convicted and fined $1,000.  On the indecent assault, he was convicted and sentenced to a term of six month’s imprisonment, wholly suspended for a period of two years. 

1. When the respondent was charged, the Board determined to investigate the his professional conduct under s 47 of the Health Professions Registration Act 2005.  Then, after his conviction, the Board referred the investigation to the Tribunal for a hearing under s 59(2)(g) of that Act.The Board alleged that according to the facts upon which he was convicted in the Magistrates’ Court, the respondent had engaged in professional misconduct or had engaged in unprofessional conduct.  The Board suspended his registration until the hearing was finished. 

1. The Tribunal was constituted by a Senior Member and two Members (both of whom were psychologists). At the commencement of the hearing on 1 December 2009, Senior Counsel for D made an application under s 101(3)(c) of the VCAT Act that any information which might enable the victim of the assaults to be identified not be published or made available to the public. Secondly, he sought to rely upon a number of written character references or testimonials used in the Magistrates’ Court plea, and asked that they also suppressed. Thirdly, counsel asked that D’s home address be suppressed because D’s wife practised professionally in a field concerning domestic violence.

1. Those requests were consistent with the Board’s pre-existing attitude. As part of the referral, the Board had said it would seek an order that any information which may enable the notifier or the patient to be identified be not published or made available to the public in general. Like so many protective or regulatory bodies, the protection of the identity of notifiers is essential if such bodies are to be able to properly investigate complaints about professional conduct and ensure a vigilance over professional standards. Such an order is sought, I was told, almost invariably on the ground that it is necessary to protect the interests of justice, that being one of the considerations under s 101(4)(b) of the Act. In addition, s 4 of the Judicial Proceedings Reports Act 1958 also applies to the publication of any matter that may lead to the identification of a person against whom a relevant sexual offence is alleged to have been committed.

1. An exchange occurred between Senior Counsel and the Senior Member of the Tribunal which became truncated in parts, but it should be quoted.  I have underlined the crucial part which shows that the practitioner’s  counsel was not

asking for, and the Tribunal was not suggesting, a suppression order of the practitioner’s name.

SENIOR MEMBER:	I think it’s a matter for the Tribunal’s discretion as to whether or not their names should be in the reasons for decision, unless it could be a case where that somehow they could be identified back to this young woman.  So I think subject to what my colleagues say I’d prefer to make the usual order that any information that might enable a person who has appeared ought to be identified, yes.  These are patients as well, sorry, well if they’re patients certainly we would identify them.
COUNSEL:	That was the only category I was referring to.
SENIOR MEMBER:	I’m sorry, yes, OK, so the order would be that any information that might enable a person who has appeared before it to be identified, together with the names of any patients or former patients of the respondent who – I’ll just put give evidence or provide statements in this proceedings?
COUNSEL:	Yes, yes, or evidence orally or in writing.
SENIOR MEMBER:	Give evidence orally or in writing – no, no, you are not seeking the respondent’s name not be - - -
COUNSEL:	No, I understand that’s part of the - - -
SENIOR MEMBER:	And the respondent’s home address.
COUNSEL:	Yes.
SENIOR MEMBER:	That should cover it?
COUNSEL:	Yes, thank you.

1. The transcript also reveals at the outset that there was not a lot of disagreement between the parties about the outcome of the case.  The respondent accepted that there should be a finding of professional misconduct.  The respondent also accepted that cancellation of his registration was appropriate together with a period of time during which the respondent should be disqualified for applying for registration.  The Board had submitted that there should be a two year period of disqualification. 

1. The hearing proceeded with the Board not calling any oral evidence.  It appears there were extensive admissions made which relieved the Board of the necessity to adduce any other evidence or involve the patient.  It  was content to proceed on the facts as revealed in D’s record of interview, a police taped “set up” conversation between the respondent and patient, a summary of facts for the Tribunal, a summary of facts used in the Magistrates’ Court proceedings, a police record of interview, character references or testimonials that had been tendered as part of the plea before the Magistrate, and some other documents as compiled by the Board.   

1. The respondent gave evidence at the Tribunal, or more accurately, made himself available to be questioned by the Tribunal two of whom were psychologists. 

