Psychology Board of Australia v Freeman
[2015] QCAT 554
•21 October 2015
| CITATION: | Psychology Board of Australia v Freeman [2015] QCAT 554 |
| PARTIES: | Psychology Board of Australia |
| v | |
| Dr James Edwin Freeman |
| APPLICATION NUMBER: | OCR257-11 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | 28 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President Assisted by: Ms Karen Butler Professor Roger Dooley Ms Jennifer Felton |
| DELIVERED ON: | 21 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The referral is dismissed. 2. The parties are to file any submissions on costs within 14 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – whether registrant has behaved in a way that constitutes unsatisfactory professional conduct – where registrant made psychiatric assessment of prisoner at the request of the Parole Board of Queensland – where prisoner complained that registrant made an incorrect assessment –where expert witness disagreed with registrant’s assessment – whether registrant gave proper consideration to symptoms in making assessment – where the Board’s evidence did not meet the standard required to establish unsatisfactory professional conduct Health Practitioners (Disciplinary Proceedings) Act 1999, s124 Briginshaw v Briginshaw (1938) 60 CLR 336. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr A J Kimmins, instructed by McInnes Wilson Lawyers |
| RESPONDENT: | Mr A P J Collins, instructed by Carter Newell Lawyers |
REASONS FOR DECISION
The Psychology Board of Australia referred disciplinary proceedings to the Tribunal against Dr James Freeman, a registered psychologist, pursuant to s 126(1)(b) of the Health Practitioners (Professional Standards) Act 1999 which was subsequently renamed the Health Practitioners (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act). The grounds for disciplinary action alleged by the Board are that Dr Freeman has behaved in a way that constitutes unsatisfactory professional conduct[1] in that he has engaged in professional conduct that is of a lesser standard than that which might reasonably be expected of him by the public or his professional peers,[2] and that he is engaged in professional conduct that demonstrated incompetence or a lack of knowledge, skill, judgment or care, in the practice of his profession.[3]
[1]S 124(1)(a) Disciplinary Proceedings Act.
[2]See paragraph (a) of the definition of unsatisfactory professional conduct in the schedule to the Disciplinary Proceedings Act.
[3]See paragraph (b) of the definition of unsatisfactory professional conduct.
The facts and circumstances forming the basis for the alleged ground for disciplinary action are set out in annexure A to the referral as follows:
The Registrant assessed Robert Steward Moore (complainant) for a psychological report concerning the complainant at the request of the Parole Board of Queensland in connection with an application for parole by the complainant. As a result of that assessment the Registrant provided a psychological report concerning the complainant dated 15 April 2008. In the report the Registrant opined that Mr Moore had borderline personality disorder (BPD). That assessment was inappropriate in that:
(i) The Registrant relied on symptoms including repeated arguments with prison staff and fellow prisoners; self-harm; emotional instability; which can and do occur in the absence of (BPD);
(ii) The Registrant did not systematically assess the complainants motivation for self-harm;
(iii) The Registrant did not consider any potential alternative condition open on the evidence;
(iv) The Registrant made the findings based upon only 1 interview with the complainant and a file review;
(v) The psychometric tests as used by the Registrant were not relevant to the question of assessment for any psychiatric illness or recognised mental disorder including BPD;
(vi) The registrant did not use a clinical test more appropriate to a potential condition of BPD, such as the millon clinical multiaxial inventory and/or conduct a functional behavioural assessment.”
Those facts and circumstances forming the basis for the grounds for disciplinary action were drawn from the criticisms of a psychological assessment of a prisoner, Mr Moore, which had been conducted by Dr Freeman. Dr Freeman had been requested by the Queensland Parole Board to conduct psychological assessment of Mr Moore who had applied to the Board for parole. Dr Freeman had performed the assessment and provided his report to the Board. Mr Moore had subsequently complained to the Board about Dr Freeman’s assessment of him.
It was in the context of investigating that complaint that the Board sought the opinion of Professor Steven Smallbone as to whether Dr Freeman’s psychological assessment of Mr Moore had been “professional and appropriate.” It was in the report of Professor Smallbone that the criticisms were made of Dr Freeman’s assessment which would become the basis for the grounds for disciplinary action referred to the Tribunal.
Professor Smallbone was the only witness called on the Board’s case. Mr Collins of counsel, who appeared for Dr Freeman, had taken extensive objections to the admission of the report of Professor Smallbone. Many of those objections were upheld. In the event, a heavily redacted version of Professor Smallbone’s report containing the admissible evidence on the remaining issues in support of the disciplinary grounds was admitted.[4]
[4]Exhibit 7.
