Psychology Board of Australia v Freeman

[2013] QCAT 701

CITATION: Psychology Board of Australia v Freeman [2013] QCAT 701

PARTIES:	Psychology Board of Australia (Applicant)
v
Dr James Edwin Freeman (Respondent)

APPLICATION NUMBER:   OCR257-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 2 August 2013

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 2 August 2013

DELIVERED AT: Brisbane

ORDERS MADE:

IT IS THE ORDER OF THE TRIBUNAL THAT:

1.    Dr Freeman’s application to exclude the evidence of Professor Smallbone is dismissed.

2.    The costs are reserved.

THE TRIBUNAL DIRECTS THAT:

1.    Dr Freeman must give to the Psychology Board a schedule of objections to evidence, by: 4.00 pm on 27 September 2013.

2.    The Psychology Board must give to Dr Freeman its submissions in reply, by: 4.00 pm on 18 October 2013.

CATCHWORDS : 

HEALTH PRACTITIONERS – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the Board filed a referral of disciplinary proceedings in the Tribunal – where the referral was on the basis the registrant had engaged in unsatisfactory professional conduct – where the Board received an expert report on the registrant’s conduct – where the Board sought to rely on the expert report in the Tribunal proceedings – where the registrant sought to have the expert’s evidence excluded in the proceedings – where the registrant submitted that in disciplinary proceedings where a Board relies upon an expert report as the basis of the referral the expert should be entirely independent – where the registrant alleged the expert was not entirely independent – whether the Tribunal should allow the expert witness to be cross-examined – whether the evidence of the expert should be excluded

Health Practitioners (Disciplinary Proceedings) Act 1999 s 124(1)

Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, cited
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:  Mr D Williams of counsel instructed by McInnes Wilson Lawyers

RESPONDENT:  Mr A Collins of counsel instructed by Carter Newell Lawyers

REASONS FOR DECISION

1. On 24 November 2011, a disciplinary proceeding between the Psychology Board of Australia and Dr James Freeman was referred to the Tribunal.  Dr Freeman had been informed by the Board that it intended to conduct a disciplinary proceeding against him.  Dr Freeman elected, as was his right, to have the matter referred to the Tribunal. 

2. On 11 April 2013, following a compulsory conference, the Tribunal issued directions for the further conduct of the proceedings.  The proceedings were listed for a three-day hearing in the Tribunal on 28 October 2013.  The matter of controversy which requires resolution at this time is whether the Board should be able to rely upon the evidence of Professor Stephen Smallbone contained in an affidavit by Professor Smallbone filed in the proceedings on 5 February 2013.

3. The Professor’s substantive evidence is contained in two reports exhibited to his affidavit dated, respectively, 17 December 2009 and 10 January 2013.  Whilst no formal application has been filed by Dr Freeman the matter was listed on 2 August 2013 so that this issue could be addressed.  Both parties filed written submissions on the issue in advance of the hearing. 

4. At the end of the hearing I gave reasons for decision ex tempore.  These are those reasons with references to material in the proceedings and citation of authorities included.

Whether cross-examination of Professor Smallbone should be allowed

1. At the start of the hearing Mr Collins of counsel, who appeared for Dr Freeman sought to cross-examine Professor Smallbone on his affidavit.  That course was opposed by Mr Williams of counsel who appeared for the Board. 

2. I refused Mr Collins’ application to cross-examine Professor Smallbone. I did so for three reasons.

3. First, in seeking to have Professor Smallbone’s evidence excluded, the respondent candidly stated that he did not do so on the basis that Professor Smallbone’s expertise was disputed.[1]  When such a challenge is made to the relevant expertise of a witness which would qualify the witness to give expert evidence, it may be appropriate to conduct a voir dire on that issue.  But that is not this case. 

   [1]Submissions on behalf of respondent on application to exclude evidence of Professor Smallbone filed 1 August 2013 (‘Submissions of the respondent’), [7].

