King v Psychology Board of Australia
[2022] QCAT 423
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- Unreported Judgment
- King v Psychology Board of Australia[2022] QCAT 423
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King v Psychology Board of Australia[2022] QCAT 423
King v Psychology Board of Australia[2022] QCAT 423
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | King v Psychology Board of Australia [2022] QCAT 423 |
PARTIES: | GRAEME KING (applicant) v PSYCHOLOGY BOARD OF AUSTRALIA (respondent) |
APPLICATION NO/S: | OCR011-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 October 2022 (ex tempore) |
HEARING DATE: | 12 October 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Reid Assisted by: Dr Andrea Quinn Mr Justin Kenardy Ms Carolyn Ashcroft |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the applicant applied to the Tribunal to review a decision of the Psychology Board of Australia to refuse his registration – where the respondent opposed the application – where the applicant had previously worked as a Psychologist and found to have engaged in various instances of professional misconduct – where the applicant accepted he had previously behaved ‘appallingly and unprofessionally’ – where the applicant submitted various health assessment reports, the most recent of which detailed limited support for the applicant’s registration – whether the application should be allowed Health Practitioner Regulation National Law (Qld), s 199 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 Mahboub v Medical Board of Australia [2020] QCAT 459 Psychology Board of Australia v King [2016] QCAT 140 Shahinper v Psychology Board of Australia [2013] QCAT 593 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | M Jones, instructed by Clayton Utz |
REASONS FOR DECISION
- [1]The applicant Mr King has applied under section 199(1)(a) of the Health Practitioner’s Regulation National Law (Queensland) 2009 (“National Law”) against the decision made on 21 December 2021 by the Psychology Board of Australia. The Board refused Mr King’s application for general registration as a psychologist on the following grounds:
- (a)the applicant has an impairment that would detrimentally affect his capacity to practice the profession to such an extent that it would or may place the safety of the public at risk as provided by s 55(1)(a) of the National Law;
- (b)the nature, extent, period and recency of any previous practice of the profession by the applicant was not sufficient to meet the Board’s Recency of Practice Registration Standard, as provided by s 55(1)(f) of the National Law; and
- (c)the applicant is not a fit and proper person to hold a registration under s 55(1)(h)(i) of the National Law.
- (a)
- [2]In his application before QCAT, Mr King sought the following:
- (a)that based on the apparent improvement in my neurocognitive abilities, I should be allowed to re-enter the field of psychology or human services/welfare;
- (b)that based on the apparent improvement in my neurocognitive abilities, I should be allowed to re-enter and gain registration as a teacher and be able to gain a blue card;
- (c)that the Office of the Health Ombudsman (OHO) decision to strip me of the ability to work and/or practice in the human services/welfare field be overturned; and
- (d)that the original decision of the judge – at my court case in 2016 – be upheld. The judge stated a number of times at that court case I was legally able to continue and remain a registered teacher in Queensland.
- (a)
- [3]It is to be noted that the decision about the applicant’s ability to work as a teacher and to obtain a blue card is beyond the ambit of an application under section 199 of the National Law. It seems that the relief sought in subparagraph (c) above is a reference to the interim prohibition order of the Health Ombudsman in April 2016. Subsequently however, QCAT delivered a judgment on 4 July 2016, cancelling the applicant’s registration as a psychologist, disqualifying him from seeking registration for four years and other related orders. The applicant, on 13 July 2020, sought a review of the interim protection order of 16 April 2016. That order was, it seems to me, overtaken by the effect of the QCAT judgment and in those circumstances, the Health Ombudsman on 13 November 2020 revoked the interim protection order.
- [4]The remaining issue before me therefore concerns the matter referred to in subparagraph (a) of the application that I have set out above.
- [5]In order to appreciate the nature of the applicant’s case it is, necessary to say something about each of:
- (a)the applicant’s conduct which resulted in the orders being made in April 2016 by QCAT;
- (b)the applicant’s conduct in the period from early 2016 to date and the applicant’s submissions about his current circumstances; and
- (c)the health assessment reports, in particular, those of Associate Professor Frank Varghese, psychiatrist, and of Dr Jan Ewing, neuropsychologist, obtained in 2013 and 2014, respectively, and the more recent reports of Dr Anthony Kneebone, neuropsychologist, of 14 May and 1 July 2021.
- (a)
The plaintiff’s conduct as a psychologist
- [6]It is apparent from the judgment of Judge Sheridan in Psychology Board of Australia v King[1] that the applicant engaged in significant professional misconduct during his time as a registered psychologist. I shall refer to that conduct shortly. Furthermore, after his registration was suspended on 29 April 2013 and subsequently lapsed on 30 November 2013, the applicant continued to provide counselling services.[2] Her Honour said that the applicant engaged in a sexual relationship with a patient for approximately six months from mid 2012.[3] The patient was, her Honour found, known by the applicant to be a “particularly vulnerable person and had suffered sexual abuse as a child”. Furthermore, the applicant effectively blamed the patient for the fact of the liaison, describing her as having “raped and blackmail me” and “sexually forced herself onto me”.