1. When the hearing finished, the Tribunal gave an oral decision in which they found that the respondent had engaged in professional misconduct under s 77(1)(a) of the Health Professions Registration Act.  It also decided to cancel his registration as a psychologist and disqualified him from applying for registration for one year from 1 December 2009.

1. The Tribunal subsequently published its reasons for decision on 17 February 2010 together with orders.  The first problem, as the Board saw it, appeared in paragraph 20 which said (with my underlining):

At the commencement of the hearing, at the request of the Board, we made an order pursuant to s 101(3) of the Victorian Civil and Administrative Tribunal Act 1998 that any evidence given before the Tribunal, that the contents of any documents produced to the Tribunal and any information that might enable a person who has appeared before the Tribunal to be identified, must not be published except in the manner and to the persons, if any, specified by the Tribunal.  

1. But, no such request had been made by the Board as far as the respondent’s identity was concerned.  The Board had only requested that the name of the victim be suppressed.  The extension of the suppression order to the testimonials and the respondent’s address was made consensually at the request of the respondent.  But one thing was clear.  The respondent was not seeking a suppression order on the respondent’s name, presumably recognising that such an order would be very hard to obtain.  Some explanation was given in paragraph 30 of the Tribunal’s reasons which say: “These written reasons for decision are provided at the request of the Board.  Because of the particular circumstances surrounding this matter, we have determined in the interests of justice that the reasons be anonymised.” 

1. That also explains paragraph 3 of the orders, which is the subject of this appeal.  It says:

Pursuant to s 101(3) of the Victorian Civil and Administrative Tribunal Act 1998, any evidence given before the Tribunal, the contents of any documents produced to the Tribunal and any information which might enable a person who has appeared before the Tribunal to be identified, must not be published except in the manner and to the persons (if any) specified by the Tribunal.

1. On the following day, the Board asked the Tribunal to urgently re‑list the matter to hear its application to lift the suppression of the respondent’s name and amend the Tribunal documents so as to reveal his name. The Board had supposed that the anonymisation of the respondent’s name was a curable slip made by the Tribunal which could be rectified under s 119 of the VCAT Act. 

1. On 26 May 2010 the matter was re‑listed before the Tribunal as originally constituted.  The Senior Member then explained the Tribunal’s reasons for suppressing the respondent’s name, saying (with one interpolation of mine, as shown):

Thank you.  We’ve had the further written submission and there’s something that we would like to indicate and that is the anonymisation of the name wasn’t accidental on our part, it was deliberate.  So I’m sorry if there’s been a misunderstanding and that probably relates to the reasons for the decision was simply said, I think, something along the lines it was anonymised in the interests of justice or something.  Let me just explain the reasoning which wasn’t explained in the reasons for a particular reason.  But anyway, the reason why we anonymised the name was, first of all, we weren’t concerned to protect the respondent at all. 

Our concern was that we were aware that confidential information had been provided by the patient to the respondent.  We included that confidential information in the reasons for decision related to [what the patient told the respondent about] rape and sexual abuse in the past, all those things, because we needed to indicate the seriousness of the offence of the psychologist, the circumstances where the patient is incredibly vulnerable, so we thought it important to put that information in our reasons for decision.  We were extremely concerned that by reviewing material such as rape when she was like, sexual abuse and the like could somehow identify her in the context of his name and it was for that reason that we withheld his name.

It was quite a troubling issue this and we were also concerned that if his name was released, if you like, in the context of any background information about her and she saw it, the effect it might have on this very vulnerable young woman that was extreme concern.  So that was fundamentally what caused us to withhold his name.  It was a concern to this incredibly vulnerable young girl who we have to remember was suicidal and so in addition and as a further issue we were aware of the fact that the respondent’s wife practised as, I believe, a psychologist under the same name.  Although this is a peripheral issues we thought she has got to try and earn a living for this family and how will that affect her practice. 

So there are rather complicated reasons which we didn’t include in the reasons because to do so might identify the people so we’re in this awkward position.

1. The Senior Member subsequently added:

Perhaps, if I say finally, perhaps having thought about all this we could have re‑called the matter and talked about it.  The problem was that we were aware that it was costly for everybody.  We were trying to do what was practical at the time so we decided not to recall to have the discussion and here we are today.

