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Psychology Board of Australia v Polata[2024] QCAT 339

Psychology Board of Australia v Polata[2024] QCAT 339

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Psychology Board of Australia v Polata [2024] QCAT 339

PARTIES:

Psychology Board of Australia

(applicant)

v

Melanya Polata

(respondent)

APPLICATION NO/S:

OCR 63 of 2024

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Ms R Geddes, Psychologist Panel Member

Dr T Lowry, Psychologist Panel Member

Mr P Glazebrook, Public Panel Member

ORDERS:

  1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), with respect to ground 1 and ground 2 of the referral taken as a whole, the respondent has behaved in a way that constitutes professional misconduct; and
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a provisionally registered psychologist employed at a corrections centre – where the respondent engaged in boundary violations with an inmate she was treating – where the respondent disregarded instructions from her supervisor to cease contact with the inmate – where the matter proceeds by way of agreed facts, findings and determinations – professional misconduct and reprimand

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Veltmeyer [2021] QCAT 77

Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

Medical Board of Australia v Martin [2013] QCAT 376

Psychologists Board of Queensland v Robinson [2004] QCA 405

Psychology Board of Australia v Bonola [2022] VCAT 1038

Psychology Board of Australia v Cameron [2015] QCAT 227

Psychology Board of Australia v Dall [2011] QCAT 608

Psychology Board of Australia v Duangpatra [2012] QCAT 514

Psychology Board of Australia v Spring [2015] QCAT 314

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    These disciplinary proceedings were referred to the Tribunal by the Psychology Board of Australia (Board) on 18 March 2024. The parties filed a statement of agreed and disputed facts dated 10 May 2024 and, thereafter, a supplementary statement of agreed facts, findings and determinations dated 19 June 2024.  They have agreed all facts and agreed to the proposed characterisation of the respondent’s conduct and determinations.  The Board has filed submissions and an email dated 12 August 2024 to the Tribunal from the Board, copying in the respondent’s representative, confirms that the respondent does not wish to file written submissions beyond her response.
  2. [2]
    In those circumstances the Tribunal has proceeded to deal with the matter on the papers in accordance with s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [3]
    It is, of course, for the Tribunal to ultimately determine characterisation and sanction, although the Tribunal ought not readily depart from an agreement unless it falls outside a permissible range bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[1]
  4. [4]
    The respondent was, at all times material to the allegations the subject of the referral, a provisionally registered psychologist under the Health Practitioner Regulation National Law (Queensland) (National Law).

The conduct the subject of the referral 

  1. [5]
    The two allegations in the referral allege a boundary violation with a patient (Patient A) and inadequate record keeping, the particulars of which relate to occasions with Patient A which also form, part of allegation one.
  2. [6]
    The respondent was employed as a provisional psychologist and worked for approximately eight months in 2019 for Queensland Corrective Services (QCS) at an adult male prison.  The respondent practised under the Acting Senior Psychologist at the prison (Supervisor).
  3. [7]
    Patient A was a prisoner at the prison during that eight month period. At some time early in 2020 he was transferred to another prison. Patient A’s medical history included self-harm, suicide attempts, violent/aggressive behaviours, domestic and family violence, problematic substance abuse and personality disorders.
  4. [8]
    Approximately six and a half months into her employment, the Supervisor advised the respondent not to maintain any contact with Patient A, including because Patient A was becoming fixated with the respondent, had been requesting visits only from the respondent and had demonstrated coercive and manipulative behaviours in the past.
  5. [9]
    Notwithstanding this advice, the respondent conducted a welfare check on Patient A about a week later, after which the Supervisor again advised her not to maintain any contact with Patient A.
  6. [10]
    During the same month as this occurred, Patient A’s mother contacted the respondent over social media and the respondent gave Patient A’s mother her personal telephone number and details of the psychology practice where she was completing her internship.
  7. [11]
    About 10 days later, the Supervisor again advised the respondent not to have any contact with Patient A, after the respondent approached the Supervisor with concerns about Patient A. The respondent was advised to raise any further concerns about Patient A with the Supervisor. Notwithstanding that, at about that time the respondent conducted a mental health assessment on Patient A. The next day the Supervisor told her that Patient A had specifically requested contact with the respondent and had yelled for her during an incident. The Supervisor told the respondent not to have any contact with Patient A.
  8. [12]
    Notwithstanding this, the respondent subsequently spoke to Patient A on three occasions and visited him on one of those occasions over about a 12 day period. On a fourth occasion, when the respondent visited Patient A and spoke to him, she confirmed he could see her once he was released into the community and gave him some sheets of paper.
  9. [13]
    That same day the Supervisor asked the respondent if she had had any contact with Patient A that day and the respondent said she had not had any contact and that the colleague who reported the contact was joking and/or lying. Three days later the respondent told the Supervisor that she had, in fact, seen Patient A on that day.
  10. [14]
    The next day the respondent resigned from her position with the prison.
  11. [15]
    On an unknown date (whilst still employed at the prison) the respondent wrote a typed letter to Patient A, which was located in his cell, and which, amongst other things, contained the following statements:

