Solomon v AHPRA 2015 WASC 203

A complaint was made to the Registration Board AHPRA about the conduct of a treating psychologist.

A couple had received couple counselling from the psychologist, then decided to separate.  The wife continued to see the psychologist for individual counselling.  The husband later also sought individual counselling from the psychologist.  The psychologist then asked the wife if she was willing to assist her ex-husband by consenting to the psychologist writing to the Department of Immigration to assist the ex-husband’s application for a residency visa by stating that the marriage had been dissolved due to family violence by the wife towards the husband.  The wife refused to consent, saying that the statement would be false.  The wife was subsequently informed by the Department of Immigration that the psychologist had provided a statutory declaration regarding family violence.

The wife complained to AHPRA on several grounds including: that the psychologist was in a conflict of interest as the psychologist had provided individual counselling to the husband after providing joint counselling to the couple, without notifying the wife; the report provided by the psychologist to the Department of Immigration was against the interests of the wife; the psychologist’s report included a false statement; and the psychologist breached confidentiality by using information that had been provided by the wife without her consent.

AHPRA appointed an investigator who requested access to the psychologist’s notes but the psychologist declined to pass on a copy of notes.

A Panel appointed by AHPRA found that the psychologist had behaved in a way that constituted unsatisfactory professional performance as the psychologist had failed to disclose and/or appropriately manage a conflict of interest arising from the provision of individual counselling services to both parties after the breakdown of their marriage, and in regard to the psychologist’s role regarding the application by the husband for a visa;  by providing information obtained in joint counselling consultations to the Department of Immigration and Citizenship without obtaining the consent of the wife; by providing an account of the reason for the end of the marriage that one party stated was false; and the psychologist had failed, without reasonable excuse, to comply with Investigator Notices issued under the National Law.  The Panel applied conditions to future registration of the psychologist.

The AHPRA Panel found that by writing to the Department of Immigration the psychologist had entered a role of advocate, and had entered into a dual role without appropriate regard for the prior context of the advocacy, and that the psychologist had failed in her responsibility to the former client to maintain as confidential information that had been obtained in a joint counselling session.

The AHPRA Panel further found that the psychologist did not during hearings demonstrate an adequate awareness regarding her mandated responsibilities under the National Law, especially with respect to the notification process.  In addition the AHPRA Panel found that the psychologist had not adequately conceptualised the reactions of her former client (the wife) as potentially indicative or symptomatic of Borderline Personality Disorder.

The psychologist did not accept the decision of the AHPRA Panel but applied for a review by the State Administrative Tribunal against the Panel’s decision to apply conditions on the psychologist’s future practice.  The Panel advised the psychologist to raise the matter with an appeal court.

The matter went to the Supreme Court of Western Australia.  The Court defined terms: unsatisfactory professional conduct, unprofessional conduct:

• ‘Unprofessional conduct’ is defined to mean ‘professional conduct that is of a lesser standard than that which may reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.  Examples include contravening a law.
• There is clearly a large degree of overlap between the concepts of ‘unprofessional conduct’ and ‘professional misconduct’.  The National Law provides for the same kind of consequences for the two categories of behaviour.
• There are very limited differences in the provisions of the National Law in relation to ‘unprofessional conduct’ and ‘unsatisfactory professional performance’.  Professional misconduct refers to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and more than one instance of unprofessional conduct …; 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. … Unsatisfactory professional performance seems to be a subset of unprofessional conduct. …  The phrase ‘in the practice of the health profession’ is apt to denote the actual delivery of health services, rather than administrative, regulatory and other matters associated with the delivery of health services.  The focus of the definition of ‘unsatisfactory professional performance’ is on the knowledge etc. of the practitioner, whereas the focus of ‘unprofessional conduct’ is on the conduct of the practitioner.

The Court ruled that there are three elements in unsatisfactory professional conduct:

• the behaviour enables a certain inference to be drawn about the knowledge, skill or judgment possessed, or care exercised by, the practitioner
• the knowledge etc. is possessed, or the care is exercised, ‘in the practice of the health profession in which the practitioner is registered’
• the level of knowledge etc. or care reflected in the relevant behaviour is ‘below the standard reasonably expected of a health practitioner of an equivalent level of training and experience’.

The Court considered the burden of proof.  The Court found that in this case the applicant did not have to establish that she did not engage in unsatisfactory professional performance. The Court found that the Briginshaw standard of proof was applicable.

The Court found that a Panel is required to give reasons for its decisions in writing so that an applicant can understand why the Panel reached its conclusions.  The Court found that the Panel had failed to give reasons for its decisions as the Panel did not explain the process of reasoning it followed to reach its conclusions.  The Panel failed to state the expected standard of professional conduct for the situation, and the Panel failed to make a finding about the psychologist’s actual practice.  The Court found that the Panel had re-stated allegations it received as its own conclusions.

The Court found that the Panel did not explain its own investigative process to deal with apparent conflicts in factual information provided by the parties on two matters.  First the psychologist stated that the wife had been informed that the psychologist was providing counselling to the ex-husband.  Second the psychologist stated that information about domestic violence had been provided by the husband in individual sessions and not during joint sessions.

The Court found that the Panel did not identify a specific conflict of interest, and did not clarify how a perceived conflict of interest might have been better managed.  The Panel did not identify Codes of Practice it had relied on when forming a view about conflict of interest.

The Court found that the provision of psychological services to two ex-partners did not in itself constitute a multiple relationship or a conflict of interests.

The Court quashed the Panel’s decision that the applicant had behaved in a way that constituted unsatisfactory professional performance and the consequential decision to caution the applicant and to impose conditions on her registration.