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NPD v Psychology Board of Australia[2024] QCAT 203

NPD v Psychology Board of Australia[2024] QCAT 203

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NPD v Psychology Board of Australia [2024] QCAT 203

PARTIES:

NPD

(applicant)

v

psychology board of australia

(respondent)

APPLICATION NO/S:

No. OCR 209 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 May 2024 (ex tempore)

HEARING DATE:

24 May 2024

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the following is prohibited:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal; and
    4. any other information;

to the extent that it could identify or lead to the identification of the applicant, any patient of the applicant, any family member of any patient of the applicant or that it relates to the health or treatment information of any patients of the applicant.

  1. Order 1 does not apply to publication to the extent it is for the purposes of the respondent performing its statutory functions under the Health Practitioner Regulation National Law (Queensland), including its functions under ss 206, 206A and 232.
  2. Any material affected by order 1 shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate appointed under the:
      1. (i)
        Supreme Court Act 1991;
      1. (ii)
        District Court Act 1967;
      1. (iii)
        Land Court Act 2000; or
      1. (iv)
        Queensland Civil and Administrative Tribunal Act 2009;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to this proceeding.
  1. Pursuant to s 48(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the proceeding is dismissed.

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Davies, Solicitor of MinterEllison

REASONS FOR DECISION

What is the application being heard?

  1. [1]
    The respondent, which is the Psychology Board of Australia (‘Board’), seeks an order dismissing the proceeding.  The underlying proceeding is an application by the applicant, NPD to review a decision of the Board made on 28 July 2023 to impose conditions on her registration as a psychologist, because the Board formed the reasonable belief under section 178(1)(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), that the way that the applicant practices her profession is unsatisfactory. 
  2. [2]
    It decided to impose conditions under section 178(2)(c) of the National Law, requiring the practitioner to complete an education program, including a reflective practice report in relation to psychological assessment and professional responsibility, intellectual development disorders and accuracy of reporting.  The program required a minimum of 12 hours over an eight-month period and there were ancillary conditions which support the education condition.

What is the underlying proceeding about?

  1. [3]
    The Board decided to impose conditions, because, in summary:
    1. it had received a notification that identified multiple concerns about the applicant’s performance in relation to alleged:
      1. (i)
        inadequate clinical care;
      2. (ii)
        inadequate treatment; and
      3. (iii)
        record keeping and documentation;
    2. the practitioner had advised she was unable to respond to the proposed action due to personal circumstances;
    3. the practitioner had responded to the notification, outlining the steps she took to assess a patient for a psychological assessment report and provided a clinical rationale for the diagnosis;
    4. that response lacked recognition, in the Board’s opinion, of the proper application of a criterion in the DSM-5 needing to be met before a diagnosis could be given;
    5. the practitioner’s response did not demonstrate appropriate reflective practice in the area of NDIS service delivery, as it did not demonstrate that the patients are vulnerable children and parents and how she deals with bias, effectiveness and objectivity in her role to avoid harm to future patients;
    6. the practitioner’s interpretation of the Vineland score was considered to be below standard, as it inaccurately extended test results to be equated to a diagnosis in the particular case; and
    7. the practitioner was unable to reflect on her practice to demonstrate to the Board’s satisfaction that there was no risk proposed by her practice of the profession to future patients.
  2. [4]
    In her application for review, the patient contends, in summary, that her psychological assessment of the patient, who was a nine year old child, met the Australian Psychological Society’s guidelines for psychological practice and the ethical guidelines for psychological assessment and the use of psychological tests. 
  3. [5]
    The practitioner has failed to provide any material in support of her application for review, which means the Tribunal cannot make any initial or high-level assessment of whether the review application has any prospects.
  4. [6]
    The practitioner, who has appeared by telephone today, opposes the Board’s application to dismiss her proceeding.  She makes three key submissions:
    1. First, that the conditions that the Board has imposed on her are not capable of being complied with.  There is no evidence of that before the Tribunal;
    2. second, that if she had had an extension of time prior to Ahpra making the decision she now appeals from, she would have provided a further submission.  The material in the s 21(2)(b)[1] bundle provided by the Board shows that there was an extensive submission filed by lawyers acting for the practitioner on 13 March 2023, which was a 13-page letter with attachments.  It also shows that the practitioner was offered an opportunity to provide a further verbal response in the investigation, but it appears that that opportunity was not taken up; and
    3. third, that the practitioner has indicated today she is unable to say when she will be able to comply by providing any material to progress her application.  She says that is because she is overwhelmed by having to respond to a separate disciplinary referral brought by the Office of the Health Ombudsman in respect of completely different factual circumstances, and that she has other difficulties that are ongoing in her life, including difficulties with her hand.
  5. [7]
    In that regard and out of fairness, recognising that the practitioner acts for herself, the Tribunal notes it is aware that in disciplinary proceedings brought by the Health Ombudsman against the practitioner about other matters, in May 2023 the practitioner provided some material in support of an application for a significant extension of time to respond to that referral, because surgery was required to her left wrist consequent upon a sporting accident sometime in late 2022.  The practitioner submitted at that time in that referral, that made typing difficult.
  6. [8]
    On that material, the practitioner submitted there was a need for a 12-week period of time off work post-surgery, and that full recovery was anticipated after 12 months.  The Tribunal observes in dealing with this matter that 12 months has elapsed since that material was provided and the practitioner has not provided any updated material or, indeed, any material in this proceeding about difficulties arising from the position with her hand that would inform her noncompliance.

