Shahinper v Psychology Board of Australia
[2013] QCAT 593
| CITATION: | Shahinper v Psychology Board of Australia [2013] QCAT 593 |
| PARTIES: | Mr Khosrow Shahinper (Applicant) |
| v | |
| Psychology Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR213-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 25 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: |
| DELIVERED ON: | 25 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is allowed. 2. The decision of the Psychology Board of Australia of 11 July 2013 is set aside. 3. Mr Shahinper’s application for a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) is refused. 4. Pursuant to s 66 of the QCAT Act the publication of any information which may identify SV or CH is prohibited. |
| CATCHWORDS: | HEALTH PRACTITIONER – PSYCHOLOGIST – LICENCES AND REGISTRATION – where the Board decided to take immediate action and impose conditions on the registrant’s registration – where the registrant sought a review of the Board’s decision to impose conditions on his registration – where the parties submitted the proceeding was in the Tribunal’s appeal jurisdiction – whether the proceeding is in the Tribunal’s appeal jurisdiction or review jurisdiction HEALTH PRACTITIONER – PSYCHOLOGIST – LICENCES AND REGISTRATION – where the Board received notifications alleging the registrant had engaged in sexual relationships with two patients – where the Board decided to take immediate action and impose conditions on the registrant’s registration – where the conditions imposed prevented the registrant from treating female patients – where the registrant sought a review of the Board’s decision to impose conditions on his registration – whether the registrant poses a serious risk to persons – whether immediate action is necessary to protect public health and safety Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Briginshaw v Briginshaw (1938) 60 CLR 336, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | R W Haddrick instructed by White and Mason |
| RESPONDENT: | P McCowan of McInnes Wilson Lawyers |
REASONS FOR DECISION
Mr Shahinper is a psychologist. On 11 July 2013 the Queensland Board of the Psychology Board of Australia decided to take immediate action in relation to him, under s 156 of the Health Practitioner Regulation National Law(Queensland) (National Law). The immediate action was the imposition of conditions on Mr Shahinper’s registration. What might conveniently be termed the primary condition was a requirement that after three weeks from the date of the imposition of the conditions, Mr Shahinper was not to consult, assess or treat any female patient.
Mr Shahinper has sought a review of that decision.
Nature of the proceedings
Each of the parties contends that this proceeding is appellate, requiring the exercise of the Tribunal’s appeal jurisdiction, not its review jurisdiction.
Mr Haddrick of counsel for Mr Shahinper, contends that this is so because, under s 199 of the National Law, the decision is termed an “appellable decision”. In support of his contention as to the nature of the proceedings, he refers to the recent Victorian Court of Appeal decision in Kozanoglu v Pharmacy Board of Australia.[1] In that matter, the Court concluded that an appeal to a responsible tribunal under the National Law in respect of a decision to take immediate action under s 156 was neither an appeal in the strict sense, nor a hearing de novo. Rather, the Court concluded, it was a hybrid form of proceeding whereby the material to be considered is confined to that placed before the Board with the ability to produce further evidence; but limited to matters relevant to the time at which the Board made its decision.
[1][2012] VCA 295 at [119].
Mr McCowan, who appears for the Board, also cites Kozanoglu as authority for the true nature of these proceedings and as establishing the basis upon which they should be conducted.
I do not agree with the parties’ characterisation of the nature of these proceedings.
In Pearse v Medical Board of Australia[2] I analysed the nature of proceedings under s 199 of the National Law when brought in the Queensland Civil and Administrative Tribunal as the appropriate, responsible tribunal. I concluded that the nature of the appeal is governed by s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) which provides that a reference in the National Law to an appeal to QCAT is a reference to a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[2][2013] QCAT 392 at [24] – [37].
I concluded that the view reached by the Victorian Court of Appeal in Kozanoglu did not represent the law in Queensland, because although s 156 of the National Law that was considered in Kozanoglu was in the same terms as the Queensland provision, the Victorian legislation which gave effect to the National Law did not contain an analogous provision to s 9 of the Health Practitioner Regulation National Law Act.
I adhere to the conclusion I reached in Pearse for the reasons which I expressed there. That conclusion is further supported by the explanatory memorandum to the Health Practitioner Regulation National Law Bill 2009. It provides:
Clause 9 provides clarification in relation to declaring QCAT as the responsible tribunal in clause 6. The National Law uses the terminology appeal and appellable decision, in relation to matters the responsible tribunal has jurisdiction for. Under the QCAT legislation, these terms have different meanings, and the matters to which the National Law is referring are instead called a review or reviewable decision under QCAT law. Therefore, the provision clarifies that a reference to an appeal against a decision to QCAT in the National Law is a reference to a review of the decision as provided under the QCAT Act.
