Psychology Board of Australia v Tubaro
[2014] QCAT 303
| CITATION: | Psychology Board of Australia v Tubaro [2014] QCAT 303 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Bertina Caterina Tubaro (Respondent) |
| APPLICATION NUMBER: | OCR022-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted By: Professor Roger Dooley Mr Graeme Lawrence Dr Karen Sullivan |
| DELIVERED ON: | 26 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The referral is dismissed. 2. Any application by either party for costs must be filed, together with any evidence and submissions in support, by 4.00pm on 14 July 2014. 3. Any objection to such evidence, or any evidence in response, must be filed by 4.00pm on 28 July 2014. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was called to give evidence in court proceedings – where at the time evidence was given the respondent was the subject of an investigation – where the applicant was questioned about the investigation – whether the respondent engaged in conduct which constituted unsatisfactory professional conduct Health Practitioners (Professional Standards) Act 1999 (Qld), s 115 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr R Dickson instructed by Rodgers Barnes & Green Lawyers |
| RESPONDENT: | Ms JE Farr instructed by Barry Nilsson |
REASONS FOR DECISION
Ms Bertina Tubaro is a psychologist registered to practice in Queensland. On 21 May 2010 she was called to give evidence in proceedings in the Family Court of Australia. She was called as an expert witness by the independent children’s lawyer. This disciplinary proceeding concerns the evidence which she gave on that occasion.
The Psychology Board of Australia alleges that in two passages of her evidence, Ms Tubaro engaged in conduct which constituted unsatisfactory professional conduct, in that it was conduct of a lesser standard than that which might reasonably be expected of her by the public or her professional peers.[1]
[1]Section 124(1)(a) Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld).
Prior to being called in the proceedings, Ms Tubaro had prepared a report dated 14 August 2009. The father involved in the Family Court proceedings had objected to Ms Tubaro because he had reported her to the, then, Psychologists Board of Queensland on the grounds of bias and incompetence in relation to the terms of her report.[2] The Judge overruled the objection to Ms Tubaro’s evidence.[3]
[2]Reasons for judgement, Family Court of Australia, Barry J, 28 May 2010 at [10].
[3]Ibid at [11].
At the commencement of proceedings on 21 May 2010, counsel for the father sought to file an affidavit setting out in detail the basis of the father’s criticisms of the report prepared by Ms Tubaro. The Judge refused leave for the affidavit to be relied upon. In doing so, His Honour considered that there was already an affidavit to that effect in the material relied upon by the father.[4]
[4]Ibid at [12].
Also prior to giving evidence, Ms Tubaro had received a letter from the Psychology Board of Queensland dated 23 April 2010 concerning the investigation of the father’s complaint against her. The letter included:
The investigator directed by the Psychologist Board of Queensland to investigate a complaint by [the father] about you has delivered his findings and recommendations to the Board.
The Board considered the investigator’s report at its meeting of 15 April 2010 and resolved that there was sufficient evidence of a ground for disciplinary action to commence disciplinary proceedings. The Board’s report was subsequently considered by the Health Quality and Complaints Commission which concurred with Board’s decision.
In accordance with s 118(1)(c)(iii) of the Health Practitioners (Professional Standards) Act 1999, the Board resolved to deal with the disciplinary matter itself by way of hearing. If the matter is dealt with by the Board there is no right of appeal against the Board’s decision.
Enclosed is a copy of the Board’s investigation report. You may, within 14 days of receiving the notice of the Board’s decision, elect to have the matter dealt with by the Queensland Civil and Administrative Tribunal. If you do choose to have the matter dealt with by the Tribunal, you will need to give the Board written notice of your election within the 14 days.
The Board will now refer this matter to Mr Steven Jones, Co-ordinator Disciplinary Proceedings. Once a date has been determined for the hearing, you will receive a Hearing Notice.
