Psychology Board of Australia v Carmichael
[2025] QCAT 9
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- Unreported Judgment
- Psychology Board of Australia v Carmichael[2025] QCAT 9
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Psychology Board of Australia v Carmichael[2025] QCAT 9
Psychology Board of Australia v Carmichael[2025] QCAT 9
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Psychology Board of Australia v Carmichael [2025] QCAT 9 |
PARTIES: | psychology board of australia (applicant) v lance carmichael (respondent) |
APPLICATION NO/S: | OCR263-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 January 2025 |
HEARING DATE: | 17 December 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, assisted by S Joeffry, R Geddes and M Halliday |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT – where the applicant Board has referred the respondent chiropractor to the Tribunal seeking disciplinary findings and orders – whether the practitioner maintained appropriate professional boundaries – whether the treatment of the patient was adequate or appropriate – practitioner failed to maintain adequate patient records – whether professional misconduct – sanction – practitioner unable to practise because of immediate action conditions imposed by Board – whether suspension appropriate Health Practitioner Regulation National Law (Qld) s 193B Fittock v Legal Profession Conduct Commission (No 2) [2015] SASCFC 167 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Ombudsman v Kimpton [2018] QCAT 405 Health Ombudsman v Rissanen [2020] QCAT 96 Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 Medical Board of Australia v Blomeley [2018] QCAT 163 Medical Board of Australia v Jansz [2011] VCAT 1026 Nursing and Midwifery Board of Australia v Ballarto [2020] QCAT 248 Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 Pharmacy Board of Australia v Thomas [2011] QCAT 637 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S Marsh, instructed by Clayton Utz Lawyers |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”).[1] Under s 126 of the Health Ombudsman Act 2013 (Qld) (“the Act”), I constitute the Tribunal, assisted by assessors S Joeffry, R Geddes and M Halliday.[2]
- [2]The respondent is and was at the relevant time a registered psychologist, and hence a registered health practitioner for the purposes of the National Law. The applicant alleges that the respondent engaged in professional misconduct, or in the alternative unprofessional conduct, in that
Ground 1: | He failed to maintain appropriate professional boundaries with a patient between 8 and 20 August 2020. |
Ground 2: | His treatment of the patient in that period was not adequate or appropriate. |
Ground 3: | He failed to maintain adequate patient records of his consultations with that patient in that period. |
- [3]The Tribunal has been provided by the applicant with material about the matter, and submissions in writing and orally. The respondent is not legally represented, and has provided submissions in writing and orally. The parties have provided an agreed statement of agreed and disputed facts for the proceeding.
Background
- [4]From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows. The respondent has been registered as a psychologist since November 2000, and was at the relevant time employed as an intake clinician with a particular mental health service (“the Service”), part of a regional Community Mental Health Service. The relevant patient, referred to in the material as Patient L, was referred to the Service by her GP for management of anxiety, depression and possible post-traumatic stress disorder. On 5 August 2020 she attended the Service for a triage assessment by the respondent.
- [5]That assessment was carried out in the rooms of the Service, and the respondent completed a detailed written assessment.[3] During this, the patient disclosed that when she was twelve she was sexually assaulted by a dentist in his rooms, which she had never previously disclosed. At the conclusion of this assessment, the respondent arranged for the patient to attend him as a private patient. He offered this service, which he bulk billed, using a room in the local community centre, available to him only on Wednesday evenings or on Saturdays. There was no issue taken with the behaviour of the respondent during this assessment.[4]
- [6]On 6 August 2020 the respondent was present at an intake review meeting of the Service, where it was recommended that that the patient access counselling through a scheme provided by her husband’s employer, or access a mental health care plan with her GP, with a mental state examination/risk assessment to be provided.[5]
- [7]On Saturday 8 August 2020 the patient came to the community centre for the appointment to see the respondent. He had to unlock the door to let her in, and it appeared to her that there was no-one else there. It is agreed that during this session at one point the respondent said to the patient “you have beautiful eyes, you are a beautiful woman and any man would find you attractive.” According to the respondent, this was said in a context where she had disclosed that she hated the way she looked, and did not like anyone, even her husband, to look at her when she was naked.[6] She alleged that he also asked if she had intimacy issues with her husband. He agreed that he asked this, but denied it occurred on that day. The respondent made no notes of what occurred at this session.
