Psychology Board of Australia v McEvoy (No 2)
[2017] QCAT 481
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- Unreported Judgment
- Psychology Board of Australia v McEvoy (No 2)[2017] QCAT 481
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Psychology Board of Australia v McEvoy (No 2)[2017] QCAT 481
Psychology Board of Australia v McEvoy (No 2)[2017] QCAT 481
CITATION: | Psychology Board of Australia v McEvoy (No 2) [2017] QCAT 481 |
PARTIES: | PSYCHOLOGY BOARD OF AUSTRALIA (applicant) v JANINE MAREE MCEVOY (respondent) |
APPLICATION NUMBER: | OCR 180-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | Matter determined on the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, DCJ assisted by Professor Rodger Dooley, Dr Andrea Quinn, Dr Wayne Sanderson |
DELIVERED ON: | 3 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS –PSYCHOLOGISTS – SUBMISSIONS ON DISCIPLINARY ACTION - where submissions made are made by the parties after a disciplinary decision – where respondent is reprimanded – where respondent’s registration is suspended for six months – where it is ordered that the respondent must undertake a psychologist’s ethical unit – where the respondent is ordered to undertake professional counselling for a period of 12 – where delay in delivery of the decision should be taken into account in determining the disciplinary decision action to be taken – where suspension of the registrant’s registration is an appropriate disciplinary action |
APPEARANCES AND REPRESENTATION: | APPLICANT: Mr C Wilson instructed by McInnes Wilson, lawyers RESPONDENT: Mr R J Clutterbuck instructed by Turnbull Mylne, lawyers |
Reasons for decision
- [1]On 17 February 2017 the tribunal published its decision and reasons in the disciplinary proceedings brought by the Psychology Board of Australia against Mrs Janine McEvoy. The tribunal made directions for the filing of submissions and any evidence upon which the parties wished to rely on issues of the disciplinary action to be taken against Mrs McEvoy and costs. What follows are the tribunal’s decision and reasons on those issues.
Disciplinary Action
The Board’s submissions
- [2]The Board seeks the following orders:
- The respondent be reprimanded.
- The respondent’s registration be cancelled.
- The respondent not be registered by the Board for a period of three years from the date of cancellation of registration.
- The respondent may not reapply for registration by the board unless she has taken and passed the national psychology exam.
- [3]The Board submits that those orders are consistent with the purpose of disciplinary proceedings under the Health Practitioner Disciplinary Proceedings Act 1999 as set out at s 123, namely:
- The protection of the public;
- Upholding standards of practice within the health professions;
- Maintaining public confidence in the health professions.
- [4]The Board, in making those submissions, refers to: the various findings of fact made by the tribunal in its earlier decision, Mrs McEvoy’s conduct; and the conclusions reached that her behaviour in relation to the client was exploitative of the relationship of trust between them in breach of professional boundaries, and causative of harm to the client.
- [5]The board also submits that Mrs McEvoy’s behaviour was a breach of the APS Code of Ethics (2007) as to non-exploitation of patients (standard C.4.1) and conflicts of interest. As to the former, no express finding was made that standard C.4.1 of the Code of Ethics was breached. That clause states:
“Psychologists do not exploit people with whom they have or had a professional relationship.”
- [6]Whilst it may be accepted that the finding of exploitation made would also lead to the conclusion that standard C.4.1 had also been breached, in the tribunal’s view it adds little to the circumstances to be considered. It does not add to them in such a way as to warrant some further disciplinary sanction beyond that which would otherwise be imposed.
- [7]As to the latter, the tribunal did find[1] that standard C.3.2 of the Code of Ethics had been breached. That standard requires psychologists who are at risk of violating standard C.3.1 to consult with a senior psychologist to attempt to find an appropriate resolution that is in the best interest of the parties to the psychological service. Standard C.3.1 itself provides that psychologists refrain from engaging in multiple relationships that may:
- (a)impair their competence, effectiveness, objectify, or ability to render a psychological service;
- (b)harm clients or other parties to a psychological service; or
- (c)lead to the exploitation of clients to a psychological service.
- [8]Again, whilst there was a finding that the requirement to consult under standard C.3.2 was breached, based upon the expert witnesses called in both the Board’s and the Respondent’s cases being in agreement on that issue, it would not lead to some greater disciplinary sanction being imposed than would otherwise be imposed on the basis of other findings.
- [9]The Board further submits that Mrs McEvoy’s attitude to the disciplinary proceedings and the matters alleged and found against her are concerning, particularly the tribunal’s finding that she was an untruthful witness and that her evidence was contrived and self-serving, and the tribunal’s expressed concern that she had sought to exploit her client’s psychological condition in an attempt to have the client disbelieved. It submits that the tribunal’s reasons lead to the conclusion that Mrs McEvoy gave wilfully false evidence in an attempt to avoid adverse findings in the proceedings.
