Psychology Board of Australia v McArthur - [2015] QCAT 475

CITATION:

Psychology Board of Australia v McArthur [2015] QCAT 475

PARTIES:	Psychology Board of Australia (Applicant/Appellant)
v
Ms Kirsten McArthur (Respondent)

APPLICATION NUMBER:

OCR056-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Judge Alexander Horneman-Wren SC, Deputy President
Assisted by:
Dr Rebekah Doley
Dr Suzanne Fulford
Mr Kai Dahl

DELIVERED ON:

25 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Kirsten McArthur has behaved in a way that constitutes unsatisfactory professional conduct.

2. Kirsten McArthur is reprimanded.

3. The reprimand is to be recorded on the register required to be kept by the Psychology Board of Australia for a period of 6 months

4. Kirsten McArthur is to pay the costs of and incidental to the proceedings on the District Court Scale to be assessed by QICS or Hickey & Garrett on the standard basis for matters in the District Court.

CATCHWORDS:

PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS –PSYCHOLOGISTS –DISCIPLINARY PROCEEDINGS –where registrant admits to behaviour that constitutes unsatisfactory professional conduct –where registrant failed to keep adequate clinical records –where registrant breached undertakings made to the Psychology Board of Australia –whether a suspension would be an appropriate sanction –where mitigating factors relating to appropriate sanction –where registrant reprimanded –where costs order imposed on registrant

APPEARANCES and REPRESENTATION (if any):

The Proceedings

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

The Psychology Board of Australia referred disciplinary proceedings to the Tribunal against a registered psychologist, Ms Kirsten McArthur, under s 126 of the Health Practitioner (Disciplinary Proceedings) Act 1999.[1]
[1]Formerly the Health Practitioner (Professional Standards) Act 1999.
The Board alleges that Ms McArthur has behaved in a way that constitutes unsatisfactory professional conduct as defined by that Act. Unsatisfactory professional conduct is a ground for disciplinary action under s 124(1)(a) of the Disciplinary Proceedings Act.
Particularly, it alleges that she has engaged in:
a)Professional conduct that is of a lesser standard than that which might reasonably be expected of her by the public or her professional peers;
b)Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of her profession;
c)Misconduct in a professional respect;
d)Conduct discreditable to her profession.

Ms McArthur’s conduct

The conduct which the Board alleges constitutes the unsatisfactory conduct falls within two categories. The first relates to inadequate clinical record keeping by Ms McArthur. It is alleged that she failed to make and keep any, or any adequate, clinical records of initial psychological assessments which she performed upon 20 clients when engaged at a psychology practice in Waterford. The assessments were performed between 28 September 2009 and 13 February 2010.
The Board also alleges that Ms McArthur failed to make any, or any adequate, clinical records of psychological services which she provided to 25 clients at that practice. Those services were provided on 93 separate occasions between 29 August 2009 and 23 February 2010.[2]
[2]It is to be noted that in respect of one client it is particularised that Ms McArthur failed to make records in relation to the provision of services on 11 March 2010. However, the evidence establishes that Ms McArthur resigned her employment at the practice on 24 February 2010. From correspondence between her and her former employer on that date and subsequently it seems that she would not have provided any services after 24 February 2010.
The second category of conduct is that Ms McArthur failed to comply with an undertaking which she had provided to the then Psychologists Board of Queensland on 28 February 2008 by which she undertook to work only in a supervised position approved by the Board. She also undertook to recruit a professional colleague, who was to be approved by the Board, to act as her workplace supervisor.
The Board alleges that on or about 22 August 2009, contrary to the undertaking, Ms McArthur commenced work at the practice in Waterford without prior approval of the Board and without an approved supervisor in place. It also alleges that on or about 13 October 2009 Ms McArthur commenced work at another practice in Southport without prior approval of the Board and without an approved supervisor in place.
Ms McArthur admits the conduct alleged by the Board and admits that her conduct constitutes unsatisfactory professional conduct on each of the bases alleged by the Board.
The Tribunal accepts that the admitted conduct constitutes unsatisfactory professional conduct.
The failure to make adequate records of consultations, in the circumstances which prevailed, and in respect of which a little more will be said later in these reasons, was, at least, professional conduct of a lesser standard than that which might reasonably be expected of Ms McArthur by the public or her professional peers. It was also professional conduct which demonstrated a lack of adequate judgment or care in the practice of her profession.
Whist the circumstances to which I shall later refer impacted upon Ms McArthur’s ability to rectify deficiencies in the recording of the clinical notes, those deficiencies arose from the time at which she consulted with the clients. The conduct occurred over several months, commenced within one week of her commencing employment at the practice, and extended to the end of her employment. It involved a large number of clients and, for some, many consultations.
In Nursing and Midwifery Board v Clydesdale[3] the Tribunal examined the meaning of the expressions “misconduct in a professional respect” and “conduct discreditable to the registrant’s profession” as used in the Disciplinary Proceedings Act. The Tribunal concluded that each of those expressions were very close in meaning to the other, and to “infamous conduct in a professional respect” as also used in the definition of unsatisfactory professional conduct. Conduct will satisfy those definitions if there has been conduct in breach of the rules of the profession, which would rightly incur the strong reprobation of the registrant’s professional colleagues. I am satisfied that Ms McArthur’s conduct would attract such reprobation of her colleagues.
[3][2013] QCAT 191.
I am also satisfied that her conduct concerning the breach of her undertakings was unsatisfactory professional conduct. Even though there are some mitigating factors relating to her breach of her undertakings, to which I shall turn shortly, any such breaches must be viewed seriously. Professionals who enter into undertakings affecting the practice of their profession must assiduously adhere to them.
In my view, Ms McArthur’s failure to adhere to the undertakings was misconduct in a professional respect and conduct discreditable of her profession.

