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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KAYE v PSYCHOLOGY BOARD OF AUSTRALIA(Occupational Discipline) [2017] ACAT27

OR 24/2016

Catchwords:OCCUPATIONAL DISCIPLINE –psychologist – immediate action – matters to be satisfied - Health Practitioners Regulation National Law (ACT) section 156 – nature of appeal from board – Health Practitioners Regulation National Law (ACT)section 199(h)

Legislation

cited:Health Practitioners Regulation National Law(ACT)ss 140, 144, 150, 151, 155, 156, 157, 160, 199, 201, 202

Cases cited:Bernadt v Medical Board of Australia [2013] WASCA 259

Director of Housing v Sudi [2011] VSCA 266

Eastwood v Psychology Board of Australia[2016] ACAT 52

Helmy v Medical Board of Australia [2016] ACAT 97

Hocking v The Medical Board of Australia [2014] ACTSC 48

Hocking v Medical Board of Australia [2015] ACAT 22

Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295

Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312

Council of the Law Society of the Australian Capital Territory “M” v The Council of the Law Society of the ACT [2014] ACAT 18

MLNO v Medical Board of Australia [2012] VCAT 1613

Reeve v Aqualast Pty Ltd [2012] FCA 679

Syme v Medical Board of Australia [2016] VCAT 2150

Tribunal:Senior Member B Meagher SC

Date of Orders:18 April 2017

Date of Reasons for Decision:18 April 2017

AUSTRALIAN CAPITAL TERRITORY)

CIVIL & ADMINISTRATIVE TRIBUNAL)OR 24/2016

BETWEEN:

SANDRA KAYE

Applicant

AND:

PSYCHOLOGY BOARD OF AUSTRALIA

Respondent

TRIBUNAL:Senior Member B Meagher SC

DATE:18 April 2017

ORDER

The orders that the Tribunal makes are as follows:

  1. The decision of the respondent to suspend the registration of the applicant notifiedby letter of 24 November 2016 is set aside.
  2. In substitution for that decision the registration is subject to the requirements of the following conditions.
  3. The conditions be imposed on the applicant’s registration are:

A Definitions

For the purposes of these conditions, 'practise' is defined as any role, whether remunerated or not, in which the individual uses his or her skills and knowledge as a psychologist in his or her profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a psychologist in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the psychology industry.

For the purposes of this condition, ‘supervised' is defined as so as to require that the practitioner must consult the supervisor, who is accessible by telephone or other means of telecommunication and available to attend the practitioner’s workplace to discuss the management of all clients and/or performance of the practitioner, when necessary and for not less than a one hour session at weekly intervals.

BSupervised practice

  1. The applicant (the practitioner) must be supervised by another registered health practitioner (the supervisor) when practising as apsychologist.
  2. The practitioner must not recommence practice as a psychologist until she has received written notice from the Board approving hersupervisor(s).
  3. The practitioner must nominate a primarysupervisor and at least one, up to five, alternate supervisor(s) to be approved by theBoard.
  4. The practitioner must ensure that each nomination is from the list of approved supervisors on the respondent’s website and who practise in the ACT area.
  5. The consent of any proposed supervisor must be obtained. This may be done by the practitioner at the time of nomination and any consent should accompany the nomination. It should be an acknowledgement, on the approved form (HPNA13), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that AHPRA will seek reports from them or by the Board. Alternatively the Board should seek the consent of any proposed supervisor that it would approve.
  6. The practitioner must ensurethat:

(a)the nominated supervisors are registered psychologists who hold unrestricted registration and who have suitable training,experience and/or qualifications in order to provide the supervisionrequired; and

(b)that the nominated supervisors are not relatives or friends of the practitioner or in a close collegiate or financial relationship withthe practitioner.

  1. The nomination is to be accompanied by written authorisation from the practitioner permitting AHPRA to communicate with each supervisorfor the purposes of monitoring compliance with the condition and to obtain reports from the supervisor(s) asfollows:

(a)a report must be provided one month from the date thatthe supervisor isapproved;

(b)after the first month, subsequent reports are to be provided every three monthsthereafter;

(c)a report must be provided whenever the supervisor has a concern or becomes aware ofa concern regarding the practitioner's conduct, health or professional performance;and

(d)when requested either verbally or in writing by AHPRA or the Board.

  1. The Board must approve a nominated supervisor or if none nominated by the practitioner is suitable then nominate an ACT based supervisor on its list of approved supervisors that it does approve and who consents to supervise. The approval should be completed as soon as possible
  2. The supervision conducted must consist of:

(a)a review conducted by the supervisor of every current client the practitioner provides psychological services to within onemonth from the date the supervisor is approved;

(b)a review conducted by the supervisor of each client’streatment plan prepared by the practitioner;and

(c)advice provided by the supervisor on action and systemsneeded to establish and maintain appropriate professional boundaries with regards to eachclient.

