Psychology Board of Australia v Dall
[2011] QCAT 608
•29 November 2011
| CITATION: | Psychology Board of Australia v Dall [2011] QCAT 608 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Marilyn (Mara) Janice Dall (Respondent) |
| APPLICATION NUMBER: | OCR070-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 22 June & 2 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Ms Deborah Anderson Mr Roger Dooley Mr Allen Thomas |
| DELIVERED ON: | 29 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Ms Dall may not apply for registration until: a) A period of eighteen months from the date of these orders has elapsed; b) Ms Dall has successfully undertaken a tertiary level course of education addressing professional boundary management and the nature of the therapeutic relationship with patients (such course to be specified by the Board upon written request by Ms Dall); and c) Ms Dall has completed a course of counselling with a clinical psychologist who specialises in boundary violation issues (‘the counsellor’). The counsellor must be nominated in writing by Ms Dall and approved in writing by the Board. The purpose of the counselling is to facilitate Ms Dall developing insight into why she engaged in the behaviour which is the subject of these proceedings and to develop her awareness of professional boundary management strategies. The counselling is to continue until such time as the counsellor considers further counselling is unnecessary for that purpose. 2. The following conditions must be imposed upon further registration of Ms Dall and must remain in place until Ms Dall has completed 12 months of active employment as a psychologist: a) Ms Dall can only practise as a psychologist in a setting approved by the Board; b) Ms Dall is prohibited from being self employed as a psychologist; c) Ms Dall must practise under the supervision of a psychologist (nominated by Ms Dall and approved in writing by the Board). Supervision does not have to be direct supervision, provided the supervisor is present at all times at the same location and is available for reasonable access. Ms Dall must ensure a written logbook is kept which records each occasion worked by her and the name of the supervisor for each occasion. Each entry must be signed by the supervisor. Ms Dall must produce the logbook to the Board upon request; d) Ms Dall must provide the supervisor with a copy of the Tribunal’s reasons and these orders as well as a written authority to the supervisor to report to the Board as to her fitness and competence to practise: i) If the supervisor holds a concern about Ms Dall’s fitness and competence to practise; ii) If requested by the Board to provide a report about Ms Dall’s fitness and competence to practise; iii) In any event at intervals of 3 months from the commencement date of supervised practice. e) Within 14 business days of registration, Ms Dall must nominate in writing a psychologist for the Board to approve as her mentor. If the Board does not approve the nominee, Ms Dall must make a further nomination in writing within 7 days. As soon as practicable after the mentor is approved by the Board, Ms Dall must commence the mentor relationship. Ms Dall must meet the mentor at least monthly. The mentoring must focus on professional boundary management and strategies to ameliorate risks arising from the vulnerability of patients or Ms Dall. f) Within 7 days of commencing the mentor relationship Ms Dall must provide a copy of the Tribunal’s reasons, these orders and a written authority to the mentor to report to the Board as to her fitness and competence to practise: i) If the mentor holds a concern about Ms Dall’s fitness and competence to practise; ii) If requested by the Board to provide a report about Ms Dall’s fitness and competence to practise; iii) In any event at intervals of 3 months from the commencement date of the mentor relationship. 3. Ms Dall must bear the costs and expenses in meeting the requirements of orders 1 and 2. 4. Ms Dall must pay the Board’s costs of and incidental to these proceedings on the standard basis as assessed against the District Court scale of fees by Hickey and Garrett or QICS (as the Board elects) within 28 days after the Board provides Ms Dall with the assessment. |
| CATCHWORDS: | DISCIPLINARY – Psychologist – Where psychologist employed by Corrective Services – where commenced inappropriate relationship with prisoner – where psychologist concealed relationship from employer and misled Board investigator – where unsatisfactory conduct ultimately conceded – where basis for that concession unclear – whether relationship sexual – whether there was a dual relationship – whether 3 year preclusion period sought by the Board excessive – whether costs should be awarded Health Practitioners (Professional Standards) Act1999, ss 405L, 405P(1), (5) Briginshawv Briginshaw (1938) 60 CLR 336 applied |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Gallagher of counsel, instructed by Rodgers Barnes & Green for the Board |
| RESPONDENT: | Ms Dall represented herself |
REASONS FOR DECISION
The Board commenced disciplinary proceedings against Ms Dall, a psychologist, because of her relationship with a former patient. He is a prisoner with a history of acute self-harming behaviour. They met when she treated him at the Crisis Support Unit of a Correctional Centre during a number of admissions. After he was discharged from the Unit, after one of those admissions, Ms Dall and the patient communicated in writing and by phone, using a pseudonym to disguise her identity. Ms Dall’s use of the pseudonym continued after the patient was transferred to another prison. Later their contact was maintained but in Ms Dall’s name.
