Hendren v Psychology Board of Australia
[2022] QCAT 353
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- Unreported Judgment
- Hendren v Psychology Board of Australia[2022] QCAT 353
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Hendren v Psychology Board of Australia[2022] QCAT 353
Hendren v Psychology Board of Australia[2022] QCAT 353
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hendren v Psychology Board of Australia [2022] QCAT 353 |
PARTIES: | Amanda hendren (applicant) v psychology board of australia (respondent) |
APPLICATION NO/S: | OCR093-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 2 November 2022 |
HEARING DATE: | 2 November 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: | Application dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks a stay of the Board’s decision to impose conditions upon her registration – where the applicant disputes the conduct or that the conduct breached her ethical obligations or relevant Code of Conduct – where the Board opposes the stay and contends the conditions are necessary for protection of the public – whether the stay should be granted Health Practitioner Regulation National Law (Queensland) ss 3, 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22 Asinas v Medical Board of Australia [2020] QCAT 490 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Lee v Medical Board of Australia [2016] QCAT 23 Magill v Queensland Law Society Inc [2019] QCAT 392 Pluta v Medical Board of Australia [2021] QCAT 212 YXN v Medical Board of Australia [2014] QCAT 706 |
RELIEF SOUGHT
- [1]Ms Hendren, a psychologist, seeks a stay of conditions imposed on her registration by the Psychology Board of Australia (Board), pending the determination of her application to review the Board’s decision to impose conditions on her registration pursuant to section 178(2)(c) of the Health Practitioner Regulation National Law (National Law).
- [2]In summary, the schedule of conditions imposed requires the practitioner to adhere to various supervision requirements including attending upon an approved supervisor on a fortnightly basis, for a minimum of twelve sessions over a period of 6 months and for the provision to the Board of reports on the supervision. These conditions are at the practitioner’s own expense and the review period is specified as 6 months, but supervision must continue until the Board determines to remove it.
- [3]The Board determined to impose the conditions in a factual situation where, according to the applicant:
- (a)she maintained her status as a registered psychologist, but also was a registered provider of services under the National Disability Insurance Scheme (NDIS);
- (b)a complaint was made by the mother of a client she had worked with, to whom she provided one service as a registered psychologist (cognitive assessment and review report). From August 2019, the applicant maintains she was providing services solely in specialist support co-ordination and behavioural support, undertaken as an NDIS provider;
- (a)a similar complaint to that received by the Board was made to the NDIS and other agencies by the client’s mother;
- (b)the Board focused in its investigation on issues of alleged breaches of client confidentiality, failures to manage professional boundaries or to make relevant risk assessments; and
- (c)the Board erred in exclusively applying the Australian Psychological Society’s (APS) Code of Ethics (2007) and the APS’s “Ethical guidelines relating to clients at risk of Suicide and the Ethical guidelines on reporting abuse and neglect” in relation to her actions with the NDIS, without giving any recognition or acknowledgment to the requirement that the applicant adhere to the NDIS Code whilst she was working as an NDIS provider who is also a registrant with the Board.
- (a)
- [4]The applicant contends on the review that:[1]
- (a)the Board failed to take into account a relevant consideration, in failing to give any recognition or acknowledgment to the requirement for the applicant to adhere to the NDIS Code whilst carrying out her role as an NDIS provider; and
- (b)that the conditions imposed were not practical or capable of being complied with.[2]
- (a)
- [5]In the original stay application, the applicant also noted that if the stay was not granted, the Board’s conditions will have been completed prior to the review application being determined.
- [6]The Board opposes the stay application.
What is the Tribunal’s power to stay?
- [7]Section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)(QCAT Act) confers a power to stay the operation of all or part of a reviewable decision which is the subject of a review application.
- [8]The Tribunal’s discretionary power is to be exercised only if the Tribunal considers it desirable to make such an order after it has had regard to:[3]
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the Tribunal by the decision-maker for the reviewable decision; and
- (c)the public interest.
- (a)
- [9]It is also necessary for the Tribunal to have regard to the prospects of success on the underlying application and to the balance of convenience.[4] However, in these applications the Tribunal makes, at most, a preliminary view of the merits of the matter on the limited material before it. I have had regard to:
- (a)the Board’s decision to impose conditions on 21 March 2022 and its reasons for doing so are contained in the letter of 5 April 2022 which is attached to the application for review;
- (b)the application to review filed on 6 May 2022;
- (c)the application to stay the decision filed on 6 May 2022;
- (d)the respondent’s submissions in relation to the stay application filed 8 August 2022; and
- (e)the applicant’s written submissions dated 26 August 2022.
