Attai v Psychology Council of New South Wales

Facts

1. Between 24 July 2021 and 26 July 2021, the Council received three complaints from members of the public and other health practitioners about the practitioners conduct. The complaints concerned alleged breaches by the practitioner of public health orders ("PHO") during the COVID-19 pandemic. The circumstances of the alleged breach relate to the practitioner attending an unlawful anti-lockdown protest rally in Sydney on 24 July 2021. The practitioner is alleged to have published a number of social media posts in support of the protest and spreading misinformation about COVID-19. The complaints included:

• The practitioner not wearing a mask and not practising social distancing.
• The practitioner picking up strangers in his car in breach of PHO.
• The practitioner consulting patients during this period and possibly spreading COVID-19.
• The practitioner, by his conduct, bringing the profession into disrepute.

1. The practitioner is also alleged to have posted information about his patients on social media.
2. Following the s 150 Decision, the Council imposed the following conditions of the practitioner's registration: 1. To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) Within 21 days of this notice to provide to the Council the name of a Board approved supervisor, who is also endorsed as a Clinical Psychologist, for approval by the Psychology Council of NSW. (b) To provide a supervised practice plan, for approval by the Council within 21 days of receiving written approval of the supervisor. The plan must outline the details of how the identified performance deficits will be addressed. (c) The supervision sessions must be: i. a minimum of one hour in length. ii. the supervision sessions must be face to face or via videoconference iii. the supervision sessions must be conducted on a fortnightly basis iv. supervisor reports must be completed and submitted to the Council on a monthly basis. iv. supervisor reports must be completed and submitted to the Council on a monthly basis. 2. At each supervision meeting, the supervisor is to review and discuss the practitioner's practice and address any relevant work-related or professional matters with particular focus on: a) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines b) Privacy and confidentiality c) Cultural awareness, safety and practitioner and patient beliefs - social and clinical d) Understanding of obligations under the National Law on use of social media e) Professional boundaries f) Understanding of requirements for planning, completing and documenting CPD g) Appropriate and relevant CPD and related journal entries for all CPD and supervision sessions 3. To undergo a Performance Assessment with Council approved assessors within 6 months of the imposition of these conditions. 4. The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 5. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia.
3. Following the s 150A Decision, the Council varied the conditions imposed on the practitioner's registration as follows: 1. To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) Within 21 days of this notice to provide to the Council the name of a Board approved supervisor, who is also endorsed as a Clinical Psychologist, for approval by the Psychology Council of NSW. (b) To provide a supervised practice plan, for approval by the Council within 21 days of receiving written approval of the supervisor. The plan must outline the details of how the identified performance deficits will be addressed. (c) The supervision sessions must be: v. a minimum of one hour in length vi. the supervision sessions must be face to face or via videoconference vii. the supervision sessions must be conducted on a monthly basis. viii. supervisor reports must be completed and submitted to the Council on a monthly basis. 2. At each supervision meeting, the supervisor is to review and discuss the practitioner's practice and address any relevant work-related or professional matters with particular focus on: a) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines b) Privacy and confidentiality c) Cultural awareness, safety and practitioner and patient beliefs - social and clinical d) Understanding of obligations under the National Law on use of social media e) Professional boundaries f) Understanding of requirements for planning, completing and documenting CPD g) Appropriate and relevant CPD and related journal entries for all CPD and supervision sessions 3. To undergo a Performance Assessment with Council approved assessors. 4. The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 5. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia.