Matters relevant to Sanction

Having established disciplinary grounds against Ms McArthur it is appropriate, and necessary, that a sanction be imposed upon her. The Tribunal is required to take some action under s 241(2) of the Disciplinary Proceedings Act. Section 244(1)(a) of the Act requires that in making a decision under s 241(2) the Tribunal must have regard to the purposes of disciplinary action mentioned in section 123. Those purposes are to protect the public; to uphold standards of practice within the health professions; and to maintain public confidence in the health professions.
With those matters in mind, something further should be said about the circumstances in which the conduct which Ms McArthur has admitted occurred.
Ms McArthur was first registered as a psychologist in 1995 and has remained registered ever since.
In October 2007 Ms McArthur advised the then Psychologists’ Board of Queensland that she suffered from bipolar affective disorder type 2. As a consequence, and at the Board’s request, she subsequently provided an undertaking in November 2007 that she would not return to work as a psychologist until approved to do so by the Board. She also agreed to undergo a health assessment by a psychiatrist.
She underwent a health assessment in January 2008 and it was concluded that she suffered from an impairment as defined by the Disciplinary Proceedings Act. The psychiatrist opined that notwithstanding the impairment she was fit to return to work subject to her giving undertakings, or having conditions imposed on her registration, including as to supervision by another psychiatrist.
On 28 February 2008 Ms McArthur provided undertakings about those matters, including the undertaking to which I have referred above.
Between 22 February 2008 and 18 August 2009 the Board had, through telephone conversations and written correspondence, explained the undertakings to Ms McArthur and reminded her of their importance on 9 separate occasions.
In giving the undertakings Ms McArthur acknowledged that she had been advised that a failure to comply with any of them was a ground for disciplinary action. They were to remain in force for a period of 3 years.
On 13 August 2009 Ms McArthur emailed the Board’s manager of Health Assessment and Monitoring informing the Board that she had been offered a job in private practice. She stated that to fulfil her undertaking she was required to get a supervisor. Ms McArthur stated that because the supervisor could not be one of the three psychologists who worked at the practice she would have to see someone privately. She sought assistance from the Board through the provision of a list of approved supervising psychologists in the area around the practice. She also enquired as to how often she would have to see the supervisor.
It is apparent from earlier correspondence from the Board’s manager of Health Assessment and Monitoring dated 21 July 2008 that there had been dialogue between Ms McArthur and the Board concerning difficulties which she had faced in obtaining employment and supervision.
As noted above, Ms McArthur commenced employment at that practice on 22 August 2009 and at the Southport practice on 13 October 2009. On that latter date, she emailed the Board stating that her transition to private practice had not been smooth sailing. She discussed difficulties which she was having in meeting what seems to have been an approved timetable for her work. The difficulty related to her being a sessional psychologist. The practice’s booking arrangements did not meet the requirements of the timetable.
She also disclosed that her “current boss” was providing some supervision but that he would not be suitable to be her supervisor. She stated that she had found another person, but that he was not a registered supervisor with the Board. She said, “You better let me know if he is suitable before I have to give him my life story”.
In a further email sent two days later on 15 October 2009, again to the Board’s manager of Health Assessment & Monitoring, Ms McArthur requested that an attached email to the Board be provided to its meeting which was to occur that day and which was apparently to consider Ms McArthur’s situation. She requested that that attached email be provided rather than emails which she had sent the previous day as she was clearly in great distress when she had sent those earlier emails. She said “It is critical that I have the opportunity to explain my actions to the Board and seek approval for 3 positions and my supervisor. I cannot wait another month for the Board to meet”.