What are the Tribunal’s powers in relation to dismissal?

  1. [9]
    On a review hearing, a party has an obligation to assist the Tribunal to determine whether the Board has made the correct and preferable decision.[2]  Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides relevantly:
  1. This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
  1. not complying with a Tribunal order or direction without reasonable excuse; …
  1. [10]
    The Tribunal may, in those circumstances, if the party causing the disadvantage is the applicant for the proceeding, order that the proceeding be dismissed or struck out.[3] 
  2. [11]
    To succeed in an application under s 48, the Tribunal requires:

Clear and cogent evidence of contemptable or disruptive behaviour by a party, aimed at intentionally or recklessly interrupting or preventing the appropriate adjudication on the merits of a matter before the Tribunal.  Generally, both parties to a dispute have a right to present their cases as they see fit without inappropriate interference.  It will rarely be the case that that right to be heard is truncated without very clear evidence of a party’s contumelious disregard of their obligations as a party before the Tribunal or the opponent’s rights to a fair hearing.[4]

  1. [12]
    That statement of principle was made in the context of considering a summary judgment application in a building matter. 
  2. [13]
    The power to dismiss a proceeding ought to be exercised sparingly and the Tribunal must also consider as set out in s 48(3) of the QCAT Act:
  1. the extent to which the party causing disadvantage is familiar with the tribunal’s practices and procedures;
  1. the capacity of the party causing the disadvantage to understand and act on the Tribunal’s orders and directions; [and]
  1. whether the party causing the disadvantage is acting deliberately.
  1. [14]
    In this case, the Board submits, firstly, that the practitioner has failed to prosecute her own review application.  She has failed to comply with Tribunal directions to file the necessary material to enable the Board to respond to her application and to enable the Tribunal to ultimately determine it on its merits.  The Board submits the practitioner has repeatedly failed to comply with the Tribunal’s directions to file material in support, requiring the Board to seek new directions hearings from the Tribunal, and requiring the Tribunal to order new directions hearings on several occasions, providing for filing of the material in support.
  2. [15]
    The Board submits the practitioner:
    1. has delayed the conduct of the review for almost five months as a result of not filing her material in support of her application;
    2. has failed to communicate with the Board, despite multiple attempts by the Board to communicate with her;
    3. has failed to respond to an application for a non-publication order, filed by the Board in November 2023;
    4. has failed to engage substantively with correspondence from the Tribunal;
    5. failed to attend the 9 February 2024 directions hearing; and
    6. failed to file her material in support of the application and any further material in support of her application by 16 May 2024 as was directed by the Tribunal on 9 May 2024 — a direction made in response to her application for an extension of time, dated 24 April 2024, to file that material, because she had failed to file the material by 22 April as was ordered on 23 February 2024.
  3. [16]
    The consequence of her failure to file material by 16 May 2024 was, as was set out in the directions of 9 May 2024, that the Board was permitted to bring the present application, which it has done, in accordance with those directions.  The practitioner has failed to file any material she relies on to oppose the dismissal application by 21 May 2024, as she was directed to do on 9 May 2024.  There is no material from the applicant today.
  4. [17]
    All the submissions which the Board makes about the practitioner’s failures to progress the review are supported by the evidence as will be apparent from the matters that I set out below.
  5. [18]
    A failure to file evidence in support of an application, despite having numerous opportunities to do so, creates disadvantage to the other party.[5]  The practitioner’s failures to comply are unexplained or largely unexplained. 
  6. [19]
    In these circumstances, the Tribunal is satisfied that the Board has been unnecessarily disadvantaged by the practitioner’s conduct.  This enlivens the Tribunal’s discretion to consider whether to dismiss the review application or not.