- (a)
- [10]In the occupational regulation jurisdiction, the Tribunal also assigns special significance to any public interest in granting or refusing a stay of the operation of the original decision.[5]
- [11]
What are the interests of any person who may be affected by the decision to make or not make a stay?
- [12]Ms Hendren submits in support of her application for a stay that the Board’s conditions will have been completed prior to the review being determined if no stay is granted. As at 26 August 2022 the applicant submits there was no approved suitable supervisor for her,[7] although she had been actively seeking out a supervisor for approval without success.[8] There is no affidavit material from the applicant as to what steps she has taken to endeavour to locate a suitable supervisor or difficulties she has encountered in that process.
- [13]The Tribunal infers that this is what supports the applicant’s submission that the detailed conditions have been required of her without having regard to whether the conditions were practical and capable of being complied with. In the absence of any material which sets out what the difficulties are, or what efforts have been made to comply, the Tribunal is not satisfied the applicant has demonstrated that the conditions were impractical or unable to be complied with, so as to support an application for a stay.
- [14]If the parties meet the timetable set in current directions made by consent, the review application will be listed for hearing in or after February 2023. It is possible that, if the applicant has located a suitable supervisor who has been approved by the Board some time since 26 August 2022 that at least some part of the conditions, if not all of them, will have been completed before the review application is determined. However, there is no evidence before the Tribunal as to this and the applicant’s application proceeds on the basis of the difficulty in finding a suitable supervisor. In these circumstances the Tribunal is not satisfied that this presents any proper basis for the grant of a stay.
- [15]The Board’s submission is that the conditions are not onerous, do not prevent the applicant from practising and, in any event, that the effect on a practitioner’s ability to work is not a sufficient consideration to grant a stay. Further, as the conditions do not prevent the applicant from practicing, they do not have any impact on clients or the community.
- [16]Whilst the Board accepts the applicant will expend effort, inconvenience and cost in complying with the conditions, it submits this is not sufficient to warrant the stay application succeeding. Similarly, the difficulty in finding a suitable supervisor is not a sufficient reason to stay the conditions.
- [17]It is consistent with authority that the personal impacts upon the applicant consequent upon the imposition of conditions though relevant, are not usually sufficient to warrant the grant of a stay.[9] That is the position here, in these factual circumstances. There is nothing in the applicant’s personal circumstances which militates in favour of a stay.
- [18]The Tribunal is satisfied that this factor weighs against the grant of a stay.
What does the Board submit?
- [19]As already noted, the Board opposes the stay. It submits:
- (a)its expertise should be given appropriate weight in light of its concerns as to the applicant’s ongoing performance. This is relevant when considering the incomplete nature of the material on the stay application;
- (b)the Board had particular regard to the investigation report of 2 December 2021 in forming the requisite belief and deciding to impose the conditions. Those factors included:[10]
- (i)the applicant’s level of experience and that she knew or ought to have known:
- of the harm that might flow from breaches of client confidentiality;
- of the risk involved in engaging in multiple roles and what might constitute a breach of professional boundaries;
- (ii)that the applicant’s performance as a psychologist fell below the standard expected when undertaking risk assessments; and
- (iii)the Applicant’s lack of insight into the concerns raised, her failure to document supervision said to have been undertaken subsequently and to provide evidence of change in her practices to mitigate risks to clients.
- (i)
- (a)
- [20]The submissions in subparagraph (b) are supported by the terms of the Board’s decision.
- [21]In the material before me, the applicant disputes the Board’s allegations of breaching client confidentiality or professional boundaries in accordance with the Code of Conduct as a psychologist on the basis that it did not apply to her in the context of her work with the NDIS.[11] It is plain on the face of the Board’s decision that the applicant has made some admissions in respect of breach of some aspects of client confidentiality[12] or as to factual circumstances which may support a conclusion of breach of confidentiality.[13] The issues as to professional boundaries and risk assessments are factually more tendentious.