  1. The supervision must be on the basis that the patients of the client consent to the supervisor having access to their health records and information and the supervisor is bound to treat the information relating to patients as confidential.
  1. Within fourteen days (14) days of recommencement of practice as apsychologist, the practitioner is to provide to AHPRA, on the approved form (HP10) acknowledgement that AHPRAmay:

(a)obtain information from relevant authorities (such as but not limited toMedicare)

(b)obtain a report from the approved supervisor on a monthlybasis.

C Attend for counselling

  1. As part of the practitioner’s supervised practice the practitioner must also undergo counselling, which is a form of supervision, by the supervisor inrelation to the Psychology Board of Australia’s Code of Ethics focussing on the following issues:

(a)the identification, development and maintenance of strategies for boundary setting with clients in psychological practice, includinghome visits;

(b)the role of an expertwitness;

(c)the difference between an expert report and a psychologicalassessment;

(d)assessing mental and legal capacity ofclients;

(e)privacylaw;

(f)obtaining consent fromclients;

(g)preparingdocumentation;

(h)professionalcommunications;

(i)recordkeeping; and

(j)responding to subpoenas and other legalrequests.

  1. The counselling must occur on a monthly basis for a minimum of twelve (12)sessions with each session being of one hour'sduration.
  2. The supervision should be separate from the practitioner’s general supervision, relating to her area of practice, which is a general practice requirement for a registered psychologist.
  3. In the event the supervisor is no longer willing or able to provide the supervision required the practitioner must provide new nominations to AHPRA in the sameterms as previous nominations. Such nominations must be made by the practitioner within twenty one (21) days of becoming aware of the termination of the supervision relationship.
  4. The practitioner must consult the supervisor, who is accessible by telephone or other means of telecommunication and available to attend the practitioner’s workplace to discuss the management of all clients and/or performance of the practitioner, when necessary and for not less than a one hour session at weekly intervals.
  5. Within fourteen (14) days of the conclusion of the minimum period of supervisionthe practitioner must provide to the Board a report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to the condition requiring they attend for supervision and how the practitioner has incorporated the lessons learnt in the supervision into their practice and confirming that the practitioner has not used the hours spent with the supervisor and the preparation of the report as part of the continuing professional development requirements for registration.
  6. The minimum period of supervision is 12 months.
  7. All costs associated with compliance with the conditions on their registration are atthe practitioner’s own expense.

DLocation of practice

  1. The practitioner may practise only in place(s) of practice approved by thesupervisor.

EUndertaking /Condition re legal/forensic report or evidence

  1. It is a condition also that the practitioner not take on any new forensic/legal matters whilst she is subject to these conditions.

4.The parties have liberty to apply concerning clarification of the conditions or their practicalimplementation.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1.The applicant (the practitioner) has been a registered psychologist. Her registration has been suspended by the respondent pursuant to section 156 of the Health Practitioners Regulation National Law(ACT) (the National Law). She has appealed to the ACT Civil and Administrative Tribunal (the ACAT)[1] against that decision under section 199(h) of the National Law. The application is dated 21 December 2016. It relates to a decision of the respondent (the Board) made on 23 November 2016 and notified by a letter of 24 November 2016. The application lists nine grounds.

Applicable Law

2.The National Law is briefly explained by President Crebbin in Hocking v Medical Board of Australia [2015] ACAT 22 at [8] and [9] as follows:

[8] This is a law that establishes a national registration scheme for health professionals with an objective, amongst others, to protect the public by ensuring that only ‘health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’ to practise. National Boards are set up for various health professions to ‘register and, if necessary, to impose conditions on the registration of persons in the (associated) profession.’ The National Law is adopted in all states and territories although the law is not identical in each place because each jurisdiction has made modifications to it.

[9] The National Law applies as a law of the ACT because of section 6 of the Health Practitioner Regulation National Law (ACT) Act 2010 (the adoption Act). Section 8 of the adoption Act declares the ACAT to be the ‘responsible tribunal’ for the ACT for the purposes of the National Law. Section 7 defines a small number of generic terms used in the National Law for the purposes of its use in the ACT and Schedule 1 provides for a number of modifications to the National Law in its application in the ACT. The definitions and modifications do not concern the tribunal’s role as a responsible tribunal. Section 9 of the adoption Act specifies a number of ACT laws that do not apply to the National Law including, the Legislation Act 2001. The National Law contains its own interpretation provisions in Schedule 7.(Footnotes omitted)

3.The relevant provisions include the following:

140Definition of notifiable conduct

In this Division—

notifiable conduct, in relation to a registered health practitioner, means the practitioner has—

(a)practised the practitioner’s profession while intoxicated by alcohol or drugs; or

(b)engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c)placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d)placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

144Grounds for voluntary notification

(1)A voluntary notification about a registered health practitioner may be made to the National Agency on any of the following grounds—

(a)that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;

(b)that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;

(c)that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;

(d)that the practitioner has, or may have, an impairment;

(e)that the practitioner has, or may have, contravened this Law;

(f)that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board;

(g)that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.