I need you to understand that the upper management in this place have restricted me from having any contact with you and, in the last week l have had a lot of trouble with trying to justify to them why I have spent time with you in the first place…

…I know I said I would help you in dealing with so many of these, and I promise that I will. It's just not going to be here. You have so much love and support around you. You are blessed. Don’t take them for granted…

…I will never turn you away. I would never say no to somebody reaching out and wanting to not only get help but be a part of my life. And I promise that.

  1. [16]
    In early 2020, Patient A’s mother contacted the respondent and told her Patient A was not coping. Patient A had been hospitalised due to self-harm (cutting).
  2. [17]
    Over an approximate three month between March and June 2020 Patient A dialled the respondent’s personal telephone number 49 times.
  3. [18]
    In a telephone call early on in that period, when Patient A had called the respondent he:
    1. said to her:
  1. “I love our friendship”;
  2. “I haven’t stopped thinking about you”; and
  3. “I miss you”;
  1. disclosed his self-harming behaviours; and
  2. repeatedly referred to the respondent as “gorgeous”. 
  1. [19]
    The respondent said to Patient A during the same call:
    1. statements such as:
  1. “I miss you too”;
  2. “just call me whenever you need to”;
  3. “I told you that I’d get in contact”;
  4. “I told you that I was, I was going to stay in your life forever”;
  5. “you know that I’m married”;
  6. “even as a, as a, as a closest friend I can be I told you I’m there for you and I will always be”;
  7. “(we) have a very good connection. I’m not going to let you down, I promise”; and
  8. “I really do miss talking to you”; and
  1. she would collect him from jail.
  1. [20]
    The respondent did not have a professional framework in place after she resigned from the prison, including when communicating with Patient A or his family on these occasions in 2020.
  2. [21]
    The inadequate record keeping arises because the respondent failed to keep adequate written records of her contact with Patient A on four occasions (three of the four occasions referred to in paragraph [12] and the occasion referred to in paragraphs [18] and [19]) and with his family in early 2020.

The respondent’s history

  1. [22]
    The respondent obtained a degree of Bachelor of Psychological Science with Honours from Central Queensland University in 2018.
  2. [23]
    The respondent has no disciplinary history prior to the conduct giving rise to the referral. When the Board proposed to suspend her registration on 7 May 2020, the respondent provided a signed undertaking not to practice, which the Board accepted.
  3. [24]
    The respondent’s registration has subsequently expired. On or about 3 November 2020, the Board refused the respondent’s application for registration under s 55(1)(c) of the National Law.  The respondent remains unregistered. 

Characterisation of the conduct

  1. [25]
    As a provisionally registered psychologist the respondent was required to comply with the Australian Psychological Society (APS) Code of Ethics (APS Code of Ethics), the APS Ethical Guidelines for Managing Professional Boundaries and Multiple Relationships (Boundaries Guidelines), the APS Ethical Guidelines for Record Keeping (Record Keeping Guidelines) (the 2014 version and from February 2020, the 2020 version), and the APS Guidelines for Prohibition on Sexual Activity with Clients (Sexual Prohibition Guidelines).
  2. [26]
    Registration standards, codes or guidelines approved by a national board are admissible as evidence of what constitutes appropriate processional conduct or practice for the health profession.[2] 
  3. [27]
    The parties’ agreement includes agreement to a number of ways in which the respondent’s conduct was inconsistent with how appropriate professional conduct or practice is carried out contained in the Code of Ethics, the Boundaries Guidelines, the Record Keeping Guidelines and the Sexual Prohibition Guidelines. They agree that each of allegations one and two alone, and the allegations taken together, constitute professional misconduct within paragraphs (a) and (c) of the definition of that term in s 5 of the National Law.
  4. [28]
    The respondent was a provisionally registered psychologist. As the Board has noted in its submissions, when considering the definition of professional misconduct in limb (a) of the definition of that term in s 5 of the National Law, the assessment to be made is whether the conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
  5. [29]
    An independent expert opinion obtained by the Board during its investigation of the matters the subject of the referral is contained in the Hearing Brief. Relevantly, that expert (who had worked in a maximum security prison setting for 12 years as a psychologist) stated:

Working as a female psychologist in a male maximum security setting presents a range of challenges over and above the general work of a psychologist. Due to the function of the environment, it is expected that psychologists will be working with offenders who have been convicted of violent, sexually violent or stalking offences. Additionally, male prison populations are characterised by higher rates of personality disorder, childhood trauma and attachment issues than the wider community. The nature of the population presents a heightened risk of clients forming emotional dysfunctional attachments with psychologists, developing emotional dependence and engaging in emotionally manipulative behaviours towards psychologists, and there is a high risk of exploitation of psychologists by targeting vulnerability and accessing personal information that can be utilised for secondary gain. 

Given these risk issues, it is extremely important that psychologists work as part of a team in a prison environment, and that less experienced psychologists take heed of the cautions and warnings provided to them from more experienced staff. It is essential for personal and professional safety that psychologists maintain strong boundaries, follow instructions within the workplace, and maintain timely and accurate documentation of all interactions with clients. (emphasis added)

  1. [30]
    It seems both unexceptional and unarguable that someone with provisional registration should follow the guidance and direction provided by a more experienced professional staff member in a work environment such as a maximum security prison. Repeated failures to do so have the potential to jeopardise the safety and security of the staff member, the patient/prisoner and the good governance of the custodial environment.  This conduct is inconsistent with the expectations of registered psychologists to behave competently and responsibly, as is contemplated by parts of the APS Code of Ethics[3] and the Boundaries Guidelines.[4]  The Tribunal accepts this is conduct substantially below what would be expected of a psychologist of an equivalent level of training or experience to the respondent.
  2. [31]
    Being dishonest about such contact, (as it appears the respondent was when queried about it initially, as set out in paragraph [13]), making statements in the letter of a personal nature to Patient A (such as “I will never turn you away”) and maintaining personal relationships with a former client, (as is evidenced by the contents of the telephone call of 14 March 2020) bespeak, in addition to very poor boundary setting, a concern about whether the respondent had, at the time, an understanding of what is required to act professionally so as to call into question whether she was a fit and proper person to hold registration as a psychologist.[5] There is no suggestion of any sexual relationship between the respondent and Patient A, however comments in the telephone call (which was recorded because it occurred over the prison’s communications system) suggest the respondent did not behave professionally in responding to comments that she was “gorgeous”, or other matters which contained sexual innuendo on behalf of Patient A.[6] These matters also call into question whether the respondent was a fit and proper person to hold registration as a psychologist.
  3. [32]
    The failure to keep records is, to the Tribunal’s mind an aspect of the matter integrally wrapped up with the main allegation and an aggravating aspect of it.
  4. [33]
    The Tribunal finds that the conduct comprising allegations one and two, when taken together, constitutes professional misconduct within the meaning of limbs (a) and (c) of the definition of ‘professional misconduct’ in s 5 of the National Law. 