Legal Framework

1. The National Law provides for a system for the handling of complaints about registered health practitioners (Part 8, Division 3 of the National Law).
2. The system provides for the making of a complaint to the Council or the HCCC (s 144B and s 144C), the investigation of the complaint (s 145B) and a number of alternative ways of processing and finalising the complaint, depending upon the circumstances.
3. The power of imposing conditions on a practitioner's registration under s 150(1) of the National Law, which is the power exercised by the Council in this matter, is intended to operate to protect public health and for the protection of the public pending the outcome of the investigation and finalisation of the complaint against the practitioner under Part 8, Division 3 of the National Law.
4. The National Law provides, in s 150: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) [not relevant] (3) [not relevant] (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) [not relevant]
5. As we have said, the applicant has appealed from the Council's s 150 Decision and s 150A Decision under s 159 and s 159B of the National Law.
6. With respect to the appeal under s 159, the National Law provides, in s 159(3): The appeal is to be dealt with by way of a new hearing, and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
7. The appeal under s 159B is close in nature to a strict appeal - s 159B relevantly, provides: (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) Subsection (1) does not limit a right of appeal under section 159. (3) [not relevant] (4) [not relevant]
8. The Tribunal has the same powers in relation to both kinds of appeal and those powers are provided for in s 159C: (1) On an appeal against a decision of a Council, the Tribunal may, by order (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made) (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
9. Both kinds of appeal are external appeals under the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").

Dismissal of the s 159 appeals

1. At the commencement of the hearing the practitioner said he was withdrawing his s 159 appeals against the s 150 Decision and the s 150A Decision. This is because, since the time the appeals were filed, the conditions the practitioner sought to have removed have been removed from his registration by the Council in the Recent 150A Decision.
2. While the appeals were instituted for a proper purpose, in light of the Recent 150A Decision, the s 159 appeals are now "lacking in substance". The appeals seek a remedy that would have no practical effect - namely, the removal of conditions that have already been removed. We are satisfied that the s 159 appeals should be dismissed under cl 12 of schedule 5D of the National Law as they have been withdrawn by the practitioner and it is in the public interest to do so given the appeals are now lacking in substance. In exercising our independent evaluation of the public interest as required by cl 12 of schedule 5D, we have taken into consideration that the Council in the Recent s 150A Decision lifted the conditions and it was satisfied that it was in the public interest to do so - HCCC v Duggan [2015] NSWCATOD 142 at [50].
3. The council supports the dismissal of the s 159 appeal in proceedings 2022/114008 and 2021/265116 and it does not seek an order for costs.
4. We have decided to dismiss the s 159 appeals (in proceeding 2021/265116 and 2022/114008) under cl 12 of schedule 5D of the National Law.

The s 159B appeals

1. The Council conceded that the practitioner's s 159B appeals from the 150 Decision and the 150A Decision may have utility, notwithstanding the Recent 150A Decision if legal error in the 150 Decision or the 150A Decision can be demonstrated.
2. This is consistent with the Tribunal's observations in Ng v Pharmacy Council of New South Wales [2022] NSWCATOD 49 at [33] - [34]: "[33] The appellants contend, and the Council accepts, that there is utility in the Tribunal granting the relief sought in the present appeals, notwithstanding the Council's more recent s 150C decisions. This is because, absent the grant of the relief sought by the practitioners in the present appeals, the 150A Decisions will remain in force. [34] The parties submit that the continued existence of the s 150A Decisions may have consequences for the practitioners in the future notwithstanding the fact that they have, in practical terms, been superseded. They give the example that, if a complaint were made against the practitioners in the future, the Council would be required to have regard to the s 150A Decisions in exercising its functions under Part 8 of the National Law, by reason of the operation of s 41O of the National Law. …"
3. Section 41O of the National Law, mandates the matters the Council must have regard to when exercising any of its functions under Part 8 with respect to a complaint made about a registered health practitioner. One of those matters is a previous finding or decision of a Council enquiry, namely the s 150 Decision and the s 150A Decision.
4. Further, the s 150 Decision and the s 150A Decision record that the decisions had been forwarded to the Health Care Complaints Commission ("HCCC"). The practitioner's s 159B appeals from the 150 Decision and the 150A Decision (in contradistinction to the s 159 appeals) may have utility, as the ongoing existence of those decisions could have consequences for him in the future (notwithstanding the fact that they have been superseded by the Recent 150A Decision). As the Tribunal identified in Ng at [35]: "[t]he parties jointly submit that if the decisions are not set aside by the Tribunal, it may be that those other regulatory bodies will have regard to the s 150A Decisions in the future…"
5. It follows that if the practitioner can establish that the s 150 Decision and the s 150A Decision were infected with legal error, there would be utility in setting aside those decisions.
6. In order to succeed in his s 159B appeals, the practitioner must demonstrate that the 150 Decision and the 150A Decision contain an error with respect to a "point of law".
7. We deal with the practitioner's contentions about errors of law in the s 150 Decision and the s 150A Decision.