- [10]The Board submits that Mrs McEvoy’s evidence demonstrates clearly the absence of any insight or regret in relation to her behaviour. In its submissions in reply the Board submits that the affidavit of Mrs McEvoy filed in support of her submissions on sanction does not demonstrate any insight or remorse.
Mrs McEvoy’s evidence and submissions
- [11]In an affidavit filed in support of her submissions on sanction, Mrs McEvoy refers to the matters the subject of disciplinary proceedings having been investigated in 2009, the hearing of the matter commencing in March 2014 and resuming in September 2014, and the decision of the Tribunal having been delivered in February 2017. She refers to the investigation period as five years and the period from the commencement of the hearing to delivery of reasons as three years. In that regard, it should be noted that the delay between March 2014 and September 2014 was Mrs McEvoy’s insistence that the complainant client be available for cross-examination in person when she was, at that time, ill and in Western Australia.
- [12]Mrs McEvoy deposes to her having been practising in her own practice throughout that period and having developed an extensive list of patients, all of whom she sees on a regular basis. She further deposes that:
“I note the finding of the Board does not touch upon my abilities as a clinician but relates to an event involving the complainant with respect to a financial matter only, in which I was not principally involved.”
- [13]In her submissions, Mrs McEvoy submits that the Board did not take immediate action pursuant to s 156 of the Health Practitioner Regulation National Law (2009) to suspend her registration as it might have done if it were concerned that the public was in jeopardy from her in view of the fact that she continued to practice.
- [14]Mrs McEvoy highlights that in the period between the end of the hearing and the delivery of the tribunal’s reasons, she continued “unfettered” in her professional practice including establishing therapeutic relationships with new patients. During that period she has not “come to the attention of the Board in an adverse way and has thereby maintained her practice, aware of the issues that troubled the Board, and have now been the subject of finding by the tribunal.”
- [15]She submits that the tribunal “ought look at the imposition of any sanction upon [her] not only in light of the significant delay but also the obvious rehabilitation, and demonstrated lack of concern that [she] as a professional, is likely to reoffend in circumstances where she has demonstrated a continual practice, unfettered.”
- [16]
“Importantly here, it is submitted, that given the extent of the delay and the unfettered ability of the respondent to continue to practice, that the respondent had acquired insight into her conduct, and it is considered that she is not a risk to the community.”
- [17]Two observations should be made about that submission. First, the basis upon which it is said that Mrs McEvoy has acquired insight into her conduct is not identified, either there or elsewhere in the submissions.
- [18]Secondly, the basis upon which it is submitted that it is considered that she is not a risk to the community is not identified. However, if it is a reference to the earlier made submission to which I have already referred, that the Board had the ability to take immediate action against Mrs McEvoy pursuant to s 156 of the Health Practitioner Regulation Law to suspend her registration if it were concerned that the public was in jeopardy from her, and that this did not occur, it should be rejected. The submissions misstates the test under s 156. Those powers of the Board can only be exercised if it reasonably believes that because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety. A “concern that the public was in jeopardy from the respondent” (whatever that might mean) may well not satisfy the requisite statutory threshold for taking immediate action. Moreover, the mere fact that a Board has not taken immediate action to suspend a practitioner’s registration is not to be equated with satisfaction that the practitioner is not a risk to the public. There will be many cases in which disciplinary action is taken which results in suspension or cancellation of registration for reasons which include that the practitioner is a risk to the public, but where no immediate action was taken.
- [19]Mrs McEvoy submits that the more serious of the conduct found by the tribunal related to the extent of the involvement of Mr McEvoy in acquiring the money from Mrs McEvoy’s client. She submits that the extent of her involvement was only that of knowledge, and refers to the tribunal’s findings at [238] of its reasons as follows:
“Although Mrs McEvoy’s involvement in the Victory Watches business was minimal, her position as the director of the company, which carried on the business, made her directly interested in the provision of funds by AB. However, even her indirect involvement in knowing of the arrangement and her acquiescence in it was in breach of the duty which she owed AB as her psychologist. It was also, in the tribunal’s view, exploitative of the relationship of trust between them.”
- [20]Mrs McEvoy submits “that the mere fact of a directorship in the circumstances of this case would not enliven the discretion of the tribunal to sanction [her] heavily based upon the minimal involvement she had as so found in [238].”
- [21]After referring to a number of decisions of the tribunal which she submits are comparable, Mrs McEvoy contends for a sanction for her conduct which include:
- That she be reprimanded;
- That she undertake, at her own cost, a psychologist’s ethical unit (comprising not less than one semester) within an Australian university awarding undergraduate degrees for psychologists;
- That she undertake professional counselling under an approved supervisor for a period of 12 months or the duration of such course at university; and
- That she enrol in the clinical unit as soon as possible.