In the attached email to the Board she said:
“I’m asking for you to please be lenient with me. I did not intentionally mean to withhold information with regard to my employment. I obviously must misunderstood the “undertakings”. I thought I just had to notify the Board about my employment not seek approval for a position.”
She then set out details of three positions for which she sought approval. They included the practices at Waterford and Southport. She identified her supervisor as the psychologist at the practice.
On 19 November 2009 the Board considered matters concerning Ms McArthur including a further report from the psychiatrist who had reviewed Ms McArthur in early October 2009 and who had then opined that Ms McArthur no longer needed to be monitored by the Board and that she should be released from her undertakings.
The Board, however, resolved not to release Ms McArthur from the undertakings until they expired. The Board also resolved that it was appropriate for Ms McArthur’s non-compliance with her undertakings to be referred for disciplinary action.
It also considered Ms McArthur’s email which contained details of the positions for which she sought approval and determined that it required further information about the positions before it could make a determination.
On 2 December 2009 the Board received an email from Ms McArthur attaching further information about her position at the Waterford practice. It stated that this was now the only practice for which she was then seeking approval and that she would resign from her employment of the Southport practice. It identified the same psychologist who had previously been nominated as her supervisor. Shortly thereafter, Ms McArthur, as she had indicated she would, resigned her employment from the Southport practice.
On 17 December 2009 the Board approved the position at the Waterford practice and the nominated supervisor.
The Waterford practice utilised a computer program called Pencilmein to record appointments and clinical records. However, at the time at which Ms McArthur commenced employment, it was the practice for psychologists to make handwritten clinical records of their consultations with patients. In January 2010 the practice began to use Pencilmein for the recording of clinical notes.
Some psychologists made handwritten notes during their counselling sessions and later typed those notes into Pencilmein, while others entered their notes directly into the program after each session. Ms McArthur’s practice was to take handwritten notes and later enter them into Pencilmein. The practice did not have a policy as to whether the handwritten notes should be retained.
When the practice moved from using handwritten clinical notes to Pencilmein, Ms McArthur initially had difficulty in using the new system and was provided coaching as to how to utilise the program.
Ms McArthur resigned from the practice on 24 February 2010. Prior to her resignation, the practice manager or owner had attempted to speak with her about the requirement for her to complete adequate clinical records. A meeting had been scheduled for 24 February 2010, however the meeting did not take place because of Ms McArthur’s resignation.
After her resignation, the practice owner wrote to Ms McArthur requesting that she forward any clinical or administration notes in her possession which needed to be added to the client files. There followed a dispute over payments for consultations performed by Ms McArthur. Payment was withheld on the basis that the client records had not been finalised.
In a written submission made by Ms McArthur to the Tribunal, she states that after she resigned from the practice she did attempt to complete the notes at home via Pencilmein but that she was locked out after a few days and could no longer complete the notes. From this it would appear that Ms McArthur had previously been able to login to the Pencilmein system remotely.
She says that she did not feel she could return to the offices of the practice to complete the notes as her experiences there had been so traumatic. This, it seems, is a reference to sexual harassment that she says she suffered at the hands of another psychologist in the practice. That psychologist was the person who she had originally nominated to be her supervisor.