Denial of procedural fairness

1. The practitioner contends that he was not accorded procedural fairness by the Council in making the 150 Decision. He says that he was only given 2 days to respond to the complaints, before, the Council proceeded under s 150 of the National Law to impose conditions on his registration.
2. The Council accepts that the practitioner was given only two days to respond to its initial request made of him about the complaints. The practitioner was notified of the complaints on 3 August 2021, and he was requested to provide an initial response by 5 August 2021. The Council says that it required a swift response to decide whether urgent interim action should be taken under s 150 of the National Law. This is because, it had to have regard to the protection of the health and safety of the public pursuant to s 3A of the National Law.
3. The Council accepts that the practitioner was entitled to be afforded procedural fairness in the conduct of the s 150 proceedings leading to the 150 Decision, and that a failure to accord procedural fairness would constitute an error of law.
4. The requirements of procedural fairness are flexible and adaptable to the circumstances of the particular case (see Kioa v West (1985) 159 CLR 550 at 612) and that the concern of the law is "to avoid practical injustice" (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]). As the Tribunal observed in Jayswal v Medical Council of New South Wales [2022] NSWCATOD 53 at [69]: "[p]rocedural fairness has been held to relate to the fairness of the procedure by which a decision is made, rather than the fairness of the decision, and requires a decision-maker to afford a person an opportunity to be heard before making a decision affecting his/her interests."
5. We find the practitioner was given the opportunity to be heard before the Council made the 150 Decision. The Council complied with its obligation to accord the practitioner procedural fairness. While the initial timetable for the provision of documentary material to the Council was truncated (seeking an initial response within two days), this timeframe was not inappropriate in circumstances where the question for the Council was whether urgent interim action should be taken under s 150 of the National Law having regard to the protection of the health and safety of the public (see s 3A of the National Law). We accept the Council's submission that an urgent response from the practitioner was appropriate in those circumstances.
6. However, thereafter, the practitioner was given the opportunity to respond to the complaints made and he put forward to the Council material upon which he wished to rely before the s 150 Decision hearing on 18 August 2021. We find the practitioner was given adequate opportunity to be heard, in the sense required by the rules of procedural fairness.
7. The practitioner also contends that the s 150 hearing on 18 August 2021, was not properly recorded as required by s 150B of the National Law, and as a result, he was not afforded procedural fairness. We have found that there is no error of law concerning this contention for the reasons set out at [47] - [48] below.
8. There is no error in the 150 Decision on the basis of a failure to afford the practitioner procedural fairness.
9. No complaint concerning procedural fairness is made concerning the s 150A Decision.
10. We have set out the practitioner's other grounds for appeal together with our findings.

(1) I was advised of three complaints made against me on 3 August 2021 and was required to respond to the complaints and provide additional documentation under s 164G by 5 August 2021. I responded to the complaints, disagreed with the complaints and enquired about particular regulations I may have breached. I was unable to provide the requested documentation due to the very limited timeframe and enquired about the basis of being given 2 days. On 9 August 2021, I was advised that the matter will now be dealt with under s 150 of the above law. The matter did not need to be dealt with under s 150.