In requesting Dr Freeman to perform a psychological assessment of Mr Moore,[5] the Queensland Parole Board requested Dr Freeman to make recommendations in respect of 3 particular matters. First, whether Dr Freeman was able to identify any psychiatric illness in Mr Moore. Secondly, treatment which he would suggest for any such illness. Thirdly, any recommendations he had for the successful reintegration of Mr Moore.
[5]Letter Hannah Kitchener, secretary Queensland Parole Board to Dr Freeman dated 22 February 2008: Exhibit 15, page 1.
Dr Freeman was, by that time, quite experienced in the performance of psychological assessments on behalf of the Parole Board and reporting upon them. He had trained for a period of 6 months under Dr Palk. This was specialist training to become a forensic psychologist. The Training was particularly focussed upon assessment for parole reports.[6] He had, since his training, been performing such assessments on his own for 15 months.[7] He had performed 49 assessments.[8]
[6]Transcript T-4, lines 1-5.
[7]Transcript T-20, lines 28-29.
[8]Transcript T-30, line 45.
He considered the request by the Parole Board for recommendations on treatment of any diagnosed illness to be peculiar because treatment of illness was not within the jurisdiction of the Parole Board. He had never received such a request from the Parole Board previously, although he had received such a request from other organisations.[9] He felt that Mr Moore’s was going to be a complex case.[10]
[9]Transcript T-20, lines 10-26.
[10]Transcript T-20, line 43.
Dr Freeman was provided with certain information concerning Mr Moore which he was able to consider before he met with Mr Moore at the Maryborough prison. Mr Moore’s correctional medical file was not available to Dr Freeman until his visit to the prison. He considered the information it contained at that time.
When he attended at the prison, Dr Freeman had to wait for a period of about 30 minutes whilst medical staff attended to Mr Moore who had self-harmed that morning. Self-harm was a feature of Mr Moore’s psychological history. On this occasion bandages were applied to his wrists.[11]
[11]Transcript 2-27, line 35; exhibit 9 submissions by Dr Freeman to the Psychologist Board of Queensland, 9 September 2009, page 2 paragraph 2.
Dr Freeman conducted an interview with Mr Moore over a period of about 1 ½ to 2 hours.[12] During the course of the interview he administered a number of tests. These were the Hare Psychopathy Checklist – Revised (PCL-R); the HCR – 20; the Kaufman Brief Intelligence Test (KBIT); the Childhood and Adolescent Taxon Scale; and the Violence Risk Appraisal Guide (VRAG). The administration of such tests, in conjunction with a structured interview, was consistent with his training.[13]
[12]Transcript 2-31, line 43.
[13]Transcript 2-5, lines 1-5.
From the material he had been provided prior to the interview, Dr Freeman was aware that Mr Moore had previously been diagnosed with four conditions: Attention Deficit Hyperactivity Disorder (ADHD); Borderline Personality Disorder (BPD); Depression; and Antisocial Personality Disorder (APD).[14] He had consulted DSM-IV and had made a note of the 9 diagnostic criteria associated with borderline personality disorder to give him guidance and structure for his interview with Mr Moore.[15] He did not make a note of the diagnostic criteria for the other 3 conditions because he was much more familiar with them.[16]
[14]Exhibit 11, Parole Board Assessment Report 4 January 2008, page 9; transcript 2-23, lines 8 to 21.
[15]Transcript 2-6, lines 35-45.
[16]Transcript 2-36, lines 15-21.
Dr Freeman, based upon what he had read on the parole assessment report, had started considering that Mr Moore had a psychiatric illness before he actually started talking with him.[17] He was initially considering that Mr Moore may have been suffering from antisocial personality disorder or borderline personality disorder.[18]
[17]Transcript 2-29, lines 27-28.
[18]Transcript 2-29, line 44 to 2-30, line 10.
In his evidence before the Tribunal, Dr Freeman described the assessment of Mr Moore as “amazingly chaotic”.[19]
[19]Transcript 2-30, line 31.
He states in his report that at the commencement of the interview Mr Moore was relatively guarded and reluctant to provide contextual information but that he became increasingly open and cooperative during the assessment process.
Dr Freeman’s report to the Parole Board on Mr Moore, dated 15 April 2008,[20] runs to 14 pages. Having identified the reason for the referral and his sources of information, Dr Freeman sets out his mental state examination of Mr Moore, and discusses the nature of Mr Moore’s offending which comprised largely violence and serious property offences. He discussed Mr Moore’s attitude toward the offending as revealed in the interview process. He addressed Mr Moore’s broader criminal history and his family and social history, his health and institutional conduct including the programs which Mr Moore had completed, and also his plans upon release from prison.
[20]Exhibit 6.
Under the heading Previous Psychiatric and Psychological Assessment, Dr Freeman noted:
“Examination of the Professional Management File indicates that Mr Moore had previously been diagnosed (whilst in custody) with attention deficit hyperactivity disorder (ADHD) borderline personality disorder and depression.”