- [8]The patient in her first statement said that the respondent only talked generally about her problems, talked a lot about himself, and made comments she regarded as inappropriate.[7]
- [9]At the conclusion of this session, the respondent arranged for him to come to her home on 20 August 2020. The respondent said that this was because the patient was not available on Saturday, his time on Wednesday was fully booked, and he did not have the use of the room at any other time.[8] When he attended her house her husband was absent. The respondent sat opposite the patient at a table, and they talked. Again, the respondent made no notes. The respondent admitted that during this session he made the following comments to the patient:
You have the most beautiful eyes I have ever seen, and I could look into them forever.
You are a very attractive woman, and a virile woman.
Do you masturbate …. If you don’t, you should. Some women go and buy a vibrator but it’s simple as using your index finger, you don’t need to waste money. Find yourself a room, a nice dark room, and just masturbate and find yourself, look up tantric sex on line.
Do you only do missionary style, you need to take control and lose yourself.
I need to get on top during sex and lose control.
- [10]The respondent also admitted that he disclosed his personal circumstances, including that he was not married, had no children, had strict parents and had a traumatic childhood. He disputed that his comments above, and his disclosures, were inappropriate, but there was expert evidence to the effect that it was, and there was no foundation in the evidence that such interaction could be part of some legitimate form of therapy for some condition or apparent condition of the patient. The respondent referred at the hearing to the approach of a particular sex therapist, but did not provide any basis in evidence for the use of such an approach. He denied that this interaction was the product of a sexual interest in the patient. The patient said it made her scared and embarrassed.[9]
- [11]The respondent also admitted that he made no notes in respect of either session, on the basis that he was proposing to bulk bill for them.[10] It follows, and was also admitted, that he failed to document any treatment plan for the patient, or any informed consent of the patient, or any diagnostic features relevant to the patient.[11] There was no evidence that he formulated any treatment plan, or in fact obtained informed consent from the patient. Indeed, the patient said that she had said that she had no issues with intimacy with her husband, in which case there was obviously no need for any form of sex therapy. There was also no independent evidence that the remarks made by the respondent constituted a legitimate form of treatment for intimacy issues.
- [12]The session, which lasted for about two hours, ended when the patient’s husband returned home; until then the patient and the respondent had been alone in the house. The patient did not see the respondent again. She made a complaint to someone at the Service, who referred the matter to the Office of the Health Ombudsman.[12] On 6 May 2021 the Health Ombudsman imposed conditions on the respondent’s registration,[13] and later referred the matter to the applicant.[14] On 11 October 2022 the conditions were modified, but despite this the respondent has not been able to obtain any work as a psychologist since the immediate action was taken. The referral to the Tribunal was filed on 1 November 2023.
Expert evidence
- [13]The applicant relied on the opinion of an experienced psychologist whose expertise was not challenged by the respondent.[15] She said that a full assessment of the patient’s background, functioning and symptoms would be needed to inform a treatment plan, which would involve diagnosis, level of severity and risk of harm. The patient’s goals and expectations should be discussed, and the treatment plan discussed with the patient, to assist in obtaining informed consent.[16] Adequate notes should be taken throughout the process. There was nothing in the notes made for the Service to show that the respondent was taking on the treatment of the patient privately, and the effect and significance of this had apparently not been explained to the patient in a way she grasped, because of her incorrect comments about the significance of billing Medicare.[17]
- [14]The expert expressed the opinion that the standard of care provided to the patient was poor, and the treatment was harmful to her.[18] She said that it was inappropriate for the respondent to be using the work of the sex therapist in treating the patient. As well, it appeared that the respondent had not provided the patient with a clear rationale for the use of such an approach, or obtained informed consent for it.[19] It was not consistent with the patient’s reasons for attending the Service. She was critical of the comments made by the respondent to the patient as set out above, which she regarded as highly inappropriate.[20] Overall she regarded his treatment and behaviour as below the standard reasonably expected of a psychologist of his training and experience.[21]
- [15]The issues identified by the expert were that the respondent had made a quick and premature assessment of the patient’s issues, that he failed to formulate and to discuss with the patient a treatment plan for her, a failure to obtain her informed consent to the therapy he proposed, a failure to identify the factors which would be likely to be upsetting to the patient in view of her history – dealing with an older male practitioner in a position of authority where other people were not close – and a failure to document all of these matters.