- [7]This gross misconduct was seen by her Honour against a background of prior professional misconduct. The applicant then engaged in sexual misconduct with another patient which resulted in suspension of his registration in July 2014. In subsequent proceedings it was found he had breached this order by advertising himself as a psychologist and continuing his practice whilst suspended as a counsellor.
- [8]There is an additional matter of professional misconduct not mentioned in the QCAT judgment of July 2016. That is because the circumstances of this subsequent misconduct were unknown at that time.
- [9]On 9 September 2014 the applicant, while working as a counsellor, had borrowed $10,000 from a patient. The patient said this arrangement had been suggested by the applicant during counselling sessions. He also said that the applicant had only paid $700 in relation to this debt. The client’s statement is on page 160 of the trial bundle. He says the arrangement was for the loan to be repaid over a three-year period with 0.7 per cent interest and was recorded in a written loan agreement. It appears from the statement that the $700 paid was for the first one-year’s interest suggesting a loan rate of seven per cent, not 0.7 per cent. This was confirmed by the applicant during the course of oral submissions. The patient in his statement says he has lost the written agreement.
- [10]The patient attests in his statement to the attempts he has made since about 2015 to recover the money from the applicant. No further interest payments and no capital return has ever been paid.
- [11]The applicant in his submission makes no reference to this financial arrangement whatsoever. During submissions he asserted to me that the fact he had paid the client no money, other than the initial $700, was due to his impecuniosity and this was in turn due to his inability to practice as a psychologist or counsellor. He did say to me, however, that at the time of his entering into the arrangement in September 2014 he was financially desperate due to pressure from others who had lent him money. He said he used the $10,000 loan from the client to repay these earlier loans. In effect, it seems to me, he was merely buying some time by using this client’s money lent to him to repay other earlier lenders. This would inevitably have eventually led to similar pressures from his client as the demands of that loan became more pressing. He was at that time under financial pressure and also having matrimonial difficulties. He must have known the client was lending to someone in a desperate financial situation.
- [12]Nothing whatsoever was put before me about his financial circumstances to explain why he might have thought there was any realistic prospect of repaying his former client at the time he entered into that arrangement. Nothing was put before me to indicate why he received nothing from the matrimonial settlement, if that is in fact the case, as he asserted. Nothing was put before me to explain why that transaction with his client should be viewed with anything but real suspicion. In short, there is nothing to ameliorate my concerns about his suitability to be a professional advisor.
Applicant’s Conduct since QCAT Judgment
- [13]The applicant’s submission was very largely based on his view, expressed in his submissions, that since the making of the order by QCAT he has taken steps to become “a secure and able person” who is trustworthy and fit and able to work as a psychologist. He submits he now has “increased insight and improved cognitive and neurocognitive functioning”.
- [14]He accepts that in the past he has “acted and behaved appallingly and unprofessionally” but says that he has now “learnt…how to prevent any unprofessional actions”.
- [15]In this regard he says:
- (a)he has had time to reflect and analyse his past conduct;
- (b)he has undertaken study to understand more fully his misconduct, including, a Graduate Certificate in Disability Studies and a Master of Education (cognitive psychology). Nothing was put before me as to the precise content of these courses;
- (c)he takes full responsibility for his past professional misconduct;
- (d)he underwent “a four-hour long battery of neuropsychology examinations and tests in June 2021 when he saw Dr Kneebone which he says demonstrated his cognitive deficits to appear to be “within the bounds of normality”, and were “generally less severe than those reported by Dr Ewing in 2014 and on occasions were not apparent at all”. He noted Dr Kneebone’s “guarded opinion that he is minimally fit for re-registration”; and
- (e)that the test results obtained by Dr Kneebone show he is “now functioning much more effectively on a cognitive and neurocognitive level”, and show he has “improved” to “safe and normal” levels, such that Dr Kneebone now “believes that I could practice psychology once again”.
- (a)
Health Assessment Reports
- [16]In view of the passage of time since the reports of Dr Varghese and Dr Ewing were obtained, those of Dr Kneebone appear to be of very significant relevance.
- [17]But the earlier reports are still of real significance. They spoke of the applicant suffering a head injury when he was about 20 in a motorcycle accident, and it appears clear that the brain injury suffered by the applicant was a significant one. Dr Varghese said however, that reports he had seen showed that the applicant’s attention, concentration and short-term memory were intact. He said his testing of frontal lobe function showed no obvious disorder and he suggested neuropsychological testing. He said if the applicant did have frontal lobe dysfunction it was “difficult to see how he could work as a psychotherapist, given the critical importance of good executive functioning”.
