Psychology Board of Australia v Dunne
[2023] QCAT 242
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Psychology Board of Australia v Dunne [2023] QCAT 242
PARTIES:
PSYCHOLOGY BOARD OF AUSTRALIA (applicant)
v
PAUL DUNNE (respondent)
APPLICATION NO/S:
OCR062-22
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
10 July 2023
HEARING DATE:
20 April 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Peter Murphy SC
Assisted by:
Dr Wendy Grigg
Dr Timothy LowryMs Karen Butler
ORDERS:
1. Consequent upon finding that PAUL DUNNE has engaged in professional misconduct within the meaning of the Health Practitioner Regulation National Law Act 2009 (Qld), the Tribunal orders that PAUL DUNNE be:
(a) Reprimanded.
(b) Disqualified from applying for registration as a registered health practitioner for a period of 24 months from the date of this order.
(c) Prohibited from providing whether as employee, contractor, manager or volunteer, and whether directly or indirectly, any health service involving the provision of mental health, psychological or counselling services until such time as he be returned to the register of health practitioners under the National Law.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where the respondent was charged with using non-evidence based treatments – where the applicant claimed that the respondent did not sufficiently evidence risk assessments, treatment plans and clinical records – where it was contended that the respondent failed to adequately record informed consent to physical contact with his patients – where the applicant alleged that the respondent’s communication with a vulnerable client violated boundaries – where the respondent acted consistently with his own views as to appropriate treatment and techniques – whether the respondent acted below a standard reasonably expected of a psychologist by his professional peers and the public – whether the respondent’s conduct constituted professional misconduct or unprofessional conduct – whether an appropriate sanction would be to prohibit the respondent from providing any health service involving the provision of mental health, psychological or counselling services for a specified period in addition to disqualifying him from applying as a registered health practitioner for a period of time
Health Practitioner Regulation National Law Act 2009 (Qld), sch Health Practitioner Regulation National Law, s 5, s 196
Psychology Board of Australia v Meulblok [2020] VCAT 579
APPEARANCES & REPRESENTATION:
Applicant:
R De Luchi, counsel instructed by Clayton Utz
Respondent:
Self-represented
REASONS FOR DECISION
Mr Dunne was first registered as a psychologist in 1992. He practised as such for about 27 years.
In June 2015, a notification was made to the Health Ombudsman following an audit of Mr Dunne’s client files.
A year later, the Health Ombudsman referred the complaint to the Australian Health Practitioner Regulation Agency and, about two months after that, the Psychology Board commenced an investigation into Mr Dunne’s conduct.
That investigation concerned Mr Dunne’s work as a psychologist with Headspace, an organisation providing early intervention mental health services to young people aged 12 to 25.
Consequent upon that investigation, on 19 June 2019 the Board restricted where Mr Dunne could practice and imposed supervisory requirements.
The following day, Mr Dunne surrendered his registration as a psychologist.
These proceedings are brought by the Board under the National Law[1] alleging conduct by Mr Dunne relating to a number of specified clients. The conduct has been categorised by the Board into five separate grounds. In summary:
(a)The use of non-evidence-based treatments including Emotional Freedom Technique (“EFT”), Applied Kinesiology (“AK”) and Energy Psychology (“EP”);
(b)A failure to conduct risk assessments, consider differential diagnoses and/or document treatment plans;
(c)A failure to maintain adequate clinical records;
(d)Inappropriate physical contact[2] and/or failing to obtain or record adequate or appropriate informed consent; and
(e)Inappropriate communication with a specified client in circumstances which he knew, or ought to have known, were professionally inappropriate and a boundary violation.
[1]Health Practitioner Regulation National Law Act 2009 (Qld), sch Health Practitioner Regulation National Law (“National Law”).
[2]The alleged physical contact is said to be inherent to the practice of at least one of the alternative therapies used.
The Board contends in each case that Mr Dunne has engaged in “unprofessional conduct” that falls substantially below the standard reasonably expected of a registered psychologist and thereby constitutes “professional misconduct”.[3]
[3]National Law, s 5, Definitions; s 196(1)(b)(iii).
What is Mr Dunne’s Response to the Allegations?
Mr Dunne admits the use of the treatments the subject of Ground 1: “non-evidence-based treatment (including a combination of Applied Kinesiology (AK), Emotional Freedom Technique (EFT) and Energy Psychology (EP)” on ten specified clients.
Because those treatments are contrary to established psychology practice and the Australian Psychological Society Code of Ethics 2007, Mr Dunne admits he engaged in unprofessional conduct in respect of that Ground. He denies that the same conduct amounts to the more serious “professional misconduct”.
Otherwise, Mr Dunne denies that his conduct or professional practices or the conduct specified in the remaining four Grounds amount to unprofessional conduct or professional misconduct. He accepts in relation to Grounds 3 and 4 that his conduct may be seen as “unsatisfactory professional performance”.[4]
[4]National Law, s 5, Definitions; s 196(1)(b)(i).
Mr Dunne’s filed response seeks to emphasise that his conduct never “caused harm or had the potential to cause harm to any of my clients”.[5] He contends that he has “always acted in the best interests of and prioritised client well-being, safety and care”.
[5]Mr Dunne’s written response, p 1.