Dr Freeman then set out the results of the psychological tests which he had administered and his clinical assessment of Mr Moore. It should be noted that this assessment was in the context of “current psychometric and level of risk”.
Dr Freeman’s clinical assessment of Mr Moore was:
“13.5 Firstly, there were no clinical signs that the prisoner was currently suffering from any form of explicit psychosis that can be characterised by a formal disorder (DSM-IV-TR AXIS 1). More specifically there are few indications that Mr Moore met the criteria for a number of clinical disorders such as mood, somatoform psychotic or anxiety disorders. However, it is noteworthy that the prisoner had previously experienced problems with anxiety and paranoia, which he reports may have also been contributing factors to his pro criminal behaviour. However, such symptoms have reportedly subsided, which is likely to be associated with the security and stability of a custodial sentence. Similarly, whilst Mr Moore has more recently experienced considerable difficulties managing his mood, the prisoner does not appear to currently be suffering from symptoms associated with a depressive disorder e.g., psychomotor retardation, weight loss, depressed mood most of the day, etc.
13.6 The prisoner’s presenting symptoms appear associated with a diagnosis of borderline personality disorder (BPD). This disorder is most often associated with a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity beginning by early childhood. Additionally, BPD is often characterised by impulsive actions of self-mutilation or suicidal behaviours in order to avoid abandonment or to resolve interpersonal difficulties. An analysis of Mr Moore’s recent behaviours and problems reveal a number of close alignments with BPD symptoms such as his:
(a) Constant arguments with correctional staff and other inmates,
(b)Propensity to self-harm to resolve interpersonal difficulties e.g. arguments,
(c) Ongoing self-image problems “I have become what I despise”
(d) Affective instability e.g, intense irritability, dysphoria, anxiety,
(e) Stress related paranoia, and
(f) Difficulty controlling his anger.
In regards to his anger management problems, the offender appears acutely aware of his difficulties controlling his mood and more specifically his responses to emotional stressors e.g. self-mutilation. In addition to BPD, it is noteworthy that Mr Moore has previously engaged in excessive illicit substance use, and while he claims that he has the ability to abstain from such usage, the prisoner presents with an elevated risks of developing a substance abuse disorder if he was to return to consuming illicit drugs. In addition to these risk factors, it is noted that Mr Moore also has a propensity to experience authorative problems as well as generally engage in impulsive and reckless behaviour, with little thought or regard for the consequences of his actions. This latter tendency may considered (sic) to be a central component of his previous offending behaviours and current difficulties avoiding incidences and breaches within the custodial environment.”
Dr Freeman then provided a summary of clinical and risk assessment in section 14 of his report. At paragraph 14.6 Dr Freeman noted that Mr Moore had not developed a comprehensive release and relapse prevention plan which clearly indicated his high risk situations and triggers; planned preventative measures; or short or long term goals.
At paragraph 14.7 Dr Freeman directly responded to the Parole Board’s request for his diagnosis and any psychiatric illness and expressed the opinion that:
“In regards to the Board’s request to conduct a psychological assessment to determine whether the prisoner has a psychiatric illness, while testing indicated the prisoner is not currently suffering from any form of clinical disorder, it is likely that the prisoner has a borderline personality disorder (BPD). As highlighted in s 13.5,[21] this diagnosis relates to a number of key BPD factors such as his:
(a) Constant arguments with correctional staff and other inmates,
(b) Propensity to self-harm to resolve interpersonal difficulties e.g. cutting himself,
(c) Ongoing self-image problems “I have become what I despise”
(d) Affective instability e.g, intense irritability, dysphoria, anxiety,
(e) Stress related paranoia, and
(f) Difficulty controlling his anger.”
[21]This appears to be a typographical error which should read s 13.6.
In his evidence at the hearing, Dr Freeman said that when he returned from interviewing Mr Moore at the prison and completed his assessment he was 100% certain that Mr Moore had borderline personality disorder.[22] When asked by the Tribunal why he would use the expression “likely” in his report if he was, in fact, quite certain of his diagnosis, Dr Freeman, quite candidly, responded that it was because he was, at the time, still under investigation in respect of a complaint about his psychological assessment of a different prisoner. In the investigation of that complaint Dr Freeman had been criticized for having stated a diagnosis of antisocial personality disorder in the patient too definitively.[23]
[22]Transcript 2-12, lines 27-29; 2-19, Lines 20-22.
[23]Exhibit 13.
That criticism had been made in a report to the Board provided in that matter by Professor Smallbone. The involvement of Professor Smallbone in that matter, and a further, more recent one also concerning Dr Freeman, was said to give rise to an apprehension of bias, or perhaps even actual bias, on Professor Smallbone’s part in relation to the opinion which he has expressed about Dr Freeman in this matter. I will say a little more about those allegations of bias later in these reasons.