The investigation report, which was provided with the letter of 23 April 2010, contained the following summary of findings:
There is sufficient evidence for the Psychologists Board of Queensland (the Board) to form a reasonable belief that a disciplinary matter exists on the grounds that Ms Bertina Caterina Tubaro has behaved in a manner that constitutes unsatisfactory professional conduct in that:
(a)Ms Tubaro’s ‘Family Court report’ dated 14 August 2009, is of a poor professional standard when evaluated as a psychology report and falls below the standard expected within the discipline of psychology; and
(b)Ms Tubaro displayed bias by the way that the body of the ‘Family Court report’ has been written.
It also contained the following recommendations:
Having regard to the objects of the Health Practitioners (Professional Standards) Act 1999 (the Act) and in accordance with s 118(1)(c)(iii) of the Act, the Board establish a disciplinary committee to commence disciplinary proceedings by way of a hearing.
The investigation report contained the opinion of a Dr Harrison as to whether the report prepared by Ms Tubaro was appropriate and of a professional standard. The investigator expressed the opinion that the report was appropriate. Notwithstanding that opinion, the report set out a number of concerns expressed by Dr Harrison about the professional standard of the report. Those concerns were set out in 8 paragraphs, some of them quite lengthy. They included:
· The report contained minor factual errors which should not have occurred when so much previous documentation had been provided to Ms Tubaro;
· The referral question was not clearly stated,[5] nor was it accurately addressed;
· The assessment procedures were methodologically (sic) weak, narrow and poorly described;
· The assessment conclusions and interpretations were not soundly based and lacked clear reference within the body of the report to evidence upon which they were based;
· Ms Tubaro’s stated practice of drawing conclusions from a range of sources was professionally inappropriate and unethical and the report should contain an assessment of all relevant issues, include findings in a summation and conclusion and then make recommendations based upon what is contained in the report;
· The report suffered from a lack of logical structure;
· The report failed to address what appeared to have been the central reasons for the assessment and report, the majority of it appearing to be a revamp of information previously contained in court and other documents. As such, it was seriously lacking in utility and meaningfulness.
[5]Which would seem a criticism of those seeking the report rather than the criticism of the report provided.
Also included, as part of the 7th of the 8 dot points, was the following:
In addition, the report contained many instances of poor sentence construction, incorrect grammar, and misuse of apostrophes, all of which distract the reader and tend to present the psychologist in a less than professional light.
The first passage of evidence given by Ms Tubaro which the Board alleges constitutes unsatisfactory professional conduct was:
Counsel: And it is true, isn’t it, that there will be – that the Board investigated that complaint. You are aware of that aren’t you?
Ms Tubaro: Your Honour, the situation is that it is still currently under investigation.
In the referral to the Tribunal, the Board alleges that Ms Tubaro’s answer was given in circumstances in which she had been notified by the letter of 23 April 2010 that:
a) The investigation into the respondents conduct had been completed;
b) The former Board had adopted the investigation report at its meeting of 15 April 2010;[6] and
c) The former Board has resolved to deal with the disciplinary matter itself.
[6]Mistakenly referred to as 15 April 2012 in the referral.
In written submissions filed on behalf of the Board it now concedes that the letter of 23 April 2010 did not give Ms Tubaro sufficient detail for her to conclude that the former Board had adopted the investigator’s report at its meeting of 15 April 2010.[7]
[7]Applicants’ submissions filed 24 September 2013 at [9].
Ms Tubaro has deposed that at the time at which she was giving evidence it was her understanding that the decision had yet to be made by the former Board about the father’s complaint.[8] She also deposes to being unaware, at that time, of the distinction between the investigative phase and the disciplinary phase of the disciplinary process. She understood, she says, that no final decision had been made against her such that the matter was still under investigation.[9]
[8]Affidavit of Bertina Tubaro filed 11 November 2013 at [3].
[9]Ibid at [4].
