Psychology Board of Australia v GA
[2014] QCAT 409
•14 August 2014
| CITATION: | Psychology Board of Australia v GA [2014] QCAT 409 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| GA (Respondent) |
| APPLICATION NUMBER: | OCR063-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member Assisted by |
| DELIVERED ON: | 14 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Publication is prohibited of any documents or other material to the extent that they might identify any connection between the complainants or the respondent with a. a counselling service or its employees; b. an education organisation; or c. the district of [redacted] save as is necessary for the parties to engage in and progress these proceedings. 2. The respondent is reprimanded. 3. The respondent’s registration is suspended from the date of this order until 4. That suspension is fully suspended provided a. the respondent complies with the undertakings dated 20 June 2014 signed by her and filed in QCAT as Annexure A to Annexure 1 to the Joint Submission on Sanction filed in QCAT on 11 July 2014; and b. the respondent is not the subject of disciplinary action during the period 20 June 2014 to 19 June 2015. 5. The respondent’s Board-approved supervisor status is suspended until 19 June 2015. 6. The details of this order and of the said undertaking be recorded on the register maintained by the Australian Health Practitioner Regulation Agency until 19 June 2015. 7. The respondent pay the Board’s costs of investigation and of these proceedings fixed at $29,500.[1] |
[1]Orders amended as per subsequent order of the Tribunal in Psychology Board of Australia v GA (No 2) [2014] QCAT 479.
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the registrant previously had a treating relationship with two people – where the registrant undertook a position as a supervisor for one of the people – where the other person was an employee of the same counselling service – where a complaint was made about the registrant by the supervisee – where the registrant divulged the previous treating relationship during an informal investigation into the complaint – where the registrant self-imposed a suspension of her work as a psychologist – where the parties have agreed upon an appropriate order – whether the order is appropriate and within the powers of the Tribunal Health Practitioner Regulation National Law (Queensland), s 289(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Non-Publication Order
By reason of the limited non-publication order made above, these reasons may immediately be published in full to the parties and their representatives in order to progress the matter, but before general publication they will need to be redacted to avoid publication of details that might tend to disclose the identity of two former patients of the respondent. Partial redaction will be necessary of the contents of order number 1 itself. This present paragraph may help explain the position to persons who read a redacted copy of these reasons.
Jurisdiction
This is a disciplinary proceeding against a registered psychologist.
The Health Practitioner Regulation National Law Act 2009 (Qld) (‘the adopted National Law’) commenced operation on 1 July 2010. At that time the local registration authority for psychologists (the Psychologists Board of Queensland) had started, but not completed dealing with a complaint against the respondent, GA.
In consequence of s 289 of the adopted National Law, the new national board (the Psychology Board of Australia) established under s 31 of that law was empowered to continue to deal with the matter. That section also required that the matter should be dealt with under the preceding statutory law of the local jurisdiction, which in this instance was the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘the Disciplinary Proceedings Act’).
The present referral is made under s 126 of the Disciplinary Proceedings Act. Such a reference is required to be to ‘the tribunal’ which is defined as ‘QCAT’. Three assessors are required to be appointed to assist the Tribunal (s 31 – s 45) which must be constituted by a Judicial Member (s 213(2)).
It is noted in passing that the parties have submitted that s 398K and s 398L of the Disciplinary Proceedings Act are the relevant provisions governing the constitution of the Tribunal. I reject that view because the present matter is not ‘a matter referred to the Tribunal under the National Law (Queensland) section 193’ which is the defining requirement of application of s 398K and s 398L (and of Part 12A generally) according to the definition of ‘NRAS Disciplinary Matters’ in s 398B. Those provisions have no application here. The present matter, pursuant to s 289(2) of the adopted National Law, is a referral under s 126 of the Disciplinary Proceedings Act. Accordingly the relevant provisions concerning constitution of the Tribunal would seem to be ss 31 – 45 rather than s 398I to s 398T of that act. Those respective sets of provisions are similar but by no means identical. The main practical point is that the registrar must follow the appropriate criteria and requirements in arranging for the appointment of the assessors, and nothing turns on that point in the present matter. However, it is desirable that the true basis of the constitution of the Tribunal be understood.