Dr Freeman’s frank explanation of the reason for his stating his firmly held view that Mr Moore had BPD in less than definitive terms I found to be in keeping with his evidence overall. I found him to be an impressive witness. He explained well the opinions which he held. He readily made concessions where appropriate.[24]
[24]For example, in conceding that he had omitted to mention in his report the incident of self-harm on the day that he visited Mr Moore in the prison and that this should have been included (transcript 2-33, lines 22-24); and his candid concession that he could not remember if he considered the DSM-IV criteria for ADHD (transcript 2-42, lines 1-2).
Before turning to Professor Smallbone’s opinion and the specific particulars of the disciplinary grounds, it should be observed, generally, that in asking Professor Smallbone whether Dr Freeman’s psychological assessment of Mr Moore was professional and appropriate his attention was not directed to the issues directly relevant to these proceedings. Whilst a conclusion that Dr Freeman’s assessment was unprofessional or inappropriate may demonstrate that he has also behaved in the way said to constitute unsatisfactory professional conduct, as Professor Smallbone himself said in evidence, if he had been asked to provide a report for the Tribunal directed at the those issues to be considered by it, his report would have taken a different form and possibly would have been differently expressed.[25]
[25]Transcript 1-57, lines 32-34.
Professor Smallbone’s report of 17 December 2009,[26] in so far as it was admissible, is quite brief. It warrants setting out in full:
[26]Exhibit 7.
“I refer to your request (by letter, dated 11 November 2009) for me to prepare a report for the Psychologist Board of Queensland in relation to a complaint by Mr Robert Moore about Dr James Freeman. Following are my comments on the matters raised on page 2 of your letter.
1. Was Mr Freeman’s psychological assessment professional and appropriate?
According to his report (dated 15 April 2008), Dr Freeman’s psychological assessment was directed to addressing 3 referral questions:
1) Whether Mr Moore had a psychiatric illness;
2) (If so) how such illness can be treated;
3) What would Dr Freeman recommend for Mr Moore’s successful reintegration.
The first of these relates most directly to the question concerning Dr Freeman’s assessment.
According to his report, Dr Freeman’s assessment was based on 1 interview with Mr Moore, a review of his (Moore’s) prison files, and 4 psychometric tests: the Kaufman Brief Intelligence Test (K-BIT); the Violence Risk Appraisal Guide (VRAG); the Psychopathy Checklist Revised (PCL-R); and the Historical Clinical Risk – 20 (HCR-20). With respect to the first referral question, Dr Freeman concluded that Mr Moore did not suffer from a “clinical disorder”, but that he met diagnostic criteria for borderline personality disorder (BPD). Dr Freeman first introduces the term BPD on page 5 of his report (para 10.1) in the context of an earlier assessment by another correctional psychologist. Later (para 11.3), he refers in a non specific way to “his (Moore’s) personality disorder”. In terms of his own assessment, Dr Freeman at first refers to “presenting symptoms (that) appear associated with the diagnosis of BPD” (para 13.6), but later in the report the term is used less ambiguously: “in addition to his BPD…” (para 13.6); also (para 14.8). I note that in his written response to the Psychologist Board (dated 9 September 2009) Dr Freeman is even more certain about his diagnosis: as highlighted in (my) report, and consistent with the previous diagnosis by a correctional psychologist, Mr Moore suffers from Borderline Personality Disorder (p.4).
In his report Dr Freeman lists a number of symptoms that are consistent with BPD (e.g. repeated arguments with prison staff and fellow prisoners; self-harm; emotional instability), but all of these can and do occur in the absence of BPD. In fact these symptoms can be quite common in prison settings, often for reasons unrelated to BPD. With respect particularly to self harm, there is no evidence in Dr Freeman’s report or case notes that he systematically assessed Mr Moore’s motivations for this behaviour. He (Freeman) seems to have assumed that Mr Moore’s self-harm behaviour was motivated by a classic BPD experiences (e.g. frantic efforts to avoid abandonment; abrupt shifts from idealisation to devaluation, particularly in intimate relationships; transient severe disassociation). A plausible alternative hypothesis would be that Mr Moore’s self harm was associated with more instrumental motivations (e.g. to be moved to a safer area in the prison, as Dr Freeman’s case notes indicate was indeed Mr Moore’s own explanation), rather than with classic BPD symptoms.
None of the psychometric tests used by Dr Freeman are relevant to the question of whether Mr Moore could be diagnosed with a psychiatric illness, nor indeed with any recognised mental disorder, including BPD. This[27] seems to be a serious shortcoming of the assessment, especially given the significance and complexity of diagnosing personality disorders, and particularly given the serious potential consequences of doing so in the context of a prisoner’s parole application. DSM-IV-TR advises that, while a single interview may be sufficient for making a personality disorder diagnosis, “it is often necessary to conduct more than 1 interview and to space these over time” (P.686).
