Psychology Board of Australia v Wakelin
[2014] QCAT 516
•16 October 2014
| CITATION: | Psychology Board of Australia v Wakelin [2014] QCAT 516 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Angela Wakelin (Respondent) |
| APPLICATION NUMBER: | OCR054-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas AM QC, Judicial Member Assisted by: |
| DELIVERED ON: | 16 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Application is adjourned to 24 October 2014 with liberty to the parties to advise the tribunal in writing about the provision of undertakings to the Board and of the Board's response. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE – PSYCHOLOGIST – DISCIPLINARY PROCEEDINGS – referral under s 193 of National Law – Australian Psychological Society Code of Ethics – termination of professional relationship followed within one month by sexual relationship – false statements to Board during investigation of complaint – need for good faith in dealings with professional board – form of order – conditions not registrable when no subsisting registration – suspension not able to be ordered when no subsisting registration – appropriate to disqualify respondent under s 196(4) from applying for re-registration before stated time – level of sanction Health Practitioner Regulation National Law Act 2009 (Qld), (schedule) s 196(2), s 196(4) Medical Board of Australia v Putha [2014] QCAT 159 |
APPEARANCES:
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
This is a referral under the Health Practitioner Regulation National Law Act 2009 (Qld) (‘the adopted National Law’) – s 193.
Facts and Circumstances
The respondent was continuously registered to practice psychology between 15 February 2007 until 30 December 2013. She is a former ‘Registered Health Practitioner’ as defined in s 5 of the adopted National Law.
At relevant times she practiced psychology at a clinical and counselling psychology centre in Mermaid Waters Queensland.
The respondent provided psychological services to a male patient, ("AB"), in her capacity as treating psychologist, on 5 March 2012, 9 March 2012 and 16 March 2012.
During those consultations a good deal of personal information concerning intimate relationships, personal aspirations and other matters of a personal nature were disclosed by the patient.
By the second consultation the respondent was aware of the potential for a ‘dual relationship’, which I infer to be an awareness of potential conflict between her interest and duty.
During the third consultation the respondent terminated the professional relationship. A sexual relationship then developed between them.
From mid April 2012 to at least 15 August 2013 she and AB remained in a personal and sexual relationship.
In August 2012 AB’s former partner lodged a notification under the adopted National Law with AHPRA complaining of the respondent’s conduct.
AHPRA advised the respondent and asked for a response.
On or about 5 September 2012 the respondent, in a letter to AHPRA:
a) Denied that she had engaged in a sexual relationship with AB.
b) Stated information which AB had disclosed, with the obvious intention of discrediting AB’s former partner, the complainant.
c) Enclosed an affidavit apparently sworn by AB, claiming that the respondent had behaved professionally towards him, that they had not cohabited and that they had not had sex.
The matters set out in the respondent’s letter were untrue.
The above false statements were obviously made in the context of investigation by the Board of the respondent’s professional conduct, and the respondent knew that the communication was false.
Subsequently, AHPRA received further information suggesting that the above information was false.
On 5 August 2013 the respondent admitted that she had engaged in a relationship with AB that would constitute a violation of the code of ethics ie ‘I did not wait until 2 years had passed before considering my actions’, and that she had cohabited with AB for four nights. In a further letter of 15 August 2013 she acknowledged that she had ‘not been completely forthcoming’ with the Board.
The respondent voluntarily ceased practice on 22 August 2013 and undertook not to return to practice until approved by the Board. An endorsement was placed upon the register for that effect.
Her registration at that time would have expired on 30 December 2013 under s 108 of the Adopted National Law, unless renewed by that time.
Discussion
The Australian Psychological Society Code of Ethics, applicable to the respondent’s professional work, includes the following paragraphs that are relevant to sexual misconduct:
a) C.1.1 – ‘Psychologists avoid engaging in disreputable conduct that reflects on their ability to practice as a psychologist’.
b) C.1.2 – ‘Psychologists avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology’.
c) C.4.3 – ‘Psychologists:
i)Do not engage in sexual activity with a former client... within two years from the termination of the professional relationship with the former client;
ii)Who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter’.
The respondent breached the above provisions by engaging in a sexual relationship within a month of ceasing a professional relationship. Her conduct also breached the more general prohibition on disreputable conduct, and revealed a failure to follow the requirement of exploring advice with a senior psychologist before taking advantage of a potentially vulnerable former client.
The code of ethics also provides –
a) C.2.1 – ‘Psychologists communicate honestly in the context of their psychological work’.
b) C.2.2 – ‘Psychologists take reasonable steps to correct any misrepresentation made by them or about them in their professional capacity within a reasonable time after becoming aware of the misrepresentation’.
c) ‘Psychologists cooperate with ethics investigations and proceedings instituted by the society as well as statutory bodies that are charged by legislation with the responsibility to investigate complaints against psychologists’.
The respondent's dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character and the sexual transgression. The character revealed by a practitioner's actions is obviously a matter with which any disciplinary body must be concerned. She was prepared to misrepresent the truth to the professional body, and made unsuccessful attempts to cover up her actions.
The respondent has accepted that her conduct amounts to professional misconduct, and I am prepared to make such a finding. The respondent behaved in a way that constitutes professional misconduct within the relevant definition, because it was plainly unprofessional, and amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of claiming or experience.
The matters mentioned by the respondent in mitigation are her early termination of the professional relationship, a claim that she was under a great deal of stress at the time, her voluntary entering into counselling with a psychologist to obtain relevant guidance, her cessation of practice in August 2013, and the equivalent of voluntary suspension ever since that date. She has carried out the undertakings requested by AHPRA within the timeframes and has engaged in personal development program at her own expense. The loss of her practice has resulted in considerable financial difficulties and she and her family have suffered severe embarrassment. She will of course have the further burden of paying Board’s costs of these proceedings.
The substance of the draft order proposed by the parties is a requirement that the respondent comply with her undertaking not to practice until 28 February 2015, a reprimand, the imposition of various conditions, and an order for payment of the Board’s costs.
The question is whether this is too light a response, given the serious aggravation of the overall conduct by the respondent's attempted deception of the board. The comparative cases submitted by the Board suggest that a suspension of around 6 to 12 months might be suitable if the post-treatment sexual misconduct stood alone. However, the additional deceptive conduct might itself justify a response in the vicinity of at least 18 months suspension. This is supported by Psychology Board of Australia v Dall [2011] QCAT 608, (18 months preclusion from registration following grooming of patient and misrepresentations to cover up conduct) and Medical Board of Australia v Putha [2014] QCAT 159 where misrepresentations by a medical practitioner to the registration board resulted in effective loss of registration for two years.
Taking into account that the sanction agreed to by the parties would achieve in effect actual suspension from practice for 18 months, along with substantial conditions for education and future practice, reprimand and costs, I am satisfied, with the benefit of discussion with the assessors, that this is within range for the conduct shown, although, taking into account the dishonest dealings with the Board, it may be thought to be on the light side.
The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the responses of its practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty, and that sanctions for such conduct may well exceed that which will be imposed in this particular case.
The main difficulties in the present matter arise from the form of the draft order submitted, and the specific requirements and limitations of orders made under s 196(2) of the adopted National Law with which the draft order does not conform.
Dealing firstly with the suspension from practice, the obvious intention of the Board is to deem a suspension period of 18 months to be appropriate in this case, and to ensure that the respondent is not registered until the expiry of the stated period. As indicated above, this is an acceptable objective. However paragraph 2 of the draft order (‘the respondent comply with her undertaking to the Board not to practice … until 28 February 2015’) is not an order that can be made under any part of s 196(2). Neither is it possible to order suspension under s 196(2)(d) as the respondent is not currently registered (see Nursing and Midwifery Board of Australia v Fankhauser[1] and Pharmacy Board of Australia v Arulogun[2].)
[1][2013] QCAT 395.
[2][2013] QCAT 685.
The desired result can however be achieved by ordering under s 196(4)(a) that the respondent be disqualified from reapplying for registration for the agreed period.
As there is no present registration, conditions cannot be imposed on the practitioner's registration under s 196(2)(b). There is no other relevant power for QCAT to impose conditions in such an order.
The conditions of future re-registration are a matter for the Board in its capacity as a registration board, which acts in a different capacity to that of the Board in the current disciplinary proceeding.
However, the respondent's agreement to those conditions was a central factor in the overall negotiation and determination, including the length of the disqualification from re-registration. As indicated in the above cases, it is open to the parties to achieve the desired objectives by means of undertakings given by the practitioner to the Board.
The above difficulties have been made clear in a number of past decisions of this Tribunal, including Fankhauser and Arulogun above. It is possible that these decisions are incorrect, and the Board and its advisers are at any time at liberty to bring a case and make rational submissions in that direction. But until that is done, both the Board and QCAT are bound to act on the footing stated in Fankhauser. The negotiation of agreements for conditions to be imposed on a registration that no longer exists is futile. Such arrangements result in unnecessary difficulties, delays and expense.
I record the unanimous view of the members of this Tribunal that some of the proposed undertakings seem very onerous and confer open-ended discretions on the Board. Some of the time limits may be difficult to meet, and it would not be amiss for the Board to take a less than rigid approach to the strict enforcement of conditions or undertakings so worded. Desirably orders (including conditions in orders) should be as concise as possible.
In the present matter the solution will be for the respondent to give undertakings to similar effect as those in the draft order, in a manner acceptable to the Board. An order compliant with s 196 will be framed when QCAT is advised that satisfactory undertakings have been given.
The application will be adjourned until 24 October 2014 with liberty to the parties to advise the Tribunal in writing about the provision of undertakings to the Board, and of the Board's response.
If those undertakings or the equivalent are duly given, an order will be made along the following lines –
1. The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
2. The respondent is disqualified from reapplying for registration that would take effect before 28 February 2015;
3. The respondent is reprimanded;
4. The respondent is ordered to pay the Board's costs of and incidental to these proceedings as agreed or assessed.
If satisfactory undertakings are not provided, it will be necessary for this Tribunal to reconsider the level of the sanction and to formulate an order consistently with s 196.
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