1. I shall not refer to the rest of the transcript of hearing on that date.  In essence, the Board submitted that anonymisation of the respondent’s name was an important issue about which it would have wanted to address the Tribunal and oppose.  The Board submitted ― and this was accepted by the Senior Member ― that it is the standard practice of the Tribunal, and its predecessor bodies, to publish the names of health practitioners.  The point made then, and the point made on this appeal is that it is important for the name to be published in disciplinary proceedings because that is part of the exercise of protecting the public, especially in a very serious matter such as this one.  To “name and shame” a wrong doer is part of the deterrence not only for the perpetrator, but also for others in the profession in the interests of a proper reminder of discipline.  It might not happen if, for example, publication of the name could have a counter therapeutic effect on the victim..  This Court has also recognised that in sexual assault cases, it can be appropriate to suppress the name of both plaintiff and defendant, or in one case, to suppress a name where the publicity of the case would inflict stress, tension and concern on the practitioner on a serious and health threatening scale: see XG v Medical Practitioners Board of Victoria[2] , referring to ABC v DI[3].  Such factors were not present here.

   [2][2010] VSC 79 (Emerton J)

   [3][2007] VSC 480 (J. Forest J)

1. The Tribunal seemed to recognise that there was no misunderstanding about the submissions made at the outset.  The Senior Member said:

I think it was certainly clear to us what the Board had asked for and what the respondent had asked for, as I say, and on reflection it would have been better if the matter had been re‑convened because we were troubled by this issue. 

1. The respondent’s position was that only an accidental slip or omission attracts the slip rule.  The Tribunal having said that its decision was deliberate then there was no occasion to engage a slip rule.  The only avenue open to the Board was to appeal. Therefore, the Board withdrew its application under the slip rule.  But the Tribunal did order by consent that paragraph 20 of its reasons (quoted above) be amended to remove the words “At the request of the Board”.   

First ground of appeal: denial of natural justice or procedural fairness

1. The appellant contends that if the Tribunal was contemplating making an order anonymising the name of the psychologist in such unusual circumstances as occurred here, then it was its obligation as a matter of procedural fairness to enable the appellant to oppose such a course. Section 98 of the VCAT Act binds the Tribunal to the rules of natural justice and s 102(1)(c) of the Act requires the Tribunal to allow a party a reasonable opportunity to make submissions to the Tribunal. 

1. Breach of natural justice can occur without fault on the part of the decision‑maker. But as a starting point, there ought be some consideration given to the views of the decision‑maker as to what fairness required in the circumstances. [4]  It is apparent from the transcript that the members of the Tribunal were conscious and troubled about suppressing the respondent’s name, and had contemplated recalling the parties.  It seems their thinking was eclipsed by their desire not to impose additional inconvenience or cost burdens on the parties.

   [4]See Aronson Dyer and Groves, Judicial Review of Administrative Action (Fourth ed) at p 521.

1. Considerations of cost or efficiency have a part to play in assessing the content of procedural fairness in a given case.  There can sometimes be competing demands of fairness and efficiency particularly in situations where bodies like VCAT, are given the statutory command to “conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit”.  But such provisions do not justify the sacrifice of justice to expedience: see  Barrier Reef Broadcasting Pty Ltd v Minister for Posts and Telecommunications. [5]  Much depends on the nature of the case, the interest involved, and the seriousness of the consequences for not observing what is said to be a particular requirement of procedural fairness.

   [5](1978) 19 ALR 425. See Aronson, above at [8.100].

1. I mean no disservice to the members of the Tribunal, but recognising as they did that the usual practice in disciplinary proceedings was to name the practitioner, and having revealed their own restlessness in making the suppression order as part of their deliberation without calling in the parties, it was no answer to say that cost considerations were active.  More so as the Tribunal seemed to recognise that there was a public importance in naming the practitioner as a matter of personal and more widespread deterrence, especially where as in this case there was a serious act of professional misconduct.  Therefore, I do not see that considerations of cost or expedience really have any part to play.