1. The discretion available to be exercised by the Council under s 150 is wide. The practitioners appeal suggests that the discretion of the Council may have miscarried in the sense of House v R (1936) 55 CLR 499 (House v The King) at 504-5; [1936] HCA 40, which raises a question of law.
2. In House v The King at 504-5 Dixon, Evatt and McTiernan JJ stated: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
3. In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 (AHNA) Bathurst CJ and Leeming JA at [9]-[10] explained the nature of the error when a decision "is unreasonable or plainly unjust" in the following terms: "[9] It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (House v The King at 505) [10] It is wrong to seek to apply the references to "unreasonable or plainly unjust" in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached."
4. It is fundamental that deference is to be given by an appellate court to the discretionary decisions of judges at first instance, insofar as it is insufficient for the appellant merely to persuade the appellate court that it would have decided the matter differently: AHNA at [13], [18]-[19] (Bathurst CJ and Leeming JA).
5. The practitioner has not identified any error of law in the Council deciding to deal with the complaints and proceed under s 150 of the National Law. We accept the submissions of the Council that it is mandatory for the Council to act under s 150 of the National Law if: "satisfied it is appropriate to do so". The terms of s 150 require a Council "… if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons … or if satisfied the action is otherwise in the public interest … (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate".
6. The practitioner did not reply to the Council within the short time requested. Despite the truncated period to reply, the Council could decide to proceed to act under s150 if satisfied it was appropriate to do so. The Council on 9 August 2021 decided to proceed to consider action under s 150 because the practitioner failed to adequately respond to the initial request for information as required by s 164G of the National Law. A hearing for the s 150 enquiry was fixed for 18 August 2021. A timetable was set for the exchange of information.
7. It is evident in the letter of 9 August 2021, the Council was satisfied it was appropriate to proceed under s 150 of the National Law as it considered it was in the public interest to do so to protect a person's health and safety, because of the nature of the complaints. The decision to do so was not unreasonable or unjust in the circumstances. We find there was no error in the exercise of the Council's discretion to proceed with the complaints under s 150 of the National Law.

(2) The conditions imposed on my registration are unwarranted and unfair. The concerns raised were adequately responded to, and the Council has not established how I have breached any Psychology regulations and how the conditions imposed on me would remedy those concerns.

1. An appeal on the ground of an error of law is not an opportunity for the practitioner to re-argue the s 150 or the s 150A Decision. An appeal under s 159B is not a merits appeal. An error of law might be that there was no evidence to support a finding, a finding was made against the weight of evidence, or the Council misapplied the law. We find no such error based upon this ground.
2. The reasons of the Council record that the practitioner gave evidence at the s 150 hearing. He said that he attended the protest rally on 24 July 2021. He acknowledged that this was in contravention of the PHO. He agreed he was not wearing a mask and practising social distancing. He denied having strangers in his car with him and at least one of the photographs allegedly depicting the practitioner at the rally was taken on a different day. Other findings were made in the s 150 Decision about the practitioner's oral evidence and documentation before the Council. In his appeal, the practitioner says that the s 150 Decision reasons should not be accepted because the hearing was not fully recorded. However, he did not adequately set out any material findings made in the reasons which was not based upon evidence before the Council. We note that the transcript provided reflects that the recording was suspended and resumed. There appears to be a gap in the recording and the transcript of the hearing. The specific findings made in this paragraph are not recorded in the transcript.
3. Despite the failure of the Council to record the entire hearing, the practitioner was not able to take the Tribunal to any part of the s 150 Decision which discloses a material error, or a material finding being made by the Council, absent evidence before it. The practitioner's contention does not demonstrate any error of law in these circumstances.
4. The contention that the conditions imposed are "unwarranted and unfair" does not support a finding of an error of law. Specifically, it is not necessary for the Council to conclude that the practitioner "breached any Psychology regulations" before conditions could be imposed on his registration under s 150(1)(b) of the National Law. The practitioner agreed during oral submissions that there is no requirement to establish a breach of any psychology regulations. We find it was open on the evidence for the Council to impose conditions on the practitioner's registration to protect public health and for the protection of the public. There is no error of law identified.

(3) The conditions imposed are for an unspecified time.

