Psychology Board of Australia v Wu
[2014] QCAT 65
•20 February 2014
| CITATION: | Psychology Board of Australia v Wu [2014] QCAT 65 |
| PARTIES: | Psychology Board of Australia (Applicant) |
| v | |
| Lynne Wu (Respondent) |
| APPLICATION NUMBER: | OCR283-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member Assessors Dr Rebekah Doley, Graeme Lawrence, Liliana Caycho Pacey |
| DELIVERED ON: | 20 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The charges particularised in sub-paragraphs 1(f) and 2(d) of the charges in the Referral in this matter are dismissed; 2. The charges particularised in sub-paragraphs 1(e) and 2(c) of the charges in the Referral in this matter are substantiated; 3. The disciplinary ground of unsatisfactory professional conduct is established against the respondent Lynne Wu in that she demonstrated a lack of adequate knowledge, skill and judgment in the practice of her profession; 4. The respondent Lynne Wu is required on or before 28 February 2014 to give the following undertakings to the Board, and to provide to QCAT a copy thereof, namely that: a) The respondent Lynne Wu will attend a further eight sessions of supervision and assessment at her own expense over a period of 12 months from 1 March 2014 and arrange for the supervisor to provide a report to the Board concerning the content and outcome of the supervision; b) The supervisor will be selected by the respondent Lynne Wu from a list of three Board Approved Supervisors including Adrian Robinson, located at the Gold Coast, as nominated by the Board and provided to the respondent Lynne Wu in writing; c) The supervisor as chosen will be provided with a copy of this order; d) The respondent Lynne Wu will undertake supervision and assessment limited to practice standards, and in particular in the following designated areas - i) Level of detail and accuracy in records ii) Appropriate level of detail in records to referring practitioners iii) Clear recording of reported issues/patient history versus diagnosis in order to avoid confusion; and iv) Any Board endorsed guidelines on record keeping. v) Confidentiality obligations and ethics e) The supervisor will be authorised to report in writing to the Board as to the progress of the respondent Lynne Wu in the supervision and assessment in the designated areas as may be requested in writing from time to time; f) The Board will be granted access to the respondent Lynne Wu's Medicare records for the duration of these conditions; g) The respondent Lynne Wu will make her records pertaining to the supervision and assessment available to the Board including records of continuing professional development activities including any learning plan, activity log, peer consultation log and journal entries for such activities; 5. The details of the above undertakings must be recorded in the Board's register for the period for which the undertakings are in force, namely 12 months commencing 1 March 2014; 6. Each party will bear that party's own costs of the proceedings; 7. Leave is granted to the parties to apply to the Tribunal concerning form of order, and in the event that the above undertakings are not given, for the Board to apply for an alternative order. |
| CATCHWORDS: | HEALTH PRACTITIONERS – PSYCHOLOGISTS – DISCIPLINARY PROCEEDINGS – referral under Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) – unsatisfactory professional conduct – alleged contravention of clients' confidentiality – whether written consent of client necessary for psychologist to report to GP – alleged lack of competence – reports ambiguous and poorly expressed – whether sufficient to support a charge of incompetence under subpara (b) of definition of "unsatisfactory professional conduct" – whether limited findings should be made under either or both subparas (a) and (b) of definition – level of sanction – whether personal undertakings under s 241(2)(d) or imposition of conditions under s 241(2)(b) more appropriate – whether the undertakings or conditions should be recorded in Board's register – form of order Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s124, s 125, s 126(1), s 134, s 213(2), s 240, s 241(2)(b), s 241(2)(d), s 242 Psychology Board of Australia v Costantino [2013] VCAT 586, considered |
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
Jurisdiction
The Health Practitioner Regulation National Law Act 2009 (“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 Ms Wu.
In consequence of section 289 of the adopted National Law, the new national board established under section 31 of that law (the Psychology Board of Australia) was empowered to continue to deal with the matter, and the matter was required to be dealt with under the preceding statutory law of the local jurisdiction, namely the Health Practitioners (Disciplinary Proceedings) Act 1999 (“the Disciplinary Proceedings Act”).
The present reference was made under sections 125, 126(1)(b) and 134 of the Disciplinary Proceedings Act. Such a reference is required to be to "the tribunal" which is simply defined as "QCAT". Three assessors are required to be appointed to assist the Tribunal (ss31-45) which must be constituted by a judicial member (s 213(2)).
The grounds on which disciplinary action may be taken in the present case are set out in section 124, and the decisions and orders that may be made by QCAT in such a matter are relevantly prescribed in sections 240, 241 and 242 of that Act.