She states that she complained to the Psychology Board about that person, but as there were no witnesses there was no investigation. She also says that she originally asked that person to be her supervisor as she thought, at the time, it would be better to have a support person who was not her boss. However, due to that person’s behaviour, she says that she did not submit him as a prospective supervisor for the Board to approve and that she then asked the practice owner.
The Board, in its submissions, says that it is an aggravating feature of this case that Ms McArthur made misleading statements in those submissions. Those misleading statements are said to be that the Board did not investigate her complaint about the other psychologist, and that she did not submit his name as a prospective supervisor for the Board’s approval. In respect of the former, the Board’s submission that her suggestion that it did not investigate a complaint about the psychologist is an aggravating feature, in fact, confirms that such a complaint had been made. The sexual harassment which she alleges against that psychologist is not otherwise challenged by the Board.
Indeed, in the agreed bundle of documents there are other documents which corroborate, in a more contemporaneous context, Ms McArthur’s allegations that she was sexually harassed. In an email to her former employers dated 3 March 2010.[4] She says “It was bad enough putting up with that creep (the psychologist) for weeks until I finally decided to have a word with him”.
[4]Agreed bundle page 59.
In a further email dated 7 March 2010,[5] she refers to “The experience with that disgusting old bastard was bad enough and having to work with him alone was horrible. I was too scared to use the toilets or the tea room”.
[5]Agreed bundle page 62.
In another email, on 8 March 2010,[6] she says “I should have been debriefed following the inappropriate behaviour of [the psychologist]”.
[6]Agreed bundle page 63.
As to the second misleading statement, that is that she did not submit that psychologist’s name as a prospective supervisor for the Board’s approval, that is clearly incorrect. However, I would not attribute to Ms McArthur some intention to mislead the Tribunal in that regard. Is it not apparent whether she had available to her all the documentation relating to the nomination of her supervisor at the time at which she prepared the submission. It is certainly the case that she later submitted the name of the owner of the practice as her supervisor. It is also clear that there were distressing events in the course of her employment concerning the other psychologist and I would not conclude that in making that statement in her submissions Ms McArthur was either knowingly or recklessly being inaccurate.
As noted above, the difficulties associated with rectifying the deficiencies in the Pencilmein record of clinical notes mitigates, to an extent, her failure to rectify the deficiencies in the records. In that regard, it is to be borne in mind that the practice was to maintain handwritten records at the time at which she commenced employment and only changed to a requirement to keep the records in Pencilmein shortly before her resignation.
In relation to the breach of her undertakings, it is, in my view, a significant mitigating factor that Ms McArthur had considered the issue of her undertakings by engaging with the Board prior to her commencing employment at the Waterford practice shortly after that position had been offered to her.
In my view, her lack of understanding of the undertakings requiring approval of the position as well as the supervisor, to which she refers in her submission, should be accepted notwithstanding earlier explanations by the Board. In her email of 13 August 2009 to the Board she openly refers to the offer of a job in private practice and that in order to fulfil her undertaking she must get a supervisor. That, clearly in my view, establishes that she believed that the undertakings required only approval of the supervisor, not the position. It is inherently unlikely that she would make such an open disclosure to the Board that she was about to commence employment if she was aware that she was in breach of her undertaking. Indeed, if she knew that the undertakings required her to obtain approval of the position as well, she could simply have sought such approval in that correspondence.

