Psychology Board of Australia v Duangpatra
[2012] QCAT 514
•19 October 2012
| CITATION: | Psychology Board of Australia v Duangpatra [2012] QCAT 514 |
| PARTIES: | Psychology Board of Australia |
| v | |
| Kristina Nana Killam Duangpatra |
| APPLICATION NUMBER: | OCR255-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Acting Deputy President Assisted by Dr Rebekah Doley Roger Dooley Jennifer Felton |
| DELIVERED ON: | 19 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Ms Duangpatra is reprimanded. 2. The details of the reprimand must be recorded on the Board’s register for a period of 12 months from the date of this order. 3. Ms Duangpatra is suspended for a period of 6 months from 1 November 2012. 4. The order of suspension is suspended after 3 months, for a period of 18 months provided Ms Duangpatra is not the subject of disciplinary action and complies with the orders that follow. 5. Ms Duangpatra must complete a course of counselling with a clinical psychologist who specialises in boundary violation issues (‘the Counsellor’). a) The Counsellor must be nominated in writing by Ms Duangpatra for approval by the Board. b) The purpose of the counselling is to facilitate Ms Duangpatra in 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. c) The counselling is to continue until such time as the Counsellor considers further counselling is unnecessary for the purpose specified in order 5(b). 6. Ms Duangpatra must complete, at her own expense, the requirements of practising under supervision under the Supervision Plan (‘the Supervision Plan’) as identified in annexure ‘D’ of the Ms Duangpatra’s affidavit dated 4 June 2012. a) Ms Duangpatra is to practise under the Supervision Plan for a period of 18 months taking into account time already spent under supervision in accordance with the supervision condition placed on Ms Duangpatra’s registration by the Board on 10 February 2010. 7. Ms Duangpatra must, at her own expense, undertake a professional development activity related to decision making/boundary violation. a) The professional development activity must be approved, in writing, by the Board. b) Ms Duangpatra is to successfully complete the professional development activity within 12 months from the date of this order. 8. The suspension must be recorded on the Board’s register for a period of 12 months from 1 November 2012. 9. All conditions upon the registration of Ms Duangpatra prior to this order be removed. 10. Ms Duangpatra must pay the Board’s costs of, and incidental to, these proceedings upon the scale of costs applicable to matters in the District Court or as agreed. Ms Duangpatra is to pay by way of instalments as agreed to by the parties, or if an agreement cannot be reached, as ordered by the Tribunal. 11. Ms Duangpatra’s application for a non-publication order is refused. |
| CATCHWORDS: | HEALTH PRACTITIONER – PSYCHOLOGIST – DISCIPLINARY PROCEEDINGS – where the registrant had an inappropriate relationship with a client – where the registrant admitted the conduct – where parties were in agreement on the proposed sanction – whether the proposed sanction is appropriate Health Practitioner (Professional Standards) Act 1999, s 124, Schedule Psychology Board of Queensland v Robinson [2004] QCA 405 |
APPEARANCES and REPRESENTATION (if any):
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
Ms Duangpatra is the subject of this disciplinary referral as a consequence of an improper relationship she had with a former patient.
From 2007 she was employed as a psychologist by Queensland Corrective Services and provided psychological services to prisoners at Wolston Correctional Centre. It was here she came into contact with a prisoner Mr Cougan who was party to the conduct which is the subject of the referral.
The referral seeks a finding that there are grounds for disciplinary action against Ms Duangpatra in that she has behaved in a way that constitutes unsatisfactory professional conduct.[1] The parties reached agreement on facts and proposed sanctions.
[1]Health Practitioner (Professional Standards) Act 1999, Schedule, definition of ‘unsatisfactory professional conduct’.
Following the hearing the Tribunal sought further submissions on proposed sanction as it considered the proposed sanction inadequate. Submissions have been received and considered.