He goes on to contend that he “worked diligently towards the treatment of his clients”; “never caused, or ever acted with the intention of causing, harm to a client” and “always acted with the consent of my clients”.[6]
[6]Ibid.
Those assertions arise within a context of Mr Dunne’s clinical practices which, the Tribunal accepts, are consistent with sincerely held beliefs and genuine concern for his clients’ wellbeing. However, issues for the Tribunal’s determination arise because Mr Dunne’s practices and treatments are contrary to the established practices and standards applicable to registered psychologists.
Mr Dunne effectively admits as much. He conceded in oral evidence that, at least in respect of the period under consideration, he “shouldn’t have been a member” of the psychology profession. He said he “didn’t agree with boundaries within which I was expected to work”.
Indeed, Mr Dunne posited his methods and practices as what the “young people” he was treating wanted and needed and, in effect, set standard psychological clinical practice in juxtaposition to that. Indeed, he suggested that – at least in the case of some of the named patients – established psychological practices and therapies were unhelpful to clients when compared to the practices he adopted.
Mr Dunne’s response to the charges have three common bases or themes. They are encapsulated by this part of his written response to Ground 1:
… I submit that while the practice of EFT was considered not to be an evidence-based practice by the APS[7] in 2015; it was provided by me to my clients with full approval of Headspace management in an engagement of pure intent for the clients. It was provided as an addition to, rather than in lieu of, the evidence-based practices of MCBT and CBT.[8]
[7]Australian Psychological Society.
[8]Respectively, Mindful Cognitive Behavioural Therapy and Cognitive Behavioural Therapy. Written response by Mr Dunne, p 3.
Those broad central themes offered in exculpation of his conduct should be addressed immediately.
It will be appreciated that the fact that non-established practices and treatments are used in addition to accepted practices and treatments is not an answer to the allegations. It is the use of the unacceptable practices at all that falls to be considered by reference to the relevant statutory standards. Were it otherwise, even patently harmful practices would be excused if additional to conventional treatment.
Equally, “full approval” by an organisation to which a psychologist provides services might raise important questions about the nature and level of supervision by the organisation of its psychologists, but it does not bear upon whether the alleged conduct of a particular psychologist amounts to unprofessional conduct or professional misconduct.[9] Adherence to the standards expected of registered psychologists involves responsibilities and obligations individual to each psychologist. Those obligations and responsibilities – which must be reflected in the individual psychologist’s practices, treatments, and ethics – can neither be devolved nor avoided by reference to the actions or inactions of others.
[9]Although it may be a matter relevant to sanction if the proscribed conduct is established.
So, too, an acceptance that Mr Dunne’s practices and treatments were motivated by a sincere desire to provide care and assistance to clients does not avail him in addressing the conduct the subject of the grounds. Again, even the most objectively harmful treatment might be well meaning and well-motivated yet nevertheless be conduct which falls below, including substantially below, the standard reasonably expected of a registered psychologist of an equivalent level of training and experience.[10]
[10]Although, again, a practitioner’s motivations may be relevant to sanction if the proscribed conduct is established.
Similar themes can be seen to underpin Mr Dunne’s response to the allegation in Ground 2 that he failed to provide adequate clinical care by failing to undertake any, or any adequate risk assessments and differential diagnoses or provide documented treatment plans as well as the allegation founding Ground 3 that he failed to maintain clinical records.
Mr Dunne acknowledges these failures as alleged but, again, seeks to explain them by reference to the actions or inactions of others (for example that no issue was raised by Headspace), or by asserting that, while his notes were different to those that might be required by accepted clinical practice, his notes “were formulated in a manner that was ‘readable’ to parties, to individuals at Headspace who were not practitioners”.[11]
[11]Mr Dunne’s written response, p 4.
Mr Dunne admits that he “did not always complete my own extensive risk assessments” and he acknowledges that he “did not undertake assessments specific to differential diagnosis”. Again, his contention is referred to others: the “standard provided by the in-take and Assessment team at Headspace was satisfactory to begin consultation”.[12]
[12]Mr Dunne’s written response, p 3.
The collision between Mr Dunne’s practices and beliefs and those in conformity with those to which a registered psychologist should adhere perhaps finds its most acute expression in the allegation at the heart of Ground 5.
Mr Dunne sent an SMS message to a 19-year-old client who was, as he was aware, recovering in hospital after an attempt at self-harm. The client had:
… a history of suicide attempts, severe social isolation, sleep disturbance, auditory hallucinations, Asperger syndrome, Post-Traumatic Stress Disorder and Schizotypal Personality Disorder.[13]
[13]Particulars Ground 5, not disputed by Mr Dunne.
The excerpt from Mr Dunne’s text message the subject of the Ground reads:
Hi miss [AM] this is Paul Headspace. Hope you are being looked after and enjoying your phone. Something I wrote fur you …
The purpose of life isn’t too become a good psychologist or the best psychologist. It’s not even to become a good self-harmer or even the best. Our purpose. The purpose of life is joy.
And freedom of the essence.
We are all fee to self-harm or end our life and then come back and do it again …
Then we can come back and do it some other way.
How are we doing? Like you say [AM] we think Toooooo much.
I figure our purpose is not to right the wrongs of past generations or right or own wrongs. Or isn’t too suffer because of anyone else’s choices and actions. We suffer because we choose to suffer not because anyone else caused it. We are the cause and the effect. We are one energy and what we do to ourselves or what we do to others we always do to all.
