mixed. VCAT varied the Psychology Board's immediate action decision so that Ms Colwell may practise clinically subject to conditions: (a) retain at her cost an approved experienced clinical psychologist...
Key principles
Where a National Board takes immediate action under s 156 of the Health Practitioner Regulation National Law, the Tribunal on review may receive and consider additional evidence...
Immediate action under s 156 is available where the Board reasonably believes that because of the practitioner's conduct or performance the practitioner poses a serious risk to...
Crossing a clear professional boundary by assuming the role of carer for a minor client (taking a 13 year old client to stay at the psychologist's home) can constitute serious...
Issues before the court
Whether the Psychology Board of Australia reasonably believed the practitioner posed a serious risk to persons and that immediate action under s 156...
What is the Tribunal's scope of review of an immediate action decision and whether additional evidence may be admitted on review.
Plain English Summary
The Tribunal accepted that psychologist Jo-Anne Colwell crossed professional boundaries by taking a 13 year old client to stay overnight at the psychologist's home, thereby assuming a carer role and ending the therapeutic relationship. The Psychology Board imposed immediate action under s 156, banning clinical practice. On review, VCAT held that immediate action was warranted given the risk concerns, but varied the Board's decision: Ms Colwell may resume clinical practice under strict conditions (approved supervisor, a Risk Mitigation Plan, and frequent supervision) pending the outcome of the substantive disciplinary investigation.
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Deep Dive
1,886 words · generated 09/07/2026
What happened
Jo-Anne Colwell, a registered psychologist with 16 years' practice, treated a 13 year old client (referred to as P) who had a highly disrupted family background and was living with grandparents as her legal guardians. A sequence of events in early November 2016 culminated in Ms Colwell attending the home of a family who were temporarily caring for P and taking P back to stay overnight at the place where Ms Colwell lived and worked (the Tribunal records this as occurring on the evening of Friday 11 November 2016) [Reasons paras 1-2]. P subsequently absconded from Ms Colwell's home and later spent several months in the care of the friend's parents; the therapeutic relationship between Ms Colwell and P ended and P obtained a new psychologist [Reasons paras 2-3, Course of treatment of P].
Cited legislation
No linked legislation citations have been extracted yet.
An anonymous complaint to AHPRA prompted an immediate action process. The Board's immediate action committee heard from Ms Colwell (14 April 2017) and, on 18 April 2017, the Board imposed an immediate restriction: she was to be limited to non-clinical work with immediate effect, pursuant to s 156 of the Health Practitioner Regulation National Law (the National Law) [Reasons paras 4-5]. That restriction prevented her from earning income as a practising psychologist but did not prevent her continuing doctoral studies [Reasons para 4].
Ms Colwell sought VCAT review. After a hearing (21-22 September 2017) with witness evidence from the temporary carers (Mr and Mrs Fisher) and expert evidence from Dr Jessica Murphy (clinical psychologist, child specialist), the Tribunal concluded that immediate action was justified but that a total prohibition of clinical practice was unnecessary. The Tribunal varied the Board's decision so that Ms Colwell could resume clinical practice subject to conditions: an approved experienced clinical psychologist as supervisor at her cost, a Risk Mitigation Plan agreed with the supervisor and provided to the Board, fortnightly supervision for the first two months and then monthly supervision until the substantive disciplinary process was complete; liberty to apply for variations was granted [Order and Reasons paras 11-12].
Why the court decided this way
Legal framework: s 156 of the National Law permits a National Board to take immediate action (suspending or imposing conditions) if it reasonably believes the practitioner poses a serious risk to persons because of conduct, performance or health and that immediate action is necessary to protect public health or safety. The show-cause requirements in s 157 must be satisfied before suspension or imposition of conditions [Law section quoted]. The Tribunal's review role is a hybrid: material is principally that which was before the decision-maker, but VCAT may receive additional evidence bearing directly on the position as it was when the original decision was made, the Court of Appeal in Ali Kozanoglu explains and authorises this approach (the Tribunal referred to that authority) [Law section; Reasons paras 10-11].
Facts and assessment: The Tribunal accepted that Ms Colwell "crossed a clear professional boundary" and "crossed from being P's psychologist to being P's carer", a finding that underpinned the Board's concerns about risk and the appropriateness of immediate action [Reasons para 3]. The Tribunal also accepted that key matters were undisputed: the taking of P to Ms Colwell's home, the end of the therapeutic relationship, and the disruption to P's care [see Characterisation and Course of treatment sections]. The Board's findings that the conduct revealed deficiencies in fundamental aspects of practice, limited insight, and potential lack of objectivity were therefore grounded in the facts the Tribunal accepted [Reasons para 5].
Why variation rather than full prohibition: Although the Tribunal agreed that immediate action was justified in the sense restrictions were necessary to protect public safety, it concluded that a complete prohibition on clinical practice went further than required. The Tribunal identified material ameliorating factors: Ms Colwell accepted she overstepped boundaries; she had no other clients in identical circumstances; her personal situation had stabilised since the events; she proposed supervised practice; and supervision plus a Risk Mitigation Plan could limit client categories and provide frequent oversight [Determination paras 4-10]. The Tribunal therefore tailored conditions that it considered sufficient to reduce the risk to an acceptable level pending substantive disciplinary determination [Determination paras 11-12; Order].