In my view, Ms Tubaro should be accepted on those matters. It is quite understandable that she would not have a complete and accurate understanding of the status of the father’s complaint against her. The legislative scheme is not without complexity. This is reflected in the language of the letter of 23 April 2010 wherein the Board informed Ms Tubaro that having received the investigator’s report at its meeting of 15 April 2010 it had ‘resolved that there was sufficient evidence of a ground for disciplinary action to commence disciplinary proceedings’. In the next sentence the Board referred to ‘the Board’s report’ being subsequently considered by the Health Quality and Complaints Commission. The letter made no reference to the Board having prepared its own report about the investigation. Yet, that is what s 115(2) of the Health Practitioners (Professional Standards) Act 1999 (Qld) required.[10] No mention was made in the letter of the requirement imposed upon the Board to prepare its own report about the investigation by s 115(2) of the Professional Standards Act. No reference was made in the Board’s letter to the report of the investigator being a preliminary report about the investigation. Yet, as defined by s 114(1) of the Professional Standards Act, that is precisely what it was.
[10]The Act was subsequently renamed the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) by the Health Practitioner Registration and Other Legislation Amendment Act 2013 (Qld); number 13, s 23, with effect from 27 May 2013.
Whilst s 115(5) of the Professional Standards Act permitted the Board to adopt the preliminary report provided to it by the investigator as its own report for the purposes of s 115(2), as the Board now concedes, it did not convey to Ms Tubaro that this had in fact occurred.[11]
[11]Indeed, on the evidence, it is unclear that this did in fact occur.
The statement in the letter of 23 April 2010 that ‘in accordance with s 118(1)(c)(iii) of the Health Practitioners (Professional Standards) Act 1999, the Board resolved to deal with the disciplinary matter itself by way of hearing’, does not follow the statutory language of s 118(1)(c)(iii). That section provides that the Board may decide to ‘deal with the disciplinary matter by taking disciplinary proceedings itself’.
I do not mention these matters concerning the Board’s letter of 23 April 2010 simply as pedantic criticisms of the text of the communication. Rather, I mention them to demonstrate that even the authority charged with the administration of those functions under the Act might fail to articulate accurately the precise stage of the disciplinary process reached.
Even in asking the question which elicited the impugned answer, counsel for the father spoke in the prospective – ‘It’s true isn’t it that there will be’ – before changing to the retrospective – ‘that the Board investigated the complaint’.[12]
[12]Transcript of proceedings 21 May 2010 page 15 line 35.
Shortly after the impugned answer was given by Ms Tubaro, the Judge raised with her whether she was aware that there was to be a hearing. The Judge was aware of that fact because, although not an exhibit in the proceedings, he had earlier been shown a copy of the Board’s letter of 23 April 2010.[13]
[13]This is evident from the reasons for judgment of the full Court of the Family Court of Australia on the father’s appeal [2011] FAMCAFC 29 April 2011.
In asking Ms Tubaro whether she was aware that there was to be a hearing, his Honour described it as ‘an investigative hearing of some sort’.[14]
[14]Transcript of proceedings 21 May 2010 page 16 line 1.
Those questions by both counsel and the Judge are indicative of others who had read the letter of 23 April 2010 not having construed it with the certainty as to the precise stage which the process had reached, which the Board alleges that Ms Tubaro should have understood from her reading of the letter and, more importantly, should have conveyed in her answer.
Ms Tubaro’s response in that first passage of evidence does not support an allegation of unsatisfactory professional conduct.
The second passage of evidence upon which the Board relies concerns Ms Tubaro informing the Court that the hearing would be ‘for punctuation and grammar … I put my apostrophes in the wrong place’. The evidence was given by Ms Tubaro in response to the Judge’s questioning of her as to whether she was aware that there was going to be an investigative hearing of some sort, to which I have referred above.