My conclusion is further supported by the construction of the analogous provision under Western Australian legislation by the Western Australian State Administrative Tribunal. In Liddell v Medical Board of Australia[3] the Tribunal, presided over by President Chaney J, at [26] said:
As noted, these proceedings are brought by way of an ‘appeal’ pursuant to s 199 of the National Law. By virtue of s 11 of the Health Practitioner Regulation National Law (WA) Act 2010, a reference in the National Law to an appeal against a decision to the responsible tribunal, is a reference to a review of the decision by the tribunal under the State Administrative Tribunal Act 2004 (WA) Pt 3 Div 3. It is therefore a review by way of a hearing de novo – SAT Act s 27(1). The hearing is not confined to matters that were before the original decision-maker, in this case the Board, but may involve consideration of new material – s 27(1) of the SAT Act. The hearing of the review may, therefore, as it has in this case, involve a more thorough consideration of evidence adduced by the parties than occurred before the Board.
[3][2012] WASAT 120.
Contrary to the submissions on behalf of the Board by Mr McCowan, the State Administrative Tribunal of Western Australia in R v Medical Board of Australia[4] did not adopt the decision in Kozanoglu as the applicable law. To the contrary, the Tribunal concluded, at [22] and [108], consistently with Liddell, that an application under s 199 of the National Law is an application within the tribunal’s review jurisdiction for the purpose of s 17(1) of the State Administrative Tribunal Act, and that under s 27 of that Act it was a review by way of a hearing de novo and not confined to matters before the decision maker.
[4][2013] WASAT 28.
The purpose of the review, it found, was to produce a correct and preferable decision. The Tribunal merely noted that Kozanoglu had been decided since it had made its decision. It noted the conclusions reached by the Victorian Court of Appeal. It did not consider those conclusions. It certainly did not adopt them.
The approach to be taken
Because it is conducting a fresh hearing on the merits, the Tribunal must decide whether it holds a reasonable belief based upon the evidence before it that Mr Shahinper, because of his conduct, poses a serious risk to persons, and that it is necessary to take immediate action in the form of imposing the conditions to protect public health and safety.
In Pearse at [41] to [46], I analysed what I consider to be the proper approach to those issues, based on the decisions in Liddell v Medical Board of Australia, Lindsay v New South Wales Medical Board[5] and I v Medical Board of Australia.[6] In Liddell, the State Administrative Tribunal of Western Australia observed, after referring to the New South Wales Supreme Court’s decision in Lindsay:
The practicality of that approach is readily apparent. Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made (as in I v Medical Board of Australia) it would be impractical for s 156 to require the Medical Board make urgent findings of fact as to the practitioner’s guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner.
That is not, of course, to say that material available to the Board need not be carefully scrutinised in order to determine the weight to be attached to it. The requirement to provide the practitioner with an opportunity to make submissions prior to the Board taking immediate action, and to have regard to those submissions, reinforces that obligation.
[5](2008) NSWSC 40.
[6][2011] SAHPT 18.
That requirement to afford natural justice is of particular importance in this case. In R v Medical Board of Australia, the Tribunal observed, at [105]:
Obviously, the taking of immediate action, particularly when it comprises a suspension of the practitioner’s registration, will have serious consequences for the practitioner’s reputation and his capacity to earn a livelihood. He is, therefore, entitled to know the case sought to be made against him and to be given the opportunity to reply to it…
The Tribunal made those observations in the course of rejecting the submission that it should take a Briginshaw[7] approach to the issues.
[7]Briginshaw v Briginshaw (1938) 60 CLR 336.
Mr Haddrick contends for the application of a Briginshaw approach in this matter. I reject that approach. It is not what s 156 of the National Law calls for.
That said, it is important that the allegation which Mr Shahinper must answer be cast with sufficient particularity to permit him to do so. In Pearse, I observed, at [48], that although not an appeal from the Board’s decision as such, the approach taken by the Board as to how it formed the belief it did can inform the Tribunal’s consideration as to whether it, too, holds that belief.
Consideration
The Board’s decision was set out in a letter dated 12 July 2013, its reasons were recorded as follows:
On the basis of the evidence before it, the Board reasonably believes that you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety because:
1. Notifications about you indicate that there may be a pattern of conduct concerning you breaching professional boundaries with your patients.