Admission of evidence on review: The Tribunal relied on its power to receive evidence additional to that before the immediate action committee, citing the rationale in Ali Kozanoglu that an IAC decision is made quickly and may be based on incomplete material; the Tribunal admitted and relied on the Fishers' evidence and expert opinion as bearing directly upon the original decision (Reasons paras 9-11).
Before and after state of the law
Before: The statutory test under s 156 of the National Law has been established as a means for Boards to take urgent protective steps where a practitioner poses a serious risk to persons. Courts have described the Tribunal's review as a hybrid process (not a rehearing de novo, but not limited to error review) and have authorised the limited admission of new evidence bearing directly on the original decision (Ali Kozanoglu [2012] VSCA 295).
This decision: Colwell confirms three practical propositions in the regulatory landscape:
The Tribunal will accept that boundary-crossing conduct of the kind described (psychologist assuming carer role for a minor client, overnight at practitioner's home) can constitute conduct sufficiently serious to justify immediate action (s 156) [Reasons paras 2-5].
The Tribunal will nevertheless tailor immediate action if less restrictive steps (supervision, risk mitigation plans, client restrictions and oversight) will adequately protect public health and safety pending final disciplinary outcomes; absolute prohibition is not inevitable where risks can be reduced by conditions [Determination paras 11-12; Order].
The Tribunal will admit and consider additional evidence bearing directly upon the original decision and may rely on expert evidence to assess the sufficiency of proposed remediation (Reasons paras 9-11; Expert Evidence).
After: The decision is a practical guide for regulators and practitioners. It emphasises that Boards must demonstrate the statutory tests for immediate action, but also that Tribunals will scrutinise whether the Board's chosen immediate action is proportionate, and will substitute or vary that action where appropriate protective conditions are available.
Key passages with plain-English translation
"In taking P to stay with her, Ms Colwell crossed a clear professional boundary. She crossed from being P's psychologist to being P's carer. This led to a therapeutic relationship of 18 months coming to an end." [Reasons para 3]
Plain English: The psychologist stopped acting as a professional clinician and started acting like a parent or guardian to the 13 year old. That destroyed the therapist-client relationship.
"The Board's order was made under s 156 ... that because of her conduct and/or performance, she poses a serious risk to persons, and that it is necessary to take immediate action to protect public health and safety." [Reasons para 5]
Plain English: The Board used the urgent-power statute and said the psychologist's behaviour made her dangerous to clients and that something had to be done straight away.
"Immediate action is justified ... it is not appropriate for her to practise without restrictions." [Determination para 11]
Plain English: The Tribunal agreed that limits were needed immediately, but rather than banning clinical work entirely, it would allow practice only under conditions.
"Ms Colwell is to retain at her cost a supervisor ... prepare a Risk Mitigation Plan ... meet with her supervisor fortnightly for the first two months ... and no less than monthly thereafter, until the conclusion of the substantive disciplinary process." [Order]
Plain English: The Tribunal ordered close, paid supervision and a formal plan to reduce risk while the main investigation is completed.
What fact patterns trigger this precedent
A practitioner assumes a non-therapeutic role for a client, especially a vulnerable minor, in a way that materially alters the therapeutic relationship (for example, taking a minor client into the practitioner's own home), and that behaviour is admitted or clearly proved.
Cases where child protection authorities or other agencies are involved and the practitioner's decision-making includes reliance on limited or equivocal telephone advice from third parties.
Situations where the conduct is sufficiently serious to justify immediate intervention but the practitioner offers remediation (supervision, training, limitation of client cohorts) and there is expert evidence that supervision could reduce future risk.
Cases where the Board has taken immediate action and the practitioner seeks VCAT review with additional evidence bearing directly on the original decision.
In such fact patterns Colwell provides a roadmap: accept seriousness, but consider conditions tailored to the risk rather than an absolute ban, provided oversight and mitigation are feasible.
How later courts have treated it
This decision is a VCAT Tribunal decision applying established Victorian and National Law principles. It expressly relied on and applied the high-level standard described in Ali Kozanoglu ([2012] VSCA 295) for admission of additional evidence on immediate action review. As a VCAT decision, Colwell operates as persuasive precedent within administrative tribunals and may be cited in later tribunal or court proceedings as an example of proportional variation of immediate action through conditions and supervision. Practitioners and regulators should treat Colwell as an authoritative explication of balancing the statutory protective purpose of s 156 against proportionality and remediation options.
Users should check any later appellate decisions or other tribunal decisions for confirmation or departure; Colwell itself does not purport to overrule any appellate authority and is consistent with the hybrid review approach.
Still-open questions
Degree of insight required: The Tribunal found Ms Colwell had not demonstrated "complete insight" but had "more insight than she did at the time" and was likely highly sensitised to boundary issues (Determination paras 10-11). How much insight and what form of remediation will satisfy a Board or Tribunal in other cases where boundary crossing is more egregious or recurrent remains fact-specific and open.
Scope of permissible practice under conditions: The decision requires a Risk Mitigation Plan and restrictions on client categories, but leaves the precise permitted client cohorts and supervisory content to case-by-case negotiation between supervisor and practitioner. That leaves open how prescriptive Boards should be about permitted client types in future similar cases.
Weight to be given to contemporaneous third-party telephone notes: The Tribunal emphasised that brief calls from DHHS or APS did not authorise delegation of ethical decision-making (Characterisation paras 4-5). Future cases will need to tread the line between reasonable reliance on contemporaneous agency advice and the practitioner's independent ethical obligations.