Issues
Following complaints by two persons in 2009, charges were formulated on behalf of the Board against Ms Wu containing wide ranging allegations of incompetence and breach of confidentiality. However in the course of time the Board confined its case to an allegation of “unsatisfactory professional conduct” based on the following two charges and particulars:
“1.On 6 March 2009 the Registrant wrote a certification of her diagnosis and a letter of referral to Dr Gary Martin for her patient (Ms XY). The contents of both documents were contrary to the Australian Psychological Society Incorporated’s Code of Ethics (“the Code”) 2007 in that, there was:
a) (Not proceeded with)
b) (Not proceeded with)
c) (Not proceeded with)
d) (Not proceeded with)
e) A lack of clear written communication; some sentences are incomplete, other sentences are poorly constructed, there are numerous spelling errors, statements are expressed in terms where fact is difficult to be distinguished from hearsay, professional opinion or interpretation, and/or
f) The level of detail disclosed in the letter of referral to Dr Martin in the absence of signed consent for disclosure of information to a third party from either (Ms BE) her parent or guardian could constitute a contravention of her confidentiality.
2.On 13 March 2009 the Registrant wrote a letter of referral to Dr Gary Martin for (Mr WY). The letter contained material which was contrary to the Australian Psychological Society Incorporated’s Code of Ethics (“the Code”) 2007 in that there was:
a) (Not proceeded with)
b) (Not proceeded with)
c) Confusion as regards whether the Registrant did or did not diagnose complainant two as suffering from obsessive compulsive disorder, and/or
d) The level of detail disclosed in the letter of referral in the absence of a signed consent for disclosure of information to a third party from complainant two could constitute a contravention of his confidentiality, and/or
e) (Not proceeded with)”.
Facts
In March 2009 Dr Martin, a General Practitioner, referred two patients to the respondent Ms Wu, a registered psychologist, for counselling under the Medicare GP Mental Health Care Plan.
The patients were a 14 year old girl (Ms XY) and her 21 year old brother (Mr WY).
The referrals would enable those persons to have the benefit of ten counselling sessions with Ms Wu, paid for by Medicare.
Ms XY and Mr WY were at that time in conflict with their mother, had left home and were living with friends.
The plan prepared by Dr Martin for Ms XY was sent to Ms Wu along with his diagnosis of generalised anxiety and anxiety/panic disorder, a history of physical and verbal abuse by the mother, a request for cognitive behavioural therapy and a consent signed by Ms XY to the care plan and information about her mental health being recorded in her medical file and shared between the GP and the counsellor to assist in the management of her health care. That consent was countersigned by Dr Martin who confirmed that he was “satisfied that the patient understands the proposed uses and disclosures and has provided their informed consent to these”.
The plan sent by Dr Martin to Ms Wu for Mr WY similarly contained a diagnosis of anxiety and depression, a history of family problems designating his mother as the major source of his anxiety, a request for cognitive behavioural therapy and a signed consent by Mr WY to the care plan and information about his mental health being recorded in his medical file and shared between the GP and counsellor to assist in the management of his health care.
Dr Martin’s records show that he was already aware of a dysfunctional family background, domestic violence, court orders and allegations of physical, verbal and emotional abuse.
On 6 March 2009 Ms Wu prepared a three page written report to Dr Martin which she supplemented on 9 March. She also gave a short report headed “to whom it may concern” to Ms XY to use if she saw fit to produce it to police in relation to further dealings or court proceedings concerning her mother.
In the following months Ms Wu conducted seven or eight further sessions with Ms BE, on each occasion making clinical notes and reviewing the assessment or plan, and further reported to Dr Martin on 20 April 2009. On 11 May 2009 Dr Martin again referred Ms XY to Ms Wu for six more sessions.
Mr WY was present with Ms XY during her initial sessions, apparently as a support person. No impropriety was alleged in relation to this.
Ms Wu saw Mr WY as a patient on 13 March 2009 and presented a 4 page report to Dr Martin. She saw him again on 21 March 2009.
Each client asked for their copy of Ms Wu’s report, and, as was their right, they were provided with a copy.
The above reports (re Ms XY dated 6 March 2009, and re Mr WY dated 13 March 2009) are the basis of the board's complaints in particulars 1(e) and 2(c) set out in para [5] above.
Subsequently Mr WY went home to his mother. It may be inferred that by then he was in possession of both reports and that he showed them to his mother, following which both he and his mother made complaints to the Psychologists Board about Ms Wu on various grounds including Ms Wu's alleged breach of confidentiality.
The Board appointed an investigator and obtained a report on matters relevant to the complaint from a Clinical Neuropsychologist, Ms Harding-Clark.