4. Secondly, I agree with the submissions of counsel for the Board that there is a potential for cross-examination to stray into areas upon which the Tribunal will hear further evidence at the substantive hearing, including evidence from Professor Smallbone, in the event that this application was refused.  This is undesirable, and particularly so when I am today sitting without the assistance of assessors, with whom I must sit on the substantive hearing, and who will hear the evidence on that occasion, but not that which might have been given today. [2] 

   [2]Submission on behalf of the applicant filed 1 August 2013 (‘Submissions of the applicant’), [5]; see also s 398L and the definitions of ‘NRAS disciplinary matter’ and ‘NRAS disciplinary proceeding’ in s 398B of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld).

5. Thirdly, if the perception of bias on the part of Professor Smallbone is as evident as Dr Freeman suggests, then that should be so from a reading of the evidence of Professor Smallbone, and should not require demonstration through cross-examination of him.  Dr Freeman submits that a reasonable onlooker in this instance could not come to any conclusion other than that there would be a perception of bias in respect of Professor Smallbone’s evidence.

The application to exclude Professor Smallbone’s evidence

1. The grounds for disciplinary action set out in the referral to the Tribunal are that, in terms of s 124(1) of the Health Practitioners (Disciplinary Proceedings) Act 1999, Dr Freeman has behaved in a way that constitutes unsatisfactory professional conduct, in that he has engaged in professional conduct that is of a lesser standard than that which might reasonably be expected by the public or the registrant’s professional peers, or professional conduct that demonstrated incompetence or lack of adequate knowledge, skill, judgment, or care in the practice of his profession.

2. The proceedings stem from a complaint by a complainant who is, or was at the relevant time, a prisoner in respect of whom Dr Freeman prepared a report at the request of the Parole Board of Queensland.  The report was in connection with complainant’s application for parole.  In his report, Dr Freeman diagnosed the complainant as having a borderline personality disorder.  It is alleged that this diagnosis was, for various reasons, inappropriate.  It is also alleged in the disciplinary proceedings that Dr Freeman inappropriately and beyond his qualifications reported on issues concerning the complainant’s psychopharmacological regime. 

3. Dr Freeman seeks to have the evidence of Professor Smallbone excluded on the basis that he is not an entirely independent witness, free of any actual or perceived bias or conflict of interest.  He also criticises the Board for persevering with Professor Smallbone’s evidence in circumstances in which it fully appreciates his concerns, as one of its members, and where it has been given the opportunity of obtaining alternative expert evidence.[3]

   [3] Submissions of the respondent, [9] – [10].

4. Dr Freeman emphasises the seriousness of these proceedings, given the impact that they may have on his professional standing, his reputation, insurance premiums, and, ultimately, his ability to earn income in the practice of his profession.[4]  In this regard, Dr Freeman submits that the proceedings stand in contrast to inter partes proceedings such as a professional negligence action. 

   [4] Ibid, [11].

5. These are very important matters.  However, they are so in most, if not all, such cases which come before the Tribunal.  The Tribunal is required to consider all evidence in any such case, with such matters in mind.  Of course, it is assisted in this respect by the assessors who sit with the Tribunal, including two assessors from the profession of the registrant concerned.

6. Dr Freeman also emphasises that even within the context of professional disciplinary proceedings, this particular matter has a somewhat unique quality, because the basis for bringing the proceedings rests upon the opinions expressed by Professor Smallbone.  That is, Professor Smallbone has not merely expressed his opinion in respect of a charge already brought by the Board, the opinion is the very foundation of the charge.[5]  This, as I understand the argument, is said to give the question of the perception of bias on the part of Professor Smallbone a different quality. 

   [5] Submission of the respondent, [9] & [12].

7. The question of Professor Smallbone’s bias stems from the fact that he had previously expressed the view that Dr Freeman had engaged in unsatisfactory professional conduct in his diagnosis of a condition of another prisoner who too was applying for parole.

8. That prisoner had also complained to the Board about Dr Freeman.  The Board commenced disciplinary proceedings against Dr Freeman alleging that he had engaged in unsatisfactory professional conduct.  It was in that matter that Professor Smallbone had given his opinion.  Those proceedings were referred to the Health Practitioner Tribunal at the request of Dr Freeman.  The matter was ultimately resolved in Dr Freeman’s favour, in that the disciplinary proceedings were discontinued by the Board. 