155Definition

In this Division—

immediate action, in relation to a registered health practitioner or student, means—

(a)the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or

(b)accepting an undertaking from the health practitioner or student; or

(c)accepting the surrender of the health practitioner’s or student’s registration.

156Power to take immediate action

(1)A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if—

(a)the National Board reasonably believes that—

(i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii)it is necessary to take immediate action to protect public health or safety; or

157Show cause process

(1)If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner’s or student’s registration under section 156, the Board must—

(a)give the practitioner or student notice of the proposed immediate action; and

(b)invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

(2)A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.

(3)The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.

160When investigation may be conducted

(1)Subject to section 150, a National Board may investigate a registered health practitioner or student registered by the Board if it decides it is necessary or appropriate—

(a)because the Board has received a notification about the practitioner or student; or ...

199Appellable decisions

(1)A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—

...

(h)a decision by a National Board to suspend the person’s registration; ...

201Costs

The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

202Decision

(1)After hearing the matter, the responsible tribunal may—

(a)confirm the appellable decision; or

(b)amend the appellable decision; or

(c)substitute another decision for the appellable decision.

(2)In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

Nature of the Appeal

4.It is useful to describe the nature of such an appeal to ACAT. Submissions from the Board helpfully referred to relevant authorities that examined the position.

5.In Kozanoglu v Pharmacy Board of Australia[2012] VSCA 295; (2012) 36 VR 656at [119] it was expressed as follows:

[119]...The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error.

6.This was cited in the ACT Supreme Court in Hocking v The Medical Board of Australia [2014] ACTSC 48,(2014) 287FLR 54 at 71,[121]where Murrell CJ said:

[121] The judicial nature of the supervisory jurisdiction of the Court that is invoked differs from the administrative nature of the ACAT’s jurisdiction to review on its merits the Board’s decision to take the “immediate action” of suspending Dr Hocking’s registration. Kozanoglu v Pharmacy Board of Australia is authority for the proposition that in exercising its jurisdiction, the ACAT is to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.

7.Earlier the Chief Justice had said at [104] “For the purposes of the appeal, under section 202 of the National Law the ACAT acts as if it was the Board, hears the evidence afresh, and exercises the Board’s powers in reaching a new decision on the merits.

8.In Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312Refshauge J examined these authorities as well as High Court authority and concluded that what was being conferred was original jurisdiction and the role of ACAT was to reach the preferable decision afresh considering the evidence before the Board as well as new evidence. He expressed some dissatisfaction with the Kozanoglu decision. He summed up his conclusions at [105] saying:

[105]In this case, it seems to me that a consideration of the authorities shows that the “appeal” to the ACAT is to be undertaken on the following basis:

1. The ACAT should have regard to the material before the Council.

2. The ACAT is not limited to that material and can receive further or other material, including material that relates to matters that occurred after the decision was made by the Council.

3. The ACAT may limit the material to be adduced if it addresses issues that are not properly before it.

4. The ACAT is not limited to finding error in the decision of the Council.

5. The ACAT should make the correct or preferable decision at the time that it makes its decision.

9.This related to an appeal under section 416 of the Legal Profession Act 2006 (ACT). Whilst the decision in this case relates to immediate action and not the final disposal after investigation, it seems to me that this is the correct approach. It may vary slightly from Kozanoglu in that it does not focus on the time the decision of the Board was made but the time the ACAT decides the appeal. It also means that ACAT has to have the reasonable belief of the kind described in section 156. Counsel for the Board did not disagree with this proposition when asked in submissions. Kozanoglu has been followed uncritically in several cases[2] and is a decision of the Victorian Court of Appeal. However, it is in part different from the analysis of Refshauge J who points out that at least two significant High Court cases were not referred to by the Victorian Court of Appeal. I am bound by the decision of Refshauge J and I agree with it. The distinction is that the Tribunal is not deciding whether it was correct for the Board to have the requisite belief having regard to the evidence before it and any new evidence but whether the Tribunal should have that belief. As will be seen I have come to the view in this case that either way the same answer is arrived at.