Standard for when immediate total prohibition is necessary: Colwell emphasises tailoring, but there will be scenarios where a total ban is appropriate. The precise line, for example where multiple boundary breaches exist, repeated conduct, or demonstrable inability to follow supervision, will continue to demand careful factual assessment.
Interaction with discipline outcomes: The Tribunal's variation is expressly interim pending substantive processes. How conditions imposed at the interim stage may influence or be extended into final disciplinary outcomes is open and will depend on the developing facts and any future findings.
Practitioners and regulators should view Colwell as a nuanced example of proportional regulation under the National Law: serious boundary breaches justify immediate protective steps, but tribunals will consider whether tailored, supervised practice can safely protect the public while preserving fairness to the practitioner pending full adjudication.
Judgment (65 paragraphs)
[1]
Colwell v Psychology Board of Australia (Review and Regulation) [2017] VCAT 2105 (14 December 2017)
[2]
Psychologist - crossing professional boundaries - taking 13 year old client to stay with her at her home - thus taking on role of carer as opposed to psychologist - immediate action taken by Board to restrict applicant's practice to non-clinical work - review of that immediate action decision - Health Practitioner Regulation National Law
[3]
Colwell v Psychology Board of Australia (Review and Regulation) [2017] VCAT 2105
[4]
The decision of the Psychology Board of Australia (the Board) to impose immediate action is varied, in that Ms Colwell is entitled to practise clinically, subject to the following conditions:
(a) Ms Colwell is to retain at her cost a supervisor, being an experienced clinical psychologist approved by the Board.
(b) Prior to resuming practice, Ms Colwell is to meet with her supervisor and prepare a Risk Mitigation Plan, to be approved between her and her supervisor. This is to include the number of clients she will see, identification of categories of clients she will not see, arrangements for ad hoc consultation with her supervisor as the need arises (in addition to that provided for under (c) below) and other matters her supervisor regards as appropriate. This Risk Mitigation Plan is to be provided to the Board.
(c) Ms Colwell is to meet with her supervisor fortnightly for the first two months after resumption of practice, and no less than monthly thereafter, until the conclusion of the substantive disciplinary process.
Liberty to apply is granted in relation to consideration of any variations necessary to ensure the effective implementation of the above conditions.
[5]
Jo-Anne Colwell is a psychologist who has been practising for 16 years. This application concerns one of her clients who was a 13 year old girl, who we refer to as P. P had experienced a highly disrupted home life, and had been living with her grandparents since she was two years old. They were her legal guardians. P was exhibiting increasingly difficult behaviours. Sometime in the first week of November 2016, she had run away from her grandparents' home. She was staying at the house of a school friend, L.
On the evening of Friday 11 November 2016, Ms Colwell did something which she now acknowledges was a very serious error of judgment: she came and took P away from her friend's house back to the place where she, Ms Colwell, was living. There is no dispute that her motive was to care for P, and to keep her safe (save that the Board suggested that she was overly influenced by the grandparents in so acting). P stayed the night with Ms Colwell. The next morning P again absconded, and ultimately spent the next four months in the care of her school friend L's parents, (who I will refer to as Mr & Mrs Fisher)[1], before arrangements could be made for P to live with her mother.
In taking P to stay with her, Ms Colwell crossed a clear professional boundary. She crossed from being P's psychologist to being P's carer. This led to a therapeutic relationship of 18 months coming to an end. P had to find a replacement psychologist.
On 25 November 2016, AHPRA (the Australian Health Practitioner Regulation Agency, which provides administrative support to the Board) received an anonymous complaint about Ms Colwell. This ultimately led to an 'immediate action' process. On 14 April 2017, Ms Colwell appeared before an immediate action committee of the Board, and spoke to a detailed submission she had provided dated 11 April 2017. On 18 April 2017, the Board determined to restrict Ms Colwell's practice to non-clinical work, with immediate effect. This had the effect of preventing Ms Colwell from earning any income as a psychologist. However, the condition did not prevent her from continuing to work towards her Professional Doctorate of Clinical Science (Psychotherapy and Counselling), which she said is due to be completed in March 2018.
The Board's order was made under s 156 of the Health Practitioner Regulation National Law (National Law). Its decision was made on the basis that the statutory tests for immediate action were satisfied. Namely, that because of her conduct and/or performance, she poses a serious risk to persons, and that it is necessary to take immediate action to protect public health and safety. The Board concluded that the risk was significant because it disclosed deficiencies concerning fundamental aspects of her practice; that she showed only limited insight; that her responses suggested a lack of objectivity in treating other clients and that she was too reluctant to seek guidance.
[6]
immediate action, in relation to a registered health practitioner or student, means -
[7]
(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
[8]
(b) accepting an undertaking from the health practitioner or student; or
[9]
(c) accepting the surrender of the health practitioner's or student's registration.
[10]
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if -
[11]
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and
[12]
(ii) it is necessary to take immediate action to protect public health or safety; or
[13]
(b) [broadly equivalent provision relating to students]
[14]
(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.
[15]
(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must -
[16]
(a) give the practitioner or student notice of the proposed immediate action; and
[17]
(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
[18]
(2) A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
[19]
(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
[20]
Notice to be given to registered health practitioner or student about immediate action
[21]
(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -
[22]
(a) give written notice of the Board's decision to the health practitioner or student; and
[23]
(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
[24]
(a) the immediate action the National Board has decided to take; and
[25]
(b) the reasons for the decision to take the immediate action; and
[26]
(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
[27]
(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and
[28]
(e) how an application for appeal may be made and the period within which the application must be made.