- [16]This evidence was uncontradicted, or even particularly questioned by the respondent. The assessors agreed with it, and I accept it. I also agree with her conclusion, that overall the treatment and behaviour of the respondent was substantially below the standard reasonably expected of a psychologist of the respondent’s training and experience.[22] The respondent conceded that the failure to make and retain notes of his sessions with the patient was unprofessional conduct, but otherwise disputed the characterisation of his conduct by the applicant as professional misconduct, or unprofessional conduct.
Definitions
- [17]The National Law, in s 5, has the following definitions:
- Unprofessional conduct … means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
- Professional misconduct … includes –
- (a)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 or experience; and
- (b)More than one instance of unprofessional 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 or training or experience; and
- (c)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.
Submissions for the applicant
- [18]The applicant submitted that the comments and other behaviour the subject of each ground relied on amounted to professional misconduct within paragraph (a) of the definition, and in the case of ground 1, within paragraph (c) of the definition, while the conduct overall amounted to professional misconduct within paragraph (b) of the definition. The applicant relied on the statement about professional misconduct in Fittock v Legal Profession Conduct Commission (No 2) [2015] SASCFC 167 at [110], which I accept. It was submitted that the respondent’s comments were sexualised and inappropriate, and, on the basis of the expert evidence, not justified clinically. It was also submitted that the home visit was inappropriate, being unnecessary and outside the ordinary clinical setting.
- [19]The applicant submitted that the patient was vulnerable because of her history of abuse, which was known to the respondent, but the respondent had dealt with her in a way which would be likely to trigger an adverse response from her because of this. As well the patient had not been given an explanation of the proposed treatment, and had not given informed consent to it, nor did she have a clear understanding of what was going on, which would have heightened her anxiety. It was submitted that the expert evidence supported a finding that the approach of the respondent would have been harmful to the patient, and that the respondent’s persistence after he was told that she no longer wanted to be treated by him was an aggravating feature.[23]
Submissions of the respondent
- [20]The respondent in written submissions[24] developed four themes. The first was that he had diagnosed anhedonia from the answers to what he described as three standard questions, one of which related to her enjoyment of intimacy with her husband. This was said to have occurred on the first presentation to the Service, but there was no reference to this in the note he prepared for the Service following this assessment,[25] nor in the response to the referral provided to the Tribunal on 12 January 2024.[26] He did however refer to it in a response provided to the Health Ombudsman on 4 November 2020.[27] It is also inconsistent with the statement of the patient that she did not have such problems.[28]
- [21]There is in handwriting on the copy of the Mental Health Care Plan prepared by the patient’s GP on 4 August 2020 and provided by the respondent, a reference to poor image, lack of intimacy, anhedonia.[29] But the copy provided by the GP does not contain these notes, nor does it have marked in the list of issues self esteem issues, sexual issues and life transition and adjustment, all of which had been marked on the copy provided by the respondent.[30] I infer that these changes to the form were made by the respondent; there is no evidence as to when they were made. It follows that they may have been made on 5 or 8 August 2020, when the respondent claims to have identified these issues, or they may have been made later, perhaps at the time the response to the Health Ombudsman was formulated on 4 November 2020, or even when he was given the notice to produce his records.[31]
- [22]The second theme was that he reported that the patient had been concerned about seeing him in an office in a building which was otherwise deserted. He claimed that he had spent some time explaining the situation to her, and showing her that it was safe, but appears to have failed to realise that this would be of particular concern to the patient because of her history of abuse, and to have failed to take into account that this increased her vulnerability when making the comments referred to earlier.
