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- Unreported Judgment
Psychology Board of Australia v Jarrett (No.2) QCAT 403
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Psychology Board of Australia v Jarrett (No.2)  QCAT 403
PSYCHOLOGY BOARD OF AUSTRALIA
MS VIVIEN JARRETT
Occupational regulation matters
14 December 2018
On the papers
Judge Alexander Horneman-Wren SC
Each party is to bear its own costs of the proceedings.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – DISCIPLINARY PROCEEDINGS – COSTS – where the applicant originally referred 8 charges of unsatisfactory professional conduct to the Tribunal – where the applicant preferred only three charges at hearing – where the applicant positively established only one of the three charges – whether this conduct bears on the assessment of costs between the parties.
APPEARANCES & REPRESENTATION:
Ms J Rosengren (instructed by Rogers Barnes & Green)
Mr T Allen (instructed by Roberts & Kane)
REASONS FOR DECISION
- The Psychology Board of Australia seeks an order that the respondent, Ms Jarrett, pay its costs of and incidental to these proceedings. Ms Jarrett submits that the order of the Tribunal ought be that each party bear its own costs.
- For the reasons which follow, Ms Jarrett’s submission ought be adopted.
- In an Amended Part C to the Referral of the matter to the Tribunal the Psychology Board of Australia had set out eight “charges” in support of its allegation that Ms Jarrett had behaved in a way that constituted unsatisfactory professional conduct, that being a ground for disciplinary action under s 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999. In the event, when the matter came to be heard only three of those charges were pursued by the Board. The Board in its written submissions submits that the fact it only pursued three of the charges is not of itself a reason of an order for costs. I agree. As the Board submits, the eight charges included in the Amended Referral were reasonably included by it based upon expert reports of Dr Lars Madsen. The decision of the Board to pursue only three of those charges resulted from further comment obtained from Dr Madsen in response to expert evidence filed in Ms Jarrett’s case in the form of a report from Mr Stevenson. Mr Stevenson’s report had been filed approximately five weeks prior to the hearing. That is not a criticism, but merely an observation of fact. Dr Madsen’s further comment upon that report was received by the board approximately ten days before the hearing.
- In my view, having received that further report of Dr Madsen, a considered response by the Board to pursue only three of the charges at the hearing was appropriate and not to be criticised. It does not however render irrelevant to the issue of costs the fact that a large portion of the case to which the parties’ resources were directed in preparing the matter for hearing was ultimately not pursued.
- In the event, one of the three charges pursued by the Board was admitted by Ms Jarrett at the commencement of the hearing. That was the third charge: that she had failed to make or maintain adequate or appropriate clinical notes in respect of her therapeutic interactions with the client. Of the remaining two charges, the Board was successful in establishing one, but not the other. The charge which the Board successfully established was that Ms Jarrett had failed to maintain appropriate professional boundaries in respect of the client and to act in the client’s best interests when a reasonably competent practitioner would have done so. That was charge two. The charge which the Board was unsuccessful in maintaining was that Ms Jarrett had failed to establish and maintain a consistent and appropriate therapeutic frame with the client when a reasonably competent practitioner would have done so. That was charge one.
- As the Tribunal’s reasons demonstrate, charge one was the more complex of the issues for determination. Charge two was more easily resolved.
- Moreover, in respect of the charges admitted or established, the Board sought sanctions which the Tribunal considered were inappropriate and not supported by the evidence or findings. Those sanctions proposed by the Board included that Ms Jarrett undertake a course addressing boundary issues and a course of education addressing the treatment of patients who exhibit symptoms of trauma/complex trauma. The Board also proposed that she should enter into supervision arrangements in respect of the treatment of certain patients once she had determined that the patient had been exposed to traumatic incidents or had demonstrated symptoms associated with exposure such as dissociation or expression of borderline personality features.
- In declining to impose such sanctions the Tribunal paid particular attention to the undertakings which Ms Jarrett had voluntarily entered into with the Board which had seen her supervised for a prolonged period of time. The reports concerning that supervision were all very positive. The Tribunal formed the view that the sanctions sought were not necessary or desirable for the protection of the public and would not enhance the reputation of the profession or the public’s confidence in it. In the event, the sanction imposed by the Tribunal was a reprimand of Ms Jarrett which it noted was, of itself, not an insubstantial sanction. That reprimand was required to be recorded on the board’s register for a period of six months. The fact that the sanction imposed was not that sought by the Board is also not, of itself, a preclusion to an award of costs in its favour: but it too is a relevant consideration.
- Section 255 of the Health Practitioners (Disciplinary Proceedings) Act confers a broad discretion on the Tribunal in respect of costs in a disciplinary matter such as this. It permits the Tribunal to make any order about costs that it considers appropriate. In consideration of the foregoing matters, I am of the view that the appropriate order is that each party bear its own costs.
- Published Case Name:
Psychology Board of Australia v Vivien Jarrett (No.2)
- Shortened Case Name:
Psychology Board of Australia v Jarrett (No.2)
 QCAT 403
Alexander Horneman-Wren SC DCJ
14 Dec 2018