- [22]These issues in dispute relate to adherence to practice standards, applicable codes of conduct and the adequacy of the applicant’s professional performance. Such concerns have been acknowledged to be ones which particularly involve the expertise of the relevant board and present circumstances where the Tribunal will be particularly cautious about disagreeing with the expert Board’s judgment.[14]
- [23]Further, this is an interlocutory proceeding. The Board’s decision has been informed by professional experts. There is no expert evidence filed on the application which takes issue with any aspect of the Board’s decision.
- [24]Accordingly, this factor weighs against the grant of a stay.
Where does the public interest lie?
- [25]In exercising powers under s 178 of the National Law the Board is to have regard to the object of protecting the public. That is reflected in the paramount guiding principle for administering the National Law, which is that the health and safety of the public are paramount.[15]
- [26]It is also reflected in the Policy Direction 2019-1 issued under section 11 of the National Law, the relevant part of which has been set out in [22] of the Board’s written submissions.
- [27]There is nothing in the applicant’s submissions which addresses the issue of the public interest and how it should be brought into consideration in favour of the grant of a stay.
- [28]In this application, where the issues are about adherence to practice standards, applicable codes of conduct and the adequacy of the applicant’s professional performance, the Tribunal is satisfied that the public interest considerations tell against the grant of a stay.
Does the applicant have an arguable case?
- [29]The Applicant’s submission as to the Board’s error is set out at [4] above.
- [30]The Board submits that the standards of conduct and clinical care expected of a registered psychologist operate upon a registered psychologist at all times. In the Board’s decision it referred expressly, on this point, to the obligations imposed on the applicant by Clause B12.1 of the Code. That clause sets out how psychologists are to address conflicting demands, by reference to the psychologist seeking a constructive resolution of conflict between the demands of an organisation and the provisions of the Code. As such, it would appear that in the relevant professional codes there is guidance as to how a registered psychologist should act in the event of having demands imposed upon them that conflict with their obligations under the Code and that it does so by requiring the psychologist to uphold the Code’s principles in any resolution of the conflict.
- [31]Weighing the limited submissions and material, the Tribunal is not satisfied that the merits of the case tell in favour of a stay.
Does the balance of convenience favour the grant of a stay?
- [32]A stay of the operation of a decision made under laws designed to protect the public is in a different class from cases involving the suspension of the operation of orders affecting private litigants only.[16] It is necessary to consider the balance of convenience through the prism of a decision which has been made to protect both the public and the reputation of the relevant profession.[17]
- [33]The applicant has not expressly addressed the issue of the balance of convenience. The Tribunal infers from those submissions which have been made that she relies on the practical considerations that, if successful on review, the relief may be rendered nugatory if she has undertaken all (or even some) of the mandated supervision and that the conditions are impractical and not capable of being complied with. The Tribunal has already noted the absence of any evidence as to efforts which the applicant has made to try to source a supervisor.
- [34]The Board submits there are no factors that weigh against the prioritising of the public interest,[18] that the inconvenience and cost to the Applicant is low when compared with the risk to the public of the Applicant practicing without deliberate and targeted supervision relating to matters of client confidentiality.[19]
- [35]Balancing these arguments the Tribunal is not satisfied the applicant has discharged her onus to demonstrate how the balance of convenience favours the grant of a stay.
Orders
- [36]The application is dismissed.
Footnotes
[1] Applicant’s submissions at [16] – [18] and [30].
[2] Applicant’s submissions at [30].
[3] Section 22(4) QCAT Act.
[4]Asinas v Medical Board of Australia [2020] QCAT 490 at [28]; Pluta v Medical Board of Australia [2021] QCAT 212 at [22].
[5]Lee v Medical Board of Australia [2016] QCAT 23 at [17].
[6]Magill v Queensland Law Society Inc [2019] QCAT 392 at [12].
[7] Applicant’s submissions at [29].
[8] Applicant’s submissions at [31].
[9]YXN v Medical Board of Australia [2014] QCAT 706 at [23] per Judge Horneman-Wren SC, Deputy President.
[10] Board’s submissions at [6].
[11] Applicant submissions [7].
[12] Board’s decision at [16].
[13] Board’s decision at [14].
[14]Asinas v Medical Board of Australia [2020] QCAT 490 at [25].
[15] Section 3A National Law.
[16]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [28].
[17]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [28].
[18] Board’s submissions at [27].
[19] Board’s submissions at [29].