- [23]It was apparent that the respondent was attempting to conduct a private practice in circumstances where he did not have accommodation which was really suitable for that purpose, at least for patients such as patient L. He said he was fully booked on Wednesday evenings, the only evening the room was available to him, and another Saturday morning did not suit the patient, which led to the suggestion of a home visit. There were limitations arising from the facilities available to him, but this really meant that it was inappropriate for him to be providing the counselling to this patient.
- [24]The third theme was difficult to follow. It related to the home visit, but really just described what happened in terms of the setting. He said that the patient had her mobile phone on the table in front of her, but he assumed she was not recording the session. I cannot relate this to the issues arising from the home visit.
- [25]The fourth theme contained some reference to the work the respondent had been doing in regional and remote communities, where he was exposed to patients with eye health problems. That is no doubt a problem in those areas, but I doubt that they can generally be diagnosed just by looking at the patient, except perhaps in the case of an advanced cataract. This appeared to suggest that the comment about the patient’s eyes was somehow related to her physical health, and in that way relevant to her mental well-being. Whether or not there can be such a connection, the comment about her eyes was not on its face directed to their health. I do not accept this submission.
- [26]At the end of the written submissions the respondent referred to two matters he had learnt from his supervisor, but these were directed to improving a patient’s understanding of the difference between the public system and seeing a practitioner privately, and the need to avoid confusion on the part of the patient. This is of some assistance, but the major issues raised by the referral were not referred to, and it is not clear the respondent has gained any real insight into them.
- [27]In oral submissions the respondent said that he had not been working as a psychologist since the conditions were imposed by the Health Ombudsman in 2020, because of the difficulty in getting a job with the conditions. That is a long period out of practice, and to complicate the position, the conditions required that the respondent undergo regular supervision during that period, although it is difficult to understand just what supervision was to achieve if the respondent was not working as a psychologist during that period. Unsurprisingly, there is a certain sameness about the supervisor’s reports.
- [28]The respondent said that he was trying to do the best for the patient in a rural setting, where other services were not readily available. He referred to other, more appropriate services which were available in the nearest provincial city, and it is understandable that treatment by the respondent would have been more convenient for the patient, at least at first. The respondent referred to his sessions with the supervisor, which he appears to have treated as education sessions. He appears to have learnt from them, but did not display any great insight into the inappropriateness of his treatment, and of the comments he made. He did however concede that he did not conduct himself properly, and that the therapy he provided was inappropriate in the circumstances of this patient. He said that his approach would be a lot different now.
- [29]The respondent denied, when asked directly, that he was attempting to establish a personal relationship with the patient. In view of the admitted comments, and the extensive disclosure by him of personal information about his circumstances, it is understandable that the patient would be concerned about this.
Consideration
- [30]There are some factual issues which need to be resolved by findings. The respondent disputed that the time he spent with the patient on 8 August 2020 amounted to a consultation. This is largely a question of semantics. What matters is that the patient was attending him for the purpose of his practice of his profession as a psychologist, and that is what occurred. It was not disputed that the meeting on 20 August was a professional consultation. The respondent did not admit that, when he telephoned the patient on or about 25 August, he left a voicemail message, claiming that he spoke to her. I find that he did leave a voicemail message. That was the evidence of the patient, and it is supported by a transcript of the voicemail message.[32]
- [31]The respondent disputed that his standard of care of the patient fell below the expected standards, although he admitted that he failed to generate appropriate documentation. He was not able however to provide any explanation of what passed between him and the patient in terms of any appropriate system of patient care in the light of the patient’s presentation. I accept the evidence of the independent expert, that the sex therapy referred to by the respondent was not appropriate for the patient, particularly in circumstances where the setting could trigger memories of prior sexual abuse by an older male practitioner. I also accept the evidence of the expert that the approach of the respondent had the potential to harm the patient.