Although Ms Dall conceded unsatisfactory professional conduct, the basis for her concession was not clear, either at the hearing or in her written submissions to the Tribunal. She accepted the correspondence was a serious breach of boundaries. Beyond that, though, her position regarding their relationship seemed to fluctuate. On the one hand, she accepted there are grounds to take disciplinary action. On the other, she asserted she maintained professional boundaries in their relationship. Accordingly, although some facts are agreed, It is necessary for the Tribunal to identify what conduct constitutes a ground to take disciplinary action, and why, before considering sanction.
The conduct
When they met, Ms Dall had considerable experience in her field. She had already practised as a psychologist for some 18 years. She was then 49 years old; her patient, 28. She cared for him over four episodes between 5 February 2002 and 9 July 2003. A few days after his discharge from the unit in late 2002, she sent him a birthday card under the hand of Arianrhod, the name of a Welsh Goddess. This name was the progenitor of Ari Evans, the pseudonym she used to conceal their relationship.
In the Statement of Agreed Facts prepared prior to the hearing, Ms Dall admitted she used the name Ari Evans in order to facilitate undetected contact with the patient. Ms Dall sent letters to him as Ari 19 times between 18 December 2002 and 12-14 January 2004.
She installed a second phone line in her home and registered it with the prison under the name Ari Evans. She spoke to him on that line, as Ari, on 25 January 2003 and then a further 45 times between 11 July and 10 November 2003.
After she resigned her position with the Corrective Services, she spoke to him by phone 500 times between April 2004 and 13 April 2008, on a line registered in her own name.
Ms Dall also wrote to the patient in her own name on 5 June and 25 August 2005. She visited him in various correctional centres on 70 occasions between 14 May 2004 and 27 May 2007 and continued to do so afterwards.
During the hearing, Ms Dall described her relationship with the patient after he was discharged from her care as friend and mentor. Although not included in the Statement of Agreed Facts, Ms Dall did not contest she used her letterhead as a psychologist to advocate, on his behalf, to various agencies. The Board has not included that in its particulars of unsatisfactory professional conduct, although it is the subject of evidence and submissions. The Tribunal has considered the evidence as background evidence about this relationship, but not as conduct that might found disciplinary charges.
The Board alleged Ms Dall engaged in an inappropriate personal relationship and exploited the treating relationship with the patient. It submitted the conduct was unsatisfactory professional conduct in the following respects:
(a) professional conduct of a lesser standard than might reasonably be expected of her by the public or her professional peers;
(b) professional conduct that demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care, in the practise of her profession;
(c) misconduct in a professional respect; and/or
(d) conduct disreputable to the respondent’s profession.
The ethical standards and expert opinion
Professor King provided a report on the ethical issues relating to Ms Dall’s conduct. Ms Dall did not challenge his qualifications to provide expert opinion evidence. His conclusions withstood cross-examination.
Ms Dall did not dispute Professor King’s evidence that the Code of Ethics of the Australian Psychological Society provided the relevant ethical framework. It includes that:
7. Members must avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to, provision of psychological services to employees, students, supervisees, close friends or relatives.
8. Members must not exploit their professional relationships with clients, sexually or otherwise.
9. Sexual relationships between members and current clients must not occur. When a therapeutic procedure involves some level of physical intimacy with a client, informed written consent must be obtained from the client or the client’s legal guardian prior to the introduction of that procedure.
10. No member may engage in a sexual relationship with a former client when less than two years have expired since the ending or termination of the professional relationship.
Although it is not explicit in the particulars of the application, the Board proceeded on the basis that Ms Dall had an inappropriate personal relationship with the patient, either because it was a sexual relationship or because it was a dual relationship.