Paul
[as per original].
Mr Dunne says the proper context for that message is:
Over a period of months, I had developed a trusting and supporting rapport with the client. It was reported to the client’s support workers within Open Minds, to myself and the staff of [H]eadspace, that I was the only practitioner this client would trust and consistently turn to for support.[14]
[14]Mr Dunne’s written response, p 5.
Consistent with Mr Dunne’s themes and beliefs earlier referred to, he juxtaposes his approach with:
… the disdain she received from doctors and medical staff because of her behaviour. She was betrayed, humiliated, shamed, and treated with disdain by many who were there to support her. AM trusted in my non-judgmental support and I [sic] my intention would always be to support, encourage, guide and empower a client such as this.[15]
[15]Ibid.
AM’s medical notes records her response to that text:
very well said I think u might be a genuine genius thanks for takeing the time to text me ill try n make another appointment when im up to it :) [as per original].
Mr Dunne’s response continues by referencing his asserted extensive experience in dealing with young people at risk of suicide and the positive feedback he has previously received from carers and clients.
The Ground concerning this text message is expressed as being “professionally inappropriate and amounted to a boundary violation”. The expert evidence before the Tribunal is to the effect that it is difficult to imagine any circumstance where a message with this content should be sent to a vulnerable, suicidal young person.
Is Misconduct Established and How Should the Conduct be Categorised?
The National Law recognises three relevant findings that may be made in respect of (relevantly) a registered psychologist’s conduct. Each may in turn result in the forms of sanction prescribed by the National Law.[16]
[16]Respectively, National Law, ss 196(1)(b)(i), (ii), (iii) and (2).
Each of those three findings refers to conduct separately defined in s 5 of the National Law. Relevantly:
“Unsatisfactory professional performance” means:
… the knowledge, skill or judgment possessed, or care exercised by, the practitioner … is below the standard reasonably expected of a [registered psychologist] of an equivalent level of training or experience.
“Unprofessional conduct” means:
… professional conduct that is of a lesser standard than that which might reasonably be expected of the [registered psychologist] by the public or the practitioner’s professional peers and includes [eight non-exhaustive examples].
“Professional misconduct” includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered [psychologist] of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered [psychologist] of an equivalent level of training or experience…
The Tribunal has evidence from two independent experts. Narelle Dickinson provided a report on 22 April 2019. Dr Louise Roufeil provided two reports, the first dated 4 February 2012 and a supplementary report dated 2 November 2022. Dr Roufeil also gave short oral evidence.
Mr Dunne did not challenge either the independence or expertise of either of those two psychologists.
The conduct the subject of the proceedings is categorised within five grounds as involving “Clinical Care” (Grounds 1 and 2); “Documentation” (Ground 3); “Informed consent / inappropriate contact” (Ground 4) and “Boundary violation (Inappropriate communication)” (Ground 5).
The conduct is referenced to ten identified clients (noting that Ground 5 is specific to one client). The client cohort is described as ranging “in age from 16 to 26” with a “broad range of presentations” but “the majority could be described as having currently severe symptoms”.[17]
[17]Report, Narelle Dickinson, 22.4.19.
A number of the clients:
… were on correctional parole; had engaged in self-harm and had described clear and current suicidal or self-harm ideations or ideations of harming others. A number also had learning disabilities, intellectual disabilities, ADHD and/or Asperger’s Syndrome”.[18]
[18]Ibid.
The Board refers in its written submissions to seven separate Codes and Guidelines promulgated by the APS.[19] All are admissible as evidence of the standards applicable to registered psychologists.[20]
[19]Written submissions by the Board, 25.11.22, pp 7-8.
[20]National Law, s 41.
Ground 1 – Clinical Care: Inadequate or inappropriate treatment
Ground 1 concerns Mr Dunne’s use of AK; EFT and EP in the treatment of ten identified clients.
Ms Dickinson opines that there is no evidence to support the practice of AK as complementary techniques to CBT in any psychological application. There is, she says, limited evidence to support EFT in that context, but there is insufficient evidence to support its use beyond stress management in milder mental health disorders and distress management.
The high acuity of the client cohort ruled out the use of any of these techniques and was not in accordance with the established knowledge of the discipline of psychology.
Ms Dickinson could not identify overt harm to the clients in the use of the techniques, but opined there was an adverse impact for clients because each was entitled to assume they would receive evidence-based and effective treatment.
She opined the treatment provided by Mr Dunne as evidenced in the client files was “inadequate and inappropriate”.
Dr Roufeil’s opinions accorded with the opinions expressed by Ms Dickinson.
For her part, Dr Roufeil emphasised the limited references to traditional treatment and techniques in many of the records and that AK appeared to have been the primary tool used for assessing clients’ emotional states. She said a reasonable psychologist would not consider AK to be a sufficient assessment or diagnostic strategy for clients with serious presentations such as those nominated in the grounds.
In her oral evidence, Dr Roufeil was referred to two papers advanced by Mr Dunne in support of the non-evidence-based techniques.[21] Both, it should be noted, were published after Mr Dunne saw the relevant clients.
[21]Exhibits 1 and 2 in the proceedings.