- [22]She submits that she is a well-practiced, well-qualified and very capable psychologist and that, in the circumstances of this case, her ability to practice effectively is of great benefit to the community. She refers to having a significant history of assisting persons who have offended as a result of suffering psychological issues.
- [23]She submits that rehabilitation is the “primary responsibility” of disciplinary sanctions even though general deterrence is generally necessary. It respect of the latter, she submits that in this case it can adequately be applied by virtue of the tribunal’s findings and that the tribunal has identified that it will not countenance such conduct.
- [24]She submits that should the tribunal consider a suspension as necessary, then general deterrence and penalty can be finely balanced by ordering a period of six months suspension. She submits that the financial impact of such a suspension would be crushing such that her practice at Mermaid Beach would collapse.
Consideration and determination on sanction
- [25]As has already been noted, the basis upon which it is submitted that Mrs McEvoy has acquired insight into her conduct is not identified in her submissions. The findings of the tribunal including: that she falsely denied sending and receiving text messages which clearly on the evidence she did send and receive;[4] that despite her denials it was clear that she had knowledge of the client entering into financial business arrangements with Mr McEvoy;[5] that she told the client in a text message that she was feeling “quite comfortable with the whole thing”;[6] her awareness of the involvement of a mortgage broker and the intention that the client was going to borrow as much as she could on her house because the client believed she would make more money by putting it into watches than real estate;[7] that she knew of the client’s son’s interest in the property and the potential to obtain investment funds from him as well, also secured against that property;[8] that she knew that the client was going to provide Mr McEvoy with money because the client had said in a text to her that the client would drop the cheque into Mr McEvoy that morning;[9] that she knew of the trip to the Sunshine Coast that the client was taking with Mr McEvoy and its purpose;[10] and her expressed disappointment to the client when the “deal” seemed not to be going ahead,[11] do not demonstrate insight of Mrs McEvoy into her conduct, either at the time or when the matter was being heard by the tribunal. Her recently filed affidavit does not demonstrate any insight developed since.
- [26]Furthermore, contrary to the submissions made for Mrs McEvoy, the tribunal’s findings were not that her involvement in financial matters concerning the client were limited to knowledge of them. As the passage from the reasons at [238] recited in those submissions states, her involvement extended beyond knowledge of the arrangements to acquiescence in them. The extent of her acquiescence is set out in the reasons including those matters referred to in paragraph [25] above.
- [27]The submission made on Mrs McEvoy’s behalf that, in light of the findings made against her, that she would benefit from some ethical training, does demonstrate some more recently formed insight. Mrs McEvoy also did display some insight at the time of the hearing in recognising that the familiar text messages exchanged between her and the client would be inappropriate; however, she denied their exchange.
- [28]In determining an appropriate disciplinary sanction to be imposed upon Mrs McEvoy, the tribunal should consider the significant delay in the delivery of the tribunal’s reasons following the completion of the hearing. That delay was occasioned only by the tribunal being unable to dispose of the matter in a timely way due to other matters. That delay should be taken into account for a number of reasons. First, it has meant that Mrs McEvoy has faced uncertainty as to her future throughout that time. That, no doubt, would have caused considerable anxiety. Also, as is submitted for her, it has allowed a further period, beyond that over which the investigation and disciplinary proceedings took place, in which to demonstrate her fitness for practice as a psychologist notwithstanding the matters found against her. Further, if any disciplinary sanction which prohibited Mrs McEvoy from practising for a period had been imposed in a timely way, she would have been serving out the period of preclusion during the period over which the delay has occurred.
- [29]In its submissions the Board referred to three cases in which health practitioners had obtained financial benefits from patients. In HCCC v Roberts[12] a nurse had borrowed and failed to repay money from vulnerable patients. She was reprimanded, her registration as a nurse cancelled, and she was prohibited from enrolling for 12 months.
- [30]In deciding to cancel the nurse’s registration the tribunal said:
“The respondent has displayed such a limited insight into the seriousness and consequences of her actions that the tribunal fears that if she was allowed to recommence the practice of nursing, similar errors of judgement could occur.
In particular, the respondent’s insight into issues of power imbalance, as well as her appreciation of professional boundaries between nurse and patient, are very limited. These are of special concern given the dynamics that exist between members of the small rural community where she resides and is likely to work. At the time of the borrowings her domestic situation, her urgent financial difficulties, her father’s illness and death and the burden of raising four children on a limited income were likely causal factors in her misconduct. However the tribunal is not persuaded that the respondent’s judgment would not be similarly affected if similar stressors occur in her life. Of particular concern is her admitted longstanding inability to seek help (other than obtaining inappropriate loans) to deal with these personal problems and stressors. This resulted in errors of judgement that form the basis of the complaints for determination and are of special concern in a nursing environment, where enrolled nurses must be able to communicate easily with their peers and supervisors about clinical issues and other matters that may impinge on the nursing care that is delivered.”