Professor King stated that, even before the Code was adopted in 1997, it was an accepted professional ethic that dual relationships should be avoided to prevent impaired professional judgment and exploitation of the relationship, sexually or otherwise. The rationale for the ethical requirement to maintain clear professional boundaries between practitioners and patients is the difficulty in discriminating between friendship, therapeutic advice and romantic interest.
He read the letters written by Ms Dall and her affidavits in these proceedings. During oral evidence, Professor King referred to particular passages in her correspondence that he described as bits of therapy mashed together with bits of aggrieved lover. These passages had the quality of a complaint by Ms Dall that the patient was not sufficiently appreciative of the trouble she was going to in order to assist him.
In his report, he observed some content could be construed as therapy but also remarked on the amount of personal information unrelated to treatment and her open declarations of affection in some letters. He saw indications of mutuality in a romantic or intimate friendship. He identified a degree of infatuation on Ms Dall’s part that was inconsistent with exercising sound professional judgment. He referred to one letter that described a physical encounter between the two. He did not consider that it had the quality of fantasy, although Ms Dall denied it occurred.
Although he inferred a physical relationship between the two at some point, he explored the possibility that it was fantasy. In his view, that scenario also involved unethical conduct. Communicating a sexual fantasy could only be interpreted as inviting a sexual relationship, contrary to the Code of Ethics.
He considered the detail and content of some of the communications was unnecessarily sexual to achieve the subterfuge she claimed masked only a friend and mentor relationship. He thought some of the letters had the capacity to arouse, particularly an inmate whose threshold might be lower than someone who was not incarcerated.
Even if it was accepted as an entirely fictional subterfuge, Professor King considered Ms Dall’s conduct was an unacceptable and unprofessional method of providing ongoing treatment. The deception was unconscionable. Ms Dall sought to supplement the treatment others provided the patient, rather than to collaborate with them openly. Multiple therapeutic relationships can be confusing and disruptive to a patient’s treatment.
Ms Dall’s evidence and submissions about the nature of the relationship
Ms Dall agreed the therapeutic relationship ceased in July 2003, but presented a confusing picture of their relationship after that date. She maintained conflicting positions, at times internally inconsistent, in her affidavit, oral evidence and submissions.
She claimed she maintained professional boundaries in their relationship, but accepted the correspondence constituted a serious breach of boundaries. She claimed not to be acting as his therapist after he was discharged and during the period of their correspondence under the pseudonym. However, she said she was relieved when, 18 months after he was no longer her patient, her request to visit the patient in her capacity as a psychologist was denied. She said this helped clarify for her that they were no longer in a treating relationship.
Under cross-examination Ms Dall struggled to maintain the relationship was as friend and mentor, at the same time as constituting a serious breach of boundaries. The Tribunal considered there were two aspects to Ms Dall’s relationship with the patient, both inappropriate, for different reasons, and both denied by Ms Dall. Her attempts to deal with each in turn may explain her shifting accounts and the internal illogic of her evidence and submissions.
One aspect is that Ms Dall’s relationship with the patient was sexual, in the sense that it was motivated by romantic or sexual attraction. It is clearly unethical to commence such a relationship during treatment and to maintain it shortly after therapy ceased.
Another aspect is that Ms Dall maintained a dual therapeutic and personal relationship with a patient after he was discharged from her care and whilst he was under the care and treatment of other professionals, without this being disclosed to them. That is also unsatisfactory professional conduct. It is not in the best interests of a patient for another practitioner to interfere with the therapeutic relationship he has with a treating psychologist. It would be a different matter if she formed part of a team caring for the patient. Here, if her intention and motivation was therapeutic, this was concealed from others.
The relationship was sexual
The code does not define a sexual relationship. A useful definition of sexual behaviour is the one adopted by the former Queensland Nursing Council in its publication Position Statement: Sexual Relationships between health practitioners and their patients.[1] It defines sexual behaviour as any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desires.
[1]Position Statement: Sexual Relationships between health practitioners and their patients, Queensland Nursing Council 2008 at [4.3]; The Code of Professional Conduct for Nurses in Australia, Australian Nursing & Midwifery Council July 1990 (revised in 2003; 2006) conduct statement 8 at [5].