In my view, Ms McArthur’s breach of her undertaking does not have the element of wilful disregard which is evident in many cases in which practitioners have been disciplined for misconduct constituted by breaching undertakings provided to a registration board.
For example, in Queensland Nursing Council v Evans,[7] the Tribunal referred to practitioners who flout, or treat frivolously, the very serious and legally binding undertakings given by them to the Council.
[7]Queensland Nursing Tribunal matter 15 of 2006.
Similarly, in Queensland Nursing Council v Edwards[8] the Tribunal was dealing with the case in which there had been a complete failure on the part of the registrant to comply with the undertakings which she had given.
[8]Queensland Nursing Tribunal matter 9 of 2008.

Appropriate Sanction

The Board submits that an appropriate sanction in this matter would be to suspend Ms McArthur’s registration. In its written submissions, it contends for a suspension for a period of 6 months. However, the draft order it filed with its submissions seeks a suspension for a period of 3 months.
In contending for a period of 6 months in its submissions, the Board submits that the importance of practitioners complying with the professional body’s attempts to ensure that they are capable of practising in a safe manager is a key consideration for it in seeking a suspension of that duration. In that regard, it must be considered, in my opinion, that whilst the undertakings were entered into by Ms McArthur in light of it having been determined by a psychiatrist that she suffered from an impairment, very shortly after she commenced employment at the Waterford practice, on 3 October 2008, the psychiatrist who had formerly assessed her to be suffering from that impairment, formed the opinion that she no longer needed to be monitored by the Board and could be released from her undertaking. Of course, whether she was so released was a matter for the Board. However, there is evidence to establish that at the time of its breach, the undertaking was not necessary to ensure her safe practice.
It is also relevant in the context of the Board’s submission as to its attempts to ensure safe practice, that it approved both the position and supervisor.
Where undertakings are wilfully breached by a practitioner, a suspension of that practitioner’s registration will often be the appropriate sanction. However, in the circumstances of this matter, I am of the view that a suspension of Ms McArthur’s registration is not required to protect the public, to maintain the standards of the profession or to maintain the public’s confidence in the profession.
I am similarly of the view in respect of her unsatisfactory record keeping that a suspension of her registration is not necessary to further the purposes of disciplinary proceedings.
In respect of the initial psychological assessments she states that the reasons she did not keep records of them was that she had never worked in private practice previously and was not aware that she was required to perform psychological assessments of her clients. The clients who she saw were bulk billed by Medicare and therefore had to supply a mental health care plan from their general practitioner before their first session. On those plans there was assessment information and a diagnosis and recommended treatment provided by the general practitioner.
In relation to her failure to make adequate clinical records for psychological services provided to clients, Ms McArthur refers to the fact that she had never previously been employed in private practice and her only earlier experience in documentation was as a case manager for various Queensland Health community mental health services. In that context, the general requirement was for her to provide a summary of patient contact in the progress notes section of the patient’s chart. When she commenced at the Waterford Practice her process for documentation was to remain in the consulting room after she had seen the last client for the day and to complete a summary of all her sessions for that day. However, it wasn’t long after she commenced in her position that she was no longer able to do that because of the sexual harassment that she was subjected to by the other psychologists in the practice.
In my view, the suspension of Ms McArthur’s registration, because of her conduct concerning her note taking, would be inappropriate.
In my view, the appropriate sanction to be imposed upon Ms McArthur is one of a reprimand. The reprimand should be recorded on the register required to be kept by the Board for a period of 6 months.
The Board also sought that Ms McArthur’s registration be subject to a condition requiring her to undertake tertiary level courses of education covering the areas of professional responsibility, ethics and adequate clinical note taking. In my view, the evidence does not establish that such a condition is necessary or desirable given the particular circumstances of Ms McArthur’s misconduct to which I have already referred and the purposes of disciplinary proceedings.
Similarly, I am not of the view that the condition which the Board seeks requiring Ms McArthur to undertake monthly mentoring is necessary or desirable. It is apparent from the orders proposed by the Board that the purposes of such mentoring is to establish that Ms McArthur is able to practice competently and safely particularly regarding issues of professional responsibility, ethics and adequate clinical note taking. For the reasons already discussed, I do not consider that the evidence establishes that such proof of competent or safe practice is required.
The Board also proposed conditions relating to Ms McArthur’s future employment. Those conditions were related to Ms McArthur’s ability to practice competently and safely in respect of those particular areas. In my view, for the same reasons, such conditions should not be applied.

Costs

The Board seeks an order that Ms McArthur pay its costs of and incidental to these proceedings. In my view, it is appropriate that such an order be made.
Whilst Ms McArthur ultimately admitted both her conduct and that that conduct constituted unsatisfactory professional conduct, and whilst the Tribunal has not imposed a suspension or conditions as proposed by the Board, the proceedings were nonetheless appropriately referred to the Tribunal and the sanctions conducted for by the Board were arguable.
As has been observed in a number of other matters, the Board is funded, in large part, by the subscriptions of members of the profession of good standing. In my view, in a matter such as this, it should have its costs.
Ms McArthur will be ordered to pay the Psychology Board of Australia’s costs of and incidental to the proceedings on the District Court Scale to be assessed by QICS or Hickey & Garrett on the standard basis for matters in the District Court.