Psychology Board of Australia v Davies
[2011] QCAT 153
•11 April 2011
| CITATION: | Psychology Board of Australia v Davies [2011] QCAT 153 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Ms Cheryl Davies (Respondent) |
| APPLICATION NUMBER: | HPF018-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by Ms Ruth Simons Dr Andrea Quinn Dr Eleanor Milligan |
| DELIVERED ON: | 11 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent is reprimanded. 2. The respondent may not be registered before 1 July 2011. 3. Upon re-registration, the respondent’s registration is to be subject, for a period of 12 months, to the conditions that she must, at her expense: (i) undertake a professional ethics unit in a recognised post-graduate psychology course, nominated by the respondent and approved in writing by the applicant, such course to be completed within 6 months of the date or re-registration (or such further time as the applicant may allow); and (ii) upon completion of the professional ethics unit at paragraph (a) provide written confirmation of such to the applicant. 4. The respondent may not apply for a review by the Tribunal (under part 9, division 4 of the Health Practitioners (Professional Standards) Act 1999) of paragraph 3, for a period of 18 months from the date of these orders. 5. Paragraphs 1 to 3 of these orders are to be recorded in the applicant’s register for a period of 2 years from the date of these orders. 6. The respondent is to pay the applicant’s costs of and incidental to these proceedings on the standard basis on the District Court scale, as agreed between the parties or, in the absence of agreement, as assessed. |
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY MATTER – where board directed registrant attend before a Health Assessment Committee – where registrant failed to attend – where registrant maintained she committed no wrongdoing in the workplace – where Board did not allege any wrongdoing in the workplace – where Board alleged unsatisfactory professional conduct in relation to Registrant’s failure to engage with regulatory system only – whether unsatisfactory professional conduct established by Registrant’s failure to engage Health Practitioners (Professional Standards) Act 1999, ss 9, 255(1)-(2)(a), 288(1) Health Practitioner Regulation National Law, ss 31, 35 Queensland Civil and Administrative Tribunal Act 2009, ss 6(7), 100 Queensland Nursing Council v Smithson [2008] Queensland Nursing Tribunal (3 April 2008) (Chairperson Boddice S.C) Queensland Nursing Council v Nicholls [2007] Queensland Nursing Tribunal (23 July 2007) (A/Chairperson Walters). |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009.
REASONS FOR DECISION
Ms Davies came to the attention of the Psychology Board of Queensland[1] in 2008 because her supervisor apprehended her performance in the workplace indicated a possible impairment issue. She was then working for Queensland Health (QH) in a Child and Youth Mental Health Service.[2] Her work performance issues related to the number of days she had taken as sick leave, her reluctance to undergo certain staff training, some concerns about her treatment of clients, and perceived problems about her ability to work in a team. On the limited material before the Board, it seems her attitude in responding to the concerns raised with her, more than the work performance issues themselves, gave rise to a misgiving that she might be impaired.
[1]The predecessor to the Psychology Board of Australia which has assumed its functions: Health Practitioner Regulation National Law, ss 31, 35.
[2]Ms Davies is no longer registered. However, the conduct alleged against her took place when she was registered. The Tribunal has jurisdiction to deal with Ms Davies’ conduct when she was registered pursuant to the Health Practitioners (Professional Standards) Act 1999, s 9.
Impairment is a physical or mental impairment, disability, condition or disorder that detrimentally affects the person’s physical or mental capacity to perform their profession.[3] One of the perplexing features of this case is the difficulty in identifying precisely what the impairment issue might have been.
[3] Health Practitioners (Professional Standards) Act 1999 sch.
Ms Davies attributed her problems in the workplace to the attitude of her supervisor. She felt she was over-managed by a supervisor who treated her differently to other staff members. She denied suffering from any impairment.
Between July 2007 and June 2008, QH, through more than one supervisor, sought to manage the performance issues internally. Her position appeared to be resistant throughout, even after a change in the personnel who managed her. By September 2008, the matter was referred to the Board.
There then followed a sustained attempt by the Board to investigate a possible impairment issue. Through a manager who has since passed away, the Board consistently sought Ms Davies’ co-operation in that investigation. The Board’s dealings with Ms Davies were commendably polite, considerate and appropriate, but did not elicit her full or active co-operation.
Unsatisfactory professional conduct
Ultimately, these proceedings rest on Ms Davies’ failure to attend before a Health Assessment Committee constituted by the Board, as directed.[4] A finding that is conduct of a lesser standard than might reasonably be expected of Ms Davies by the public and her professional peers[5] is supported by the following summary of relevant events:
[4]In response to a notice issued on 15 June 2009 pursuant to the Health Practitioners (Professional Standards) Act 1999, s 288(1).
[5]Health Practitioners (Professional Standards) Act 1999 schedule definition of unsatisfactory professional conduct.
a)QH had referred her for a health assessment (by Dr Wright). Although Ms Davies attended, she refused to authorise the results being provided to QH or the Board.
b)While she attended a health assessment by Dr Markou (consultant psychiatrist) at the Board’s direction, she refused to release her general medical records to him or the Board.
c)Ms Davies refused to undergo the further testing recommended by Dr Markou (an organic screen, a CT scan of her head and a neurological assessment), to be conducted at the Board’s expense. (Once the Board commenced these proceedings, Ms Davies did undergo some of the recommended testing, at her own expense and a further report was obtained from Dr Markou.)
d)Ms Davies failed to attend a meeting scheduled with the Board to discuss the need for the further testing, although she later indicated her non-attendance had been inadvertent.
e)The Board resolved to use its compulsive powers to direct Ms Davies to appear before a Health Assessment Committee. Her failure to comply with that direction is the subject of these proceedings.