A standard procedure would likely have involved a more objective clinical test such as the millon clinical multiaxial inventory (MCMI) which includes a scale designed to test for BPD symptoms. This may have assisted Dr Freeman to confirm or disconfirm his hypothesis concerning BPD, in a more objective way, by distinguishing the psychological experiences (e.g. feelings of abandonment) from the behavioural indicators (e.g. self-harm) associated with BPD.
An alternative (or even better, additional) assessment method would be to conduct a functional behavioural assessment, which is often recommended for clinical forensic assessments. This would involve systematically analysing the proximal (immediate) antecedence and consequences of the target behaviour, in this case most notably Mr Moore’s self-harm behaviour. A functional assessment may have also assisted Dr Freeman to clarify whether Mr Moore’s self-harming was motivated by disturbed internal experiences (which may be consistent with BPD) or by more instrumental goals (which would probably be inconsistent with BPD).
Dr Freeman allocated a whole page in his report to discussing the K Bit (P.7), only to conclude that Mr Moore is of average intelligence. He does not raise any questions concerning the need to formally test for intelligence.
I am also unclear of the purposes of administering the PCL-R. There is no indication that Dr Freeman hypothesised that Mr Moore may be psychopathic, and indeed the results of the PCL-R indicate that he probably is not psychopathic.
The 2 risk assessment instruments (VRAG and HCR-20) are appropriate tests for considering future risk, and are therefore relevant to the question of community reintegration.
Conclusions
In my opinion Dr Freeman’s assessment and report presents several grounds for concern, namely:
· A possible injudicious and inadequately justified selection of assessment methods to address the referral questions.
· A potential incorrect diagnosis (BPD) made without sufficient caution or diagnostic rigour.
[27]Here Professor Smallbone is referring to the diagnosis being based upon 1 interview and a file review. His assumption in that regard had been redacted from exhibit 7, however, Dr Freeman confirmed that that was the basis upon which he had made his diagnosis in his evidence.
It should be noted that there is no evidence that Dr Freeman’s diagnosis of BPD in Mr Moore is incorrect. Although Professor Smallbone refers in his conclusions to a potentially incorrect diagnosis, as I understand his report and the evidence he gave at the hearing, what he refers to in his conclusions is the potential for an incorrect diagnosis given his views about what he sees as shortcomings in the process which led to that diagnosis. As Mr Kimmins, counsel for the Board, made clear the Board’s case is about the process of getting to the diagnosis.[28] The Board’s case is that, “Effectively, the process undertaken by Dr Freeman was not sufficient for him to come to a conclusion… a firm stated conclusion that as at 30 March 2008 Mr Moore was suffering from a borderline personality disorder”.[29]
[28]Transcript 2-74, line 44.
[29]Transcript 2-74, lines 1-4.
For his part, Professor Smallbone has no opinion on whether or not Mr Moore has (or had) borderline personality disorder.[30]
[30]Transcript 1-56, lines 17-19.
One further matter of general observation should be made. Mr Kimmins for the Board submitted that, whilst accepting that the civil standard of proof applied, but as explained in Briginshaw v Briginshaw[31] as to whether matters have been established to the reasonable satisfaction of the Tribunal given the nature and consequences of those matters, because the allegation in the referral was one of unsatisfactory professional conduct and not professional misconduct, “the standard of the Briginshaw test is to be viewed in light of the fact that the allegations that are levelled against Dr Freeman are allegations that fall right to the lower end of the scale of seriousness, we would submit, for disciplinary matters which come before this Tribunal”.[32]
[31](1938) 60 CLR 336 at 362 per Dixon J.
[32]Transcript 2-69, line 45 to 2-70, line 5.
Mr Collins submitted that the application of the Briginshaw test “should not be underplayed in any material form because the allegation is unsatisfactory professional conduct as opposed to professional misconduct. Accepting there’s lower standards in the professional world, whatever the profession, allegations of this nature are extremely serious and should not be found against a practitioner unless the evidence lead is cogent and persuasive”.[33]
[33]Transcript 2-76, lines 13-19.
I favour the submission advanced by Mr Collins. Disciplinary proceedings against a professional are very serious. The consequences for the professional if the disciplinary grounds are made out include the potential for his or her right to practice to be removed, suspended or severely burdened by conditions.
However, there is a more fundamental difficulty in accepting Mr Kimmins submission. It appears to proceed form an assumption that professional misconduct was some alternative, more serious, ground for disciplinary action able to have been taken against Dr Freeman. That is not so.
Section 124(1)(a) of the Disciplinary Proceedings Act provides that a Registrant having behaved in a way that constitutes unsatisfactory professional conduct is a ground for disciplinary action. There is no ground of “professional misconduct” under s 124(1) of the Disciplinary Proceedings Act.