The Tribunal has not drawn the inference Professor King did that there was a physical element to Ms Dall’s relationship with the patient. Nevertheless, it is satisfied the relationship was sexual, in the sense of being one that was intimate and motivated by romantic or sexual attraction rather than one maintained to provide professional support.
The correspondence and the recordings of telephone calls present a very personal and emotionally intimate relationship. The recordings of calls in July and November 2003 and January 2004 are a mixture of personal revelations, discussions about his treatment and declarations of affection. Taken at face value, Ms Dall’s calls and correspondence shared personal details and invited an intimacy consistent with a relationship of that sort.
Ms Dall sought to explain this away as a confabulatory correspondence, in the guise of a romantic relationship, that she engaged in to support the patient and maintain his motivation for positive change. However, Ms Dall said the correspondence took on a life of its own. She claimed to have suppressed the memories of what the letters contained and could not remember exactly what was going on at the time. She was not sure to what extent she was role-playing and to what extent her correspondence reflected reality.
This suggests that, even at the time, Ms Dall was not clear about the purpose and boundaries of their relationship. If she, as the psychologist, was uncertain about it, the patient was most unlikely to be more certain.
The purpose of maintaining professional boundaries is to protect the patient from the potential to be exploited. The risk arises from the intimacy and trust developed through the professional relationship, a matter of particular importance when the professional services provided are counselling and support.
The evidence before the Tribunal suggests that Ms Dall is either willing to misrepresent their relationship or is unwilling to confront the professional implications of her conduct.
In her affidavit (February 2011), Ms Dall stated the correspondence and contact was by way of follow up support and occurred at the patient’s request. Later, she said the patient requested she stop using the name Arianrhod, as he was being teased or bullied about the name and, instead to use the name Ari. She acknowledged it may have been an error of judgment to accede to the patient’s suggestion about the context of the correspondence and said in fact, (the patient), indicated that he would not have accepted the transfer at all without some continuing support for me. On that version, the patient was well aware that Ms Dall was using the pseudonyms Arianrhod and Ari.
At the hearing, Ms Dall called the patient to give evidence, which he did by video-conference from prison. He represented Ari to be a real person who had been staying with Ms Dall. That is consistent with assertions Ms Dall made earlier in the investigation, that a person known as Arianrhod did exist and that she, not Ms Dall, had called the patient.
The patient denied receiving correspondence from Ms Dall when he was at the first correctional centre. He conceded it might have been possible that, as Ari was staying with Ms Dall, he might have spoken to Ms Dall when he thought he was speaking with Ari.
Bearing in mind the significant consequences of the finding against Ms Dall, the Tribunal is comfortably satisfied[2] on the balance of probabilities that the patient was aware that Ari was, in fact, Ms Dall and that he was complicit in the arrangement to disguise her identity. The Tribunal rejects his evidence at the hearing as incredible.
[2] Briginshawv Briginshaw (1938) 60 CLR 336.
Later, when Ms Dall gave evidence, she said she did not discuss with the patient that she was Ari and is not sure that he knew he was talking to her when he called her as Ari. This directly contradicts her affidavit evidence. It also contradicts one version of her response during the investigation, when she said that Ari was speaking to the patient on the phone and then handed the phone to her. She said that was the first time she became aware that Ari was registered for phone calls with the patient. That is patently false. Ms Dall now accepts that she established a second phone line in her home under the pseudonym and that it was she who made the calls to the patient.
The patient may well have been motivated to lie in his evidence before the Tribunal in order to protect Ms Dall. Her change of evidence, after the patient gave his, does her no credit. Of her two versions, the Tribunal accepts the account in Ms Dall’s affidavit and rejects her later prevarication on this point.
As well as undermining her credibility on other matters, the shifting versions about the pseudonym’s identity illustrate the ethical problems that arise when a psychologist pursues a dual relationship, professional and personal, with a patient. The patient’s evidence indicated a desire to protect Ms Dall. Having already disclosed the patient’s knowledge and involvement in the subterfuge, Ms Dall’s change of position demonstrated a concern to protect the patient that clouded her professional judgment, even in the face of disciplinary proceedings.