1. The practitioner did not press this ground of appeal. For completeness, there is no statutory requirement that conditions imposed under s 150(1)(b) be time-limited. Conditions imposed under s 150 continue until they are either removed or altered under s 150A(3), s 150C and s 150H(2)(b).

(4) The conditions imposed were due to my political views.

1. The practitioner contends that it can be inferred from the complaints and a question that conditions were being placed on his registration because of his political views. We draw no such inference.
2. The ground of appeal appears to be one where the Council made a finding against the weight of evidence, or, in the absence of evidence which amounts to an error of law.
3. In the Council's reasons for the 150 Decision, the conditions were imposed because the Council was satisfied that it was appropriate to do so for the protection of the health or safety of any person or persons or was otherwise in the public interest.
4. The practitioner has not been able to direct us to any finding made by the Council to establish his purported ground of appeal, that the decision was made 'due to my political views'. There is no error of law.

(5) The council has not been able to particularise which actions have breached which regulations.

1. It was not necessary for the Council to find that the practitioner's actions had breached any particular regulations before conditions could be imposed under s 150. Action under s 150 is not premised on a breach of regulations, but rather upon the Council's satisfaction that action is appropriate "for the protection of the health or safety of any person or persons". No legal error has been identified.

(6) I was not treated fairly and the conditions were not proportionate to my actions.

1. The practitioner had not demonstrated that the conditions imposed by the Council were not an appropriate response to the concerns identified by the Council in the reasons for the 150 Decision. He has also not demonstrated material error in there being a problem with the recording of the s 150 Decision proceedings. No error of law is established.

(7) My words had been misconstrued, and decisions have been made about me based on my words being misconstrued.

1. The practitioner's contention is not clear. He referred to the following part of the s 150 Decision [at page 6], which he says was misconstrued: "In response to the complaints, Mr Attai initially stated that he was "quite disheartened that I may have annoyed anyone at the Council in attending the protest". He submitted that without a full recording of the hearing concerning the s 150 Decision, the reasons should not be relied upon. For our reasons set out above, this in itself does not give rise to an error of law. The practitioner must be able to demonstrate an error of law in the Council's findings. He has not done so.

(8) I adequately responded to the complaints and demonstrated competence and satisfactory knowledge and adherence of regulations. As such the conditions imposed are not appropriate.

1. The practitioner did not press this ground during his oral submissions.

Error of law in the s 150A Decision

1. The practitioner contends the following error of law in the s 150A Decision.

Appealing the outcome of the s 150A hearing held on 15.2.2022. Despite demonstrating more than adequate changes to my circumstances to justify setting aside conditions on my registration, the Council decided to maintain their original decision with extremely minimal changes to the conditions, providing irrelevant and unjustified reasoning.

1. The practitioner did not identify which part of the reasons for the 150A Decision he relies upon in support of his contention that the Council's reasoning was "irrelevant and unjustified". He appears to challenge the decision because he does not agree with it. This is not a reason which discloses appellable error. No error of law has been demonstrated.
2. We find there is no error of law identified within the terms of s 159B of the National Law.

Orders

1. We make the following orders; 1. In proceeding 2022/114008 the appeal under s 159 of the Health Practitioner Regulation National Law (NSW) is dismissed pursuant to cl 12 of schedule 5D of the Health Practitioner Regulation National Law (NSW) with no order as to costs. 2. In proceeding 2021/265116 the appeal under s 159 of the Health Practitioner Regulation National Law (NSW) is dismissed pursuant to cl 12 of schedule 5D of the Health Practitioner Regulation National Law (NSW) with no order as to costs. 3. In proceeding 2021/265116 the decisions made by the Psychology Council of New South Wales on 24 August 2021 and 9 March 2022 are confirmed pursuant to s 159C of the Health Practitioner Regulation National Law (NSW). 4. In proceeding 2021/265116 the practitioner must pay the legal costs of the Psychology Council of New South Wales in the appeal made under s 159B of the Health Practitioner Regulation National Law (NSW), to be agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 November 2022 - Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2022