The dictionary in the schedule to the Disciplinary Proceedings Act defines “unsatisfactory professional conduct” to include, as charged here, professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or his or her professional peers, or that demonstrates incompetence, or a lack of actual knowledge, skill, judgment or care, in the practice of the registrant’s profession. It also includes, separately, “misconduct in a professional respect”, and “infamous conduct in a professional respect”.
In Nursing and Midwifery Board of Australia v Clydesdale[34] the Tribunal discussed the meaning of each of those expressions and how they relate to one another. That need not be repeated here because even if “misconduct in a professional respect” is to be equated “professional misconduct”, such professional misconduct, under the Disciplinary Proceedings Act, is a form of unsatisfactory professional conduct, not an alternative to it.
[34][2013] QCAT 191.
There are matters which come before this Tribunal in which a board with responsibility for a health profession has referred disciplinary proceedings to the Tribunal in which it is alleged that the health professional has engaged in “professional misconduct”. However, those proceedings arise not under the Disciplinary Proceedings Act, but the later Health Practitioner Regulation National Law. The distinction between “professional misconduct” and “unprofessional conduct” as defined under that legislation should not be transposed, or applied, to proceedings under the Disciplinary Proceedings Act in which it is alleged that the practitioner has engaged in unprofessional conduct.
Turning then to each of the 6 particular allegations upon which the Board alleges that Dr Freeman’s assessment of Mr Moore as having borderline personality disorder was inappropriate.
The Registrant relied on symptoms including repeated arguments with prison staff and fellow prisoners; self-harm; emotional instability; which can and do occur in the absence of BPD.
Professor Smallbone’s criticism of Dr Freeman’s report and case notes as containing no evidence that he systematically assessed Mr Moore’s motivation to self-harm, and that it appeared that Dr Freeman had assumed that this behaviour was motivated by classic BPD experiences is, in my view, unfair.
At paragraph 14.7 of his report, in expressing the opinion that Mr Moore was likely to have borderline personality disorder, Dr Freeman referred to paragraph 13.5 of his report and the matters highlighted there.[35] There, Dr Freeman does refer to Mr Moore’s motivation for self-harm. He refers to his “propensity to self-harm to resolve interpersonal difficulties e.g. arguments”.
[35]As noted above this is a typographical error and should refer to s 13.6.
At 14.7 he said:
“However, one of Mr Moore’s most marked presenting BPD features appears to be his tendency to exhibit argumentative and offensive behaviours (to correctional staff and other inmates) which often results eventually in self-mutilation”.
The other “plausible alternative hypothesis” for the self-harm postulated by Professor Smallbone, that it was associated with more instrumental motivations such as to be moved to a safer area in the prison, was, in fact, considered by Dr Freeman. He observed that the self-harming behaviour regularly followed arguing with correctional staff because of his belief that he should be moved to a low security prison.
That analysis at 14.7 of Dr Freeman’s report descended even to Mr Moore’s acceptance that his self-mutilation was not congruent with progressing to a lower security facility, and to the fact that Mr Moore continued to engage in such behaviour when recently moved to a lower security facility which resulted in his return to Maryborough. That latter factor would seem inconsistent with Professor Smallbone’s hypothesis. However, the important issue is that Dr Freeman quite obviously considered the issue. That is apparent from his observation that this was interesting because “undermining oneself through sabotaging personal goals is also a common trait of BPD”. The depth of Dr Freeman’s analysis of this issue seems to not only lead to a discounting of the alternative hypothesis, but to support for his diagnosis of BPD.
There seems nothing inappropriate at all in that process.
The fact that these symptoms may occur in the absence of BPD was a matter which Dr Freeman did consider. When asked in cross-examination about this particular comment of Professor Smallbone, Dr Freeman stated that it was the presence of those symptoms in combination that led him to his diagnosis of borderline personality disorder.[36] In relation to antisocial personality disorder Dr Freeman had given consideration to the aspect of self-harm which was not a feature of that disorder, but which was evidently quite central to the diagnosis by Dr Freeman of BPD. Indeed he described self-harm as the cornerstone of BPD.[37] Dr Freeman explained that, essentially, those with antisocial personality disorder hurt other people, whereas those with borderline personality disorder hurt themselves.[38]
[36]Transcript 2-57, lines 5-35.
[37]Transcript 2-11, line 41.
[38]Transcript 2-57, lines 31-34.
In my view, there was nothing inappropriate in Dr Freeman’s assessment of Mr Moore in so far as he relied upon those symptoms. Indeed, I would find, on his explanation, that it was appropriate to rely upon them when considered with the other aspects of his assessment.