Ms Davies’ submissions
Ms Davies has provided only brief written submissions in the form of a letter to the Tribunal in November 2010. In it she said she could not obtain free legal representation and could not afford to pay for a lawyer. She said she wanted the matter finalised even though she could not respond to the information presented against her, because when she tried to do so she became distressed. She said her failure to respond is not an admission of guilt or her way of avoiding dealing with something unpleasant. She said she is no longer working because of the stress of these proceedings. This is particularly difficult for her given her stage in life.[6] She had not wanted to give up her profession. She asked the Tribunal to take her personal circumstances into account in dealing with this matter.
[6] Ms Davies is now 62 years old.
On the morning the Tribunal panel convened to consider this matter, Ms Davies informed a case manager of the Tribunal that she could not attend in person but was available if required by telephone. The Tribunal had already resolved to proceed by way of a hearing on the papers, and Ms Davies had been notified of that order. Ms Davies did not seek an opportunity to make further submissions or lead evidence and the Tribunal did not seek further input from her. The Tribunal has taken into account Ms Davies’ submissions in determining what penalty should be imposed in this unusual and difficult case.
Ms Davies continues to maintain that she has not committed any wrongdoing. Given the basis upon which these proceedings have been brought, the Tribunal is not a forum for testing allegations about Ms Davies’ behaviour at work. It is not relevant to the case brought by the Board and, in any case, there is inadequate material before the Tribunal to support firm conclusions about what are quite vague and un-particularised performance issues. There may well be some foundation to Ms Davies’ complaints about the way these issues were managed. That is not to the point. It is her response to the Board, not QH, that founds these proceedings.
Nor is the Board asserting that Ms Davies is impaired. There are indications in the medical reports before the Tribunal that Ms Davies has some executive behavioural and functioning deficits and is affected by pathological grief over some significant losses.[7] If that is so, Ms Davies may well benefit from intervention. However, that is not a matter on which the Tribunal can or should make judgment, given the basis upon which the Board has proceeded.
[7]Report of Dr Brona O’Dowd dated 18 February 2010 and Dr Petros Markou dated 23 February 2010.
What orders should be made
The only issue for determination is what orders the Tribunal should make given its finding that Ms Davies’ failure to attend before the Health Assessment Committee as directed constituted unsatisfactory professional conduct.
The Board proposes that Ms Davies is reprimanded and precluded from being registered for a period of 6 months from the date of the order. The Board further seeks an order from the Tribunal that any future registration is subject to conditions that would have her, at her own expense and within 6 months of registration, complete a professional ethics unit offered in a recognised post-graduate psychology course approved by the Board.
A reprimand should follow from the finding of unsatisfactory professional conduct. Appropriately, the proposed conditions address only the ethical concern raised by her failure to actively co-operate in the regulatory system. It is Ms Davies’ refusal to engage with the Health Assessment Committee and the Board generally, rather than any work performance or impairment that must be addressed by the Tribunal’s orders. The conditions proposed by the Board are well directed and sufficient to educate Ms Davies about the responsibilities which attend the privilege of being a member of a profession.
A period during which Ms Davies is precluded from seeking registration will serve to reinforce the importance of engaging with the Board. Membership of a profession involves active acceptance of the regime established to promote safe and professional practice by its members. There are no comparatives involving psychologists, but preclusion periods of 3 and 6 months have been imposed for similar conduct by nurses.[8]
[8]Queensland Nursing Council v Smithson [2008] Queensland Nursing Tribunal (3 April 2008) (Chairperson Boddice S.C); Queensland Nursing Council v Nicholls [2007] Queensland Nursing Tribunal (23 July 2007) (A/Chairperson Walters).
In this case, the Board has submitted the preclusion period should be 6 months, to take into account her ongoing apparent lack of insight about her professional obligations. Taking into account Ms Davies belated response to Dr Markou’s recommendations, the Tribunal considers it is adequate consequence if Ms Davies cannot reapply for registration before 1 July 2011. That is a little short of 3 months from the date of this decision, but 12 months since Ms Davies let her registration lapse.
Costs
The question of costs in this proceeding is governed by the Health Practitioner (Professional Standards) Act 1999[9]. The Board’s costs are funded from registration fees paid by members of the profession. That is a relevant factor in determining where the costs should fall.
[9]Section 255(1) provides the tribunal may make any order about costs it considers appropriate in disciplinary proceedings. This is a modifying provision that adds to, varies or excludes the usual provisions about costs in the proceedings before QCAT, that each party bear their own costs. Queensland Civil and Administrative Tribunal Act 2009, ss 6(7), 100.
The Board has been successful in establishing its case against Ms Davies and, to a large part, has secured the orders it sought. Further, the Board has conducted itself in these proceedings in a way which has minimised the costs incurred. These factors favour an award of costs on the District Court scale[10] in the Board’s favour.
[10] Health Practitioners (Professional Standards) Act 1999, s 255(2)(a).
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