The Board decided that sufficient grounds existed for disciplinary proceedings to be commenced, and in the course of time set a date for a disciplinary hearing, namely 7 June 2010. This it may be noted was very close to the time when the new national regime would come into effect.
On that occasion, 7 June 2010, Ms Wu and her advisors were ready to proceed, having already openly indicated that she was willing to give the undertaking recommended by the Board's investigator as the desirable outcome.
The Board however declined to proceed with the matter, and ruled that it should be referred to QCAT. As later indicated (see para [39] below), this decision is very difficult to fathom.
Unaccountably, despite many requests from Ms Wu for the Board to progress the matter, the Board failed to make any referral to QCAT until 18 months later, on 5 December 2011.
The QCAT Compulsory conference took place on 1 June 2012, and on 28 January 2014 the matter was finally referred to the present tribunal for determination on the papers.
In preparing her reports, Ms Wu’s practice was to word process her notes during the consultation, paraphrasing the patients version under the heading “presented issues” and/or “past history”, and to use other headings such as “mental state examination”, “diagnosis”, and “treatment plan”. After reviewing and correcting typographical errors she would use that record as her initial letter of assessment to the General Practitioner. It was her practice to perform an initial assessment in the first session (the maximum time for which was 50 minutes), or in the second session if more time was required. She would also allow patients to read their records if they wished and provide copies on request.
Discussion
It must be said that Ms Wu's initial reports which are the basis of the Board's complaints in this matter are a somewhat disorganised mixture of data obtained from relatively young and immature clients, interlaced with psychiatric terms. For the most part it is impossible to tell whether Ms Wu is presenting her own opinions or recounting the patient’s allegations, and the report has little direction or apparent purpose beyond a cataloguing of complaints against the patients' mother.
The parties have substantially narrowed the relevant issues, and have presented a final “position statement” which includes a joint statement as to the facts, and their varying positions as to the sanction that should be imposed.
Both are agreed that there should be supervision and assessment at Ms Wu’s expense by a supervisor for a period of 12 months.
The parties are however at variance as to the formal findings that should be made, and how the supervision and assessment should be arranged and carried out.
Before indicating the orders that are the most suitable, it is necessary to examine the actual charges more closely.
Charges raising aspects of competency
Charges 1(e) and 2(d) raise aspects of alleged incompetence that are capable of falling within subparagraph (b) of the definition of “unsatisfactory professional conduct”. It is at this Tribunal to decide whether they in fact do so.
The expert report relied on by the Board pointed out that Ms Wu’s reports contain incomplete sentences, poorly constructed sentences, examples of unclear expression and numerous spelling, typographical and grammatical errors. It continues "Her standard of written expression is well below what would be expected for a professional psychology report. Some of Ms Wu’s written expression is extremely unclear”, and “many of the statements appear speculative and unqualified, given the lack of reference to supporting evidence or source of information” .[1] It concludes “..it is difficult to distinguish fact '.. from heresay (sic), professional opinions and interpretations'”. The quotation within the last passage purports to be from the APS guidelines on recordkeeping, 6.2 and Code Standard B.2.1. Unfortunately the misspelling of “hearsay” by the expert serves to indicate that in this day and age proficiency in English expression, spelling and syntax is far from a universal commodity, and one should hesitate before condemning a practitioner on that basis. But of course a stage may be reached where a lack of skill in these areas may turn a psychologist's report into an ambiguous morass, or reveal a lack of necessary thought processes, or suggest a level of incompetence or a lack of skill that is quite unacceptable.
[1]Agreed bundle of documents page 66.
A further criticism by the expert in this case was that the reports were “over-inclusive of sensitive detail assumed to be reported by (Ms XY)". The expert saw this as an "inappropriateness of content for the purpose of the report…”.
Relevantly with respect to charge 2(d) the expert commented
“There appears to be confusion regarding the diagnosis of obsessive-compulsive disorder. Despite Ms Wu’s stating in her submission that she did not diagnose (Mr WY) with OCD, it has been presented as a diagnosis in paragraph 14 of her report with no identification of the source of information.”
This affords an example of ambiguity in Ms Wu's confusing report which seems to have uncritically adopted a partisan position in a family dispute instead of focusing on the counselling needs of the patient.
I am prepared to find that Ms Wu's conduct did amount to unsatisfactory professional conduct within sub-paragraph (b) of the definition of that term. It lies at the lower end of seriousness in such cases.
I seriously doubt that this was ever a matter in which a Board could reasonably consider that the matter might provide a ground for suspending or cancelling the registrant's registration. Such a belief was a jurisdictional requirement for such a reference.[2] However this point was not argued, and it is unnecessary to pursue it further.