The Registrant did not systematically assess the complainant’s motivation for self-harm
For the reasons already discussed, Dr Freeman clearly did consider those motivations. They were also considered in paragraph 9.2 of Dr Freeman’s report where he noted that:
Case notes reveal that the prisoner is prone to be argumentative, and often engages in insulting and obscene behaviours. Such outbursts appear to historically be associated with receiving unfavourable responses to his demands. During the assessment interview, Mr Moore accepted that he has a propensity to become argumentative with correctional staff when he does not receive favourable responses to his request, which results in him “cutting up” e.g, inflicting self-harm.”
There was nothing inappropriate about the assessment of Mr Moore in this regard.
The Registrant did not consider any potential alternative condition open on the evidence
It should be noted that the Board does not advance a case, or lead evidence, which would establish that some particular other condition was open to be diagnosed on the evidence.
However, it is readily apparent that Dr Freeman did consider other potential conditions, consideration of which was indicated by the evidence. It is apparent that he considered antisocial personality disorder in particular. His reasons for discounting that diagnosis and settling upon his diagnosis of borderline personality disorder, particularly the combination of symptoms including the presence of self-harm, have already been referred too.
It is also apparent that he considered the three other conditions of which there had been earlier diagnosis as referred to in the records with which he had been provided. He considered depression. Even though he frankly conceded that he could not recall whether he considered the DSM-IV criteria for ADHD, his hand written notes taken during his interview of Mr Moore show that ADHD was discussed in the context of taking a history from Mr Moore as to whether he had undergone any previous psychiatric evaluations.[39]
[39]Exhibit 6, page 3, section 13.1.
It is also apparent from paragraph 13.5 as set out above that Dr Freeman considered the possibility of clinical disorders such as mood, somatoform, psychotic or anxiety disorders.
Dr Freeman appropriately considered potential alternative conditions.
The Registrant made the findings based upon only 1 interview with the complainant and a file review.
I do not accept that the making of findings by Dr Freeman after his interview and after having reviewed the material relevant to Mr Moore was an inappropriate means of assessing him. Dr Freeman’s evidence was that this was standard practice.[40]
[40]Transcript 2-58, lines 42-43.
DSM-IV provides that a single interview is sometimes sufficient to diagnose a personality disorder. Here, Dr Freeman also had the benefit of the collateral information contained in the files. His interview was conducted over 1½ to 2 hours. There is nothing to indicate that this was too short a period of time. Whilst Mr Moore was initially quite guarded, he became more open during the interview process. There is nothing to indicate that Dr Freeman was unable to illicit sufficient information during the interview.
When cross-examined on this issue, Professor Smallbone conceded that it may well be within the psychologist’s own assessment that, given the interview and the prior history, a single interview was sufficient in the circumstances,[41] and that this was a matter upon which reasonable minds might differ.[42]
[41]Transcript 1-58, lines 43-46.
[42]Transcript 1-58, line 1.
There was nothing inappropriate about Dr Freeman’s making his findings after a single interview and a file review.
The psychometric tests as used by the Registrant were not relevant to the question of assessment of any psychiatric illness or recognised mental disorder including BPD
In his report, Professor Smallbone acknowledged that the VRAG and HCR-20 were appropriate tests for considering future risk and, as such, were relevant to the question of community reintegration. This was a matter upon which Dr Freeman had been asked to make recommendations and which would be relevant to any parole board considering a prisoner’s parole application.
Dr Freeman described the PCL-R as the “gold standard” and the cornerstone of any forensic psychological assessment. He said that it was the best acturarial test that forensic psychologists have at the moment. It was the most widely validated. High scores on this test represent higher levels of psychopathy and are more predictive of reoffending in the future.[43] Dr Freeman described it as being “of tremendous weight because you need to work out what’s the chances he’s going to reoffend particularly in regards to the third referral question which is successful reintegration”.[44]
[43]Transcript 2-17, lines 13-19.
[44]Transcript 2-17, lines 22-24.
Professor Smallbone’s statement in his report that he was unclear of the purpose for administering the PCL-R seems to be based upon psychopathy having “nothing to do with any diagnosis of a standard mental disorder or mental illness such as borderline personality disorder”.[45]
[45]Transcript 1-90, lines 4-6.
However, Professor Smallbone accepts that psychopathy is relevant to reintegration.[46] On that basis, and Dr Freeman’s evidence, whilst the PCL-R was not relevant to the diagnosis of psychiatric illness or mental disorders, it was nonetheless relevant to the assessment being performed by Dr Freeman. It’s inclusion in the assessment was not inappropriate.
[46]Transcript 1-90, line 31.