2. From the information available, there is a reasonable belief that you pose a serious risk, particularly to female persons. As you have a similar complaints history resulting in action taken by the Board, it is considered necessary to take immediate action via the imposition of conditions on your registration.
The Board’s reasons are more fully stated in the Decisions and Actions Arising Paper of the Immediate Action Committee of 11 July 2013. There, the following is recorded:
Decision:
a. To take the proposed immediate action under section 156 of the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law) and impose conditions on Mr Shahinper’s registration including that he must not consult, assess or treat female patients. This will act as a temporary protective measure until the outcome of the investigation is known and/or evidence is tested at hearing.
Reasons:
a. There are significant concerns from the notification that Mr Shahinper may have engaged in sexual misconduct in connection with the practice of his profession by entering into a sexual relationship with a patient, [SV], on or around 16 April 2009.
b. Additionally, there are concerns that Mr Shahinper may have pressured [SV] to deny the relationship occurred to the Board.
c. Ms [SV] has provided new information to the Board with respect to the current investigation including, advice that she was pressured into previously providing false information to the Board by Mr Shahinper and his colleagues, copies of emails and text messages allegedly made between herself and Mr Shahinper, copies of personal bank statements alleging deposits made in her account by Mr Shahinper.
d. The content of the emails and texts support a number of the allegations made by [SV].
e. If Mr Shahinper entered into a sexual relationship with [SV] and then pressured her to deny the relationship occurred, Mr Shahinper has failed to adhere to the Australian Psychological Society Code of Ethics, namely C.3 Non-exploitation and C.7 Ethics investigations and concerns.
f. The alleged behaviour constitutes sexual misconduct.
g. On 11 April 2013, the Board considered another notification in relation to Mr Shahinper in which a mandatory notification was received from another treating Psychologist, stating that a patient of hers had disclosed that her previous Psychologist, Mr Shahinper, had a sexual relationship with her. No further details were available and the identity of that patient was not known.
h. The name of that patient is now known and Mr Shahinper was provided details of that notification in a show cause process and provided a submission and the records for that patient.
i. Full details of the alleged behaviour in relation to that notification are not available as the patient has not provided any evidence to support such allegations. However it has been ascertained that they were of a non-consensual sexual nature.
j. Notifications about Mr Shahinper indicate that there may be a pattern of conduct concerning the practitioner breaching professional boundaries with his patients. Mr Shahinper provided undertakings to the Board, following the Health Practitioner Tribunal (HPT) hearing on 11 November 2009 to address with his supervising psychologist the importance of maintaining professional boundaries and the nature of boundary violations. The HPT hearing stemmed from the complaint from psychologist [MT], who advised that Mr Shahinper had breached professional boundaries with [a patient]. The notification from [MT] does not relate to Ms SV and is a separate matter.
k. From the information available, there is a reasonable belief that Mr Shahinper poses a serious risk, particularly to female persons. As the practitioner has a similar complaints history resulting in action taken by the Board, it is considered necessary to take immediate action via the imposition of conditions on the practitioner’s registration.
l. In taking immediate action, the Board is not required to make findings of fact but to assess the risk in allowing Mr Shahinper to continue to practice without any restrictions on his registration.
m. The imposition of conditions on Mr Shahinper’s practice, mainly, that the practitioner must not consult, assess or treat female patients or to have a chaperone present when consulting with female patients will act as a temporary protective measure until the outcome of the investigation is known and/or evidence is tested at hearing.
I note in respect of the matters concerned in the Health Practitioner Tribunal that the undertakings entered into by Mr Shahinper were entered into without any admission of liability, and without conceding, essentially, any of the factual allegations made against him.[8]
[8]See Exhibit 1 on the proceeding.
It is to be noted that notwithstanding the identification of an alternative condition requiring the presence of a chaperone when consulting with female patients, the Board did not impose that condition, nor did it explain why it did not. In these proceedings, it submits that the conditions imposed are the only appropriate ones.
In Pearse at [19], I approved the observations in MLNO v Medical Board of Australia[9] that
Whilst the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.
[9][2012] VCAT 1613.
For that reason, I am of the view that the conditions imposed ought to address the relevant risks specifically and otherwise be the least onerous possible.
In that regard, it is to be noted that the Show Cause Agenda Paper considered by the Immediate Action Committee on 11 July 2013 records, as a third recommended option, the taking of no immediate action. That option was recommended, amongst other reasons, because:
c. there is a strong possibility that no probative evidence will be obtained in relation to the [second] notification, due to the psychological condition of [the relevant person];
…
f. internal legal advice obtained, opined that the conditions which effectively prohibit Mr Shahinper from consulting with female patients are too onerous.