[2]Disciplinary Proceedings Act, s 134.
Confidentiality
The two charges on this issue (1(f) and 2(d)) and their supporting particulars are, to say the least, confusing. The strongest allegation is that some of Ms Wu’s actions “could constitute a contravention of (each complainant’s) confidentiality". There is no allegation that they did. Ordinarily a Tribunal would strike out such a charge as ineffectual. However no objection was taken on this score, and the allegation has been dealt with by the parties as an actual rather than a hypothetical charge.
On this basis, putting it at its highest, it may be an allegation that if she was going to put as much detail as she did into her reports to Dr Martin, she should have obtained additional signed consents from her clients. But on that basis the essence of the complaint would depend on the content of the reports rather than any breach of the duty of confidentiality.
For the purposes of discussion reference will be primarily to the charge relating to Ms XY.
The Board's submissions tend to suggest that an additional written consent ought to have been obtained. Reference was made to the Australian Psychological Society Incorporated Guidelines on Confidentiality, which underline that confidentiality between psychologist and client is “a fundamental aspect of professional practice and is considered a cornerstone of their profession”. In this context the guidelines go on to state –
“3.1 The process of informed consent includes clarifying for the client or his/her representative, the nature of the provision of psychological services, and the extent of potential disclosure of the client’s information.
3.2 As part of the informed consent process, psychologists explained to their clients the limits to confidentiality. It is preferable to obtain written consent from a client that indicates what personal information may be released, under what circumstances, and to whom it may be disclosed.”[3]
[3]Agreed bundle page 24.
Neither the Code of Ethics nor the above guidelines mandate the obtaining of written consent in a situation such as that here described.[4] The strongest statement is in the above quoted guideline of it being “preferable” to obtain written consent as part of the process of explaining the limits of confidentiality. This makes it arguable that Ms Wu could be accused of engaging in something less than best practice, but that is not necessarily a solid foundation for a charge of unsatisfactory professional conduct.
[4]Agreed bundle pages 8, 15, 26-27.
In the first place, Ms XY had already given an actual written consent for her GP to refer the matter to a psychologist, and the natural expectation in such a situation is that there should be opportunity for full reporting and interchange of ideas between the two professional experts, including the exchange of relevant data concerning her history and condition.
In the second place, the patient. In fact, gave express written consent to the sharing of information “between the GP and the counsellor(s) to whom I am referred, to assist in the management of my healthcare”.[5]
[5]See agreed bundle page 73.
In the third place neither Ms Wu or nor Dr Martin breached their duty of confidentiality to the clients. The failure of the psychologist to obtain a further signed consent enabling her to communicate with Dr Martin had nothing at all to do with the leakage. In fact the patients were the persons who released the information in the reports, and the failure by Ms Wu to obtain further written authorisation to enable her to communicate with her referring Doctor has no relevance to the case.
In my view it was not strictly necessary in those circumstances for Ms Wu to obtain further written authorisation to report back to Dr Martin.
Finally, and in any event, no allegation of failure to obtain additional written authorisation was properly charged.
I do not think that these particular charges are sustainable on any basis. The upholding of charges 1(f) and 2(d) would subject all psychologists to the risk of charges over trivia and for conduct as to which there is clearly room for different interpretation and reasonable divergence of practice.
In summary, the obtaining of further consents from the clients would have had no impact at all on any obligation of confidentiality. There was in fact no breach by Ms Wu of her duty of confidentiality. The patients were the persons who released the information. These two charges should be dismissed.
Appropriate Orders
I turn to the question of the orders that should be made.
The quality of Ms Wu's work, revealed in charges 1(e) and 2(d), was poor enough to cause concern as to aspects of her competency, and to justify the Board invoking its disciplinary powers and ultimately requiring that steps be taken to improve her work practices.
On Which Part of the Definition should a Finding be Based?
The first question is what finding should be made to support a determination of unsatisfactory professional conduct, and what part of the definition of that term is appropriate?
The Board’s allegation is that Ms Wu was guilty of “unsatisfactory professional conduct” in that her conduct amounted to “professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of the Registrant’s profession”.[6]
[6]As expressed in sub-paragraph(b) of the inclusive definition of “unsatisfactory professional conduct” in the schedule to the Disciplinary Proceedings Act. Unsatisfactory professional conduct is a ground for disciplinary action (section 124).
The submission of counsel for Ms Wu is that the facts fall more appropriately within sub-para (a) of the definition of "unsatisfactory professional conduct", ie conduct "that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant's professional peers" rather than sub-paragraph (b) as relied on by the Board. In my view Ms Wu's conduct is capable of falling within either or both of these definitions. In my view the Board is entitled to a finding under sub-paragraph (b). However, lest findings under both sub paragraphs might seem to magnify conduct that is truly at the lower end of "unsatisfactory professional conduct", it will be sufficient that a single finding be made limited to subparagraph (b).