Dr Roufeil noted that the first did not report “a clinical trial” and it was “not answering the question as to whether these are effective treatments”. In a similar vein, the second paper did not “use the standard protocol applicable to a systematic review” and, contrary to usual academic practice, the article was “not assessed for quality”. There was, she said, “no measure of the quality of the studies”.
The APS Code requires psychologists to demonstrate “established knowledge of the discipline and profession of psychology” and to “bring[ ] and maintain appropriate skills and learning to their areas of professional practice.”
Those skills and that learning derives from knowledge, acquired and substantiated by appropriate and rigorous peer-reviewed research and clinical trials that forms the foundation for established practices and techniques and, in turn, the standards expected of, and employed by, registered psychologists.
The evidence before the Tribunal establishes that Mr Dunne’s treatment and techniques employed in respect of the nominated clients fell below the standard reasonably expected of a psychologist of equivalent training and experience.
The non-evidence-based treatment and techniques employed by Mr Dunne are not part of the established knowledge and discipline of the profession. A failure to bring that established knowledge and discipline to his practice is a failure to bring and maintain appropriate skills to his practice as it concerned the nominated clients.
The remaining issue is the extent to which Mr Dunne’s practice fell below the reasonable standard.
The Tribunal is particularly concerned by, and influenced by, the high acuity of the client cohort earlier described.
The Tribunal is persuaded that, seen in the context of the extreme vulnerability of the nominated client cohort, Mr Dunne’s use of non-evidence-based treatments should be seen as unprofessional conduct which falls substantially[22] below the standard reasonably expected of a registered psychologist of an equivalent level of training and experience.
[22]A “large or considerable departure from the standard required” which can be manifested, for example, in “the deliberateness of the conduct”: see, for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638.
The Tribunal finds the conduct the subject of Ground 1 is professional misconduct within the meaning of the National Law.
Ground 2 – Clinical Care: Other
The conduct the subject of Ground 2 concerns the Board’s assertion that Mr Dune failed to provide adequate clinical care by failing to conduct risk assessments, consider differential diagnosis and/or document treatment plans.
The essential contention is that clear treatment plans were provided by the Headspace intake team and that there was no evidence these had been complied with or that Mr Dunne relied upon a structured case conceptualisation. In effect, it was asserted that treatment was led, or perhaps effectively dictated by, the clients in their individual sessions rather than a structured programme of assistance with identifiable goals.
Ms Dickinson referred in her report to particular concerns emanating from a significant majority of the audited cases involving clients evidencing a risk of harm to self or others. Within that context, she noted an absence of on-going risk assessments and that “intervention of risk [was not] a clearly articulated component” of Mr Dunne’s treatment plans.
In her oral evidence, Dr Roufeil said the absence of ongoing risk assessments in this client cohort was her “strongest concern”. Contrary to Mr Dunne’s explicit reliance upon the Headspace intake team’s assessment, Dr Roufeil said that “assessing risk is not a one-off thing that clinicians do” because, among other things, there can often be “rapid change, especially in young people … risk fluctuates over time”.
Allied to those concerns, Dr Roufeil said her examination of the client files revealed “very limited evidence of a treatment plan … [there was] little or no evidence of goals or proposed outcome”.
Mr Dunne’s own evidence would appear to effectively confirm this observation, including his express admission that he “did not undertake assessments specific to differential diagnosis”:
Making a differential diagnosis was part and parcel of all sessions, and this was enhanced by the use of body-language and consultation with the young person/guardians. I submit because I could quickly and efficiently arrive at a diagnosis for a client’s presenting problems, therefore I produced a ‘success’ rate of client intake to exit between 90 & 95% over the ten (10) month period.[23]
[23]Mr Dunne’s written response, p 3.
Dr Roufeil noted that the claimed “success” rate is not reflected in any outcomes contained in the clients’ clinical records” and nor did they contain any “records of client satisfaction”.
Again, the evidence reveals a process which accords with Mr Dunne’s own lights but little or no reference to the established knowledge and practices of the discipline of psychology.
His approach to ongoing risk assessments and documenting a treatment plan did not result from negligence or oversight, but rather by reference to a deliberate decision consistent with his own view of what was necessary, distinct from that which was required by his profession’s standards.
Unsurprisingly it might be thought, the APS Code and guidelines includes specific requirements for risk assessments and attendant record keeping in respect of clients at risk of suicide. Those requirements were not adhered to. Mr Dunne cannot avoid those obligations and responsibilities by reference to what Headspace’s initial assessment may have said or not said.
The extent to which Mr Dunne’s conduct fell below the required standard cannot, in the Tribunal’s opinion, be divorced from the context in which it occurred. The vulnerability of clients within the identified client cohort and specific risks of harm to them, and by them, accentuated the need for observance of prescribed standards of making and documenting risk assessment on an ongoing basis and, similarly, a coherent, documented treatment plan. Mr Dunne did neither.
The Tribunal is satisfied that Mr Dunne’s conduct is unprofessional conduct which departs substantially from the required standard.
The Tribunal finds the conduct the subject of Ground 2 is professional misconduct within the meaning of the National Law.
Ground 3 – Documentation
The substantiation of this ground derives overwhelmingly from Mr Dunne’s own evidence.