- [18]I note Dr Varghese had been provided with a copy of a report of Dr Ewing of 16 November 2004. I do not have that report, but the parties have agreed on the admission of Dr Varghese’s report. Dr Varghese comments that deficits identified by Dr Ewing were “very typical of frontal lobe dysfunction” but notes “several important frontal lobe functions are preserved”. He notes, consistently with Dr Ewing’s observation, that “tests for frontal lobe function are confirmatory as against diagnostic and the best indication of frontal lobe function is observed behaviour”.
- [19]In that context Dr Varghese opines that the two serious breaches of the applicant’s professional standards involving sexual conduct with patients, and his then blaming of the female patients for what occurred, reflect frontal lobe dysfunction secondary to a severe head injury when he was 20. Dr Varghese opined that the applicant ought not practice as a psychotherapist or a counsellor and “certainly not in individual practice in private”. He said “he may be able to work in a team setting during some case management under supervision”. He said he could perhaps also do psychological testing under supervision.
- [20]Dr Ewing provided a further written report of 24 February 2014. She noted that in her earlier report, referred to by Dr Varghese, she had opined that the applicant’s “professional knowledge was considered unlikely to adequately mitigate (his) difficulties given evidence of a disassociation between knowing and doing in his protocol”. Importantly Dr Ewing concluded that the applicant had only a superficial understanding of the factors which contributed to his unprofessional sexual misconduct. She describes a lack of insight and a “tokenistic gesture” regarding his own responsibility.
- [21]Interestingly, in view of his submissions before me, she also said he:
- was able to provide lip service to ideas that he is responsible, culpable and remorseful. This appeared to reflect his awareness of this being the socially or professionally accepted stance rather than a genuine understanding of the nature and seriousness of his misconduct.
- [22]I have emphasised this part because it is of significant importance in the assessment of the submissions before me.
- [23]It appears to me that this is an issue I have to consider in view of his submissions, earlier set out, that he is now accepting full responsibility for the earlier transgressions. It is in that light that the issue of his borrowing money from a client and not paying interest or repaying the debt over some seven years takes on importance in assessing the genuineness of his expressed change in perception and understanding related to the sexual abuse of his clients.
- [24]Against that background the reports of Dr Kneebone are to be considered. Dr Kneebone conducted a battery of tests over almost four hours as earlier referred to. He reported mild deficits which in his opinion were not sufficient to categorically deem him incapable of safely and effectively practising psychology.
- [25]Dr Kneebone accepts the deficits the applicant does have may be:
- ...magnified in the busy and demanding real world environment of clinical practice
- and said he considers: registration should only be granted on the proviso that he works under close supervision.
- He said the applicant’s mild neurocognitive deficits have the:
- ...potential to have a detrimental impact on his ability to practice psychology.
- He also opined that these deficits are:
- ...not of sufficient severity and scope to outright deem him incapable of safely and effectively practising psychology.
- [26]He said that reregistration should, however, only occur in the setting of direct supervision. He said the form of this supervision should involve the applicant (i) following the directions of a supervisor about management of each patient and (ii) being directly observed by the supervisor who must be physically present at all times.
- [27]He said that such supervision should contain for at least six months full-time practice equivalent in a board-approved position. Thereafter, he said the position should be reviewed by the board.
- [28]In a subsequent report, Dr Kneebone identified two issues relevant to consideration of the applicant’s suitability for reregistration as a psychologist. The first was the effect of neurocognitive deficits on his ability and competence to technically undertake his necessary professional duties. The second issue concerned his risk of engaging with patients in an appropriate manner. It was, of course, this latter matter which resulted in his twice engaging in a sexual relationship with clients and his borrowing and failing to repay moneys to a client. In my view, similar issues are relevant to his practising when he had been precluded from doing so.
- [29]Importantly Dr Kneebone said the opinions set out in his first report, which I have earlier summarised, were quite heavily based on his consideration of the first matter of the two set out above, that is, whether he was competent to technically work as a psychologist because of the applicant’s improved neurocognitive function. In relation to that first matter he gave:
- ...my guarded opinion that he is minimally fit for reregistration.
- [30]Dr Kneebone said in relation to the second matter, that because the applicant was able to apply for registration, he assumed AHPRA:
- ...were satisfied that he did not pose an acceptable risk in relation to professional behaviour or conduct.
- [31]In such circumstances, he said he did not weigh that matter heavily in forming his “guarded opinion”. He said that:
- Beyond observing that Mr King engaged with me in an entirely – appropriate manner throughout, I do not feel I have the necessary expertise to formulate an opinion on the likelihood of him again engaging in an appropriate conduct.