Furthermore, subparagraph (b) itself contains numerous alternatives, any one or more of which could support a finding of unsatisfactory professional conduct. In my view the appropriate finding in the present case should be limited to "professional conduct that demonstrates a lack of adequate knowledge, skill and judgment in the practice of the registrant's profession". The more pejorative term "incompetence" should not be included in the finding.
Level of Sanction
The next question is "what level of sanction should be imposed?"
Once the proceedings were started, Ms Wu promptly made admissions of many of the alleged shortcomings. She indicated her willingness to abide by the suggestions in the investigator's report even before the matter was scheduled for hearing by the Board’s disciplinary committee. She then undertook at her own cost a number of sessions of supervision with a respected psychologist, with a focus on record keeping skills, clarity of language and report writing, in addition to normal further education requirements.
Ms Wu has been a registered practitioner since 1996. There have been no complaints other than one that was made against her during the pendency of the current complaints, but no further action was taken after Ms Wu responded to the Board. She cooperated fully and actively in responding to the present matters.
In short, during the long delay some shortcomings have been recognised, some remedial steps have been taken, and Ms Wu has apparently moved on.
The burden of these proceedings has been with her for more than four years, and the responsibility for the delay clearly seems to lie with the Board.
Reference was made to two past decisions of possible assistance in considering the level of sanction that ought to be made in this matter namely Psychology Board of Australia v Costantino[7] and Medical Board of Australia v Lockie.[8] In Costantino’s case, a psychologist uncritically adopted a client’s allegations against her husband without proper indication of sources and without distinction between hearsay and opinion and, in effect, revealed immature partisanship by a psychologist. The sanction was a caution.
[7][2013] VCAT 586.
[8][2012] QCAT 34.
As indicated above (para [56]) the critical finding should be that Ms Wu’s conduct amounted to unsatisfactory professional conduct in that it demonstrated a lack of adequate knowledge, skill and judgment in the practice of her profession. The present case does not call for the imposition of sanctions such as a caution or reprimand or payment of costs. The appropriate sanction in my view should be limited to the imposition of a number of conditions to ensure further supervision and assessment for a period of 12 months. Whether this should be achieved by acceptance of undertakings from Ms Wu under s 241(2)(d) or whether they should be imposed as conditions under s 241(2)(b) will be considered below in paras [67] and [68].
Conditions to be Imposed.
There was considerable variation in the conditions proposed by the respective parties. Those proposed by the Board are in my view overly prescriptive and would be difficult to comply with. I accept the helpful and carefully resourced submissions of Ms Wu's Counsel in this respect. Among other conditions proposed by the Board is a requirement that Ms Wu provide a supervisor with a copy of all (the very voluminous) materials as filed by the parties in these proceedings. This would be extremely expensive and wasteful and, inter alia, and would be an extraordinary imposition on the supervisor.
The proposals offered on Ms Wu's behalf are generally more acceptable, although, with the benefit of advice from the assessors, some adjustments have been made where considered desirable.
Order by way of personal undertakings or imposition of conditions?
The next issue between the parties is whether the further supervision and assessment should be ensured by means of personal undertakings or by the imposition of conditions by this Tribunal. In my view either method is equally efficacious. If Ms Wu failed to honour the undertakings stated in the order of this Tribunal, her misconduct would be equally as grave as if she breached similar conditions imposed by the Tribunal, and one would expect that in either event the Board would in due course take disciplinary action against her for any serious breach or failure to comply.
An order will therefore be made under s 241(2)(d) of the Disciplinary Proceedings Act requiring Ms Wu to give the necessary undertakings by a specified date. If she fails to do so the Board will have leave to apply to the Tribunal for an order imposing those requirements as conditions under s 241(2)(b).
Recording by Board of Registrant's Undertakings
Finally there is an issue as to whether the prescribed undertakings should or should not be recorded in the Board’s register under section 242(1)(b).
Section 242(2) provides that the details of such an undertaking “must be recorded in the Board’s register unless the Tribunal reasonably believes it is not in the interests of users of the Registrant’s services or the public to know the details.”
I can see no sufficient reason why the outcome of this particular disciplinary proceeding should be kept secret, either in the interests of Ms Wu’s clients or the general public. Accordingly the details of the undertaking will be recorded in the Board’s register for the period for which the undertaking is in force.
Determination
For these reasons, I propose to make the orders stated above.
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