Mr Dunne admits, and the evidence before the Tribunal otherwise reveals, that his notes:
(a)Do not document the work undertaken with the clients the subject of the audit;
(b)Do not document the extent of non-evidence-based treatments or permit a comparison of those techniques with accepted psychological practice;
(c)Reveal a “bias” toward recording “Energy Psychology” and his preferred mode of practice; (Dickinson report)
(d)Were consistently and seriously deficient when compared to clinical notes that should be expected of a registered psychologist; (Dickinson; Roufeil reports)
(e)Fail to reveal information that would facilitate the easy handover of clients to another practitioner;
(f)Do not contain required risk assessments and a coherent treatment plan; and
(g)Reveal “little or no evidence of goals or proposed outcome” of the treatment (per Dr Roufeil’s oral evidence).
The APS Code and Guidelines specifically require the making and keeping of adequate records of treatment.
The failure to adhere to those requirements and, by contrast, to document only those matters which Mr Dunne himself considered relevant – and, which, in the main, pertained to treatments and practices that were themselves inconsistent with established practice cannot be considered inconsequential.
Mr Dunne contends his notes were written for the benefit of officers within Headspace. Whatever exculpation might be intended by that contention, it ignores the fact that his obligations are owed personally as a matter of personal professional integrity and responsibility. A psychologist of his experience should be well aware of that.
Mr Dunne describes the omissions in his documentation as “an error of judgment”. Yet, they were neither negligent nor inadvertent. Rather, the omissions seem much more consistent with Mr Dunne deliberately recording matters, or not recording matters, according to what he considered important or not important by reference to his alternative treatments in contrast to those matters the recording of which is dictated by his profession’s guidelines and responsibilities.
Ultimately, Mr Dunne contends a finding should be made of “unsatisfactory professional performance”[24] rather than the much more serious categorisation urged by the Board. Mr Dunne’s contention is rejected; the departure from the standards of the profession is significantly greater than his contended classification warrants.
[24]National Law, s 5; 196(1)(b)(i).
Accurate, comprehensive records can be seen to be all the more important for clients at risk of self-harm or harm to others when intervention by other health practitioners might be required and might be required on an urgent basis. The notes need to facilitate, or assist in facilitating, an informed handover to another psychologist (or other health practitioner).
The Tribunal considers the deliberate decision taken by Mr Dunne to keep records consistent with his views as to appropriate treatment and techniques, but which were inadequate by the standards of his profession and which as a consequence do not adequately facilitate handover to another practitioner is a substantial departure from those standards.
The Tribunal finds the conduct the subject of Ground 2 is unprofessional conduct which falls substantially below the required standard and is professional misconduct within the meaning of the National Law.
Ground 4 – Informed Consent / Inappropriate Contact
Ground 4 is expressed in the alternative. It is asserted by the Board that Mr Dunne “engaged in professionally inappropriate physical contact” with ten nominated clients and further or in the alternative he failed “to obtain and/or record adequate or appropriate informed consent from those nominated clients before engaging in physical contact”.
Dr Roufeil’s oral evidence was to the effect that physical contact between a psychologist and a client “is a rarity” and is “very much contra-indicated”. Against those basic premises, Dr Roufeil sought to emphasise that if, exceptionally, physical contact was to be part of any treatment, informed consent would need to be both carefully obtained and carefully documented.
Mr Dunne accepts that he did not record consent in the client notes. He says, though, that he “always seek[s] permission before offering to demonstrate the workings of body-language.” The latter forms part of the non-evidence-based treatments he employed. He says he “always obtained adequate informed consent from my clients to engage in any treatment and ensured they were always aware of the reason why I was undertaking physical contact”. As a consequence, Mr Dunne says his conduct should be regarded as “unsatisfactory professional performance”.
Apparently, Applied Kinesiology involves muscle testing whereby the practitioner applies force to a specific muscle and gauges its reaction to the same. If the conduct the subject of Ground 5 is to be a separate allegation of professional misconduct, it must involve a departure from the required standard separate to that which arises from the use of that (and perhaps other) non-evidence-based techniques and treatments.
Informed consent to all treatment is of course an axiomatic tenet of psychology practice. Principle A3.3 of the Code requires a psychologist to not only ensure consent but to ensure it is informed, including by advising a client that they may participate or decline to participate, or may withdraw from any methods or procedures proposed.
Importantly, a separate obligation imposed by the Code is that consent to treatment involving physical contact be documented from clients or their guardians.
The obligations where physical contact is involved in treatment are reinforced by the APS Guidelines which provide that a third party must be in the vicinity and clients should be asked whether they want a third party to be present during the treatment. Again, documentation is required including as to the location and identity of the third party.
It is again emphasised that the client cohort, many of whom were female, had significant vulnerabilities. Some were minors.
The Dickinson report notes that none of the audited files contain the client’s written consent and only an occasional record of verbal consent. Notably, even in the case of a client who was a minor, reference in the clinical notes to the use of AK (which implies physical contact) was not accompanied by either written consent or noted verbal consent. Nor was it recorded that the minor client was offered the option of having another person present during such treatment.
Those absences should be seen against the background of Dr Roufiel’s opinion that “… it would not be standard practice for a male psychologist to have physical contact with a female client presenting in a manner similar to [the client AM] as part of an assessment process”.
