Psychology Board of Australia v Howard
[2025] QCAT 235
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- Unreported Judgment
- Psychology Board of Australia v Howard[2025] QCAT 235
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Psychology Board of Australia v Howard[2025] QCAT 235
Psychology Board of Australia v Howard[2025] QCAT 235
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Psychology Board of Australia v Howard [2025] QCAT 235 |
PARTIES: | psychology board of australia (applicant) v EMmA howard (respondent) |
APPLICATION NO/S: | OCR053-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 26 May 2025 (decision) 15 July 2025 (reasons) |
HEARING DATE: | 26 May 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM Assisted by: Ms R Geddes Dr P Glazebrook Ms N Taggeselle |
ORDERS: | THE TRIBUNAL ORDERS THAT:
is prohibited to the extent that it could identify or lead to the identification of any patients of the respondent save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).
IT IS THE DECISION OF THE TRIBUNAL THAT:
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a registered psychologist – where the respondent did not attend the hearing – where the Tribunal is satisfied that the respondent was notified of the hearing but failed to attend – where the Tribunal decides to proceed in her absence – where the respondent failed to comply with conditions on her registration despite receiving numerous requests from Ahpra – whether the conduct constitutes professional misconduct – whether the respondent should be reprimanded Briginshaw v Briginshaw (1938) 60 CLR 336 Dental Board of Australia v Patel [2025] QCAT 97 Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 Health Ombudsman v Heath [2024] QCAT 531 Health Ombudsman v Niem Quoc Tang [2020] QCAT 165 Medical Board of Australia v Blomeley [2018] QCAT 163 Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026 Medical Board of Australia v Singh [2017] WASAT 33 Nursing and Midwifery Board of Australia v Stokes (Review and Regulation) (Corrected) [2021] VCAT 1319 Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
APPEARANCES & REPRESENTATION: | |
Applicant: | L Nixon instructed by Turks Legal |
Respondent: | No attendance |
REASONS FOR DECISION
- [1]This matter was originally listed for hearing on March 2025. The application was adjourned from that date to today due to cyclone Alfred.
- [2]The respondent was not present at the hearing. The applicant provided an affidavit of Lachlan William Manton dated 22 May 2025 and filed in the Tribunal which sets out the history of communication with the respondent with respect of the matter. In particular the Tribunal notes annexure LWM-15 to the affidavit which is an email from the Tribunal to the parties on 29 April 2025 attaching a formal notice of hearing for 26 May 2025. No response was received.
- [3]At the commencement of the hearing the respondent’s name was called outside the hearing room but there was no appearance. Accordingly, the Tribunal is satisfied that the respondent was notified but failed to attend the hearing and determined to proceed pursuant to section 93(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- [4]The Tribunal noted the contents of the hearing book which was marked Exhibit 1 in the proceedings. Counsel for the applicant made oral submissions.
- [5]The Psychology Board of Australia (‘Board’) is established pursuant to section 31 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). It has the power, pursuant to section 35 of the National Law, to refer matters concerning health practitioners to this Tribunal.
- [6]A Statement of Agreed Facts has been filed in the Tribunal together with an Amended Statement of Agreed Facts. The only difference between the two is in respect to paragraph 5 where the date 30 December 2024 should have read 30 December 2023 and paragraph 9 where the Board’s decision referred to in paragraph 0 should have read the Board’s decision referred to in paragraph 8. There are no disputed facts pertaining to the referral.
- [7]It is agreed that the respondent was first registered with the former Psychologists Board of Queensland in 2002. Since 30 November 2023, the respondent has been unregistered. Accordingly, at all material times the respondent was a registered health practitioner within the meaning of the National Law.
- [8]On 6 October 2022, the Board took relevant action against the respondent by:
- cautioning the respondent; and
- imposing conditions on the her registration (‘conditions’).
- [9]The respondent was informed of the Board’s decision on 11 October 2022. The respondent was sent a monitoring plan on 14 October 2022 and accepts that the monitoring plan informed her:
- of the dates of which she was required to take steps to comply with the conditions;
- that she was required to notify Ahpra of the senior person at her workplace by 1 November 2022 or within 7 days of starting a new job; and
- that she was required to nominate supervisors by 8 November 2022.
- [10]Between 22 November 2022 and 12 June 2023, the respondent did not comply with the conditions notwithstanding that she was notified and given at least nine opportunities to comply with the conditions.
- [11]On 30 June 2023, the respondent sent an email to Ahpra purporting to attach the required information and explaining that her delay in providing supervisor details was due to waiting for a response from victims of crimes compensation to enable funding of the supervisor.
- [12]On 30 June 2023, the respondent received an email from Ahpra informing her that the attachment could not be opened and requested the information in PDF or Microsoft Word format. Despite repeated requests between 7 July 2023 and 29 September 2023, the respondent did not provide the required information and nomination forms.
- [13]The respondent acknowledges that between 24 July 2023 and 20 December 2023, she did not comply with the obligations to provide the required information.
- [14]On 3 January 2024, the respondent was notified by Ahpra that she was no longer registered and that her details had been removed from the Register of Practitioners.
- [15]The applicant submits that the conditions imposed on the respondent were not onerous. They required the respondent to attend one-hour fortnightly supervision for a minimum of six months whereupon the conditions would be reviewed.
- [16]The respondent failed to comply with the conditions despite receiving numerous requests from Ahpra to comply with the conditions over the period from 14 October 2022 until 31 May 2023 when the respondent was advised by Ahpra that they intended to caution her for non-compliance with the conditions and granting her until 19 June 2023 to provide the name and contact details of her employer and granted her until 19 June to provide the required information. No compliance was made by the respondent up until 3 January 2024 when she was advised she was no longer registered.
Jurisdiction
- [17]The National Law is the enabling Act for the purpose of section 9(1) of the QCAT Act. Hearing the matter the Tribunal sits in its original jurisdiction pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act. In this case the Board submits that the conduct should be characterised as professional misconduct.
Discussion and Sanction
- [18]Section 5 of the National Law sets out the definition of professional misconduct as:
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
- more than one instance of professional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [19]The Tribunal notes the definition of professional misconduct and the meaning of substantial in Health Ombudsman v Niem Quoc Tang[1] where it was said:
the meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:
… it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, ‘substantial’ connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.
In deciding whether conduct should be characterised as “unprofessional conduct” or “professional misconduct”, the Tribunal is required to make a judgment as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner’s professional peers.
- [20]The applicant bears the onus of proof to the civil standard of being reasonably satisfied having regard to the principles set out in Briginshaw v Briginshaw.[2]
- [21]
- [22]The purpose of disciplinary proceedings is to protect the public, maintain proper professional standards and to assure the public that proper standards are being maintained in the particular profession, thereby upholding public trust and confidence in the professions. Proceedings are protective in nature, not punitive.
- [23]The Tribunal is satisfied that in determining such matters, issues such as insight and remorse together with specific and general deterrence, will always play a part. Equally, the likelihood of reoffending and ongoing risk posed by the practitioner to the public will also be considerations for the Tribunal in determining sanction. The Tribunal will balance aggravating features and mitigating factors. In this regard the Tribunal refers to the decisions of Medical Board of Australia v Jansz (Occupational and Business Regulation)[5] and Medical Board of Australia v Blomeley.[6] The Tribunal has also had regard to the summary of factors as set out in Medical Board of Australia v Singh.[7]
- [24]The applicant has provided a number of comparative decisions.
- [25]The applicant relies upon the decision of Nursing and Midwifery Board of Australia v Stokes (Review and Regulation) (Corrected)[8] together with two authorities provided at the hearing namely Dental Board of Australia v Patel (‘Patel’)[9] and Health Ombudsman v Heath.[10] These cases involve breaches of conditions or failing to comply with conditions despite numerous requests. Each case will turn to be decided on its own facts. However these cases do provide a useful yardstick.
- [26]The Tribunal notes particularly the matter of Patel was more serious thereby supporting that the sanction proposed in this matter is well within range.
- [27]The applicant submits that the proper characterisation of the conduct in this matter is professional misconduct. It is submitted the respondent’s failure to uphold the standards of a registered psychologist of her qualification, training and experience, has the potential to seriously undermine the good standing of her profession and the inherent trust members of the public place in psychologist.[11]
- [28]The applicant submits that while the respondent maintained registration, public health and safety was at risk.
- [29]The Tribunal also notes a submission made by the applicant that:[12]
Her failure to do so on this occasion and after several months of being in breach of her conditions and with the benefit of multiple extensions, reflects [the respondent’s] disregard for the relevant action taken by the Board.
- [30]The applicant submits and the Tribunal accepts that based on the admissions made by the respondent, including the characterisation of her conduct as professional misconduct, the Tribunal’s powers under section 196 of the National Law are enlivened.
- [31]In respect of mitigating factors, the Tribunal has taken into account the matters submitted by the applicant, namely that the respondent:[13]
- made early admissions regarding the factual allegations;
- acknowledges these disciplinary proceedings are a result of her actions in breach of the conditions;
- accepts her admitted conduct may be characterised as professional misconduct;
- is not currently practising or registered as a psychologist with the Board; and
- has previously been the subject of notifications and disciplinary action by the Board.
- [32]While acknowledging that the respondent participated in the proceedings sufficiently to enable them to proceed, the applicant submits the respondent was not always responsive to the matters to which she was required to comply. The respondent has previously been cautioned on more than one occasion, including for failing to comply with conditions.
- [33]The applicant submits that the respondent lacks insight. The Tribunal has also had regard to issues of deterrence, particularly general deterrence; it is important to send a message that failing to comply with conditions imposed by the applicant must be taken seriously.
- [34]In all of the circumstances the Tribunal is satisfied that the conduct is properly categorised as professional misconduct and in this case a reprimand is appropriate. The Tribunal notes that a reprimand is not a trivial penalty and serves as public denunciation of the respondent’s admitted conduct.
- [35]At the Tribunal hearing, the applicant sought a non-publication order having regard to the names of patients being published in the material. The Tribunal is satisfied that a non-publication order should be made to protect those persons. Accordingly, the Tribunal makes a non-publication order in those terms.
Footnotes
[1] [2020] QCAT 165.
[2] (1938) 60 CLR 336.
[3] Health Practitioner Regulation National Law (Queensland) s 3A.
[4] Ibid s 3.
[5] [2011] VCAT 1026, [367]-[370]
[6] [2018] QCAT 163, [140]-[143].
[7] [2017] WASAT 33, [30].
[8] [2021] VCAT 1319.
[9] [2025] QCAT 97.
[10] [2024] QCAT 531.
[11] Submissions of the Applicant dated 21 November 2024 [75].
[12] Ibid [79].
[13] Ibid [88].