Discussion and Sanction

  1. [34]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.[7]
  2. [35]
    Maintenance of professional standards and public confidence in the profession are relevant considerations. The sanction in a particular case must be considered based on the peculiar facts and the Tribunal is to craft something which best achieves those purposes.
  3. [36]
    The factors for the Tribunal to consider when determining what sanction is appropriate include:[8]
    1. the nature and seriousness of the conduct;
    2. whether the practitioner acknowledges culpability and evidences contrition or remorse;
    3. what needs for specific or general deterrence arise;
    4. whether there have been other disciplinary findings before or after the conduct in question;
    5. evidence of character and rehabilitation;
    6. whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
    7. any other mitigating factors.
  4. [37]
    The conduct is objectively serious. Comments to a  client such as “I really do miss talking to you” are well below how  psychologist should communicate with a client and tend to indicate the respondent needs to focus carefully on ethical guidelines for practice should she resume practice as a psychologist.
  5. [38]
    The parties have agreed a reprimand, which is not a trivial sanction is appropriate. A reprimand has been recognised by this Tribunal to have the potential for serious adverse implications to a professional person.[9] The Tribunal agrees it is important to mark its disapproval of the respondent’s conduct and will make such an order as a part of its decision.
  6. [39]
    The material suggests the respondent has taken time to come to a full acceptance of the significance of her conduct. The Tribunal accepts the Board’s submission that whilst the respondent has demonstrated some insight by now agreeing to the allegations, aspects of the briefed material show that she downplayed her conduct, stating, for example, she was supporting Patient A as a ‘friend’ and denying other conduct. This renders both general and specific deterrence as relevant considerations,
  7. [40]
    The Tribunal notes the observation in Psychology Board of Australia v Spring[10] at [15] that it is a relevant consideration how long a person will be precluded from practice.
  8. [41]
    The Board has referred the Tribunal to a number of cases for guidance to support its submission that the parties’ proposed sanction is within the permissible range. The Tribunal has considered them all. That of most assistance is Psychology Board of Australia v Duangpatra.[11]
  9. [42]
    In Duangpatra, a registered psychologist (with 3 years post registration experience) had an improper relationship with a prisoner who was a former client at Wolston Correctional Centre. After the treating relationship ended, because she resigned from her employment, her phone number was added to the prisoner’s telephone list and they spoke on the phone on over 400 occasions in an approximate 10 week period. The discussions were often of intimate matters, including, for example, discussing having a child together, they wrote to each other and the former patient exchanged letters with her son. There was no sexually intimate relationship.
  10. [43]
    On the complaint being made, the psychologist surrendered her registration and remained unregistered for approximately four months. When her registration was reinstated, the Board required Ms Duangpatra to complete a minimum period of 18 months of supervised practice. Ms Duangpatra’s inappropriate contact with the former client was protracted and more frequent than in the case presently before the Tribunal.  Ms Duangpatra was reprimanded, suspended for 6 months (where the order of suspension was suspended after 3 months for 18 months), required to complete further counselling/education and to pay the Board's costs. The Tribunal notes this conduct which was more protracted than in the case presently before it attracted, effectively, seven months out of practice.
  11. [44]
    The two authorities which the respondent has referred the Tribunal to[12] were also analysed in Duangpatra. Robinson involved a young psychologist who maintained a sexual relationship with a prisoner after he was released. She was not remorseful. Her registration was suspended for six months and she then was to practice under supervision for twelve months. In Dall, the psychologist was more experienced and continued to assert she had maintained professional boundaries, which led to a finding that she had little insight into her conduct. The practitioner had used a pseudonym to conceal her relationship and there was a lengthy contested hearing. The sanction was preclusion from reapplying for registration for 18 months, 12 months of supervised practice on re-entry into the workforce and she was required to engage in counselling and further education. Each of these cases is more serious than that presently before the Tribunal.  In each case the practitioner had a less lengthy time away from practice than this respondent has already experienced.
  12. [45]
    The Board submits that but for the time which the respondent has spent out of practice already (more than 4 years due to her providing the Board with an undertaking not to practise in May 2020 and her registration lapsing in June 2020), it would have been open and appropriate for the Tribunal to order a further preclusion period from practice and the Board would have sought that. That is, of course speculative, where the respondent has been out of practice for more than 4 years.
  13. [46]
    The respondent, in her response, stated she had always responded in a timely manner to the Board and the delay experienced in bringing this matter to this point was not of her doing.  There is some support for that submission in the context that:
    1. QCS notified the OHO of the respondent’s conduct on 5 February 2020;
    2. a representative from AHPRA advised the practitioner by telephone of the notification on 17 March 2020. The respondent was notified of the proposed immediate action on 24 April 2020 and by 7 May 2020 had signed an undertaking not to practice;
    3. the respondent was not interviewed by AHPRA until 9 February 2021;
    4. Patient A refused to assist in the investigation on legal advice, when approached on 11 June 2021;
    5. by letter dated 19 January 2022 APHRA provided, amongst other things, information said to be recently obtained in the investigation, being the recording of the telephone call of 14 March 2020 and provided a notice to produce to the respondent with a due date for production of 4 February 2022. The transcript of the telephone call was provided by email on 25 January 2022;
    6. the respondent’s response was provided on 18 February 2022;
    7. the Board briefed the expert on 16 May 2022 and the expert’s report was provided on 23 June 2022. A copy of this was provided to the respondent under an email dated 9 August 2022;
    8. the respondent’s response to the expert report was provided on 3 November 2022;
    9. without any indication that anything occurred in the intervening period, more than one year later, AHPRA then advised that the Board had decided to refer the matter to the Tribunal;[13]
    10. the referral then took a further 3 months to be lodged.[14] 
  14. [47]
    The Tribunal has observed that inordinate delay between the notification and the referral to the Tribunal can be a significant mitigating factor on sanction.[15]  Obviously, each case will fall to be assessed on its particular facts. Whilst the delay here may not be said to be inordinate, there are periods, for example the period of more than twelve months between the respondent’s response to the expert report and the Board’s decision to refer the matter, where there is no explanation from the materials before the Tribunal of the cause of the delay and which have some (non-mathematical) role to play in the mitigation of sanction.
  15. [48]
    It is also relevant that, given the time she has spent away from practice, the respondent is likely to require further supervised practice as she has not met the Board’s ‘Registration Standard: Recency of Practice’ Standard.
  16. [49]
    For the foregoing reasons the Tribunal is satisfied that the proposal on sanction put by the parties is in the permissible range and will give effect to it.
  17. [50]
    The Tribunal thanks the assessors for their thoughtful engagement and assistance.