There is no evidence which seriously questions Mr Dunne’s contention that he always obtained consent from clients prior to physical contact. However, four points can be made about that contention.
First, verbal consent is manifestly inadequate and contrary to a number of relevant guidelines.
Second, the lack of record keeping about consent to physical contact – itself a form of psychological treatment outside the norm – is not isolated but occurs consistently in respect of the relevant client cohort.
Third, that consistency evidences an omission from the records that is not careless, negligent, or inadvertent, but rather a deliberate decision that the strictures of the profession were not necessary, or could be ignored, in respect of the treatments provided.
Fourth, not only did the lack of clinical records impede an informed transfer to a new or different treating health practitioner, but the omission also made it impossible for a reviewing or supervising person or authority to know what, if any, contact had been consented to.
The relevant provisions of the APS Guidelines and Code are founded in the establishment of boundaries between psychologist and client within a context where treatment often involves the exploration a person’s most private and intimate details. Maintenance of appropriate boundaries is a fundamental precept of proper psychological boundaries. The careful formulation of guidelines surrounding physical contact recognises each of those principles.
Mr Dunne’s conduct cannot be seen as unsatisfactory professional performance – it is far more serious than that.
The Tribunal finds the conduct should be seen as unprofessional conduct which falls substantially below the standard reasonably expected of registered psychologist of an equivalent level of training and experience.
The Tribunal finds the conduct the subject of Ground 4 is professional misconduct within the meaning of the National Law.
Ground 5 – Boundary Violation: Inappropriate Communication
The text message the subject of this ground and Mr Dunne’s attempt to provide context to the sending of it to an extremely vulnerable patient has earlier been set out.
The Board submitted in helpful written submissions:
… the practitioner’s communications with client ‘AM’ indicates a serious lack of judgment and care exercised, in that the practitioner appeared to minimise the seriousness of self-harming and suicide, even suggesting there were no consequences for this behaviour as client ‘AM’ would be able to ‘come back’ after ending her life and make a different choice.[25]
[25]Written submissions Board, p 16.
There can be little doubt that, in terms, the text message can be seen in that way.
However, the Tribunal does not consider that is indicative of any blasé attitude by Mr Dunne or any lack of concern about his client’s welfare. He would certainly contend the message was the result of a carefully considered approach by him, consistent with his knowledge and earlier treatment of AM.
In her supplementary report, Dr Roufeil notes that “it is not unusual for a treating community-based psychologist to contact a client who has been hospitalised following an episode of self-harm to offer a message of support”. However, that opinion comes with an important caveat:
When doing so, a psychologist must follow the framework for managing professional boundaries specified within the APS Ethical guidelines for managing professional boundaries and multiple relationships (2016). It is not standard practice for a psychologist to communicate support for a young, hospitalised client using non-professional and emotive language such as that used by Mr Dunne in this text.[26]
[26]Supplementary report, Dr Roufeil, 2.11.22, p 9.
Dr Roufeil went on to point out that AM was “a young woman in a highly vulnerable state requiring boundaries to be carefully managed by the treating male psychologist”. A failure to manage those boundaries had the potential to cause harm to a vulnerable client”.[27]
[27]Ibid.
AM’s response, which has been earlier quoted, might be seen to heighten those concerns rather than ameliorate them.
Dr Roufeil considered Mr Dunne’s text to be “a moderate to severe departure from the standards expected of a psychologist”.[28] In her oral evidence Dr Roufeil described the content of the text as “a real concern”.
[28]Ibid.
Notably, the particular vulnerability of clients who are at risk of suicide is recognised in published APS Guidelines specific to that cohort.
Dr Roufeil’s opinions are those of an expert reporting psychologist. The Tribunal is cognisant that the National Law references unprofessional conduct not only to a lesser standard than might reasonably be expected by the psychologist’s professional peers, but also to a lesser standard than might reasonably be expected “by the public”.[29]
[29]National Law, s 5, Definition, “unprofessional conduct”.
The contemplated public expectation is not governed by whim but by what they might reasonably expect of the members of a profession as a result of a promulgated Code of behaviour and Guidelines for the conduct of treatment.
The Tribunal considers that Mr Dunne’s conduct in sending that particular text to that particular patient fails the expectations of both his professional peers and the public. That judgment is arrived at notwithstanding Mr Dunne’s assessment and contentions as to the message’s benefit and lack of potential harm.
Given AM’s particular vulnerabilities, her unfortunate history of very poor mental health and the context of a message sent to a young patient in hospital following an incident of self-harm, the Tribunal considers the unprofessional conduct to fall substantially below the required standard.
The Tribunal finds the conduct the subject of Ground 5 is professional misconduct within the meaning of the National Law.
What Sanctions Should be Imposed?
The question of what sanction should be imposed consequent upon the Tribunal’s findings as to professional misconduct must take account of a central well-established principle that the objective of appropriate sanctions is not punishment of the psychologist’s conduct but protection of the public and the maintenance of professional standards.
Thus, the emphasis is on protective measures in respect of the psychologist’s future conduct and assuring the public that trust in the profession is warranted by showing that appropriate standards are imposed and upheld.
Mr Dunne is no longer registered as psychologist. He has not reapplied for registration since surrendering his registration some four years ago. He says he has no intention of applying for registration or working as a psychologist in the future.
However, the aims just referred to remain centrally important even if, as here, the psychologist has ceased to practice as such and has evidenced an intention to not do so in the future.[30]
[30]Something also recognised by s 196(4) of the National Law.
In those circumstances, considerations such as whether the psychologist has insight into their misconduct or has manifested remorse or a desire to “change their ways” might have less potency in illuminating appropriate sanctions.
Yet, those same circumstances in no sense diminish the crucially important role played by sanctions in promulgating the message that registered psychologists base their advice and treatment on established knowledge and evidence-based research.
Equally, sanctions in those circumstances operate to enhance public trust by demonstrating that the high standards expected of psychologists are upheld and enforced, notwithstanding an individual’s decision to no longer practice as such.
That said, sanctions are also individual to the particular circumstances of misconduct and the particular psychologist.
The Board submits that consequent upon a finding of professional misconduct Mr Dunne should be reprimanded and should be:
(a) … disqualified from applying for registration as a registration as a registered health practitioner for a period of 24 months from the date of the Tribunal’s order; and
(b) … disqualified from providing whether as employee, contractor, manager or volunteer, and whether directly or indirectly, any health service including the provision of mental health, psychological or counselling services until such time as he is returned to the register of health practitioners under the National Law.[31]
[31]As to the latter see National Law, s 196(4)(b).
The Board submits that a disqualification is necessary “for the purpose of general and specific deterrence and maintenance of professional standards and confidence in the profession”.[32]
[32]Board’s written submissions, [120].
In support of the proposed prohibition order, the Board contends, among other things that:
The practitioner markets himself as previously practicing as a psychologist who surrendered his registration because he did not ‘fit into the script of mainstream psychology’. His services are marketed toward young clients. Advertising his services in such a way may give potential clients different or higher expectations about the treatment they will receive or attract clients with more severe mental health issues who wish to avoid the formality or expense of consulting a psychologist.[33]
[33]Board’s written submissions, [108](h).
In his written response, Mr Dunne again refers to his “success rate” of “90 to 95 per cent” (albeit offering no other evidence in support of the same) and submits, among other things:
My lifetime commitment has, and will continue to be, focused on empowering young people so that they can empower other young people.
…
It serves nobody to prohibit me from making a difference to young people. The Board’s submission does not in any way represent my intentions, integrity, commitment, of values when it comes to making a difference to young people or the global collective.
The Board’s submission represents everything that I am committed to fighting.[34]
[34]Mr Dunne’s written responsive submissions, p 21.
Disqualification?
On Mr Dunne’s own account, his beliefs – or, possibly more accurately, his philosophy – which have guided his treatment of clients in the recent past does not sit readily, if at all, with the current traditional thinking and treatments of psychologists.
The Tribunal has taken into account the following matters:
(a)Mr Dunne’s conduct was deliberate rather than careless, negligent or inadvertent;
(b)In that respect, the conduct involved practices or therapies which Mr Dunne well knew were not part of accepted psychological practice and were not evidence-based;
(c)The conduct was not isolated but involved ongoing treatment for numerous clients;
(d)The conduct related to a particularly vulnerable cohort of clients including clients at risk of self harm or harm to others;
(e)The conduct related to some clients who were minors;
(f)The failure to undertake rigorous, on-going risk assessments for vulnerable patients, including those at risk of self-harm is of itself very serious;
(g)The same is true of the failure to maintain adequate clinical records;
(h)No actual harm to clients is in evidence. However, there was potential for harm to clients by reason of alternative therapies consistent with accepted practice being delayed or precluded;
(i)Mr Dunne has no disciplinary history in nearly 30 years of practice; and
(j)Mr Dunne’s own statement that:
I acknowledge that I may not be an appropriate individual to be accepted as a registered practitioner / psychologist because I have stepped outside the confines of the Board’s image of what a psychologist needs to present to the public. I do not accept that my mode of operation, my integrity, ethics, commitment to clients’ wellbeing and especially my commitment to respecting all peoples is any different to what the psychologist[s] of the world endorse as the way of psychologists.[35]
[35]Mr Dunne’s written responsive submissions, p 22.
The Tribunal considers Mr Dunne should be disqualified from applying for registration as a registered health practitioner and that a two-year period is appropriate.
Prohibition Order?
The prohibition order sought by the Board has caused the Tribunal some concern, primarily as a result of its potential breadth which arises, in part, from the definition of “health services” in s 5 of the National Law.
The Tribunal can take notice of the apparently endless range of therapies, treatments, and incantations designed to promote and enhance wellbeing. Specific laws aside, there is nothing to prevent people marketing those services or people of capacity voluntarily subjecting themselves to the alleged benefits and no order of this Tribunal can prevent them doing so.
The relevant sections of the National Law and this Tribunal’s relevant powers are directed toward preventing the purveyors of such asserted therapies and remedies purporting to be something which they are not or purporting to offer services falling within an established discipline when they do not.
If members of the public seek assistance from a psychologist, it should be in the safe knowledge that the psychologist’s practice will conform to that discipline’s ethical and other obligations and that all treatment will be in accordance with an established recognised body of knowledge and the profession’s guidelines emanating from that.
It is the danger of members of the public, particularly young and vulnerable members of the public, agreeing to treatment which they believe fits within those parameters but which in fact does not to which the proposed prohibition order is directed.