- [32]In relation to Ground 1, this is not the usual case of a failure to maintain a proper professional boundary with a patient. In the present case, the various admitted comments could have been directed to an attempt to provide a form of sex therapy, but objectively they were certainly open to the interpretation by the patient that they were an attempt to establish a personal relationship with her. I consider that the concept of failure to maintain proper boundaries is wide enough to include such behaviour, particularly when the therapy being attempted is not appropriate, and when the patient has a vulnerability, arising from the history of sexual abuse. In those circumstances, I consider that the evidence establishes that the boundary violation alleged in Ground 1 has been made out, and shown to amount to unprofessional conduct. It involved a breach of provision B3 of the Code of Ethics adopted by the Australian Psychological Society.
- [33]In relation to Ground 2, I again accept the evidence of the expert that the respondent’s treatment of the patient on 8 and 20 August 2020 was not adequate or appropriate, and had a potential to harm the patient. It involved a breach of provisions A3.1, A3.3, B1.1, and B3 of the Code of Ethics adopted by the Australian Psychological Society. I accept on the evidence that this amounted to professional conduct which was of a lesser standard than that which might reasonably be expected of a psychologist of the respondent’s training and experience. It was therefore unprofessional conduct for the purposes of the National Law.
- [34]In relation to Ground 3, the respondent accepted that the failure to make and keep proper records of his treatment of the patient amounted to unprofessional conduct. It involved a clear breach of provision B2.1 of the Code of Ethics adopted by the Australian Psychological Society.
- [35]Whether each ground can be regarded as a separate instance of unprofessional conduct for the purposes of the definition of professional misconduct need not be decided, because I consider that, as aspects of the professional conduct in respect of the respondent’s treatment of the patient, when considered together they show that the conduct was substantially below the standard reasonably expected of a psychologist of an equivalent level of training and experience. It therefore amounted to professional misconduct for the purposes of the National Law. In the circumstances, it is not necessary to consider whether either Ground 1 or Ground 2 would alone amount to professional misconduct.
Sanction
- [36]In imposing a sanction, the health and safety of the public are paramount.[33] Disciplinary proceedings are protective, not punitive in nature.[34] Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[35] Insight and remorse on the part of the respondent are also relevant.[36] The fitness to practise of the respondent is to be assessed at the time of the hearing.[37] A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].[38]
- [37]The applicant in written submission sought by way of sanction a reprimand under the National Law s 196(2)(a), the suspension of the registration of the respondent for a period of 9 to 12 months under s 196(2)(d), and the imposition of conditions on the registration of the respondent under s 196(2)(b). The applicant reconsidered the conditions originally sought, after a couple of issues were raised by the Tribunal.
- [38]One matter which is relevant to the question of sanction is that the respondent has since 2020 been subject to conditions imposed by the Health Ombudsman, in particular conditions imposed on his registration. The practical effect of those conditions has been that the respondent has not in fact worked as a psychologist since then, although he claims to have sought employment consistent with the conditions, without success. Two things arise from this. First, there has been in effect a long suspension of the respondent’s practice of his profession, and second, if similar conditions are imposed by the Tribunal, there is reason to believe that the respondent will continue to be unable to practise his profession in the future.
- [39]It is unfortunate that the combination of this effect of the immediate action, and the length of time it has taken for this referral to come to a hearing, means that the capacity of the Tribunal to impose a meaningful sanction has been constrained by the consequences of the conditions imposed over such a long period of time. It is not possible to assess the reasons for the delay so as to attribute them to one particular party, and it may be that to some extent it was due to the time taken for the respondent to cooperate with the applicant in relation to the agreement as to primary facts, which did simplify the matter. Some of the delay may be due to the pressure of work in the Tribunal.
- [40]Another aspect of this is that the respondent has been required to secure, and see regularly, a supervisor, at his own cost, despite the fact that he has had no professional practice to be supervised. I consider that it would have been better for the condition requiring supervision to have operated by reference to when the respondent began to practise as a psychologist. This was one of the issues raised by the Tribunal with the applicant. It appears that the respondent had in practice used these sessions as counselling and education sessions.