The allegation which the Board makes in Part C of the referral concerning that evidence is that it was given by Ms Tubaro ‘when (she) had been notified by letter dated 30 April 2010 on behalf of the former Board that the former Board had adopted the investigators report’ which had reached a number of conclusions about the report of Ms Tubaro which went well beyond matters of grammar and punctuation. It should be noted that in its written submissions the Board did not make the same concession which it had made concerning the first passage of evidence; that the letter of 23 April 2010 did not in fact give Ms Tubaro sufficient detail for her to conclude that the former Board had adopted the investigator’s report. In the hearing, when asked about the absence of a similar concession in respect of the particulars at paragraph 2 of the referral, counsel for the Board conceded that the absence of such a concession was an oversight. In light of that concession, it would be difficult to maintain the second allegation in the referral.
Notwithstanding the way in which the Board has framed the allegation in paragraph 2 of Part C of the referral, it is clear that the essential criticism is that Ms Tubaro, in answering as she did, attempted to minimise the seriousness of the allegations which were the subject of the Board’s disciplinary processes, when she was aware of the full extent of those allegations. The allegations were much broader, and more serious, than mere matters of punctuation and grammar. The Board contends that Ms Tubaro’s response was less than full and frank, and that she was evasive.
Although the particulars of the disciplinary charge only relate to the respondent having said in evidence that the disciplinary hearing would be ‘for punctuation and grammar’, and that she had put her apostrophes in the wrong place, the Board submits that there were no fewer than 12 questions by counsel and the Judge about the allegations.[15] In that regard, the Board submits that it was counsel’s clear intention to illicit from Ms Tubaro the substance of the allegation which the Board had made against her.
[15]Paragraph 1 of the submissions in reply filed 8 November 2013.
I am not persuaded that the transcript of the exchange demonstrates that this was counsel’s intention. It certainly does not establish that it was clearly so. If he had wished to illicit the substance of the allegations, Counsel could simply have put them to her. Or he could have asked her directly what they were. Contrary to the Board’s submissions, there was no such direct questioning.
At one point, counsel said ‘Madam, the investigator has reported …’. It may be that counsel intended to put the substance of the investigators report to her at that stage. But the Judge interrupted. In the event, the particulars of the report were not put to Ms Tubaro.
In my view, the Board’s submissions have the effect of re-characterising or re-drawing the questions which she was asked so as to require an interpretation of those questions rather than to focus upon the questions actually asked and the answers actually given.
In my view, Ms Tubaro’s statement that she answered particular questions asked of her is correct. Her statement that her punctuation and grammar not meeting the required standard formed part of the investigation was also correct.
Ms Tubaro says that she was taken by surprise when cross examined about these matters. I do not accept that she was completely surprised. The fact that she had the report of Dr Watts which she had commissioned with her in the witness box does suggest that she was, at least, expecting to answer criticisms of her report when giving evidence. That is consistent with paragraph 7 of her affidavit wherein she deposes that her focus was on the expert report prepared by Dr Harrison and the expert report that she had obtained in response from Dr Watts.
However, her offer to provide the report of Dr Watts to the Court (which was rejected by the Judge) does demonstrate that she was prepared to expose the full range of the complaints against her. Had the report been shown to the Court, it would have immediately exposed that the complaints about her report extended well beyond matters of grammar and punctuation. Her willingness to expose this militates against a finding that she was attempting to mislead the Court on the issue, or was wishing to be less than frank and full in her disclosure of the issues. Counsel for the Board submits that the offer to show the Judge the report only came later in the evidence. In my view, this seeks unreasonably to segment the evidence which she gave.
Ms Tubaro’s initial response may have been somewhat disingenuous; but that does not support a finding of unsatisfactory professional conduct. That is particularly so when the whole of her evidence is considered.
Neither of the bases for a finding of unsatisfactory professional conduct as particularised in the referral have been established. The referral is dismissed.
Any application by either party for costs must be filed together with any evidence and submissions in support by 4pm on 14 July 2014. Any objection to such evidence, or any evidence in response, must be filed by 4pm on 28 July 2014.