The grounds on which disciplinary action may be taken in the present matter are set out in s 124 of the Disciplinary Proceedings Act.
The decisions and orders that may be made by QCAT are relevantly prescribed in s 240 to s 244 of that Act.
Facts
Two charges have been brought. They may be shortly stated as:
a) Between 25 August 2008 and 31 July 2009 the respondent acted as supervisor (for the purpose of a supervised practice program under the Psychologists Registration Regulation 2002 (Qld)) for a probationary registrant when it was inappropriate to do so because of a previous therapeutic relationship between them, and in breach of s 35(1)(d) of the Psychologists Registration Regulation 2002 (Qld); and
b) The respondent disclosed confidential patient information to a third party (MX) on or about 10 July 2009 that she had previously treated CS, and on or about 30 July 2009 that she had previously treated GR.
The respondent has a generally meritorious record of service as a psychologist, having been a member of the Australian Psychological Society since 1990 and having held endorsement in the approved area of practice of clinical psychology since 1996. She served as a member of the Board between December 2003 and early 2005. She remains registered as a psychologist.
The respondent was senior counsellor, clinical supervisor and guest lecturer at an educational organisation for the period 1989 to 2008. Her work there included the provision of psychological services to staff and students during that period.
She worked as clinical director or deputy director at a counselling service from August 2008 until May 2010. It was at that workplace during this period that the events the subject of the present charges arose. The present proceedings followed complaints from two persons, ‘Ms CS’ and ‘Ms GR’ who were also employed at the counselling service. At material times during that employment, the respondent was CS’s supervisor.
The initial relationship between the respondent and CS was at the educational organisation between 1999 and 2004 during which the respondent provided psychological services to CS, whose problems, as diagnosed, included anorexia nervosa with intermittent bulimia episodes and borderline personality disorder referrable to her reported self mutilation. Therapy was prolonged and permission was granted by the educational organisation to extend treatment beyond the usual 12 session limit. That relationship ended when sufficient therapeutic goals had been achieved. By that time CS had completed her degree and had stopped self harming.
Almost four years later, by which time CS was also employed at the counselling service, the respondent took the position of supervisor of CS for the purpose of the Board’s supervised practice program for probationary registrants. This commenced in September 2008. The acceptance of that position was inappropriate and in direct breach of s 35 of the Psychologists Registration Regulation 2002 (Qld), under which a condition of eligibility to be a supervisor is that that person ‘has not been … engaged in a therapeutic relationship with the probationary registrant’.
The respondent was at that time unaware of the existence of that particular rule.
At that time there were limited options for provisional psychologists in regional areas, and the respondent was the only suitably accredited supervisor in that workplace. The availability of potential suitably accredited supervisors was relatively restricted in the relevant area at that time. Her employer acquiesced in the arrangement, and the respondent desired to help CS achieve her aim of becoming a psychologist.
The supervision started well, but in time the relationship deteriorated.
In due course the counselling service management informed the respondent that CS had complained that the respondent had bullied her. The respondent sought advice from a trusted professional colleague who was then acting director and her line manager, and disclosed the fact of her having previously treated CS as a patient. Her manager told her she could not advise her and referred her to MX, a superior officer in the counselling service based in Brisbane.
On 10 July 2009 the respondent spoke with the MX by telephone, in the course of which she mentioned that she had previously treated CS. She was required to attend a meeting in Brisbane with MX and DY on 30 July. When she attended them in Brisbane she was asked to explain the nature of her relationship with CS. During this interview she divulged the fact that both CS and GR were former patients of hers.
This occurred in response to direct questioning during a three hour interview in which she was assured that any information regarding such matters given by her to MX and DY would be treated as strictly confidential. However, at least on the evidence presented by the parties to the Tribunal, it seems that soon after this CS was informed by someone that the respondent had disclosed their psychologist-patient relationship.
The respondent's dealings with MX would best be characterised as an informal investigation at a higher management level in order to quell a workplace problem rather than a formal investigation or determination of any particular charge against the respondent.
When the respondent's disclosure of the psychologist-patient relationship was brought to CS’s attention, CS promptly complained to the Psychologists Board, and GR also made a complaint of harassment against the respondent. In due course after protracted investigations the counselling service dismissed the respondent from employment on 12 May 2010.