- [41]The effect of immediate action on the appropriate sanction is illustrated by one of the decisions relied on by the applicant, Nursing and Midwifery Board of Australia v Ballarto [2020] QCAT 248. In this matter a reprimand and a suspension for one month, and conditions for education, were imposed after a finding of professional misconduct in relation to a boundary violation of a nurse with a psychiatric patient. The nurse and the patient had been engaged in conversations in person and by text of an unprofessional nature, including sexually explicit material, and comments about other patients. In that case the practitioner had had her registration suspended already for two and a half years by way of immediate action, a fact the Tribunal regarded as relevant: [20]. The Tribunal said that otherwise the suspension would have been longer, [21]; I suspect much longer. In that case the practitioner also had the benefit of full cooperation with the Board, to the point of agreeing the findings, the characterisation and the sanction with the Board. The period of an additional month was explained by the Tribunal as required by the consideration of general deterrence, to signal to the profession, along with the reprimand, that such conduct was condemned. I am not at all sure that an additional short period of suspension was necessary for that purpose, and I do not accept that an additional suspension to the effective suspension for about four years that the respondent has undergone is necessary for such a purpose here.
- [42]Although there is not present in this case the same indicia of insight and remorse as in Ballarto, there is in the reports of the supervisors evidence of insight and remorse on the part of the respondent. I consider that the actual conduct of the practitioner in Ballarto was more serious, including in being more persistent. On the other hand, there were a number of mitigating factors, including that she had undergone a series of sessions with a psychologist at her own initiative. In the present case the respondent appears to have treated the meetings he had with his supervisor as more like a form of education or counselling for him, given that there was no psychological practice to be supervised. That also emerges from the reports of his supervisor,[39] and the report of another psychologist who was approved as an alternate supervisor and who was seen a number of times in 2022.[40]
- [43]The significance of not practising the profession was also relevant in Health Ombudsman v Rissanen [2020] QCAT 96, where an older, male psychologist developed a personal, somewhat paternal relationship with a young, female psychiatric patient whom he was continuing to treat. The relationship continued for about two years, and he persisted in trying to continue it for some months after she wanted to break off contact. This was regarded as an aggravating feature: [14]. There was no fact in dispute, and the practitioner admitted that this conduct amounted to professional misconduct. In the course of the relationship he also disclosed confidential information to the patient. The fact that the respondent had not practised as a psychologist for three years was also regarded as relevant: [21], where relevant authorities were cited. Indeed, he had not maintained his registration and in those circumstances it was not considered necessary to impose any conditions on him: [22].
- [44]The applicant submitted that the conduct was more explicitly of a sexual nature than in Rissanen. It was true that there was no sexual conduct in that matter, whereas some of the respondent’s comments were explicitly sexual, but I am not persuaded that this was an attempt on his part to establish a sexual relationship with the patient, rather than an inappropriate and unskilful attempt to provide a form of sex therapy for her. I do not accept that she was in need of, or had sought or consented to, such therapy, and I accept that the comments could have easily been taken by the patient as a manifestation of a sexual interest in her, which would have been particularly distressing because of her vulnerability. The relationship was quite different from that in Rissanen, but more as an example of a lack of professional competence than as a boundary violation.
- [45]The conditions originally proposed by the applicant covered a requirement for approval by the applicant of any place of practice of the respondent, for audits in accordance with an audit plan of the practice and supporting records of the respondent, for supervision by an approved supervisor on at least a monthly basis for at least twelve months, and for a programme of education and training. One of the assessors raised the question of whether such a programme was in fact available, and I raised this with counsel for the applicant, who sought an opportunity to get further instructions.
- [46]On 23 December 2024 solicitors for the applicant provided a set of revised conditions. They also advised that the applicant does not hold a list of approved courses for the education conditions previously sought, and that “it is up to the practitioner to suggest a course/s and the Board to review and approve (if suitable) those education courses. The Board’s view is that it would be inappropriate for the Board to suggest courses as it may be seen as alliance with a particular education provider.” That is all very high-minded, but it does not meet the objection that the applicant may, for all I know, be asking the Tribunal to impose a condition on the respondent which is not reasonably practicable of satisfaction by him. In effect, it is asking the Tribunal to prevent the respondent from practicing by imposing a condition which has not been shown to be reasonably capable of performance by him.