[29]
(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on -
[30]
(a) the day the notice is given to the practitioner or student; or
[31]
(2) The decision continues to have effect until the earlier of the following occurs -
[32]
(b) for the suspension of, or imposition of conditions on, the registered health practitioner's or student's registration, the suspension is revoked, or the conditions are removed, by the National Board; or
[33]
(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.
[34]
The Court of Appeal has described the Tribunal's task in Ali Kozanoglu v The Pharmacy Board of Australia[3] as follows:
[35]
The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.
[36]
The reason why the Tribunal may receive evidence additional to that which was before the immediate action committee that bears directly upon the position as it was when the original decision was made, was explained in paragraphs [109] and [110] of the Court of Appeal's decision:
[37]
The reason is simple. As we have indicated at paras [106]-[107], the IAC is expected to act immediately. Necessarily, therefore, the material contained in a notification is likely to be incomplete. It may contain assertions that cannot, upon mature reflection, be justified. Likewise, there may be deficiencies, or gaps, in the material provided which, given a little extra time, can easily be remedied.
[38]
A further reason why VCAT should be permitted to receive further material when reviewing an IAC decision is because it would be contrary to the objects of the National Law, and the rights which it expressly confers upon an affected party, to prevent that party from adducing exculpatory material, on appeal, which sheds a different light upon the allegations made in the notification. Of course, if evidence of that kind can be adduced on behalf an affected party, so too, it must follow, can evidence that points in a different direction.
[39]
In accordance with these principles, the Tribunal heard sworn evidence from Mr and Mrs Fisher, Dr Murphy (expert evidence) and from Ms Colwell herself.
This is not a case where, for example, a client has made an allegation against a practitioner, which is contested, where determination of questions as to serious risk to persons and protection of public health and safety, will turn on whether or not the allegation is proved. Here, the factual issues which are of greatest importance for the purposes of our consideration are not in dispute. There is dispute about some matters, but in our view these go to issues of degree in terms of the seriousness and implications of the conduct we have two consider.
[40]
In 1994, Ms Colwell obtained a Bachelor of Behavioural Science (Psych) from La Trobe University. In 1996 she obtained a Graduate Diploma of Behavioural Studies in Health Care from La Trobe University. In 2011 she obtained the qualification of Psychodramatist from the Australian College of Psychodrama. Psychodrama is a type of psychotherapy that utilizes dramatic techniques to explore past, present and future occurrences with the aim being to improve the client's understanding of their own roles in life.
In 2001, Ms Colwell was registered as a psychologist and began private practice at the same time. In 2005 she moved to the building where she was practising at the time of the events that are the subject of this decision.
Ms Colwell works with children, adolescents, adults and people with a disability suffering from trauma. She assists adults with anxiety, depression, anger management and dissociative disorders. She assists adolescents and children with behavioural issues, anxiety and depression.
She said that half her clients are referred by other professionals and half by word of mouth. Since beginning private practice she estimates she has seen about 500 clients. Nearly all her clients who are minors have been under parental care with only the occasional client under the care of a legal guardian who is not a parent.
[41]
Ms Colwell's treatment of P started in May 2015 when she attended with her grandmother for their first session. P had been referred by her general practitioner. P was then in grade 6 at primary school and living with her grandparents who were her legal guardians.
P had been separated from her mother, who had a long history of drug and alcohol abuse as well as mental illness. P's grandparents had become her guardians when she was approximately two years old. P had been exposed to domestic violence. P had little or no contact with her father.
There are a number of other issues. Suffice to say that P has had to cope with extremely difficult circumstances in her life.
P's grandparents were finding it increasingly difficult to cope with her behaviour. P's strongest desire was to be with her mother, but this was not possible.
P's grandmother was generally present at P's sessions with Ms Colwell. A close relationship developed between P's grandmother and Ms Colwell.
There had been some improvement in the early to middle part of 2016, and Ms Colwell had no sessions with P between April and August. But in August 2016 P was involved in a sexting incident at her secondary school. She was a 13 year old Year 7 student by this time.
Ms Colwell was away from late September until early November. She returned to find a number of messages from P's grandmother on her answering machine. On Thursday 3 November 2016 she had a long consultation with P's grandparents. They were 'distressed angry and upset'. P did not attend, she had run away from their home. It was common ground that P's grandparents knew that P had gone to stay with Mr and Mrs Fisher, who lived nearby, and whose daughter L was a close friend of P's. (P had stayed with the Fishers a number of times before, often after conflict between P and her grandparents. Nevertheless, P's grandparents had never spoken to Mr or Mrs Fisher. Ms Colwell said relations between P's grandparents and the Fishers were strained. The other evidence is consistent with this.) The situation with P had become so difficult that her grandparents no longer wanted her to live with them.
On Friday 4 November 2016, Ms Colwell called P's school and made an appointment to see her the following Monday.
On Sunday 6 November 2016, Ms Colwell received a telephone call from P's grandmother saying she had found some disturbing notes made by P, in her bedroom. Ms Colwell's client progress notes stated that P's grandmother:
[42]
... has found notes in P's bedroom and wants to give them to me tomorrow. Discussion re options for P. Pivotal moment in her life. Would be good if she could stay with me and reunite with [her grandmother]. Provide boundaries around behaviour and keep P in touch with family. Would need to check with APS [Australian Psychological Society] re conflict of interest.