While people may be free to subject themselves to those beliefs and practices, they should not do so if there is the possibility that they believe or are led to believe the beliefs and practices are associated with, or emanate from the discipline of, psychology.
Consequent upon surrendering his registration, Mr Dunne initially advertised services on a website “Integrity Matters”. The website referred to Mr Dunne’s previous work as a psychologist (although it did not purport to advertise services as a psychologist).
The website now directs searchers to a “new home” – another website entitled M.A.G.I.C. The acronym stands for Meditation; Appreciation; Grounding; Insight and Connection. In that website’s introduction, Mr Dunne says of himself:
In 2019, I made a decision to surrender my registration as a practicing psychologist. After 27 years I realised I didn’t fit in to the script of mainstream psychology. I now practice as a Holistic Counsellor and Coach with a foundation built on spirituality.
Mr Dunne’s self-description continues:
Born a farmer I always wanted to be a psychologist. When I turned 41 I received a piece of paper to say I was a psychologist. After eight years of study and ten years working with young people and communities, I had one quest. I was focused on finding new and better ways of enabling and empowering young people. It has been my quest to find modes of practice, strategies, techniques and social approaches that young people can adopt for their personal and community empowerment.
My practice is an integration of mainstream cognitive-behaviour processing fundamentals along with techniques from Energy Psychology, teachings from ancient Masters, and an appreciation for Spirituality as an innate biological and fundamental component in our development.
My entire practice is supported by what we know as the laws or principles that operate in the Universe – the Spirit of all of Life.
Mr Dunne’s oral evidence was that he sees his most recent work as “more life coaching”. He said he is “no longer counselling” or seeing clients on a regular basis. He estimates he sees two clients a month for “life coaching” and has spent “most of the past twelve months writing”.
It is true, as submitted by the Board, that numerous Tribunal decisions have made prohibition orders in factual circumstances not entirely dissimilar from the present.[36] Those decisions are not determinative of the appropriate sanction, but it is accepted that some guidance can be obtained from them.
[36]A number of decisions of the Victorian Civil and Administrative Tribunal (VCAT) are cited on page 32 of the Board’s written submissions and decisions are also referred to in the body of the submissions.
Mr Dunne submits that many, if not all, of the decisions cited involve more serious conduct than that alleged against him, particularly those involving a sexual element. That argument has some weight but, of course, precise equivalence is unlikely.
Particular mention is made by the Board of the 2020 VCAT decision in Psychology Board of Australia v Meulblok.[37] There, a psychologist against whom allegations of misconduct were made had commenced business as a life coach.
[37][2020] VCAT 579.
The prohibition order sought by the Board in this case appears to mirror that sought and made in the Victorian case.
There are similarities between Meulblok and the present case but there are also significant differences which mark it as more serious than the instant case. That case involved (among other conduct) a sexual relationship between psychologist and client and, importantly, it was found specifically that “Ms Meulblok created havoc with Mr XY’s mental health in her therapeutic and other interactions with him”. The Tribunal observed, “engaging in intimate or sexual relationship with a patient is one of the most serious violations of professional boundaries which can occur”.[38]
[38]Respectively at [68] and [37], the latter citing Psychology Board of Australia v Ferrero (Review and Regulation) [2019] VCAT 1648 at [35].
No such conduct occurred here nor were any such concerns raised. Nor was there evidence of any specific harm to any patient in the present case (noting of course the potential for harm referred to by the expert witnesses referred to earlier in these reasons).
Ultimately, the order was made in Meulblok because the Tribunal was satisfied there was a potential risk of harm should Ms Meulblok attempt to engage in the health services described in the proposed order.
It is important to mention that the Tribunal in Meulblok made clear that it was not expressly prohibiting Ms Meulblok from continuing as a life coach. However, the Tribunal went on to say that “… we are [not] to be taken as endorsing her doing so, or that our order does not apply to her interactions with any clients of that business”.[39]
[39]At [69].
The Tribunal has taken particular note of the content of each of the websites run by Mr Dunne. The Tribunal also considers it significant that some at least of the “two clients per month” which Mr Dunne refers to seeing are clients from his previous practice as a psychologist. Additionally, Mr Dunne’s evidence is that his work at Headspace involved a blurring of the non-evidence-based practices and some traditional psychological treatment and practices.
On balance, the Tribunal considers a prohibition order should be made in the terms sought by the Board.
In doing so, the Tribunal notes, as did the Victorian Tribunal in Meulblok, that no specific prohibition is addressed to “life coaching” but we would also respectfully apply to this case that Tribunal’s comment that neither should our order be taken as endorsing Mr Dunne doing so nor that our order does not apply to his interactions with any clients of that business.
Orders
The Tribunal orders as follows:
1. Consequent upon finding that PAUL DUNNE has engaged in professional misconduct within the meaning of the Health Practitioner Regulation National Law Act 2009 (Qld), the Tribunal orders that PAUL DUNNE be:
(a)Reprimanded.
(b)Disqualified from applying for registration as a registered health practitioner for a period of 24 months from the date of this order.
(c)Prohibited from providing whether as employee, contractor, manager or volunteer, and whether directly or indirectly, any health service involving the provision of mental health, psychological or counselling services until such time as he be returned to the register of health practitioners under the National Law.
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