Should the Tribunal exercise its discretion to dismiss the proceeding?

  1. [20]
    The application to review the decision was filed on 28 August 2023.  Since then:
    1. on 20 November 2023, solicitors then acting for the practitioner provided by email documents in the practitioner’s possession relevant to the treatment and assessment of the patient the subject of the report;
    2. directions were made for the practitioner to file and serve material relevant to the application and expert evidence by 13 October 2024.  When those directions were made, two months was allowed for the provision of the material, which was a significant amount of time, the application having already been on foot for six weeks;
    3. No material was filed;
    4. further directions were made for the practitioner to file and serve material on 8 January 2024 and 23 February 2024 (the practitioner having failed to attend a directions hearing, which was set down on 9 February 2024) and further directions were again made, as I have set out, on 9 May 2024;
    5. despite these numerous sets of directions, the practitioner has not filed and served any material in support of her application for the review.  As such, apart from provision of some documents on 20 November 2023, there has been no progress of the application for the review for approximately nine months; and 
    6. the practitioner has not explained her failure to comply with the directions.
  2. [21]
    Further, the practitioner has been unresponsive to the Board’s attempts to communicate with her:
    1. on 25 January 2024, the Board applied for directions, having been unable to get a meaningful response from the practitioner about what should happen with the proceeding.  The Board had emailed her on 22 January 2024 at the email address provided as her contact email by her former solicitors, asking her:
      1. (i)
        if she could confirm if she intended to file any material or if she required further time, if she could propose appropriate dates; and
      2. (ii)
        her response to its application for non-publication orders;
    2. on 14 February 2024, in accordance with the Tribunal’s directions to do so, the Board sent by email and registered post:
      1. (i)
        directions of 9 February 2024;
      2. (ii)
        correspondence; and
      3. (iii)
        directions it proposed should be made at the directions hearing on 23 February 2024;
    3. on 19 February 2024, solicitors for the Board telephoned the practitioner on the telephone number previously provided to Ahpra, with the call ending in an automated message that the user was busy.  That same day, the solicitors also made a call to the practitioner on a landline she had provided to Ahpra, which ended in an automated message that the call could not be connected.  That same day, their solicitors also telephoned the practitioner on another mobile, which she had previously provided to Ahpra — she later informed the Tribunal on 23 February 2024 this was her personal number.  That call went through to voicemail and the solicitor left a message asking her to call.  That was not responded to;
    4. on each of 20 and 21 February 2024, solicitors for the Board again telephoned the practitioner on her personal mobile number, which rang out to voicemail, and they left a message asking her to call them and leaving the telephone number.  Neither message was not responded to;
    5. On 23 February 2024, the practitioner attended the directions hearing.  At that time, the practitioner said:
      1. (i)
        she had gastro on 9 February 2024 and had sent a message through.  The Tribunal notes it did not receive any message from the practitioner;
      2. (ii)
        she had lost her lawyers and had not worked or had any income since the middle of 2023 and the last round of surgeries on her arm; and
      3. (iii)
        she would be able to provide her material by 22 April 2024, in response to being expressly asked when she could provide her material.
  3. [22]
    As a consequence, the Tribunal made a direction for the practitioner to provide her material in support of her application by 22 April 2024.  Notwithstanding that, the practitioner:
    1. did not comply with the direction to file her material by 22 April 2024;
    2. did not file an application to extend the time supported by any evidence by 22 April 2024 when the material was due;
    3. filed an application for an extension of time for two weeks to file her material dated 24 April 2024, and it stated no more than:

Due to unrelated private and personal matters, I’ve been unable to meet the timeframe set by Judge Dann on 23 February 2024 at the last directions hearing.

  1. [23]
    There was no evidence of what the unrelated private and personal matters were.  In any case, the Tribunal gave the practitioner a further extension until 16 May 2024 to file and serve her material.  The practitioner did not comply with that direction. 
  2. [24]
    Relevantly, too, the practitioner has not communicated with the Board’s solicitors since 23 February 2024, when she sent an email confirming her current email, phone and postal contact details.  That includes failing to respond to:
    1. an email of 19 April 2024;
    2. a message left on her voicemail asking her to call; and
    3. an email of 1 May 2024, asking for her urgent, substantive response about her filing of material and her attitude to the non-publication order, and foreshadowing that, in the absence of a substantive response, an application to dismiss the proceeding would be made.
  3. [25]
    In that regard, the Board’s solicitors provided to her the terms of the email, which they indicated they would send to the Tribunal, copied to her, if she did not respond. 
  4. [26]
    There is no material before the Tribunal which affords the practitioner any excuse for her ongoing failure to comply with the Tribunal’s directions, let alone any reasonable excuse for her failing to do so.  The Board’s material also confirms that the Board has limited financial resources, with its functions being largely funded by practitioner’s fees, and that it has expended significant resources attempting to engage the practitioner, preparing applications and attending directions hearings, all without any substantive progress of the proceeding.

The factors in s 48(3) of the QCAT Act

  1. [27]
    In considering the factors in s 48(3) of the QCAT Act, the Tribunal acknowledges:
    1. the practitioner currently acts for herself, having been represented by solicitors when the application was filed through until 15 January 2024.  The practitioner has tertiary qualifications.  The matter did not progress in any substantive way whilst the solicitors were acting for her and, indeed, there was a complete failure to respond to the Board’s application for non-publication orders, seeking to protect the identity of the practitioner’s patients and the health or treatment information, for approximately two months from when the Board’s application was made to when the practitioner’s solicitors ceased to act.  Such applications are usually uncontroversial;
    2. whilst the Tribunal accepts the practitioner may not be particularly familiar with its practices and procedures, at the directions hearing on 23 February 2024, the practitioner informed the Tribunal that LawRight had broken down for her what she needed to do next and explained that she needed to file some documents.  The practitioner was afforded time to do that, the time that she said she would require;
    3. the Tribunal is satisfied that the practitioner can understand and act on the Tribunal’s directions.  She complied with the direction to provide her current contact details in the directions hearing of 23 February 2024.  Further, in her application to extend time dated 24 April 2024, the basis for the extension was said to be “unrelated private and personal matters” which had caused her to be unable to comply.  As I have already noted, the time fixed at the directions hearing on 23 February 2024 was fixed in accordance with the practitioner’s submission to the Tribunal of what she could achieve.  The Tribunal observes that the practitioner has successfully acted for herself in other matters before it; 
    4. as to whether the practitioner is acting deliberately, at the directions hearing on 23 February 2024, the Tribunal said the following to the practitioner:

I’ve seen correspondence and the efforts that the Board took to contact you, [NPD], and you need to understand that you are the applicant in this proceeding.  So it’s really your responsibility to progress the matter, to take steps to progress the matter, and if you’re finding that you’re struggling to do that, you need to communicate with the Board about that and the Tribunal about that.  You can’t just not answer your phone, not return messages, not answer emails.  That’s just not acceptable.