9. Professor Smallbone has also subsequently provided a further report to the Board concerning Dr Freeman’s treatment of a further prisoner.  It seems as though Professor Smallbone was one of the limited few psychologists who provided reports of this kind to the Board.  This fact, however, does not meet Dr Freeman’s concerns as to the appropriateness of calling upon a member of the profession who has previously formed an adverse view as to his professional standards, to later express a view on those standards in respect of another matter.  It is in this context that Dr Freeman submits that an objective onlooker would inevitably conclude that Professor Smallbone was biased;[6] and to the point where his evidence should not be admitted, rather than admitted and given appropriate weight, considering the assessed bias. 

   [6] Ibid, [26] – [28].

10. Dr Freeman also criticises the reports of Professor Smallbone, particularly his second report, on the basis that it is argumentative.[7]  That may be a fair criticism.  However, the argumentative nature of the second report is perhaps understood by virtue of the fact that he was asked to report upon argumentative statements made in respect of his first report by Dr Freeman. 

    [7] Ibid, [4] & [12].

11. The parties agree that the law on the issue of admissibility of expert evidence in strictly inter partes civil litigation is as set out in the judgments in the Victorian Supreme Court in, at first instance, Fagenblatv FeingoldPartners Pty Ltd[8] and on appeal, FGT Custodians Pty Ltd v Fagenblat.[9]  At first instance, Pagone J observed: 

    The exclusion of an expert’s evidence should only occur where the Court is satisfied that the evidence to be led by the expert is unsound, and cannot provide probative material of value to the Court’s task of determining the issues in the proceedings.[10]

    [8] [2001] VSC 454.

    [9] [2003] VSCA 33.

    [10]        Fagenblatv FeingoldPartners Pty Ltd at [7].

12. On appeal, the Victorian Court of Appeal resolved the matter on the basis of competency, as opposed to admissibility.  Ormiston JA, said at paragraph 4:

    To ask whether the expert evidence given was admissible, however, was to deflect the Court from the true enquiry.  Although it may be described as a sub-branch of the rules relating to admissibility, (See Wigmore on Evidence (Chadbourn Revision) Vol. II pp.640, 649 and 799) the real issue must have been the testimonial capacity or competence of Mr Borsky to give evidence on the subject. [11]

    His Honour continued, at paragraph 5, as follows:

    In truth, therefore, the sole issue was whether Mr Borsky was competent to give the expert evidence which the respondent sought to adduce from him.  There may be two aspects to that question of his competence, first one which has been called by Wigmore his “experiential capacity”, i.e., whether he was qualified by training or experience to give expert evidence, and, the second whether, because he was in breach of some other rule relating to the giving of this kind of evidence, he should be treated as disqualified from giving it.  These matters must be firmly distinguished from those matters which may go to impeach the reliability of a witness’ testimony, namely those that are based on cross-examination or other evidence to show inadequate expertise or bias or interest by reason of conduct or other circumstances.[12]

    [11]Reference was footnoted in original.

    [12]Footnotes omitted.

13. Notwithstanding the distinction which Mr Collins identified between disciplinary proceedings and strictly inter partes civil litigation, and the further distinction which he identifies in these proceedings because of the expert opinion having provided their foundation, I am of the view that the approach in Fagenblat is correct and applicable here.  As there is no challenge at this point in the proceedings to either the relevance of the opinions of Professor Smallbone, or his expertise in expressing them, I am of the view that they are admissible, and should be considered in light of all of the evidence to be led at the hearing, and after any challenges are made to them, including on the basis that he is biased as against Dr Freeman.

14. As observed by Ormiston JA in Fagenblat on appeal, whatever one may say about the wisdom of calling Professor Smallbone as an expert in this matter, or what ultimate decision may be made about what to make of his evidence in all the circumstances, must await another day. 

15. In the circumstances, I dismiss the application and reserve the issue of costs.