There was a dual relationship
Regardless of whether the relationship was a sexual relationship, the Tribunal is comfortably satisfied on the balance of probabilities that it was an inappropriate personal relationship, because it placed Ms Dall in a dual relationship as both therapist and friend. Ms Dall also understood the problem with a dual relationship, denying she that continued in a therapeutic role.
She sought to draw a distinction between behaving as a psychologist and behaving as that person’s psychologist. This distinction is elusive and artificial. Apparently, Ms Dall considered she could provide advice, assistance and support, drawing on her knowledge and experience as his psychologist, without breaching ethical boundaries. This fails to recognise that their relationship grew out of her role as his psychologist. It also ignores her stated purpose in maintaining contact with him – to continue to support him to make the changes in his life that she was assisting him with when she performed her role as his treating psychologist.
The Tribunal accepts Ms Dall was and remains motivated by a desire to support the patient. However, it cannot accept the distinction that she sought to draw.
The correspondence and phone calls routinely included her advice as a psychologist and her observations about his treatment under other practitioners. Ms Dall clearly believed the patient’s account that she had reached him in a way no other psychologist had. Whether or not the patient was deliberately manipulative in latching on to Ms Dall, she should have been alert to this possibility. Ms Dall could have sought to develop the patient’s trust in other practitioners, so his progress was not dependent on her involvement. Instead, Ms Dall embraced his view there was something special about her as providing the rationale for covert contact.
The therapeutic relationship was exploited
Ms Dall argued that she had not exploited the patient, rather that he had benefited from their relationship. The Tribunal accepts Ms Dall’s intention was to not to harm the patient, but to support him. There is no evidence that the patient was harmed, and that would be hard to assess so long after the event. However, this misses the point.
The Board’s case is that Ms Dall exploited the relationship, not the patient. Professor King drew a distinction between exploiting a relationship and exploiting a patient. While they might go hand in hand, that was not necessarily the case. In his view, Ms Dall failed to separate her investment in what she was doing for the patient from what was in his best interests. Professor King did not rule out the possibility that the patient derived some benefit from his relationship with Ms Dall. However, he considered Ms Dall seriously undermined any potential benefit by her unwillingness to collaborate openly with his treating practitioners. He saw no evidence in her conduct that she recognised the risk to the patient or took steps to manage it.
Disciplinary findings
The Tribunal finds grounds exist to take disciplinary action against Ms Dall because she engaged in a dual relationship with a patient, which was sexual, in the sense that it was motivated, in part, by a romantic or sexual interest. This constituted an exploitation of the therapeutic relationship.
It is conduct of a lesser standard than the public or her professional peers might reasonably expect of her. The Tribunal also considers it is misconduct in a professional respect and conduct discreditable to her profession.
Ms Dall’s deceit throughout the relevant period and in the course of these proceedings justifies findings of misconduct and discreditable conduct. She deceived her employer in order to establish unauthorised contact with the patient. Then she maintained the deceit by failing to disclose the nature of her continuing involvement in his case after discharge.
Further, she misled the investigators. She gave varying accounts about the phone calls. In July 2008, the investigator asked Ms Dall to address any continuing relationship she had with the patient and to respond to the allegation that she communicated with the patient using a pseudonym or alias. She did neither, until after the disciplinary proceedings commenced in the Tribunal. She sought to justify this as the investigator’s failure in not asking her the right question.
As well as being personally deceitful, by colluding with the patient in the deceit she modelled this as an acceptable means to achieve a desired end. At the hearing, the patient appeared to be uncertain about what he could reveal about the arrangement he and Ms Dall had made to maintain contact. This is not surprising given the deceit involved in their communications.
Finally, the Tribunal finds Ms Dall’s conduct demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care, in the practise of her profession. The Director of the Crisis Support Unit said the patient had demanded to see a particular psychologist, on occasions, but had adjusted when his demand was not met. He agreed that a psychologist working in the Unit was somewhat isolated and that there are now more formal mechanisms for supporting practitioners in that position. However, even at the time Ms Dall worked in the Unit, there were peers at her level she could have consulted. He would expect a practitioner facing the request this patient made (that Ms Dall maintain contact with him after discharge), to take the initiative if they needed guidance and support.