The conduct
The following facts are agreed:
a. Ms Duangpatra provided psychological services to a prisoner Mr Cougan between 3 August 2009 and 5 February 2010. The amount of counselling extended to approximately 45 - 50 occasions.
b. The treating relationship ended on the 5 February 2010 with Ms Duangpatra’s resignation.
c. Within one week Ms Duangpatra was added to Mr Cougan’s telephone list and they spoke on over 400 occasions between 19 February and April 2010. The discussions were often of an intimate nature, for example on 27 February 2010 they discussed having a child together and she told him ‘I would have one if you wanted’.
d. There is extensive correspondence of an affectionate and sometimes intimate nature between Ms Duangpatra and Mr Cougan, between February 2010 and December 2011. For example on 23 March 2010, Ms Duangpatra wrote to the Mr Cougan expressing frustration at not being able to ‘kiss’ or ‘make love’ to him.
e. Mr Duangpatra sent photos of her young son with correspondence and Mr Cougan exchanged letters with her son.
f. In March 2010 the Psychology Board received a letter of complaint from the Director of Ethical Standards (Queensland Correctional Services) about Ms Duangpatra’s conduct and the Board instituted an investigation.
g. In April 2010 Ms Duangpatra surrendered her registration to the Board.
h. She reapplied for registration in August 2010 and was registered with conditions imposed requiring her to complete a minimum period of 18 months supervised practice.
Ms Duangpatra has been working under a supervised practice plan approved by the Board since August 2011.
In her affidavit Ms Duangpatra acknowledges she was in breach of the code of ethics in developing a personal relationship with Mr Cougan.
Her evidence and that of her treating psychologist Dr Montgomery was to the effect that trauma in her own life had made her vulnerable to manipulation by Mr Cougan and contributed to her conduct.
She has said that in her early days of employment at Wolston Park she witnessed Mr Cougan being assaulted by prison guards. After that she saw him in a professional capacity and treated him particularly in relation to his drug dependency.
She said that at the time when she ceased treating Mr Cougan she was feeling guilty at not being able to assist him.
Dr Montgomery commented that as an inexperienced practitioner, she was denied appropriate supervision from the supervisors at Wolston, and, that she was ‘as much if not more so the victim in all of these procedures’.
It is correct that she was a young psychologist however she had had approximately 3 years post registration experience at the time of the conduct. The Tribunal accepts that through her sessions with her treating psychologist she has gained insight into her vulnerability. We have some concern however that she appears to be excusing her behaviour on the basis that she was vulnerable because of her previous traumatic experience and was to some extent the victim.
While she now expresses insight into her wrongdoing, the Tribunal considers that this insight needs to be further developed. She says herself ‘I have demonstrated some insight into my conduct through taking steps to attend counselling…’
As submitted by the Board, she was sufficiently experienced to have avoided developing any attraction to Mr Cougan. This is a basic ethical obligation of the psychologist.
It is also accepted that, although there is no evidence of any intimate relationship while she was treating Mr Cougan, it manifested itself very soon (within two weeks) of the treating relationship ceasing. It is likely that even if not expressed, there was an underlying relationship developing during the treating relationship.
The Tribunal accepts the Board’s submission that whilst engaging in the conduct, Ms Duangpatra risked undermining her work with Mr Cougan and also of psychologists generally within the prison system.
Findings and sanction
The Tribunal finds that grounds exist for taking disciplinary action against Ms Duangpatra. Engaging in a personal and intimate relationship with Mr Cougan at the time of terminating Mr Cougan’s treatment, or following an inappropriate interval after termination of their professional relationship, constituted unsatisfactory professional conduct.[2]
[2] Health Practitioner (Professional Standards) Act 1999, section 124.
When addressing sanction, the Tribunal must approach each case afresh and consider the particular circumstances of the case before it.
It is relevant however to its function, particularly in order to promote a consistency of decision making within the national scheme, to take into account decisions made in comparable matters in determining what the proper sanction is.
Both parties made reference to the Queensland Court of Appeal decision of Psychologists Board of Queensland v Robinson.[3]
[3] [2004] QCA 405.
The facts in that case are similar to this matter. The psychologist was a young practitioner who engaged in an inappropriate relationship with a prisoner. However, unlike Ms Duangpatra, she maintained a sexual relationship with the prisoner following his release. Further, unlike Ms Duangpatra, Ms Robinson showed no remorse and in fact disputed the Board’s findings to the extent of taking the matter to the Court of Appeal. In that case her registration was suspended for six months and following her suspension she was to practice under supervision for twelve months.