- [47]If I considered that the appropriate sanction is one which would prevent the respondent from practising, I would suspend or cancel his registration. I am not satisfied that that step is necessary, and in those circumstances I do not intend to impose on the respondent a condition which the applicant cannot show is reasonably capable of performance by him. No doubt there are conditions the performance of which by a practitioner is obviously possible, and such evidence would not be required in such a case. But if that is not the case, I consider it is appropriate for an applicant seeking the imposition of such a condition to show that there is at least one way in which is can be satisfied. In the present context, that would involve identifying at least one acceptable course, and providing details of cost and (if it cannot be completed on line) where it can be undertaken. Any suggestion of such an alliance can be avoided by providing more than one such course (if that is possible), and by making clear that it is open to the practitioner to propose for approval an alternative course.
- [48]In the present case, the applicant provided an alternative set of conditions now sought, which dropped the requirement for such a course. There was substituted however a condition requiring completion of:
A programme of one-on-one education, approved by the [applicant] and a reflective practice report each addressing each of the following:
- Appropriate record keeping.
- Appropriate assessment.
- Treatment plans and intervention (particularly in respect of patients attending in relation to sexual assault and/or abuse).
- Management of professional boundaries.
- Respecting client relationships.
- [49]The proposed conditions go on to require that the educator be approved by the applicant, along with the education plan proposed by the educator, the education plan and the reflective practice report are to be completed within a period of three months from the applicant’s approval, and all of this is to occur before the respondent’s return to practice. Apart from being subject to the same objection as the earlier condition about the education course, there are two other issues. The first is that it has the effect of imposing a further period of suspension of the respondent’s practice of in excess of three months. I already consider that the practical suspension of his practice as a result of the immediate action undertaking has been longer than an appropriate period of suspension by way of sanction, and I will not impose a condition which will necessarily add to that period. The second is that, from the information available as to the sessions that the respondent has had over the years with his supervisors, they have in effect really covered the ground required by such an education plan.
- [50]This is a point made by the respondent in submissions in response to the amended set of conditions. I consider that there is force in it. The reports of the supervisors speak positively of the efforts he has made, and the time they have spent to address various matters such as those listed above. He said he intends to seek employment in general psychology within the government system or with an NGO, primarily in Aboriginal health. That is an area where he has had a good deal of experience during the period of over twenty years since he started in practice. I note that he has had no previous notifications over that period,[41] which suggests that his conduct on this occasion was something of an aberration.
- [51]In the circumstances, I consider that an appropriate sanction is a reprimand,[42] and the imposition of relevant conditions in the event of his returning to private practice, but do not consider that a suspension is appropriate, or that most of the conditions sought by the applicant should be imposed. There is nothing in this case to indicate that he would fail to keep appropriate records if he were working as an employee, and I expect that in such a position his employer would exercise an appropriate degree of supervision over matters such as the production of proper records. I am not prepared to impose proposed condition A.[43]
- [52]If the respondent were working as an employee, the employer should be able to exercise appropriate supervision, and ensure that his work is properly documented. There is no material to show that there have been any such deficiencies in the work of the respondent as an employee in the past, and given the long period of effective suspension and “supervision” he has already undertaken, I do not consider that there is sufficient evidence that the protection of the pubic requires that he be supervised or audited in relation to his work as an employee. That can be left to the employer. On the other hand, if he were to recommence a private practice, there may be some value, at least in the short term, in his having a supervisor who would cover the matters in the proposed conditions. I consider however that if the respondent is being supervised in relation to adequate record keeping, he does not also require an auditor to audit his practice in that regard. That strikes me as excessive, to the point of being punitive.
- [53]The proposed conditions require considerable modification to bring them into line with what I consider is an appropriate, but not excessive, degree of specific additional precautions appropriate for the protection of the public. I should say however that I consider that, unless there were further matters which give rise to some continuing concern on the part of the applicant, I would not expect that these remaining conditions should be required for more than about twelve months after they begin to operate. I will fix a review period under the National Law s 196(3) of twelve months.
