Psychology Board of Australia v Prince
[2025] QCAT 7
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- Unreported Judgment
- Psychology Board of Australia v Prince[2025] QCAT 7
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Psychology Board of Australia v Prince[2025] QCAT 7
Psychology Board of Australia v Prince[2025] QCAT 7
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Psychology Board of Australia v Prince [2025] QCAT 7 |
PARTIES: | Psychology Board of Australia (applicant) v Alan Prince (respondent) |
APPLICATION NO: | OCR069-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 February 2025 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Ms R Geddes, Psychologist Panel Member Ms K Butler, Psychologist Panel Member Dr W Grigg, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a registered psychologist who was convicted of wilful exposure – where the respondent provided false and/or misleading information to the Board in his renewal applications over multiple years – where the respondent’s registration has since lapsed – whether the conduct constitutes professional misconduct – whether disqualification should be imposed ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application has been made for a non-publication order – whether sufficient basis for the discretion to make an order for non-publication exists on the evidence Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) AA v BB (2013) 296 ALR 353 Briginshaw v Briginshaw (1938) 60 CLR 336 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Ombudsman v Shemer (No 2) [2019] QCAT 54 Health Ombudsman v Singh [2024] QCAT 377 LSC v XBV [2018] QCAT 332 Medical Board of Australia v Nguyen (Review and Regulation) [2024] VCAT 233 Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 |
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
- [1]Before the Tribunal this morning is a disciplinary referral filed by the Psychology Board of Australia (Board) on 13 March 2023. The respondent, who was a registered psychologist, filed a response on 24 April 2023. Reference will be made to what he says in that response, and I infer that it was prepared by him and not by lawyers on his behalf.
- [2]The referral was amended significantly, in relation to ground 2 on 15 July 2023 and I am satisfied that the amended referral was served by email on the respondent. Since then, he has not engaged at all with the Tribunal and did not file a response to the amended referral.
- [3]The matter today proceeds on the papers.
Conduct
- [4]Ground 1 in the amended referral remains in the same terms as it was in the original referral and relates to a criminal conviction on 19 December 2012 in the Noosa Magistrates Court. The material in the hearing brief indicates that the respondent was charged with one count of wilful exposure and pleaded guilty to the charge in writing. He was sentenced by a magistrate on 18 December 2012 by the imposition of a fine of $300.00 payable within 28 days and the magistrate exercised his discretion not to record a conviction.
- [5]The respondent was sentenced on the basis of the following facts:
- around 2:00pm on Friday, 20 November 2012, police from Noosa Heads station attended Tea Tree Bay, which is a beach in the Noosa National Park and observed the respondent sitting on the beach with his legs pointing directly towards a group of six young females, who were aged between 17 and 18 years and were there on schoolies week;
- the complainants stated to the police and the magistrate was informed through the charge sheet before him that they were seated at the northern end of Tea Tree Bay when Mr Prince walked towards them and sat approximately 20 metres behind them; and
- the respondent then spread his legs with only a sarong across his lap, exposing his penis and genitals, and then proceeded to massage his penis and genitals, with this being clearly visible to the complainants. He stared directly at the complainants whilst doing so.
- [6]In the material is the respondent’s written plea of guilty. In that plea, he appears to dispute some aspects of the charge, without contesting the specific factual matrix that I have set out above, which comes from ground 1 in the referral. He says that he pleaded guilty to avoid further embarrassment for all and that the incident could be reasonably interpreted as disrespectful. He then appears to suggest he was not guilty because his actions were not wilful and/or were accidental. This is consistent with what he said in his response filed on 24 April 2023.
- [7]He also contends that his conduct was not connected with the practice of the profession and therefore he argues that he cannot be found to have behaved unprofessionally.
- [8]None of those propositions can be accepted by the Tribunal at this stage as a matter of law.
- [9]As the Board correctly submits, whilst it’s open to the Tribunal to consider the respondent’s challenges to the facts upon which a conviction is based, following a plea of guilty, it is established that the conviction is strong prima facie evidence of the essential facts on which it is based. There is significant authority to the effect that a conviction throws a heavy onus on a person who seeks to challenge such facts, to show why the facts underlying the conviction should not be accepted. None of the material filed by the respondent in these proceedings reaches that level.