1. The second area of legal principle concerns the content of procedural fairness when it comes to adverse conclusions.  The right to be heard which is fundamental to natural justice usually requires the giving of an opportunity to enable the party affected to ascertain the relevant  issues, and to be informed of the nature and content of adverse material: see SZBEL v MIMIA.[6]  Procedural fairness does not normally require decision‑makers to disclose their thinking processes or proposed conclusions, at least where an issue or question for determination has been properly exposed or is apparent or integral to the matter anyway.  However, it may be that an adverse conclusion of a type that could not reasonably be expected by a party might have to be brought to a party’s attention, as a matter of fairness.[7]  This principle was affirmed in Commissioner for ACT Revenue v Alphaone[8] in this way:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker.  It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes for provisional use to comment before making the decision in question. 

[6]920060 228 CLR 152 162 [32].

[7]Chiropractors Association v WorkCover Corporation [1997] SASC 120 at [87] and Victims Compensation Fund Corp v Nguyen (2001) 52 NSWLR 213.

[8](1994)49 FCR 576 at 591-2.

1. The decision here concerning suppression was certainly unexpected in the sense that it was not sought by either party, and contra-indicated by the Tribunal itself in the course of the hearing.  I also think it was adverse even though it did not go to the pure adjudication of the case.  It was an important component to the disposition of the appeal with significant, and acknowledged consequences, adverse to the interest of the Board and the public interest that it also serves.

2. Accordingly, I would accept the Board’s submission that it was entitled to be put on notice of the potential decision by the Tribunal as it was not obvious, anticipated or reasonably to be expected.  The failure to put the Board, in effect the prosecuting body, on notice of the proposed order and to enable it to put submissions on the question did, I think, constitute a denial of procedural fairness.

The second ground: decision not open

1. The decision to allow this appeal on the first ground makes it unnecessary to consider the second ground.  But on the facts it is connected to the first ground and I shall deal with it briefly.

1. Section 101 of the VCAT Act empowers the Tribunal to make a suppression order where, amongst other reasons, it is considered necessary to do so to  avoid prejudicing the administration of justice or for any other reason in the interests of justice.  The Board submitted it the suppression of the respondent’s name was not open to it on either of those grounds, or it was a decision which no reasonable Tribunal might properly make: see S v Crimes Compensation Tribunal[9] and Myers v Medical Practitioners Board of Victoria. [10]   

[9][1998] 1 VR 83.

[10][2007] VSCA 163.

1. It seems the Tribunal were concerned that the release of the practitioner’s name might somehow identify the patient who the Tribunal believed form the background information to be “incredibly vulnerable”.  Yet the fact is the Board was not given an opportunity to address those matters, and in any case the Tribunal conceded there were powerful and established reasons of public policy to name the practitioner.  Nor do I see anything in the reasons for decision which might, as a real risk, identify the patient or bring back some terrible memories for her about her troubled life.  As the matter proceeded with an acknowledgement of professional misconduct, and facts presented from the Magistrates’ Court plea, the Tribunal’s reasons did not have to say much at all about the patients past or the consultations.

1. No-one could say this Tribunal acted with anything but good faith and out of some sensitivity for the patient. But I am afraid to say that it is hard to see how the suppression of the respondent’s name order could be open on the interests of justice test under the VCAT Act at least in the face of the countervailing interests in revealing the name. There was no evidence or suggestion of a counter therapeutic effect on the patient if the name was revealed.

1. It is for those reasons that this Court allowed the appeal. By an order authenticated on 20 August 2010 I ordered that paragraph 3 of the Tribunal’s orders be set aside. In place of the order set aside, I ordered that pursuant to s 101(3) of the VCAT Act no information may be published that might enable the identification of the notifier, or the person treated by the respondent and who was the subject of the notification in the hearing before the Tribunal, or the persons who wrote references or testimonials tendered to the Tribunal on behalf of the respondent, or the respondent’s home address.

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CERTIFICATE

I certify that the 11 preceding pages are a true copy of the judgment of the Honourable Associate Justice Mukhtar of the Supreme Court of Victoria delivered on 1 September 2010.

DATED: 1 September 2010.

Nigel Cooper

Associate