- [31]Notwithstanding Mrs McEvoy’s knowledge of and acquiescence in the financial dealings between her husband and her client, the dishonesty which she displayed in these proceedings, and, through it, a demonstrated lack of insight, the tribunal considers that the circumstances which gave rise to her misconduct are unlikely to arise again in the future. The corporate trustee of the family trust which formerly carried on the Victory Watch business was placed in liquidation in 2010.[13] Mr McEvoy was himself made bankrupt in 2012.[14] Albeit a very serious transgression, the financial arrangements enter into with the client was an isolated incident. Other matters concerning whether Mrs McEvoy gave appropriate treatment to the client were not established.
- [32]In the tribunal’s view, the cancellation of Mrs McEvoy’s registration is not required to adequately protect the public. The tribunal does not entertain the kinds of special concern referred to by the tribunal in Roberts. The tribunal does not consider that the cancellation of Mrs McEvoy’s registration is otherwise required.
- [33]In Nursing and Midwifery Board of Australia v Farley[15] a nurse, who herself was personally vulnerable, borrowed small amounts totalling $7,000 from a patient and a further $30,000 which the patient himself obtained from a friend, all of which was repaid. Although the nurse agreed that she had engaged in unsatisfactory professional conduct, the tribunal described her response to the investigation as demonstrating “remarkable lack of insight about her conduct.” A similar observation can be made concerning Mrs McEvoy.
- [34]Prior to the tribunal’s decision, the nurse had undertaken a substantial program on ethics with a recognised ethics instructor and was said then to demonstrate a high level of professional integrity.
- [35]Her registration was suspended for 18 months, but the suspension was to be held in abeyance once she had fulfilled conditions to undergo cognitive behaviour therapy with a psychologist and further ethics instruction which would anticipate would be not before 6 months of the suspension period had elapsed.
- [36]In Speech Pathologist Board of Queensland v Clark[16] the practitioner borrowed $10,500 from her venerable patient. She had not actively sought gifts and money and there was no dishonest intent. She had demonstrated insight and had undertaken appropriate training. She had cooperated in the tribunal proceedings. Her registration was suspended for one year.
- [37]Had the matter been disposed of in a timely way by the tribunal, suspension of Mrs McEvoy’s registration for a period of 18 months would have been appropriate, with perhaps part of that suspension in itself suspended. The power to do so existed under the Health Practitioner (Disciplinary Proceedings) Act 1999.[17]
- [38]In all of the circumstances, including in particular the substantial delay, suspension of Mrs McEvoy’s registration for a period of 6 months is appropriate. The conditions which are submitted for on Mrs McEvoy’s behalf as to ethical training and counselling are appropriate. Mrs McEvoy should be given a period of 28 days before the suspension of her registration commences in order that arranges can be made for her clients continued psychological care.
Costs
- [39]The Board seeks its costs of the proceedings. Section 255 of the Health Practitioners (Disciplinary Proceedings) Act 1999, which continues to apply to these proceedings notwithstanding its repeal, provided that the tribunal may make any order about costs it considers appropriate for disciplinary proceedings although such costs allowable are only those that would be allowable if the disciplinary proceedings were proceedings in the District Court.
- [40]As has been observed in a number of cases, the board relies upon the registration fees of members of the profession to fund disciplinary proceedings, at least in part. This matter proceeded to a fully contested hearing in which Mrs McEvoy denied all of the conduct alleged against her by the Board. It is an appropriate matter in which to order that Mrs McEvoy pay the Board’s costs.
Disposition
- [41]The order shall be:
- The registrant is reprimanded;
- The registrant’s registration is suspended for a period of six months;
- The registrant must undertake, at her own cost and as soon as possible, a psychologist’s ethical unit (compromising not less than one semester) with an Australian university awarding undergraduate degrees for psychologists.
- The registrant must undertake professional counselling under an approved supervisor for a period of 12 months;
- The registrant is to pay the board’s costs of and incidental to the proceedings as assessed on the standard basis for matters in the District Court of Queensland.
Footnotes
[1] Reasons at [247] and [251].
[2] [2011] VCAT 1026.
[3] [2016] QCAT 140.
[4] Reasons at [217].
[5] At [218].
[6] At [222].
[7] At [223].
[8] At [224].
[9] At [225].
[10] At [226].
[11] At [228].
[12] [2008] NSWNMT 17.
[13] Exhibit MB0-83 to Mr O'Donnell’s affidavit.
[14] MBO-84.
[15] [2011] QCAT 162.
[16] [2013] QCAT 237.
[17] Pharmacy Board of Australia v Jattan [2015] QCAT 294.