The same can be said for the K-BIT intelligence test. Dr Freeman explained in cross-examination that he administered this intelligence test because Mr Moore had been in and out of jail on numerous occasions and did not see value in completing a relapse prevention plan. Dr Freeman considered such a plan as crucial when considering a parole application. Dr Freeman, therefore, wanted to make sure that Mr Moore was of at least average intelligence because, if he were not, then he would have to be referred to transitional staff within corrections to assist him with making a realistic relapse plan.[47]
[47]Transcript 2-70, line 40 to 2-18, line 5.
This is a matter highly relevant to the assessment which Dr Freeman was required to perform. His explanation provides a complete answer to Professor Smallbone’s observation that Dr Freeman had not raised any questions concerning the need to formally test for intelligence.
It should also be noted that Dr Freeman was writing this report for a parole board which is a sophisticated, experienced audience whose members include a lawyer, psychologist, psychiatrist or other medical practitioners.[48] In my view, it is to read a report to such a body too critically to say that the need for a particular test was not identified or explained, rather than accepting that the report simply refers to the fact that a test, demonstrably relevant, was performed.
[48]Transcript 2-14, lines 8-18.
There is nothing inappropriate in Dr Freeman’s assessment in this regard.
The respondent did not use a clinical test more appropriate to a condition of BPD, such as the millon clinical multiaxial inventory and/or conduct a functional behavioural assessment.
It should first be observed that to the extent to which the MCMI might be a clinical test more appropriate to a condition of BPD is unclear on the evidence. In his evidence Professor Smallbone was quite equivocal about its use in the assessment of Mr Moore. His central point was that Dr Freeman had not administered any test for borderline personality disorder.[49] In that context he was simply suggesting that it may have been useful.[50]
[49]Transcript 1-49, lines 22-28.
[50]Transcript 1-49, lines 19-28.
Professor Smallbone did not claim expertise in the MCMI test and conceded that he had not used it for a long time.[51]
[51]Transcript 1-51, lines 6-8.
Given the equivocal nature of this evidence of Professor Smallbone in respect of the MCMI, I would not find the failure to use it in assessing Mr Moore rendered the assessment inappropriate.
However, there are two further reasons why this particular allegation of inappropriateness should be rejected.
First, Dr Freeman gave evidence that Mr Moore would not have been physically in a position to undergo the MCMI on that day due to the condition of his bandaged wrists. The test is a pencil and paper test comprising some 175 questions. Mr Moore could not have done it in his then condition.[52]
[52]Transcript 2-9, line 13.
In any event, it is not a test Dr Freeman uses.[53] He preferred to use another type of test; the MMPI.[54] This was a much longer test and he thought it would have been unethical to have Mr Moore complete it in his condition. He also had reservations, given the way that Mr Moore minimised his offending, that he would complete the MMPI properly.[55]
[53]Transcript 2-8, line 21.
[54]Transcript 2-8, lines 33-34.
[55]Transcript 2-9, line 41 to 2-10, line 18.
In the circumstances, I would not consider the failure to administer that test at the time inappropriate.
Secondly, this allegation has the conducting of a functional behavioural assessment as an appropriate alternative to even the more appropriate test identified by Professor Smallbone. Although not identified by that description, a consideration of the substance of the assessment performed by Dr Freeman demonstrates that a functional behavioural assessment was performed.
The matters referred to at paragraph 9.2 of his report constitute a process analogous to a functional behavioural assessment in respect of the self-harming issue.[56] This was the issue in respect of which Professor Smallbone was most concerned that a functional behavioural assessment should be performed. Professor Smallbone agreed that what was described in paragraph 9.2 was a form of functional behavioural assessment.[57]
[56]Transcript 2-11, lines 15-16.
[57]Transcript 1-103, lines 1-7.
On that basis, this allegation has not been made out even as a matter of fact.
Conclusion
None of the allegations upon which the Board relied to establish that Dr Freeman’s assessment of Mr Moore was inappropriate have been made out.
More broadly, there is no basis upon which the Tribunal could conclude that Dr Freeman has engaged in professional conduct that is of a lesser standard than that which may reasonably be expected of him by the public or his professional peers. Nor could it be found that his conduct has demonstrated incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of his profession.
Professor Smallbone’s report in identifying matters which may have assisted the process of diagnosis or provided alternative, or even better or additional assessment methods, does not establish a failure to meet the standards reasonably expected of a psychologist by his professional peers or the public.
The referral must be dismissed.
Bias
As I have been able to reach these conclusions clearly on the evidence, even taking Professor Smallbone’s evidence at its highest, there is no need to rule upon the issues of bias which have been raised concerning Professor Smallbone.
Costs
This is a matter which, in my preliminary view, Dr Freeman should have his costs.
The disciplinary charges against him were serious. He has, no doubt, occasioned considerable costs in defending them. There were difficult issues concerning admissibility of evidence.
However, before finally determining the issue of costs, I will allow the parties 14 days to file any submissions which they may wish to make on the issue.
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