The respondent has a substantial and successful history as a Board-approved supervisor which has contributed positively to her profession. Over the past 20 years she has successfully supervised over 60 clinicians, nine of them since CS’s complaint.
Subsequent to the above workplace problems, the respondent decided to leave her place of residence, mainly it would seem to avoid crossing paths with CS and to allow CS the opportunity to develop professionally. She relocated to Melbourne in 2012 while her husband continued to reside in Queensland for employment reasons. She worked in Melbourne as senior counsellor and senior clinical psychologist at the University of Melbourne between July 2012 and October 2013 and then returned to her husband in Queensland.
On 4 December 2013 she made a personal decision to suspend her work as a psychologist and to continue her voluntary suspension until the matter before the Board was resolved. She has adhered to this despite opportunities of further pursuit of her profession. This has involved a substantial loss of income.
She and her husband have now purchased a home in Caloundra. She is 60 years old and will need to work for another five to seven years in order to survive financially during retirement.
There has been one previous disciplinary proceeding against the respondent, involving her administration of an intellectual assessment program on four occasions over a period of two days in November-December 2004 when she did not have the requisite experience and training to properly administer and interpret it. The matter was resolved by her entering into undertakings which required her to demonstrate to the board of her competence in a number of specified areas including ethical legal and professional matters. She duly complied with those undertakings.
Following negotiations between the parties the respondent undertook re-education and enrolled in the course ‘Ethical Professional Practice of Psychology PSY750’ at the University of the Sunshine Coast. She completed that course in June 2014 and awaits her results.
Discussion
Surprisingly, the respondent was ignorant of s 35 of the Regulation. However, quite apart from the existence of the regulation, the prospect of taking on a former patient as a probationary candidate ought to have sounded warning bells for dangers such as difficulties occasioned for both parties by the change of role, conflict from an entirely supportive role changing to an authoritarian one, and possible loss of objectivity by both parties in the relationship. To her own considerable embarrassment she now sees the need for such a rule and its enforcement.
The supervised practice program requires a probationary registrant to demonstrate competence in ethical legal and professional matters, and the supervisor is required in due course to determine whether to sign off on the candidate's competence. Independence, impartiality and absence of conflict of interest are all jeopardised by a breach of the rule.
The confidentiality of patients is very much valued by the psychology profession and breaches are seriously regarded. However the present breaches lie very much at the threshold of such breaches, involving the disclosure of no more than the fact that there had been a prior psychologist/patient relationship with a named person. It is not suggested that any details of the relationship or of confidential information from the patient were divulged.
The respondent's disclosure was contributed to by an apparent conflict between her duty of non-disclosure as a psychologist and what was said to be her duty of disclosure under questioning from her employer under the Commonwealth public service regime, including the Public Service Act 1999 (Cth). She was at the time seeking to defend her position in the early stages of a workplace complaint against her.
She readily accepts, with the benefit of hindsight, that when asked by MX whether there were any other past clients working at the counselling service, she should have declined to answer and should have asked in effect for time to get the past clients' permission, or have sought legal advice, or advice from a psychologist outside the organisation. This said, it must be admitted that she was placed by her employers’ investigation into a difficult situation, and that she failed to handle it appropriately.
The confidentiality breaches are in my view a consequence of the problems caused by the initial improper supervision relationship, and serve to aggravate it to some extent. But they do not lie at the more serious end of the range of breaches of this kind.
In the circumstances detailed above, the acceptance of the role of a supervisor was not a wilful breach and was motivated by a desire to assist a fellow employee who would have difficulty in obtaining a supervisor in the relevant area. Such breaches are of course potentially serious matters, especially when they lead to adverse consequences as the present case illustrates. The respondent now readily accepts that both CS and GR were mortified by the understandable suspicion that their national manager had obtained intensely personal details of their personal lives. She understands that both women were deeply hurt, angry and embarrassed by what they saw as an act of betrayal on her part.
With the benefit of advice from assessors, I consider that the respondent’s conduct constitutes unsatisfactory professional conduct as defined in the Disciplinary Proceedings Act, as it satisfies the following subparagraphs of the definition namely:
(a)professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrants professional peers;
(b)professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practise of the registrant’s profession;
…
(d) misconduct in a professional respect.
The parties have agreed upon an appropriate order to meet the present situation, but of course it is for the Tribunal to determine the sanction that is to be imposed.
The parties agree that, but for the voluntary suspension undertaken by the respondent, a suspension order would have been appropriate for a period of 12 months, suspended after six months. They also reached an agreement in principle that an appropriate order, had it been able to have been made earlier, would have been that the respondent be suspended from practice for a period of six months commencing 4 December 2013 and for a further 12 months of suspended suspension after 4 June 2014. However, they found difficulty in formulating an order that would give effect to that proposal, given that they did not know when the Tribunal would be able to make an order, or the length of the voluntary suspension that would have occurred by that time.
The Tribunal cannot order a retrospective suspension, but the parties, correctly in my view, submitted it is appropriate to take into account the fact that the respondent disqualified herself from the profession for a period in excess of six months. They also agree that it is now appropriate to order a further suspension, wholly suspended.[2]
[2]Under the Disciplinary Proceedings Act there is specific power to suspend the operation of disciplinary orders, including orders of suspension. There is no such power in the adopted National Law.
It will not always be appropriate to regard voluntary cessation of practice as equivalent to a de facto suspension, as a practitioner might take a convenient holiday and seek to obtain benefit from it. But in the circumstances of the present case there would appear to have been a genuine self-imposed discipline that has been conscientiously followed, which has been subject to surveillance by the Board. In this case, then it is reasonable to regard a de facto suspension in excess of six months as having already taken place.
I agree that the above proposals offer an appropriate solution, and that they should now be given effect, taking into account the de facto suspension which she has suffered between 4 December 2013 and the date of this order, approximately eight months. This will be best achieved by an order of suspension, fully suspended, between the date of the order and 4 June 2015.
The order proposed by the parties also seeks the Tribunal's approval of an ‘undertaking’ consisting of 14 paragraphs signed by the respondent on 20 June 2014. The undertaking is for 12 months from 20 June 2014, that is to say it is to operate from 20 June 2014 to 19 June 2015.
Compliance with it is made a condition of suspension of the suspension. Some of the requirements of the undertaking, in the unanimous view of the Tribunal and its Assessors, are unnecessarily severe. The lessons to be learned by the respondent are simple, and the drastic consequences she has already endured must surely have driven them home. Her conduct over the five years since the relevant events make it clear that they have. We would not have considered the proposed additional supervision training program necessary before she could again act as a supervisor, although we agree it is desirable that she should not act as a supervisor during the recognised suspension period. We also hold reservations as to the need for the expensive and burdensome mentoring arrangements that are proposed.
However, in view of the fact that the respondent has already given this specific undertaking to act in the prescribed manner there is nothing that this Tribunal can do to relieve her of those burdens during the prescribed 12 month period. It is of course for the Board to decide if in any given circumstance it might be appropriate to waive any of them or relieve the respondent from the burden of any of the requirements contained in the undertaking.
The order proposed by the parties seeks an order from the Tribunal that ‘the undertakings ... are approved’ and that they be recorded on the AHPRA register for the period they are in force, i.e. until 19 June 2015. The Tribunal has wide powers under the Disciplinary Proceedings Act to impose conditions on practitioners’ registrations, but no express power to approve practitioners' undertakings. It is unnecessary to decide whether such a power exists, because this Tribunal does not in fact approve them, and such approval is in any event not a necessary part of the order. The Tribunal is however prepared to make an order which recognises the undertaking, and which permits its registration.
The order includes a substantial financial burden upon the respondent through payment of the Board’s costs of investigation and of these proceedings, fixed at $29,500.
It is noted that there is a short time discrepancy between the period of the suspension (which ends on 4 June 2015) and the period of the undertaking (which ends on 19 June 2015). That, however, is of no particular consequence.
For the above reasons an order will be made to achieve as far as is practicable the substance the orders contemplated by the parties in the joint submissions on sanction, especially paragraphs [50] to [54], consistently with the views of this Tribunal.
Finally, a late application was made by the respondent and agreed to by the Board that there should be an additional non-publication order made that will give further protection to the original complainants against discovery of their identity. This has been included as paragraph 1 of the order.
26
0
3