Time in the Unit provides some relief from the prison environment for a prisoner in crisis. Ms Dall, in her position in the Unit, had some influence over a prisoner’s timing for discharge. Ms Dall seemed not to be alert to the possibility that the patient might have an interest in manipulating her.
Embracing the patient’s belief that his further progress depended on her involvement was naïve of Ms Dall. It prevented her from seeking counsel from her colleagues about how to ensure his further treatment was appropriate. She failed to take any proper steps to assess and manage the risk to the patient presented by their ongoing relationship.
Once they were actively corresponding, her deceit trapped Ms Dall from acting professionally on her concerns about his treatment, well founded or not. Ms Dall stated she knew from the beginning that she had to go out on a limb in order to help this patient. In doing so, she demonstrated a lack of judgment.
The Tribunal has noted Ms Dall’s lack of clarity, even at the hearing, about the nature of their relationship at any given time. It is impossible to maintain professional boundaries in those circumstances. Of particular concern is Ms Dall’s enduring lack of insight about the duality of her relationship with the patient. Her confused and shifting rationalisation of and characterisation of their friendship indicates she has yet to confront the professional implications of the relationship. This demonstrates an ongoing lack of judgment and suggests a future risk the disciplinary orders should address.
Sanction
Ms Dall is well-trained with a good employment history. She is well regarded, including by her most recent employers. She has never been the subject of any other disciplinary proceedings. Ms Dall told the Tribunal she was drinking too heavily at the time of their correspondence. That indicates some personal vulnerability. Misuse of alcohol may have impaired her judgment.
Nevertheless, Ms Dall was a very experienced psychologist at the time the relationship commenced. She has had some years to reflect on the relationship and to obtain a greater understanding of the ethical issues it presented. Her obfuscation about the identity of “Ari” and her ambiguity in these proceedings about the nature of the relationship meant the Board had to prepare for a fully contested hearing and, even with the statement of agreed facts, to present its case substantially. This lengthened proceedings and increased the costs for the Board. Her investment in the rationale for it may have prevented her from squarely confronting the issues. Perhaps once the disciplinary proceedings have concluded, Ms Dall will be able to do so.
The Board has asked for a significant preclusion period (in the order of 3 years) during which time Ms Dall may not apply for registration as a psychologist. Ms Dall’s registration has lapsed. Had it not, the Tribunal would have cancelled her registration.
The proposed orders
The Board argued the Tribunal should preclude Ms Dall from reapplying to be registered as a psychologist for 3 years. It also proposed orders directed to the risk of further transgression. Prior to registration, Ms Dall must undertake ethics training and counselling. Upon registration, the Board proposed conditions for the first 12 months of active employment as a psychologist. They would prevent her from being self employed, and require Board approval of her position; and provide for supervision, mentoring and a system of reporting.
The Tribunal accepts the Board’s submission, except for the preclusion period. The purpose of disciplinary proceedings is not punitive, although that may well be the effect of orders imposed on the practitioner.
Before Ms Dall may be registered again, she must comply with onerous conditions and also demonstrate her fitness for registration when the preclusion period expires. That is no small matter after the right to practise is removed for unsatisfactory conduct.
Bearing that in mind, the Tribunal should be cautious to fix the preclusion period after proper consideration of the serious aspects of the practitioner’s conduct but also those features that mitigate it.
The most serious aspects of Ms Dall’s conduct are:
a) The relationship commenced while she was treating the patient;
b) She actively sought to deceive her employer, other practitioners treating the patient and the Board about it; and
c) She still lacks insight about the ethical implications of the relationship.
Mitigating circumstances include:
a) Although his incarceration meant the patient was vulnerable, there is no evidence of predatory conduct by Ms Dall and, it appears, Ms Dall was personally vulnerable at the time;
b) Ms Dall has a genuine concern for the welfare of this patient, albeit her professional judgment about how to best support him was clouded by her emotional involvement with him.
The Tribunal considers a preclusion period of 18 months is appropriate in those circumstances. In fixing that period, the Tribunal has considered the many decisions of the former Nursing Tribunal, the former Health Practitioners Tribunal and QCAT, to which the Board referred.[3] They do not support a penalty of 3 years in this case.