Orders

  1. [51]
    The Tribunal decides that:
  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), with respect to ground 1 and ground 2 of the referral taken as a whole, the respondent has behaved in a way that constitutes professional misconduct; and
  1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.

Footnotes

[1] Medical Board of Australia v Martin [2013] QCAT 376, [91]–[93] and the authorities cited there.

[2]  National Law s 41.

[3]  cls B1.2(e), B3 (a) and (g).

[4]  cls 5.1, 5.2.

[5]  cf APS Code of Ethics, cls C.1.1, C.1.2 and C.2.1.

[6]  cf Sexual Prohibitions Guidelines, cls 1.2, 1.3, 3.3, 3.6 and 8.

[7]  HO Act s 4(2)(c).

[8] Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].

[9]  See, e.g. Psychology Board of Australia v Cameron [2015] QCAT 227, [25] and the authorities cited in that paragraph.

[10]  [2015] QCAT 314 (‘Spring’). 

[11]  [2012] QCAT 514 (‘Duangpatra’). The Tribunal accepts the Board’s submission that the other comparators referred to involving psychologists, Spring (n 10) and Psychology Board of Australia v Bonola [2022] VCAT 1038 involve more serious conduct. 

[12] Psychologists Board of Queensland v Robinson [2004] QCA 405 (‘Robinson’) and Psychology Board of Australia v Dall [2011] QCAT 608 (‘Dall’).

[13]  Hearing Brief (HB), p 403.

[14]  Date stamp on referral: HB, p 1.

[15] Health Ombudsman v Veltmeyer [2021] QCAT 77 (‘Veltmeyer’), [31].

Close

Editorial Notes

  • Published Case Name:

    Psychology Board of Australia v Polata

  • Shortened Case Name:

    Psychology Board of Australia v Polata

  • MNC:

    [2024] QCAT 339

  • Court:

    QCAT

  • Judge(s):

    Ms R Geddes, Dr T Lowry, Mr P Glazebrook

  • Date:

    17 Sep 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
Health Ombudsman v Veltmeyer [2021] QCAT 77
2 citations
Jump To
Cite 1 - [2021] QCAT 77
Cite 2 - [2021] QCAT 77
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
Medical Board of Australia v Martin [2013] QCAT 376
2 citations
Jump To
Cite 1 - [2013] QCAT 376
Cite 2 - [2013] QCAT 376
Psychologists Board of Queensland v Robinson [2004] QCA 405
2 citations
Jump To
Cite 1 - [2004] QCA 405
Cite 2 - [2004] QCA 405
Psychology Board of Australia v Bonola [2022] VCAT 1038
2 citations
Jump To
Cite 1 - [2022] VCAT 1038
Cite 2 - [2022] VCAT 1038
Psychology Board of Australia v Cameron [2015] QCAT 227
2 citations
Jump To
Cite 1 - [2015] QCAT 227
Cite 2 - [2015] QCAT 227
Psychology Board of Australia v Dall [2011] QCAT 608
2 citations
Jump To
Cite 1 - [2011] QCAT 608
Cite 2 - [2011] QCAT 608
Psychology Board of Australia v Duangpatra [2012] QCAT 514
2 citations
Jump To
Cite 1 - [2012] QCAT 514
Cite 2 - [2012] QCAT 514
Psychology Board of Australia v Spring [2015] QCAT 314
2 citations
Jump To
Cite 1 - [2015] QCAT 314
Cite 2 - [2015] QCAT 314

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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