In a recent decision of Judge Kingham in the Psychology Board of Australia v Dall,[4] a more experienced psychologist was the subject of a referral because of her relationship with a prisoner. In that case, despite acknowledging unsatisfactory professional conduct, Ms Dall still asserted she had maintained professional boundaries. Ms Dall was found to have little insight into her wrongdoing. Unlike Ms Dall, Ms Duangpatra has acknowledged that her conduct crossed professional boundaries.
[4] [2011] QCAT 608.
In Dall there was also an element of deceit in that she had used a pseudonym to conceal the relationship and the Board was required to prepare and participate in a lengthy contested hearing.
In Dall the Registrant was precluded for reapplying for registration for eighteen months as well as being required to engage in counselling and further education, and she was required to undergo twelve months of supervised practice upon re-entry into the workforce.
Here the Board proposes sanctions which were agreed to by Ms Duangpatra.
It was proposed by the Board and accepted by Ms Duangpatra that appropriate sanction was for her to be reprimanded and suspended for six months with the suspension being suspended itself after three months provided that ‘for a period of eighteen months Ms Duangpatra complete the requirements of practicing under the supervision plan that had been put in place as the result of the conditions that had imposed on her registration by the Board.’ Further that she would undergo appropriate professional development and pay the Board’s costs.
The Tribunal, whilst accepting the appropriateness of the proposed orders, considers that although Ms Duangpatra has taken steps to address her lack of insight, there is still evidence that it has not been fully developed. There is a theme through her submissions of being the victim in the circumstances leading to disciplinary action, rather than focusing on her responsibilities. It is therefore considered that a period of counselling to address boundary violation issues is warranted.
Ms Duangpatra made an additional submission. She acknowledged that a period of suspension was appropriate but requested that the suspension not commence until November 2012 to make an easier transition in her current working arrangements. Her employer had been accommodating in putting her in a position to enable the supervision condition to be fulfilled and it would be more accommodating for her employer if she could continue in that role until November. The Board submitted that that was a matter for the Tribunal’s discretion. The Tribunal considers that it is appropriate to delay suspension until 1 November 2012.
As the Tribunal was proposing to make orders different to those that had been agreed to by the parties, the Tribunal sent copies of the proposed orders to the parties for their comment.
Both parties agreed that the sanctions were appropriate, save that the proposed order provided for eighteen months of supervised practice to commence on Mr Duangpatra’s resuming practice after her suspension.
Ms Duangpatra submitted that it would be more appropriate for the period of supervised practice which she had already undertaken to be taken into account.
She pointed out that in the case of Robinson, where the conduct was more reprehensible, only twelve months of supervised practice was ordered. The Board accepted her position. On reflection, the Tribunal agrees that the time already spent in supervised practice should be taken into account in calculating the eighteen month period, and orders accordingly.
Ms Duangpatra does not oppose an order for costs but requests the Tribunal to order that she be able to pay the amount of the costs in instalments. Ms Duangpatra is a single mother and has provided details of her current financial position which illustrates that she has difficulty meeting her current financial obligations.
Ms Duangpatra has cooperated fully with the Board since the disciplinary proceedings were referred in reaching an agreement on the facts and a joint position on sanction. The Tribunal accepts that it will be difficult for her to meet a cost order upfront and therefore orders that costs be paid by instalments in amounts and times as agreed between Ms Duangpatra and the Board. The Tribunal trusts that an agreement can be reached however if not then the Tribunal will make appropriate orders.
Non-publication order
Ms Duangpatra seeks an order preventing publication of her details.
She maintains that publication of her details would adversely affect her child and her professional life. The Board opposes the non-publication order and says that it is in the public interest that disciplinary proceedings of this nature remain open to public scrutiny.
The Tribunal can only make a non-publication order in certain circumstances. It can only do so if, amongst other things, it considers it necessary to avoid interfering with the proper administration of justice, to avoid endangering the physical or mental health or safety of a person, or for any other reason it is in the interest of justice.[5] The events leading to the disciplinary referral have already been the subject of public scrutiny in the media.
[5] Queensland Civil and Administrative Tribunal Act 2009, section 66.
Whilst the Tribunal accepts that Ms Duangpatra is now remorseful, it is an unfortunate consequence of inappropriate behaviour, that there will be disclosure of this matter.
As there is no evidence that publication of the details of the application will cause any risk of endangering the physical or mental health of her or her child, the application for non-publication order is dismissed.
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