[3]Queensland Nursing Council v Bhatnager, Queensland Nursing Tribunal matter 11 of 2000 (18.5 months); Queensland Nursing Council v Bell Queensland Nursing Tribunal matter 5 of 2000 (11 months); Queensland Nursing Council v Gilbert, Queensland Nursing Tribunal matter 7 of 2000 (12 months); Queensland Nursing Council v McIntyre, Queensland Nursing Tribunal matter 10 of 2000 (6 months); Queensland Nursing Council v Telford, Queensland Nursing Tribunal matter 5 of 2001 (12 months); Queensland Nursing Council v Proctor, Queensland Nursing Tribunal matter 6 of 2004 (12 months); Queensland Nursing Council v Byrne, Queensland Nursing Tribunal matter 4 of 2005 (12 months); Queensland Nursing Council v Bains, Queensland Nursing Tribunal matter 7 of 2005 (3 months); Queensland Nursing Council v Havukainen, Queensland Nursing Tribunal matter 3 of 2006 (18 months); Queensland Nursing Council v Graham, Queensland Nursing Tribunal matter 16 of 2006 (12 months); Queensland Nursing Council v Birch, Queensland Nursing Tribunal matter 7 of 2008; Psychologist Board of Queensland v Meredith [2004] QHPT 5 (3 years); Medical Board of Queensland v Alroe [2005] QHPT 4 (4 years); Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423; Psychologist Board of Queensland v Cook [2008] QHPT 4 (12 months); Nursing and Midwifery Board of Australia v Alexander [2010] QCAT 606 (12 months, suspended after 6 months).
In Medical Board of Queensland v Alroe (in which a 4 year period was imposed) the sexual relationship was physical, the psychiatrist put the Board to proof, challenged the patient’s evidence and denied wrongdoing. The Tribunal accepted that he had pursued and manipulated a patient who was particularly vulnerable given the role he occupied as her treating psychiatrist.
In Psychologist Board of Queensland v Meredith (in which a 3 year period was imposed) the psychologist engaged in sexual acts with the patient on three occasions when the therapeutic relationship was active. Again, the case involved particular vulnerability because of the emotional dependence inherent in a counselling relationship.
In Nursing and Midwifery Board of Australia v Heather (in which a 2.5 year period was imposed) the nurse ignored specific warnings about the vulnerability of the patient, actively developed emotional dependency while she was in his care and commenced a sexual relationship with her shortly after her discharge.
In each case, sexual activity occurred during the therapeutic relationship or there was an element of grooming and predatory conduct in the course of it. In this case, although a sexualised relationship commenced while the therapeutic relationship was on foot, there is no evidence of physical sexual activity. However that, coupled with the level of Ms Dall’s deceit, calls for a significant preclusion period.
Ms Dall let her registration as a psychologist lapse, although it is not clear when that occurred. She was still working as a psychologist in April 2009. The Tribunal has not taken any time off the register into account as it has no information about the circumstances in which this occurred. Weighing the competing factors, the Tribunal considers a period of 18 months is appropriate for a non-predatory dual relationship, which did not involve physical activity, but did involve elaborate and sustained deceit and an ongoing lack of insight and professional judgment.
The Tribunal will make the orders requested by the Board, except that the preclusion period will be 18 months, not 3 years.
Costs
Ms Dall opposed the Board’s request for an order for costs. She relied on the provisions of the Queensland Civil and Administrative Tribunal Act 2009, in particular s 100 which provides, as a starting point, for each party to bear their own costs. However, that section is excluded by the specific provision in the Health Practitioners (Professional Standards) Act 1999 (s 255), which provides the Tribunal may make any order about costs it considers appropriate for disciplinary proceedings. Under the enabling Act, then, the Tribunal’s power to award costs is unfettered and the usual position specified in s 100 does not apply.
The Board fulfils a statutory obligation in bringing these proceedings. They have not conducted them in a way that would tell against an award in its favour. Rather Ms Dall’s persistent denials lengthened the investigation and preparation of disciplinary proceedings. A costs order will operate as a further imposition on Ms Dall. However, if the Tribunal did not make it, the Board’s costs would be borne through the registration fees of other members of the profession. That is not appropriate in this case. The order sought by the Board will be made. That requires assessment by a costs assessor against the District Court scale of fees.
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