Notwithstanding that, as the evidence from the Board’s solicitors shows, the practitioner has wholly failed to communicate with the Board about her failure to comply with the Tribunal’s directions of 23 February 2024 and the provision of her material.  The Tribunal concludes the practitioner’s ongoing failure to comply with her obligations to progress her matter is deliberate in those circumstances.

  1. [28]
    The Tribunal expects that when parties engage in the review process, that they endeavour to assist the Tribunal through provision of material that might enable the Tribunal to make the decision that they contend for.  The practitioner has failed to do that and has repeatedly failed to keep the Tribunal and the Board informed about reasons for her failure and her anticipated further time for compliance.  In this matter, the Tribunal is satisfied that there is clear evidence that the practitioner’s conduct is disruptive behaviour aimed at, at least recklessly, interrupting or preventing the appropriate adjudication on the merits of the matter before the Tribunal.
  2. [29]
    The Tribunal has as its objects to deal with matters before it in a way that is accessible, fair, just, economical, informal and quick.[6]  Its statutory functions include that it must ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as it is consistent with achieving justice.[7]
  3. [30]
    To permit the practitioner to continue to fail to comply with directions of the Tribunal and to continue to refuse to communicate with the Tribunal and the Board, in circumstances where she has stated today she can give no indication of when she may be able to comply and progress the matter, is inconsistent with the objects of the QCAT Act. 
  4. [31]
    The Tribunal will make an order that, pursuant to s 48(2)(a) of the QCAT Act, the proceeding is dismissed.

Non-publication order

  1. [32]
    At the hearing, the applicant made an oral application for the non-publication order sought by the respondent which covered patients of the applicant and their family members, be extended to cover herself.
  2. [33]
    The respondent did not oppose the extension of the non-publication order to include the applicant.
  3. [34]
    I have acted to dismiss the proceeding because of the applicant’s complete failure to progress it.  There is some evidence about physical disability.  It is not particularly current, but it may be thought to be something that might attach, in some way, to s 66(2)(b) of the QCAT Act, and the applicant has made submissions about her mental health, which whilst they are unsupported by evidence, I do not have difficulty accepting.  In circumstances where there has been no substantive determination on the merits, all that will be published in the context of this matter would be a decision to dismiss the proceeding for the practitioner’s failure to progress it.  It does not seem to me that there is any need — if one is talking about any relevant understanding within the profession about how people should behave — that the applicant’s name is published as a part of the publication of any reasons for the dismissal.
  4. [35]
    I am prepared to extend the non-publication order to cover the applicant, as well as to cover the applicant’s patients and their family members.

Orders

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the following is prohibited:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal; and
    4. any other information;

to the extent that it could identify or lead to the identification of the applicant, any patient of the applicant, any family member of any patient of the applicant or that it relates to the health or treatment information of any patients of the applicant.

  1. Order 1 does not apply to publication to the extent it is for the purposes of the respondent performing its statutory functions under the Health Practitioner Regulation National Law (Queensland), including its functions under ss 206, 206A and 232.
  2. Any material affected by order 1 shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate appointed under the:
      1. (i)
        Supreme Court Act 1991;
      2. (ii)
        District Court Act 1967;
      3. (iii)
        Land Court Act 2000; or
      4. (iv)
        Queensland Civil and Administrative Tribunal Act 2009;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to this proceeding.
  1. Pursuant to s 48(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the proceeding is dismissed.

Footnotes

[1]  Of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[2] Shaw v Queensland Building and Construction Commission [2016] QCAT 206 (‘Shaw’), [11].

[3]  QCAT Act s 48(2)(a).

[4] Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552 (‘Goldfield Projects’), [15].

[5] Shaw (n 2), [23].

[6]  QCAT Act s 3(b).

[7]  Ibid, s 4.

Close

Editorial Notes

  • Published Case Name:

    NPD v Psychology Board of Australia

  • Shortened Case Name:

    NPD v Psychology Board of Australia

  • MNC:

    [2024] QCAT 203

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    24 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552
1 citation
Jump To
Cite 1 - [2014] QCAT 552
Shaw v Queensland Building and Construction Commission [2016] QCAT 206
1 citation
Jump To
Cite 1 - [2016] QCAT 206

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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