- [54]The applicant drew attention to the fact that no non-publication order has been made in respect of the identity of the patient, or indeed any other patient of the respondent. Such an order is commonly made in the interests of patients of practitioners who come before the Tribunal, and I consider the order proposed by the applicant. I have incorporated it into the decision of the Tribunal.
- [55]I acknowledge the assistance provided by the assessors in this matter, and thank them for it. The decision of the Tribunal is as follows:
- 1.The Tribunal decides that the matters referred to in the referral occurred, and amount collectively to professional misconduct on the part of the respondent.
- 2.The Tribunal reprimands the respondent.
- 3.The Tribunal imposes on the registration of the respondent the conditions set out in Annexure A to this decision.
- 4.For the purposes of the Health Practitioner Regulation National Law (Queensland)s 196(3), the review period is twelve months from the date of this decision.
- 5.For the purposes of the Health Practitioner Regulation National Law (Queensland) s 125(2)(b) Part 7 Division 11 Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to this condition.
- 6.Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
- (a)the contents of a document or other thing filed in or produced to the Tribunal;
- (b)evidence given before the Tribunal;
- (c)any order made or reasons given by the Tribunal;
- is prohibited to the extent that it could identify or lead to the identification of any patient or former patient 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).
- 7.Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
- (a)a judicial member;
- (b)a tribunal member;
- (c)an associate to a judicial officer or tribunal member appointed under relevant legislation;
- (d)any assessor appointed to assist the Tribunal;
- (e)the staff of the Tribunal registry;
- (f)any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
- (g)the parties to this proceeding or any appeal or review arising from these proceedings.
Footnotes
[1] For convenience I shall refer to the Psychology Board of Australia as the applicant, and to Mr Carmichael as the respondent.
[2] Health Ombudsman Act 2013 s 126. For their function, see s 127.
[3] Appeal Book (“AB”) pages 133 – 140. I shall refer to the red numbering throughout.
[4] The patient in a statement made 26 August 2020 said that on this occasion she felt very comfortable with the respondent, and about telling him her problems: AB page 44.
[5] AB page 144.
[6] AB page 41.
[7] AB page 44.
[8] See also AB page 50.
[9] AB page 45.
[10] AB page 125.
[11] Statement of agreed facts AB page 278, paragraph 32. This paragraph is ambiguous, because of the use of the expression “and/or”. In my opinion, just as that expression should never be used in a pleading, so it should never be used in a statement of agreed facts, or indeed in particulars of a charge.
[12] AB page 42.
[13] AB page 148.
[14] AB page 22, on 18 November 2020.
[15] Report of 22 March 2023, AB from page 220.
[16] Report AB pages 225,6.
[17] Report AB pages 228,9.
[18] Report AB page 226.
[19] Report AB page 230.
[20] Report AB page 233.
[21] Report AB page 231, page 235.
[22] AB page 239: “substantially below the standard”.
[23] Referring to Health Ombudsman v Rissanen [2020] QCAT 96.
[24] AB page 280+; provided to the Tribunal on 26 November 2024.
[25] AB page 133+.
[26] AB page 13.
[27] AB page 103.
[28] AB page 41,
[29] AB page 118.
[30] AB page 205.
[31] AB page 107, on 10 February 2021. No adverse inference can be drawn about this.
[32] AB page 49. There is nothing of concern in the content.
[33] The National Law s 3, s 3A.
[34] Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122].
[35] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79].
[36] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140]–[143].
[37] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].
[38] See also Medical Board of Australia v Jansz [2011] VCAT 1026 at [170], [362] and [366 – 9].
[39] AB pages 257 – 273, pages 307 – 321.
[40] AB page 196, report of 31 August 2022, which speaks in quite positive terms about the rehabilitation of the respondent.
[41] AB page 58.
[42] This is itself not a trivial sanction: Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323.
[43] I should add that I also do not think that a “reflective practice report” is necessary. The evidence shows that over the period when he has not been working he has taken the opportunity to reflect appropriately on the deficiencies in his approach to the treatment of this patient, and I cannot se any real value in requiring him to write an essay on the subject.