- [32]He also said that in expressing his opinion, he was cognisant of:
- The regulatory concepts endorsed by the National Scheme by using the minimum regulatory force to minimise risk.
- [33]In such circumstance, he expressed his limited support for the applicant’s registration earlier outlined.
- [34]Dr Kneebone then appropriately outlined the findings he made on neurophysiological examination, which indicate some change in his functioning since the time of Dr Ewing’s broadly similar examination.
- [35]Because of the view I have taken in the matter, it is unnecessary to examine those issues.
- [36]I have formed the strong view that it would be inappropriate to allow Mr King to be registered, even in the limited way suggested by Mr Kneebone, because of the second of the two issues set out in Dr Kneebone’s second report. It was of course, as I said, this issue which twice led him to engage in the sexual misconduct I have referred to. [37] I do so, having regard to the matters I have set out earlier and in circumstances where section 3A of the National Law provides that the main principle for administering the Act is that the health and safety of the public is paramount. In this regard, I am referred by counsel for the Board to two decisions Shahinper v Psychology Board of Australia,[4] and Mahboub v Medical Board of Australia.[5]
- [38]Both of those decisions speak of the primacy of protection of the public, having regard to section 3A of the National Law. But they also speak of the impact of conditions on a practitioner, and the need to impose conditions which are the least onerous, consistent with public protection.
- [39]The decision of Judge Sheridan on 4 July 2016 to cancel the applicant’s registration and to disqualify him from applying for re-registration for a period of four years was very strongly influenced by the applicant’s inappropriate sexual conduct towards two clients, and the risk of his engaging in similar conduct in the future.
- [40]Her Honour was unaware of the further conduct of the applicant in relation to the borrowing of money from another client whom he saw as a “counsel” to advise about planning for and achieving life goals, and not necessarily confined to financial goals. It is a feature of this arrangement, entered into in September 2014 that only one year’s interest has been paid by the applicant, and no repayment of capital.
- [41]This does, in my opinion, not sit well with the applicant’s submission that as a result of his personal reflection, further study, and cognitive improvement, he accepts he has, in the past, acted unprofessionally but now has insight into such matters and regrets his past conduct. That regret does not extend, it seems, to readily acknowledging the debt he owed to his former client or to the circumstances of his entering into that arrangement. Indeed, he makes no reference to that at all in his written submissions, or in any material filed in these proceedings.
- [42]Dr Varghese observed that most tests for frontal lobe function are confirmatory as against diagnostic, and the best indication of a frontal lobe dysfunction is observed behaviour. Dr Kneebone accepted that the deficits he does have may be magnified in a busy and demanding real-world. That is self-evident, in my opinion.
- [43]My impression of the applicant during the hearing did not cause me to conclude he had a sophisticated understanding of his breach of responsibilities to his three former clients, which would be surprising in a psychologist who had proper capacity to practice in his profession. It was for this reason that I emphasise the observations of Dr Ewing concerning his “tokenistic gesture” and paying “lip-service” to his culpability and remorse.
- [44]The applicant’s submission that he has, through reflection, study and the passage of time, with possible improvement in brain function through neuroplasticity, does not cause me to conclude that he would not remain a significant risk to members of the public if he were to be re-registered as a psychologist, even under the supervision suggested by Dr Kneebone. I note that in the past the applicant has met clients away from his professional rooms. There is little to preclude the possibility he could similarly engage with clients, either for the purposes of a sexual or financial arrangement or otherwise, via the phone, internet, or in some other manner.
- [45]I conclude that to allow him to be registered would be incompatible with the requirements of section 3A of the National Code. To allow registration, even supervised as Dr Kneebone suggested may be possible, it appears, to me, gives primacy to the applicant’s right to practice, rather than the health and safety of the public.
- [46]I accept, generally, the submissions of Mr Jones concerning what he identified as the “Suitability ground”.
- [47]On that basis, the application is dismissed.
- [48]I should add that whilst not needing to decide the issue because of the view I have taken about the suitability ground, I remain at least sceptical about Dr Kneebone’s view that the applicant is clinically competent and technically able to undertake professional clinical practice. I note Dr Kneebone’s assessment about this issue was, at best, guarded, and required a level of supervision which might well have been so onerous as to effectively preclude the applicant from any practical ability to practice.
- [49]It is, as I have said, unnecessary to decide this issue or that identified by the Board’s counsel as the “Recency Ground” because of the view I have taken about the suitability ground, which is, the second issue identified by Dr Kneebone in his report of 1 July 2021 and described by Mr Jones in his submissions as the suitability ground.
Orders
- [50]The order of the Tribunal is that pursuant to section 24 (1)(a) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal confirms the decision of the respondent dated 21 December 2021.