[43]
Those notes were referred to in discussions and the hearing as the 'sexually explicit notes' by P.
[44]
Ms Colwell said that P's grandmother was very distressed, did not want P to stay with her any more, and that it was P's grandmother's idea for P to stay with Ms Colwell.
On Monday 7 November 2016, Ms Colwell met the welfare co-ordinator at P's school. P's grandmother also attended and handed over the sexually explicit notes. Ms Colwell met with P. It was agreed between Ms Colwell and school staff that the school would report the matter to the police and that Ms Colwell would make a report to the Department of Health and Human Services (DHHS).
On that same day, Ms Colwell spoke to a DHHS officer by telephone. She said the officer said that the sexually explicit notes by P indicated she may be being groomed (although Ms Colwell's progress notes did not state this).
On Tuesday 8 November Ms Colwell had a telephone conversation with P's grandmother about her staying with the Fisher family. P's grandmother refused to allow P to collect more clothes.
Sometime during that week, Mrs Fisher was interviewed by DHHS child protection officers. They showed her two of the six pages comprising the sexually explicit notes. Mrs Fisher said the DHHS offices told her they had spoken to P, who said she had made the notes up. DHHS indicated they did not give rise to any concern about P staying at the Fishers' house, and in effect, they supported this temporary arrangement.
On Thursday 10 November 2016, Ms Colwell received a telephone call from Caitlin Daley of DHHS, who Ms Colwell said was the case manager assigned to P's case. Ms Daley said that P and L denied writing the sexually explicit notes. Ms Colwell's progress notes stated that she informed [DHHS] 're possibility P staying with me short term to assist with reuniting with [grandparents]. [DHHS] very supportive of idea; police check needed.'
Also on that day Ms Colwell received a telephone call from P's grandmother, who advised her that SOCIT (Victoria Police's Sexual Offences and Child Abuse Investigation Team) has spoken to P and L and L's family and 'all denied notes'. P's grandparents were going to Sydney for a pre-arranged conference.
Finally on 10 November 2016, Ms Colwell received a telephone call back from the 'ethics personnel' from APS (Australian Psychology Society), returning her call from the day before. Her progress notes record:
[45]
Phone call from APS- looking after P unusual; not against guidelines. Talk to superior. Complaint might be made @ any time by anyone. Check with legal representative - supervision. Brief call as was interrupting client session.
[46]
On Friday 11 November 2016 Ms Colwell met P at her school. Ms Colwell's progress notes stated:
[47]
P discussion re possibility of coming to stay with me short term. Think about idea; not right now but if can't stay at L's house. P adamant not returning home; will think about idea.
[48]
After school on that day, Friday 11 November 2016, P went with L to her grandparent's house to get more clothes. P broke a window to gain entry. P phoned Ms Colwell to tell her this. L rang her mother, Mrs Fisher, to say that P had accidentally smashed the window.
Mrs Fisher then called Ms Colwell. They had never spoken before. Ms Colwell's progress notes state:
[49]
P'call from [Mrs Fisher], L's mum. Upset about P's actions and being questioned by police/[DHS]. Wants P out of her house now. Informed [P's grandmother] I would pick P up after I'd made some phone calls.
[50]
Mrs Fisher agreed she made this call to Ms Colwell, but firmly denied she had demanded that Ms Colwell come and take P away. For her part, Ms Colwell denied Mrs Fisher's evidence that she was told by Ms Colwell 'do you know you could be arrested for harbouring a runaway?' She also denied Mrs Fisher's statement that she accused the Fishers of covering up sexual abuse of people which had occurred at their house.
Ms Colwell's progress notes indicate she then made four calls. First, she rang P up and told her she would be coming to pick her up. Second, she made a 30 minute call to P's grandmother who indicated they would be back from Sydney on Monday morning, and that P was to stay with Ms Colwell 'and can get bus to and from school'. P's clothes were to be returned to P's grandparents' house and left near the barbecue. Third, she rang P's mother (19 minutes) and told her that P had been thrown out of the Fishers' house. Ms Colwell said that P's mother supported the idea that P stay with Ms Colwell 'the night until other arrangements could be made'.
Fourth, Ms Colwell called DHHS who advised her they 'have closed case' - presumably the case opened as a result of the report concerning the sexually explicit notes. Ms Colwell said she spoke to 'Sharon' on the after hours line. She said Sharon had difficulty in locating P's file. Ms Colwell said in her witness statement 'I explained the situation to Sharon and she said it would be okay for me to have P stay overnight.'
Ms Colwell called Mrs Fisher's mobile phone number. Mr Fisher answered. It was he who dealt with Ms Colwell from then on that day, as he had come home from work after receiving a telephone call from Mrs Fisher, who was upset, and did not want to deal with Ms Colwell. Mr Fisher initially refused to allow P to be collected, saying he did know who Ms Colwell was. In his evidence, Mr Fisher said he spoke to DHHS by phone, who eventually said it was 'okay' for P to stay with Ms Colwell. During this call, Ms Colwell arrived at the Fishers' house. Ms Colwell told Mr Fisher that P's grandparents, their legal guardians, had said that P should stay with Ms Colwell. P was upset, but ultimately agreed to go with Ms Colwell voluntarily.
That night, P stayed at the place where Ms Colwell was living at that time. (She described this as an 'old house', which was also serving as her office). They had a late dinner, and P slept on a makeshift bed.