- [10]The Board also refers to s 79(3) of the Evidence Act 1977 (Qld), which supports their submission that unless the contrary is proved, Mr Prince must be taken to have committed the acts and to possess the state of mind, which at law, constitute the offence. The Board’s submission is accepted that the Tribunal should not revisit the elements of the offences, one of which here was the element of wilfulness. If the respondent generally took issue with his guilt over that essential element of the offence, then the court at first instance should not have accepted his plea.
- [11]As the Board notes, the respondent could have appealed the conviction. This did not happen and that is not attributable to the Board, nor should it be. As the Board submits, critically, the respondent has not actually sworn to this, nor exposed himself to allow for his submission to be tested under cross-examination. The factual basis of ground 1 is proved to the necessary standard.[1]
- [12]His conduct was clearly contrary to the 2007 Australian Psychological Society (APS) Code of Ethics (2007 Code), to which reference is made in paragraph two of the amended annexure B to the referral.
- [13]Ground 2 is an allegation which relates to the respondent’s declarations made by him in undertaking his annual renewal application for his registration as a psychologist. These declarations are made to the Board and to the Australian Health Practitioner Regulation Agency (Ahpra).
- [14]Ground 2 was substantially amended in the amended referral and relates to the particulars set out in ground 1, and further, to the fact that on or about 13 February 2002, the respondent was charged with one count of indecent assault committed on a female, said to have occurred in 1988. The charge was subsequently withdrawn by the Director of Public Prosecutions in March 2004, by the presentation of a nolle prosequi.
- [15]In the renewal applications in the years 2010, 2011, 2012, 2013 and 2014, the respondent deliberately and/or recklessly and/or carelessly did not respond honestly to a number of questions relating to his “criminal history”. In his renewal applications for the years 2010–2014, the forms also contained a relevant definition of criminal history, which includes “every charge made against the person from an offence”.
- [16]The Board’s Criminal Registration History Standard effective from 1 July 2010 until 30 June 2015, defines “criminal history” to (relevantly) include:
Every charge made against the person for an offence in a participating jurisdiction or elsewhere, and whether before or after the commencement of this law.
- [17]In the original referral, ground 2 related only to the 2012 conviction and did not refer to the 2002 charge. In relation to that and in his response filed 24 April 2023, the respondent makes a number of propositions which, again, as a matter of fact and law are not sustainable. Firstly, he refers to a national police history check undertaken for employment purposes as at 8 June 2016, that is, after the time period covered by the applications for renewal which declared that he had “no disclosable court outcomes”.
- [18]Again, he says in relation to ground 2, prior to amendment, and I can infer, would maintain the same argument in relation to the amended ground two, that the conduct was not alleged unprofessional conduct in relation to his practice as a psychologist.
- [19]Clearly the relevant code of ethics, that is, the 2007 Code and the sections referred to in the referral, contemplate that the conduct of a registered health practitioner is not confined to his conduct as a psychologist. His statement in his response to the effect that he was an anonymous member of the public in his own time (that is, in relation to the wilful exposure charge) with no obvious connection to his profession, indicate his complete and ongoing lack of insight and remorse for his conduct and for his failure to comply with proper professional standards as required by the Board and Ahpra.
- [20]In relation to ground 2, the respondent’s response completely misunderstands the nature of the allegations, and, as noted earlier, raises no evidentiary basis that would enable the Tribunal to find that the allegation is not proved. Other than this, he does not appear to dispute the registration renewal disclosure history from Ahpra from 2010–2018, which appears in the hearing brief.
- [21]As noted before, the background check to which he referred in his response post-dates the conduct the subject of the allegations and the check itself contains many caveats on its own use. Clearly at the time it was obtained, the respondent knew of the 2012 offence and the outcome, and the 2002 charge.
- [22]Ground 3 is in effect an amalgam of the allegations of fact in grounds 1 and 2 and alleges that in breach of s 109(1)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law), the respondent failed to disclose the 2012 charge, his conviction for it, and the 2002 charge.