All that Mr Shahinper has been told about the complaint of CH is that which appeared in RC’s notification of 28 March 2013. It records:
Miss CH81 first attended counselling with me on 19 03 2013. She was referred by Dr Ratna Shulka for treatment for high anxiety, schizo-effective disorder and dissociative disorder. Miss CH81 is also experiencing agoraphobia and could only attend counselling with her husband present. Her husband explained she is like this – withdrawn, afraid, avoiding eye contract, doesn’t want to speak because she was abused by her previous psychologist and will need time to build trust. When I asked him what happened, he reported that they did not want to talk about it. I asked if it had been reported to authorities or anyone, and he said no, they were not strong enough to go up against these people. I was confused about if it was more than one person - Miss CH81 reported that it was Gos Shahinper and that it was sexual abuse.
Miss CH81 was extremely distraught and wanted to go home rather than discuss the abuse.
They both said they are not strong enough to fight this and will not report the matter.
So [as] a psychologist I have a duty of care to report what I know.
There is nothing before the Tribunal to inform it whether Ms CH is any more likely now, or in the future, to provide more detail of the allegations than she was able to in March or July 2013. One matter is evident, however; RC apparently surmised that the alleged abuse may have occurred at a time recent to her having seen Ms CH. From the records of Mr Shahinper, that would appear not to be the case. It appears he last saw Ms CH several years ago; in January 2010. That, in my view, is relevant to the consideration of whether he poses a serious risk of harm to persons and whether these conditions are necessary to protect public health and safety.
I also have some reservations concerning the state of the evidence in respect of the complaint of SV. SV had previously informed the Board, in a letter in May 2010, that her relationship with Mr Shahinper was purely professional. In her notification of May 2012 she explains that she was pressured into signing that letter by a doctor who worked from the same premises as Shahinper and for whom SV’s son worked.
Contrary to the Board’s submissions, I can find no evidence from which it can be inferred that pressure was brought to bear upon Ms SV by Mr Shahinper, or by another at his behest. Ms SV makes no such allegation. The doctor placing pressure upon her is equally, if not more, consistent with him being self-motivated to protect his practice.
The notification material from Ms SV also refers to her having reported Mr Shahinper’s alleged sexual misconduct to two other female psychologists. Each of those persons would have had a mandatory obligation to report that misconduct. One of them is said by Ms SV to have referred to that very obligation. There is no suggestion that these psychologists, who should be assumed to be conscientious, reported these matters in accordance with what would have been their obligation, nor is there any evidence of this having been followed up with them by the investigators in the period since May 2012.
There are records of communications alleged to have been between Mr Shahinper and Ms SV which, at least, would establish boundary violations and perhaps are corroborative of allegations of sexual misconduct. Mr Shahinper has not denied them. However, I agree with the submission of Mr Haddrick that a review of immediate action is not to be conflated with a disciplinary hearing. Even proven past misconduct, and here the allegations related to conduct which ended in respect of either patient in 2009 or 2010, may not establish a current serious risk to persons. I have considered the views of the assessors carefully. On the state of the evidence before the Tribunal, I am unable to form the belief that Mr Shahinper poses a serious risk to persons.
Furthermore, I am not of the belief that a prohibition on seeing female patients is necessary to protect public health and safety.
I allow the application, and set aside the conditions.
Non-publication order
Mr Shahinper has applied for an order of non-publication pursuant to s 66 of the QCAT Act. Section 66 of the QCAT Act provides that the Tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order:
(a) the contents of a document or other thing produced to the Tribunal
(b) evidence given before the Tribunal
(c) information that may enable a person who has appeared before the Tribunal or is affected by the proceeding to be identified.
The Tribunal may make such an order only if it considers the order is necessary, relevantly here, for any other reason in the interests of justice.
As I observed in Pearse, there is no doubt that the matters which have been raised and agitated in these proceedings have had an impact upon Mr Shahinper professionally. Notwithstanding that, the clear intent of the QCAT Act is that matters such as these, generally, as with those in courts, will be public and records of the proceedings will be available.
Although having allowed Mr Shahinper’s application to set aside the conditions imposed by immediate action taken under s 156, I am not of the view that it is in the interests of justice that there be a non-publication order, or that the proceedings be otherwise closed.
I will, however, make an order under s 66 prohibiting the publication of any material on the Tribunal’s files or any evidence in the proceeding which might identify any of the patients of Mr Shahinper.
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