[51]
There were three aspects of the evidence concerning the circumstances in which Ms Colwell came to take P away, where the evidence of Ms Colwell diverged from that of Mr and Mrs Fisher (in particular Mrs Fisher).
First, Ms Colwell said that when Mrs Fisher found out from her daughter L about the break-in, Mrs Fisher rang Ms Colwell and demanded that she come and take P away immediately. Ms Colwell said Mrs Fisher stated that she did not want P to spend another night in her house. Mrs Fisher denied she said this.
Second, Mrs Fisher said Ms Colwell told her during their telephone call on 11 November 2016 'do you know you could be arrested for harbouring a runaway?'. Ms Colwell denied this.
Third, Mr and Mrs Fisher both said that Ms Colwell accused them of covering up sexual abuse of P which was going on in their house. Ms Colwell said that although she was concerned there was a possibility of that, she did not say so to Mr and Mrs Fisher.
It is not necessary to make definitive findings about these three differences in order to determine this case. While we generally prefer Mrs Fisher's version of events, the circumstances on the evening of Friday 11 November 2016 were obviously highly stressful for all concerned, and we believe it is likely that to some degree at least, the things actually intended to be conveyed, and the message actually received, were different.
We accept Mrs Fisher's evidence that she did not intend to convey to Ms Colwell a demand that she come and take P away. We can, however, understand that in the circumstances Ms Colwell jumped to the conclusion that Mrs Fisher did not want P to stay at her house. In her evidence, Mrs Fisher said she was angry about the break-in which P had carried out in the company of her daughter L, including breaking a window. She was also obviously concerned following the enquiries made earlier that week by DHHS about possible sexual abuse. Mrs Fisher and Ms Colwell had never spoken to each other before that emotionally fraught conversation on 11 November 2016. We are also conscious that the notion of P staying with Ms Colwell had been gaining momentum in Ms Colwell's mind over the course of that week. Further, and importantly, we note Mrs Fisher said that in the light of what Ms Colwell told her, she did at one point in the conversation say words to the effect that 'maybe it's best if P stays with you'.
[52]
I explained this was not the case and we discussed how not contacting the legal guardians might be seen as harbouring a runaway.
[53]
On this basis we can well understand how Mrs Fisher concluded that Ms Colwell said she could be arrested for harbouring a runaway. It was common ground that P's grandparents knew that P had been staying at the Fishers for the last week, as she had done many times before.
The third difference concerned the allegations of sexual abuse. This is obviously the most volatile issue which Ms Colwell was concerned about. It would of course be extremely difficult during this telephone conversation for Ms Colwell to refer to her concerns - which, together with the grandparents' wishes, and her understanding of Mrs Fisher's wishes, were her stated motivation for her coming to take P away - without provoking a strong reaction from Mrs Fisher.
There is a difference between Ms Colwell's and Mrs Fisher's evidence about who raised the topic of the sexually explicit notes in their telephone conversation. Each says it was the other. Regardless of who it was, however, in our view it is not surprising that Mrs Fisher interpreted whatever Ms Colwell said as alleging that sexual abuse had occurred, and that they were covering it up.
In our view, definitive findings about the factual matters which are in dispute between Ms Colwell and the Board would only affect the outcome to a limited extent. Most of the key matters are not in dispute. We do not find that Ms Colwell has been dishonest in giving her evidence, nor did the Board contended that we should. We agree that the Fishers' version of events should be generally preferred, and that Ms Colwell's version was likely influenced by the particular misguided mindset she adopted in relation to P's circumstances.
[54]
The Board led expert evidence from Dr Jessica Murphy, Clinical Psychologist (child specialisation). Dr Murphy provided a witness statement, and was cross-examined. Despite taking issue with some matters, Ms Colwell largely accepted what Dr Murphy said about key issues.
Dr Murphy's summary of her opinion, at paragraph 71 of her witness statement, was as follows:
[55]
It is my opinion that whilst Ms Colwell likely had the best of intentions, she has, unfortunately, engaged in professional conduct that is significantly outside the standard of conduct expected of a registered psychologist, and, in doing so, has likely caused significant damage to the young person involved. She has done so with inadequate guidance and supervision. She has also engaged in a number of other practices which are not in keeping with good psychological practice. The conduct has not been in keeping with the Code of Ethics and associated Guidelines.
[56]
The Code of Ethics and associated Guidelines referred to by Dr Murphy are those published by the APS concerning matters the subject of our findings below. Our findings below are largely consistent with Dr Murphy's conclusions.
[57]
Weighing up the evidence overall, it is clear, and Ms Colwell accepted, that she engaged in significant boundary violation and destroyed her therapeutic relationship with P, such that P had to establish a relationship afresh with a different psychologist.
Ms Colwell allowed herself to be too influenced by P's grandparents. This was in circumstances where relations between P's grandparents and the Fishers were strained. As the progress notes indicated, and as Ms Colwell accepted during the hearing, she allowed the notion of P staying at her house to gather momentum in her mind during the week leading up to 11 November 2016. This was something which she said P's grandmother had suggested. The idea was raised certainly no later than the previous Sunday, 6 November 2016. It appears Ms Colwell allowed the grandparents in effect to transfer to her some of their responsibilities as P's guardians, in particular for arranging the provision of appropriate care and accommodation for P. We agree with the Board's submission that Ms Colwell misused (even if unconsciously through a failure to consider the power imbalances inherent in her relationship with P) her power as a psychologist to pressure P and the Fishers into agreeing to P leaving the Fishers' house.