Characterisation
- [23]In relation to ground 1, although the offence itself is at the low end of the spectrum of seriousness for offences of a sexual nature, it is nevertheless serious conduct by a mature man who, at that time, was an experienced psychologist and, according to his own resume, was working as a senior psychologist with the extended care team at the Sunshine Coast District Health Service.
- [24]The 2012 conviction itself satisfies the definition of unprofessional conduct, as set out in paragraph (c) of the definition in s 5 of the National Law.
- [25]The Tribunal is satisfied that the 2012 conviction, given its deliberate sexual nature, is unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience as the respondent, and therefore constitutes professional misconduct within the meaning of paragraph (a) of the definition of that term in s 5 of the National Law.
- [26]The proven conduct in grounds 2 and 3 either taken separately in relation to ground 2 or together with ground 1, is clearly professional misconduct as defined by paragraphs (a) and (b) of the definition of professional misconduct in s 5 of the National Law.
- [27]The seriousness of the respondent’s conduct is demonstrated by reference to a decision of the New South Wales Civil and Administrative Tribunal (NCAT) where it was said in the matter of Health Care Complaints Commission v Bolton:[2]
Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place.
…
These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner’s criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[3]
Sanction
- [28]In my view, the most relevant case referred to by the Board in its submission is the case of the Medical Board of Australia v Nguyen (Review and Regulation),[4] which involved a medical practitioner who took photographs up a female school student’s school uniform dress after a flight landed.
- [29]The general principles relating to the imposition of sanction are well known. It is not the purpose of sanction to punish the practitioner nor are its orders designed to be punitive. The key principle that informs decisions by way of sanction of a Tribunal of this nature is that the health and safety of the public are paramount.[5] This requires the Tribunal to consider issues of:
- personal and general deterrence;
- the maintenance of professional standards; and
- the maintenance of public confidence in the profession.
- [30]Of most concern here is the respondent’s complete failure to accept that his conduct was unprofessional or, indeed, wrong, or that the facts admitted by the plea of guilty are true. Profound lack of insight or remorse in his conduct are demonstrated by the fact that he refuses to accept any responsibility for any of the alleged conduct:
- he seeks to diminish the offending that is the 2012 offence as having occurred in his private life and he provided what appears to be a video of his retirement function;
- he has otherwise provided copies of statements of colleagues attesting to his retirement, and that he will be missed, along with the fact that his training is completed.
- [31]However, none of this material appears to have addressed any of the subject matter of these proceedings.
- [32]The respondent’s registration as a psychologist has lapsed, and he is therefore no longer registered. By virtue of s 139A of the National Law, I may still make orders in respect of this proceeding, as it relates to conduct that occurred whilst the respondent held registration. Section 196(4) of the National Law provides that where a person does not hold registration under the National Law, I may, inter alia, decide to:
- disqualify the person from applying for registration as a registered health practitioner for a specified period; and
- prohibit the person from providing any health service.
- [33]The respondent has not, on the evidence, been charged with or convicted of any other offence since the 2012 conviction. The difficulty is that on multiple occasions over the years since he failed to disclose the fact of both the 2012 charge and conviction and the 2002 charge. As I have noted in his response filed in these proceedings, he has shown a profound lack of understanding of his professional obligations. I can safely infer that his failures to disclose in his various applications to renew were because he believed he had no obligation to do so and that his actions in failing to disclose were deliberate. That is borne out by his response and by his attitude to the serious disciplinary proceedings.
- [34]The Board makes the trite observation that each case depends on its own facts. It concedes that the conduct in the comparatives in relation to Dr Ngyuen involved conduct, as regards the offending, of a more serious kind than the respondent’s in this case. It is clear from the reasons in the case of Ngyuen, that one of the issues that informed the Victorian Tribunal’s decision to cancel his registration and impose a disqualification period of five years was that apart from the serious nature of the conduct, was their concerns about his current insight and remorse. In this case, apart from the material to which I have referred earlier, the respondent has provided no information that would satisfy the Tribunal that he has any insight into his professional misconduct or remorse for it.
- [35]Dr Ngyuen’s conduct was objectively more serious, however, he failed to notify the regulator of the charge within the prescribed time, but his solicitor did so within a period of about a month after the facts. By contrast, the respondent engaged in false and/or misleading conduct over many years, which is much more serious in that respect than in Nguyen.
- [36]I accept the Board’s submission that in the circumstances, consideration of general and specific deterrence, the need to maintain the standards of the profession and its reputation, and protection of the public require the respondent to be reprimanded, that he be disqualified from applying for registration for a period of 18 months, and that he be prohibited from providing any health service until such time as he obtains registration as a health practitioner.
Non-publication order
- [37]The Board applies for a non-publication order over information that identifies or could lead to the identification of:
- any complainants or third parties the subject of the respondent’s offending; and
- any witnesses giving evidence in these proceedings, save for the respondent.
- [38]The respondent has not provided his views or made any submissions in respect of the application.
- [39]Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers power on the Tribunal to make an order prohibiting the publication of:
- the contents of a document or other things produced to the Tribunal;
- evidence given before the Tribunal; or
- information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
- [40]Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
- [41]In LSC v XBV,[6] Judicial Member the Hon Peter Lyons KC held that s 66 of the QCAT Act confers on the Tribunal (at [26]):
a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.
- [42]Notwithstanding this broad power, the exercise of the discretion is informed by the paramount principle of open justice.[7] Further, in considering whether a non-publication order is necessary, it has been held that:
- mere loss of privacy of a witness does not mean that an order is necessary;[8]
- a mere belief that a non-publication order is necessary is insufficient;[9] and
- there must be a “real and substantial” connection between the publication of the material and the relevant adverse consequence or detrimental impact on the interests of justice.[10]
- [43]The party seeking the non-publication order must satisfy the Tribunal that the discretion in s 66 of the QCAT Act ought to be exercised.[11]
- [44]The Board seeks the order, ostensibly, under s 66(2)(e) of the QCAT Act.
- [45]I am not satisfied it is necessary to make a non-publication order in respect of “any witnesses giving evidence in these proceedings”. Such a class of persons is cast imprecisely and I cannot be satisfied that it is appropriate to exercise my discretion to make a non-publication order, having regard to the principles outlined above.
- [46]In Health Ombudsman v Singh,[12] the Deputy President of this Tribunal, Dann DCJ, considered the meanings of “complainant” and “sexual offence” in the Criminal Law (Sexual Offences) Act 1978 (Qld) (CLSO Act) in granting a non-publication order in the underlying proceeding. Whilst the underlying proceeding in the application before her Honour related to charges of sexual assault against the practitioner, contrary to s 352 of the Criminal Code 1899 (Qld) (Criminal Code), her Honour’s observations are nonetheless apt in this case. I also note that s 6 of the CLSO Act prohibits publication of the identity of a complainant in a sexual offence.
- [47]In Singh, her Honour opined that:
A ‘complainant’ is defined for the CLSOA as a person in respect of whom a sexual offence is alleged to have been committed. This definition has been observed to have ‘potential breadth’. A ‘sexual offence’ is defined to mean any offence of a sexual nature …[13]
- [48]I am satisfied that the 2012 charge and conviction, relating to the offence of wilful exposure, and the 2002 charge, being indecent treatment, are offences of a sexual nature. I will therefore make a non-publication order in respect of the complainants relating to the respondent’s conduct in the referral.
Footnotes
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
[2] [2021] NSWCATOD 160 (‘Bolton’).
[3] At [100] and [190].
[4] [2024] VCAT 233 (‘Nguyen’).
[5] National Law s 3A.
[6] [2018] QCAT 332.
[7] Health Ombudsman v Shemer (No 2) [2019] QCAT 54 (‘Shemer’), [6] citing J v L&A Services Pty Ltd (No. 2) [1995] 2 Qd R 10 and John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131.
[8] Shemer, [6].
[9] AA v BB (2013) 296 ALR 353, [181].
[10] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151, [88].
[11] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [9].
[12] [2024] QCAT 377 (‘Singh’).
[13] Singh, [11] (citations omitted).