Ms Colwell also mentioned the idea of P staying with her to Caitlin Daley of DHHS, case manager assigned to P's case, on Thursday, 10 November 2016. Ms Colwell's notes stated: 'DHS very supportive of idea; police check needed'. Later that day Ms Colwell received a telephone call from and APS representative. As noted, the file note of this conversation was as follows:
[58]
Phone call from APS - looking after P unusual; not against guidelines. Talk to superior. Complaint might be made @ any time by anyone. Check with legal representative - supervision. Brief call as was interrupting client session.
[59]
Thus, although on this evidence Ms Colwell was given some mixed signals by DHHS and APS, she was clearly warned that the arrangement would be unusual, that she was opening herself up to complaints, that she should talk to a superior before taking this step, and/or obtain legal advice.
Additionally, she had been made aware that having investigated the matter in the middle of the week, DHHS did not share her view that P was facing immediate danger. This information had been conveyed on Thursday 10 November 2016 to her by CPS (her progress notes stated 'girls changed story re notes') and by P's grandmother on the same day ('SOCIT has spoken to girls + family all denied notes'). Then on the following day, Friday 11 November 2016, Ms Colwell was told by P in effect that what she had written arose from her own imagination, when she was bored, rather than the suggestion of anybody else. And later that day Ms Colwell was told by CP [presumably 'child protection'] that they had 'closed case'.
Accordingly, Ms Colwell was aware that the relevant child protection authorities and police had a different view to her about the extent to which P was in immediate danger. It appears that this, together with her desire to bring P closer to her grandparents again (influenced by the grandparents' wishes as strongly expressed to Ms Colwell) and her misunderstanding that Mrs Fisher wanted P to go, led to her misguided decision to come and take P away from the Fishers that Friday evening.
It is clear that this decision was misguided, for a number of reasons. Ms Colwell was performing roles as advocate for P's grandparents, and social worker/carer for P, which conflicted with her actual role, as P's psychologist. The proper response if she believed P was in immediate danger, was to make a renewed and clear submission (likely by telephone) to the relevant arm of DHHS responsible for child protection, on the basis of the additional insights she had into P's circumstances from her involvement as P's psychologist, rather than to take matters into her own hands. We acknowledge Ms Colwell's statements that she believed this was genuinely an emergency situation, however, in hindsight it is clear this was not the case, and her thinking was clouded to a significant degree by the matters described above.
To come and take P away that evening was a momentous step. Clearly, to the extent the statements by DHHS and APS personnel recorded in her notes provide some support for this action, Ms Colwell was not entitled to delegate to those persons, as a result of those brief telephone conversations, responsibility for considering her ethical position as a psychologist. Clearly too, she should have realised that this momentous step is not one which should have been taken at the least without consulting a trusted senior colleague. She indicated in cross examination that she was aware her supervisor was busy that evening.
[60]
The effect of the Board's submissions is that weighing up all the applicable factors, Ms Colwell would present a serious risk to persons if allowed to practise now, and that it is necessary in order to protect public safety for her to be prevented from practising at all, even subject to any conditions which might be imposed.
This is on the basis that Ms Colwell's conduct in relation to P fell so far short of acceptable standards that any ameliorating factors which apply cannot be of sufficient strength to outweigh the conclusion that she should not be allowed to practise clinically from the present time.
In representing herself, Ms Colwell's strong personal feelings and opinions about some of the details of the events which occurred in November 2016 tended to give the impression that she lacked insight into the clear deficiencies in her conduct.
Nevertheless, she explicitly accepted she was responsible for overstepping professional boundaries and causing the therapeutic relationship with P to come to an end. The Board submitted that such acknowledgement was belated. This is to some extent true, but it is nevertheless a factor which we take into account.
Ms Colwell noted that she had she did not have any other clients in P's situation. She argued that these precise circumstances would be highly unlikely to occur again.
Also, Ms Colwell indicated that her personal life was now subject to a lesser degree of turmoil than was the case at the time the events occurred. Although this was not one of the explicit bases for the decision to impose a ban on her practising by way of immediate action, we believe it is appropriate to acknowledge this change in circumstances. In cross-examination, Ms Colwell accepted that her personal situation at the time may have contributed to her poor decision to take P away from the Fishers.
Ms Colwell also submitted that the whole experience has had a salutary effect on her. She has not been permitted to practise since April 2017. This has imposed personal and financial stresses. Her reputation has been affected. We accept that this experience has had a profound effect on her.
Significantly, Ms Colwell has said that if she is permitted to return to practice, she will do so under the supervision of a clinical psychologist. In addition, we have the power to impose conditions which restrict her practice to those patients who present a lower risk profile.
[61]
Ms Colwell is to retain at her cost a supervisor, being an experienced clinical psychologist approved by the Board.
2. Prior to resuming practice, Ms Colwell is to meet with her supervisor and prepare a Risk Mitigation Plan, to be approved between her and her supervisor. This is to include the number of clients she will see, identification of categories of clients she will not see, arrangements for ad hoc consultation with her supervisor as the need arises (in addition to that provided for under (c) below) and other matters her supervisor regards as appropriate. This Risk Mitigation Plan is to be provided to the Board.
[62]
Ms Colwell is to meet with her supervisor fortnightly for the first two months after resumption of practice, and no less than monthly thereafter, until the conclusion of the substantive disciplinary process.
Liberty to apply is granted in relation to consideration of any variations necessary to ensure the effective implementation of the above conditions.
[63]
[1] Not their real name. Pseudonyms and initials have been used to protect the privacy of the client and witnesses in this case.
[64]
[2] See Colwell v Psychology Board of Australia[2017] VCAT 1782. On 2 November 2017, the Tribunal was reconstituted so as to include the same members who sat during the hearing, in the circumstances set out in that decision.
[65]
[3][2012] VSCA 295 (per Wineberg and Harper JJA and Hargrave AJA) at [119].
Parties
Applicant/Plaintiff:
Colwell
Respondent/Defendant:
Psychology Board of Australia
AI Analysis
Outcomemixed
Disposition:
VCAT varied the Psychology Board's immediate action decision so that Ms Colwell may practise clinically subject to conditions: (a) retain at her cost an approved experienced clinical psychologist supervisor; (b) prepare a Risk Mitigation Plan with the supervisor prior to resuming practice and provide it to the Board; (c) meet fortnightly with the supervisor for the first two months and no less than monthly thereafter until conclusion of the substantive disciplinary process; liberty to apply for variations.
The Board determined that no lesser action was sufficient to protect the public. This is a review of that immediate action decision.
A separate process of investigation of Ms Colwell's conduct is underway, and the Board estimated that this investigation will be complete by December 2017. The purpose of this present review is, in effect, to determine whether Ms Colwell may practise, and if so under what conditions, pending the outcome of that investigation, and processes which may follow on from it, under s 160 and following of the National Law.
On 16 June 2017, Ms Colwell's application to VCAT for a stay of the immediate action decision of 18 April 2017 was heard. VCAT refused to stay the immediate action. So Ms Colwell has not practised since 18 April 2017. However, she is not precluded from continuing to work towards her doctorate.
A two day hearing was conducted on 21 and 22 September 2017. For the Board, oral evidence was given by Mr and Mrs Fisher, who were appointed P's guardians for the period November 2016 - March 2017. The Tribunal also heard expert evidence from Dr Jessica Murphy, clinical psychologist (child specialisation). Ms Colwell conducted her own case. She called one witness, herself.
Final written submissions were received following the reconstitution of the Tribunal'.[2] After the written submissions of both parties were received, the Board was given leave to reply to Ms Colwell's submission that an adverse inference should be drawn against it, due to its failure to call certain witnesses. That submission was received on 8 December 2017. In the light of the conclusion we have reached, it is not necessary to consider this matter.
For the reasons set out below, we have determined that immediate action is required, but not action which prevents Ms Colwell from engaging in clinical practice altogether. Pending the finalisation of the substantive disciplinary process, we impose conditions which further reduce the risks associated with Ms Colwell's practice. In our view, the position will then be that these risks will be at a level which is acceptable in terms of the statutory framework.
Sometime on Saturday 12 November 2016, perhaps prior to lunchtime, P absconded from Ms Colwell's house. With the assistance of police, Ms Colwell located P at her grandparents' house. She then arranged for P's uncle to collect her. Ultimately, however, there were no relatives able to look after P in her grandparents' absence, and she went back to Mr and Mrs Fisher's house.
On Thursday 17 November 2016, Ms Colwell received an email from P's school saying P wanted a different counsellor.
On 22 November 2016 Ms Colwell telephoned P's grandmother to state that the Children's Court had determined that P would stay with the Fishers until 30 November 2016.
On 9 December 2016, Ms Colwell telephoned P's grandmother saying that P would stay with the Fishers for the longer term. In fact, she stayed with them until 24 March 2017, when she permanently returned to her mother's care.
However, as stated, we accept Mrs Fisher's evidence that she did not intend to convey to Ms Colwell a demand that she come and take P away. Further, we note Mr Fisher's response when Ms Colwell arrived at their house was inconsistent with wanting P to be taken away. That would of course be inconsistent with the Fishers' actions in caring for P from Saturday 12 November 2016 up until 28 March 2017.
Next is the evidence of Mrs Fisher that Ms Colwell said that she could get in trouble for harbouring a runaway. Ms Colwell's version in her witness statement was that she asked Mrs Fisher if she knew P had run away, and she replied that P had been thrown out [of her grandparents' house]. Ms Colwell's witness statement then said,
Another option was to see whether P's uncle could take P that evening (as in fact occurred the following day after P absconded from the place Ms Colwell was living).
We acknowledge that the fact that events came to a head on a Friday evening, when there was likely to be more difficulty contacting such persons, did make it more difficult for Ms Colwell, and contribute to her misguided perception that this was an emergency situation, and she had no other option but to come and take P away.
The Board submitted that there remains a risk that Ms Colwell will cross professional boundaries, engage in decision-making that places her clients at risk of psychological harm and practise outside the boundaries of her professional competence.
We agree that Ms Colwell has not demonstrated complete insight into these matters. But in our view, she has demonstrated more insight than she did at the time of the events involving P. She is now likely to be highly sensitised to any boundary, ethical and judgement issue that may arise in the conduct of her practice.
In all the circumstances, we find that immediate action is justified, insofar as we find that pending the finalisation of the substantive disciplinary process concerning Ms Colwell's conduct and the broader issues relating to that, it is not appropriate for her to practise without restrictions.
However, in our view, it is not necessary that she be prevented from practising clinically altogether. A form of immediate action which is consistent with avoiding an unacceptable risk to the safety of persons, and which sufficiently protects public health and safety is one which allows Ms Colwell to practise, subject to the following conditions which are to apply until the conclusion of the substantive disciplinary process: