On review the applicant submitted that he made a report to the Department by which he alleged the Department's actions in removing his client's children constituted child abuse. He contended that from that point onwards he had been victimised for his allegations. The Board submitted that the applicant's communications with the Department were unprofessional, revealed potential unaddressed conflicts of interest and that they gave rise to questions about whether he had complied with his obligations as a practitioner.

• The criteria for taking immediate action were, and remain, met.
• The applicant's actions give rise to a risk of serious harm to persons. In particular, the applicant is reasonably likely to:
  • Fail to identify serious harm to a client which may arise by seeking to treat members of the same family unit,
  • Communicate to a client who is working with the Department that the Department's actions are not in the interests of the child, and
  • Fail to use appropriate treatment methodologies.
• The applicant has demonstrated lack of adherence to ethical obligations and a failure to recognise and address conflicting interests. This finding is informed by the manner of the applicant's response to a request for information from the Department, his attitude to the issues raised with him, the content of his communications and his evidence to the Tribunal
• As immediate action is undertaken without a fact-finding process as in-depth as that for disciplinary action, the action taken must be the minimum necessary to achieve the protection of the public.

Administrative Review - Health Practitioner Regulation National Law (South Australia) Act 2020 - Review of a decision of the Psychology Board of Australia - Immediate action - Risk of serious harm - Conflict of interest; appropriate treatment; proper communication - Supervision conditions on registration

South Australian Civil and Administrative Tribunal Act 2013 s 34, s 37, s 60

Health Practitioners Regulation National Law (South Australia) Act 2010 s 6A, s 156, s 158, s 199, s 202

Children and Young People (Safety) Act 2017 s 31

Cheema v Medical Board of Australia [2020] SACAT 40

Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701

WD v Medical Board of Australia [2013] QCAT 614

Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295

Mr S Ward, Piper Alderman, appeared for the respondent

Pursuant to section 60 of the South Australian Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the publication of the names of any of Mr Fletcher's clients, relatives or any other persons seen by him in a professional capacity.

Made under the South Australian Civil & Administrative Tribunal Act 2013 section 37(1)(a)

1. Mr Fletcher is a psychologist. He is a sole practitioner of many years' experience who works in the southern suburbs. His practice is regulated by the Psychology Board of Australia (the 'Board') and the Health Practitioners Regulation National Law (South Australia) Act 2010 (the 'National Law').
2. In September 2021, the Board decided to exercise a power under the National Law to impose conditions on Mr Fletcher's registration. The conditions required him to be supervised. This decision followed the determination by the Board that information it held gave rise to a reasonable belief on its part that Mr Fletcher posed a serious risk to the public sufficient to warrant the imposition of conditions whilst it further investigated concerns in respect of his practice of psychology.
3. Mr Fletcher opposes the imposition of conditions and seeks a review of the decision by this Tribunal. Such a review is heard and determined by the Tribunal constituted of three members. The Tribunal has conducted a hearing into Mr Fletcher's appeal and this judgement sets out the reasons for the Tribunal's decision to affirm the Board's decision.
4. The Tribunal is comprised of President Hughes, Ms Davis and Ms Gursansky. The Board was represented by Mr Ward of counsel and Mr Fletcher represented himself. The hearing was conducted over a day and the Board filed with the Tribunal the documents upon which it relied to reach its decision[1]. The Tribunal also had various written submissions from the parties, and affidavits tendered by the Board of witnesses Kyara-Storm Magua, social worker, Professor Michael Baigent, psychiatrist, Associate Professor Anthony Kneebone, neuropsychologist and Ms Patricia Rayment, clinical psychologist. Ms Magua and Ms Rayment gave evidence before the Tribunal.

What authorises the decision made by the Board in relation to Mr Fletcher's practice?

1. The action that was taken by the Board is called "immediate action" under the National Law. The source of the Board's power to take immediate action is s 156 of the National Law. Immediate action is action taken to protect the public while the circumstances giving rise to concerns that the public may be at risk are investigated.
2. At the hearing, Mr Ward on behalf of the Board advised the Tribunal that a brief has been prepared in respect of the concerns raised regarding Mr Fletcher's conduct in the context of his practice and will be considered by the Board within the next three months. The Tribunal is not, in this hearing, deciding an unprofessional conduct or misconduct referral in relation to Mr Fletcher. No such referral has been made at this point in time.
3. Other action that has been taken by the Board since the immediate action has been to require Mr Fletcher to submit to a health assessment, under s 169 of the National Law. That process was still underway at the time of the hearing, but has resulted in the Board obtaining the reports of Professor Baigent and Associate Professor Kneebone, which the Board sought to rely upon in these proceedings to assist the Tribunal to reach the correct or preferable decision in respect of the immediate action. The Tribunal is not determining in these proceedings whether Mr Fletcher is fit to practise. The only matter that was before the Tribunal is the question of whether the Board's immediate action was, and remains, the correct and preferable decision.

1. Part 8 of the National Law deals with "Health, performance and conduct". It contains a suite of provisions concerning notifications, investigations, national board assessments, panel hearings, and referral of more serious matters to the responsible tribunal in the relevant State.
2. These provisions are designed to ensure that allegations in relation to the performance of health practitioners are thoroughly investigated and then considered in proceedings in which the relevant practitioner is accorded natural justice.
3. The legislative scheme recognises that some allegations require more urgent action in the public interest than can be achieved where an investigation and a hearing is required. Division 7 of Part 8 makes provision for "Immediate action". Such action may include suspension of registration, imposition of conditions on a practitioner's practice, acceptance of an undertaking by the practitioner, or acceptance of a surrender of registration. A "show cause" process must be followed if the Board intends to suspend the practitioner or impose conditions on practice.
4. Insofar as relevant to the present matter, s 156 of the National Law provides as follows:

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in the health profession for which the Board is established if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner 's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

...

(e) the National Board reasonably believes that the action is otherwise in the public interest.

Example of when action may be taken in the public interest:

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

1. Section 158 provides that, if the Board takes immediate action, the Board must inform the practitioner as to what further action the Board proposes to take under Part 8 in relation to the practitioner. Thus, immediate action (as the term itself suggests) is intended to be an interim action until the matter is more comprehensively dealt with under Part 8 or at least disposed of permanently in an appropriate way. In some cases, following an investigation no further action is taken and the immediate action is terminated or proves to be the permanent resolution.

1. The National Law envisages that each participating jurisdiction is to nominate a "responsible tribunal" to hear matters under the National Law. Section 6 of the National Law provides that SACAT is the responsible tribunal for South Australia.
2. Section 199 provides that a decision by a Board to impose conditions on a practitioner's registration is an reviewable decision. That is the provision relied upon by Mr Fletcher to bring these proceedings.
3. The National Law establishes that the nature of the appeal is determined by the relevant tribunal's provisions for such appeals.[2] Mr Fletcher's appeal is governed by s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the 'SACAT Act'). That section provides that, in exercising its review jurisdiction, the Tribunal is to examine the decision of the decision-maker by way of rehearing. Section 34 prescribes that:
   • The Tribunal should have regard to the evidence or material before the decision-maker (unless excluded by law).
   • The Tribunal has a discretion to admit additional evidence on review.
   • The Tribunal must have regard to, and give appropriate weight to, the decision of the original decision-maker.
   • The Tribunal must reach the correct or preferable decision.
4. Section 202 of the National Law sets out the powers available to the Tribunal after hearing the matter. The Tribunal may affirm the decision, amend it, or substitute another decision. In substituting another decision, the Tribunal has the same powers as the decision-maker.
5. In the matter of Cheema,[3] the Tribunal constituted by Senior Member Stevens, Dr Dolling and Ms Raphael made some useful observations about the nature and scope of an appeal against a decision to take immediate action in South Australia. It was observed that the Tribunal has a discretion to receive additional evidence on review and that the Tribunal has regard to the state of affairs at the time of the hearing before the Tribunal rather than when the decision was made. The Tribunal said:

When hearing an appeal under s 199 of the National Law, the Tribunal stands in the shoes of the Board. It must consider whether it holds the reasonable beliefs referred to in s 156. If it does have such a reasonable belief, it must determine what is the correct or preferable immediate action in the circumstances. The Tribunal must act on the material before the Tribunal at the time of the review hearing, but the task to be performed is still that required by s 156. > > In our view, an appeal under s 156 is not an occasion for conducting a de facto disciplinary hearing or determining contested factual or medical issues. It would not generally be an occasion for hearing disputed oral evidence or assessing in any conclusive way the weight of disputed evidence. Where serious issues of professional misconduct arise, they should be determined on a referral under s 193 of the National Law in accordance with established principles as to the onus and standard of proof. The task of the Tribunal in an appeal from an immediate action decision is limited in scope. (my emphasis, footnotes omitted)

6. The Tribunal endorses those statements.
7. On review, the Tribunal stands in the shoes of the Board to determine whether it has a reasonable belief that, because of his conduct, the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

1. The appellant considers that he made a report of child abuse to the Department for Child Protection, which was an allegation that the actions of the Department's officers in removing his client's children from her care constituted abuse of them. He says that upon making this report, he became the subject of a complaint by the Department to the Board and then subject to the immediate action by the Board, and that he has been victimised for his allegations. He asks the Tribunal to investigate or at least consider his claims. He says that there is no basis for him to have been the subject of a complaint to or by the Board and that he objects to his practice of the profession of psychology having been made subject to the condition of supervision.

1. The Board's case is that the appellant's responses to the Department's requests for information about his treatment of his client, Ms CM, were inappropriate and gave rise to question as to whether he had complied with his obligations to Ms CM as a practitioner. The Board considered that the communications potentially revealed that he was treating or proposing to treat members of a family group when their interests did not necessarily coincide. The Board considered that the practitioner's interactions with the Department were potentially unprofessional in style and in the copying of his client into correspondence that was critical of the Department when the Department was working with her towards reunification with her children. The Board considered that the appellant's conduct was sufficiently concerning to warrant it taking immediate action whilst it investigated the matter**.** It considers that the action taken was the minimum necessary to secure the protection of the public whilst it investigated the issues.

The Communications that led to these proceedings

1. In this case, the Board's case is primarily based on the content of communications between Mr Fletcher and officers of the Department for Child Protection. The Tribunal is well-placed to review those documents and form its own views as to whether their content, and the other documentary evidence before the Tribunal, indicates that Mr Fletcher poses a serious risk to persons such that immediate action is warranted. The Tribunal describes these communications below.
2. The Departmental officer at the Noarlunga office whose communications with Mr Fletcher initiated these proceedings is Ms Kyara-Storm Magua, a social worker. Her evidence was set out in an affidavit sworn on 16 June 2022. She also gave evidence at the hearing before the Tribunal.
3. Ms Magua was communicating frequently at that time with Ms CM whose two children, aged approximately five years and five months respectively, were in the care of the Chief Executive of the Department for Child Protection. In March 2021 she took over the role of managing the Department's relationship with Ms CM.
4. Ms CM's care for the children had been compromised, in the Department's view, by her homelessness in 2020, her illicit substance abuse, acts of domestic violence in front of the children, and her lack of emotional regulation. The children were removed from the parents under a three-month order in October 2020. The parents consented to the orders.[4] The Department subsequently applied for a 12 month reunification order in January 2021. A parenting capacity assessment carried out in February 2021 found that Ms CM's ability to parent safely was compromised by illicit substance use and emotional dysregulation and provided the basis for a recommended application for long-term care and protection orders.[5] The Court ordered a 12 month reunification order in Mary 2021. At that time Ms CM and the children lived at the same residence as her ex-partner.[6]
5. In January 2021, in the context of assessing the prospects of reunification and the longer-term care for the children, Ms Magua's predecessor wrote to Mr Fletcher, whom the Department knew to be providing psychological services to Ms CM, to ascertain what treatment he was providing to Ms CM that might address the parenting issues for the purposes of a report to court.[7] That request and other documents showing the communications between Ms Magua and Mr Fletcher are annexed to Ms Magua's affidavit.
6. The email dated 22 January 2021 to Mr Fletcher asked him:
   • When CM was referred,
   • How long she has been working with him,
   • What her engagement in sessions has been like,
   • What they had been working on together,
   • When the last appointment was and the next appointment was scheduled for,
   • What the frequency of appointments had been.[8]
7. The letter provided in response was dated 2 February 2022.[9] Mr Fletcher stated that he had been treating Ms CM since 2010 but monthly since 2018 for Adjustment Disorder and Post Traumatic Stress and appointments were at that time fortnightly. The letter contained no description of treatment but expressed across two pages the view that Ms CM's current stress was caused by the abusive act of the removal of her children by the Department. The letter described Ms CM's 'good character and secure established recovery from former addition', and her need for accommodation and reunification with her children so that she could continue to be the devoted mother that she needed to be in order to optimise her recovery from drug addiction. He sent a copy of his letter to Ms CM.
8. Ms Magua followed up the letter with a phone call to Mr Fletcher on 12 March 2021 to obtain information requested in her email but not contained in the letter. Ms Magua made a record of the conversation.[10] Relevant to these proceedings, Ms Magua's note of the call states that Mr Fletcher told Ms Magua that he disagreed with the concerns the Department held about Ms CM's parenting capacity and considered the children's removal to be an act of child abuse. He did not provide an account of the treatment he was providing to Ms CM but stated that CM's challenges with emotional regulation were caused by the Department's act of removing her children.
9. Ms Magua then obtained Ms CM's consent to provide further information to Mr Fletcher so that he might be provided with further information about her, including that she had recently failed a number of drug tests, to assist him to understand the foundation for the Department's concerns.
10. On 8 April 2021, Ms Magua again emailed Mr Fletcher setting out the concerns that the Department held in respect of Ms Magua's parenting capacity and seeking an update to inform a Departmental review meeting.[11] The email said:

"Hi Jim > > I spoke to you a month ago regarding [Ms CM] and her child protection concerns. Have you seen [Ms CM] since? I will be holding a review meeting to discuss her progress next week and an update from you would be appreciated. > > To advise you of the concerns we hold for [Ms CM], she has a history of substance use with information indicating she continued to use substances during her last pregnancy. She has refused to take drug screens at times throughout our involvement; the Department ceased them since March due to her providing no rationale as to why and offering her to approach the Department when she is no longer using and is willing to re-engage with drug testing. She stated to me yesterday she is ready to re-start screening as of next week. > > Previously [Ms CM] showed little insight into how these concerns impact on children, as well as their exposure to domestic violence she experienced in both relationships [with the fathers of the children K and J]. [Ms CM] still resides with her ex-partner, sleeping on his couch which is not currently providing a safe environment for the children to be reunified to. When the children were removed, [Ms CM] reportedly was observed to continuously yell at [Child K], as well as directing inappropriate language towards him. > > [Ms CM] has a lot of unresolved trauma and as I discussed with you, needs additional support with emotional regulation. > > Since our interaction, she has progressed with starting to acknowledge the concerns and the impact of domestic violence and drug use on children which is an extremely positive step forward."

11. Mr Fletcher responded by email dated 15 April 2022 attaching a report in relation to Ms CM. The eight-page report does not describe any treatment. It contains Paragraphs that seek to persuade the reader that Ms CM is a "devoted mother" (which he capitalises), for which Mr Fletcher says there is "evidential and therapeutic substantiation for this fact". It contains a description of Ms CM as having had her confidence shaken by the removal of the children and her belief that she has "failed to Protect her children from interventions of gross damage and attacks upon them in the removal of their security and Maternal Bond."
12. Mr Fletcher asserts that he is able to "reliably confirm that [Ms CM] is no longer an addict nor can be legitimately described as an addict". The letter states that he is "a professional Child Psychologist of 44+ years standing during which [he has] been professionally iconic for always placing children's best interests first...". (his emphasis). He states that a guiding principle is that "REMOVAL OF A PARENT FROM A CHILD IS AN ABUSE OF THAT CHILD" (his capitalisation)
13. Mr Fletcher's report contains reference to a disclosure by the eldest child [K] to Mr Fletcher that gives rise to a concern that the eldest child may have been involved in a sexual act with his father (Ms CM's first ex-partner).
14. The report concludes with the following response to Ms Magua's email dated 8 April 2022:

Overall the SYSTEMIC ABUSE to [Child K] is clear. What is also clear is that there is a just a vague lists of 'concerns' reacted to insensitively without evidential substantiation that are causative of this ABUSE.

• The shouting matter within these concerns is hearsay and included pejoratively rather than with any perception of circumstances and [Child J's] Father's previous partner has potential malicious and prejudicial intent... and
• The living arrangements are not culpable and are prejudicially mis-described as [Ms CM] living at her boyfriend's house when the evidence is that she is living at his parent's house on the couch ... the children are accommodated inside the house and her former partner is living in his parent's shed. There is a pejorative confusion of co-habiting at not choice of this domicile."

(a) There are some very obvious differences between a therapeutic approach to a Problem and a legal one.

(i) In essence a therapeutic approach is an ADDRESS to a PROBLEM that requires APPRECIATION of the people involved.

(ii) A Legal Approach is essentially ADVERSARY and so constitutes an ATTACK on a PERSON to seek PUNISHMENT for mis-demeanours.

(c) This creates an anomaly clearly exhibited in [Ms CM's] case for Child Protection Authorities choosing to utilise ADVERSARY functions within the Courts.

(d) the Anomaly is that if an ADVERSARY approach is utilized on pretext of PROTECTION of a child ... then most usually no matter what is the outcome of an ADVERSARY process ... then the child loses ... which then confounds the verbalized intent which by legislation may be stated as the best interests of a child being paramount.

(e) Children suffering the loss and removal of their parent by legal attack as has occurred for (child K) and (child J) does not in any obvious way meet a definition of Protection.

(f) the issue in this report is that the consequences being visited upon these children is very traumatic for their mother and their suffering even when not causatively her decision yet is still causing her to question her own loving motherhood.

1. At around this time, Ms Magua met with Ms CM's ex-partner who informed her that he had also been referred to Mr Fletcher and that the ex-partner had reported to her that Mr Fletcher was angry with the Department because the Department had applied to remove his (Mr Fletcher's) child. That led to a concern arising for Ms Magua that Mr Fletcher may not be bringing an objective view about the Department's conduct to his communications with the Department about Ms CM. Ms Magua was also of the view that Ms CM's interests and her ex-partner's interests did not coincide because of violence in the relationship such that it may not be beneficial for them both to be treated by the same psychologist.[12]
2. Ms Magua responded to Mr Fletcher's email dated 15 April 2022 with some further specific questions arising out of the report.
3. Mr Fletcher responded with a further five-page report dated 22 April 2022[13] the style of which was more conciliatory and the language less inflamed. However, in relation to the repeated question regarding the treatment being provided, offered the following:

(a) While I have sometimes described interventions and programs in documents for court purposes I also know these descriptions are rarely appreciated and especially since a therapeutic and legal perspectives are structurally disparate and so the focus of my current report has been to identify therapeutic needs rather than describe sometimes still to be adapted treatment.

(b) However, from your professional perspective as a social worker the simplest categorical therapeutic description is that of problem solving ... and that this is joint and participatory progressing from immediacy of crisis through to long-term developmental and adjustment concerns as therapy progresses. The focus usually begins at an immediate physical level and then progresses to deeper emotional concerns of address in the limbic system initially to achieve greater cerebral control of these functions.

1. Ms Magua raised her concern with APHRA in an electronic notification 7 of concern document dated 30 April 2021.[14] The concern can be summarised as raising the following issues:
   • Mr Fletcher did not document treatment when asked to by the Department,
   • Mr Fletcher accidentally copied a letter addressed to Ms CM to a staff member of the Department, in which he criticised the Department,
   • That Mr Fletcher alleged that the removal of the children from Ms CM constituted child abuse,
   • That he did not think that the children should have been removed,
   • That he did not believe that Ms CM was a victim of domestic violence from her partner because the partner had told Mr Fletcher that it was untrue,
   • That he was providing uncharged phone consultations to Ms CM,
   • That he was teaching Ms CM a coping strategy that entailed laughing and joking when reminded of her previous stressors,
   • That he included in his report a disclosure by a child of potential sexual harm that he had not reported at the time he learnt of it,
   • That he is not dissuading Ms CM from having her child or her ex-partner (the child's father), referred to him for treatment,
   • That the father of the child and the mother of the child both reported to Ms Magua that Mr Fletcher is angry with the Department for removing his own child,
   • That he continued to discuss the contents of his reports about Ms CM, with her.
2. On 16 September 2021 the AHPRA provided its 'show cause' letter to Mr Fletcher. The letter stated that the Board proposing to take immediate action to impose conditions on Mr Fletcher's registration because it believed that because of his performance and/or conduct he posed a serious risk to persons and it was necessary to do so to protect public health or safety.[15] The letter set out seven paragraphs of reasons indicating that the Board had made the decision based on the notification by Ms Magua and the concern raised regarding his ability to identify and manage potential conflicts of interest, whether he was providing appropriate treatment, his failure to provide information about treatment, failure to report a "disclosure" by a child to the Department, his professional communication style including strong personal views, and a lack of objectivity and potential lack of competence.
3. Mr Fletcher responded to the show cause letter in several separate documents emailed to AHPRA[16] over several days, setting out his responses which have largely remained consistent throughout the proceedings and will be discussed in more detail later in this decision. The responses contain several questions put by Mr Fletcher indicating that Mr Fletcher had not at that time appreciated, and possibly still does not appreciate, the distinction between the immediate action process and the disciplinary process. He expressed the view that he considered that his guilt of unprofessional conduct had been determined at that point without allegations of such being put to him or substantiated.
4. At the heart of his response, however, there has remained his unwavering contention, as put in his initial response:

"What has occurred is that I included what is a MANDATED Observation of FACT in clearly evidenced plight in ABUSE of two innocent Children coming within the scope of my professional attention as having their mother removed from them at serious impact on their Maternal Bond with one of them in deep trauma and the other only a few months of age".

5. In his further response several days later,[17] he set out his answer to the suggestion that it was a conflict for him to seek to treat both the father of one of the children and the mother of the children in circumstances in which there was a suggestion of domestic violence. Mr Fletcher wrote:

"It is professionally demeaning and a 'damage' to use this lie and while they have the father's child to remove a father's opportunity for me to properly help him HEAL his DRUG ADDICTION... as I have done for the mother... and which conflicts with mothering... except potentially anyone who does NOT have the Children's best interest at heart and are more interested in vindicating their own brutal interventions than in helping these children."

"The complaint is an act of belligerence that 'bad-mouths' me who 'bad-mouths' no-one and does this with a number of scratched up non-substantive and fabricated pretexts which shows a behaviour of twisting non-substantive evidence to be pejorative in a behavioural pattern that is not precise and of questionable professional respect and especially so if this manner of operating is part of any conduct towards Children!"

7. The Board then considered Mr Fletcher's responses and found that the criteria in s 156(1) of the National Law were satisfied. It conveyed its decision to Mr Fletcher in the letter of 27 September 2021 that constitutes the reviewable decision in these proceedings. The Board found that the applicant's conduct posed a serious risk of psychological and emotional harm to his clients and jeopardised the provision of effective treatment. It found that the applicant's conduct demonstrated his failure to accurately and appropriately respond to requests for information, a lack of objectivity and/or a failure to manage potential conflicts of interest contrary to the APS' (Australian Psychological Society's) Code of Ethics as adopted by the Board.
8. The Board also found that the risk posed by the applicant's conduct was heightened because the client who was the subject of this matter appeared to have been inherently vulnerable by virtue of illicit substance use, domestic violence and homelessness.
9. The Board found that due to the absence in Mr Fletcher's solo practice of sufficient individual and organisational risk controls to manage the identified serious risk, it was necessary to take interim action to protect public health or safety by imposing the supervision conditions on the applicant's registration. The letter from the Board, dated 27 September 2021, to Mr Fletcher attached a schedule of conditions.[18] Relevantly, Mr Fletcher was required to:
   • be supervised by another registered psychologist in relation to providing psychological services to multiple clients, conflicts of interest, providing treatment reports and professional communication,
   • undertake the supervision fortnightly for one hour per session until the conditions a removed,
   • have the supervision incorporate a discussion of how he would incorporate any learnings into his practice.
10. The requirements also placed obligations on Mr Fletcher to obtain the Board's approval as to the supervisor and provide reports to AHPRA, and meet the costs of the supervision.
11. The Board also decided to refer the allegations for investigation, and to require Mr Fletcher to undergo a health assessment and informed him of these steps in the letter of 27 September 2021.[19]
12. The Tribunal understands that Mr Fletcher has been supervised in accordance with the arrangements by Luciano Guglielmin, Psychologist.

Mr Fletcher's Challenge to the imposition of conditions on his practice

1. Mr Fletcher brought this review on 21 October 2021. Mr Fletcher has the task of establishing that the Board's decision to take immediate action should be set aside.
2. His original grounds contended that the decision was wrong because (and the following is a direct quote):

1. A proper assessment was not made as to whether the actions subject of complaint in fact constitute professional misconduct. 2. The actions subject of complaint did not occur in instance, there is no evidence of them and there are self-evident checkable lies of malice within the complaint. 3. Insufficient attention has been given to the real reason for the complaint as a personal and professional attack for

(a) providing evidence to the Protection Agency itself of the Abusive effects they brought upon two vulnerable Children and > > (b) that the controversial complexity warrants the causative analysis in what is

(c) a discretionary report requested by the Agency itself under no legal compulsion from them yet

(d) concerning MANDATED matters that ought not be subject to the censuring that is occurring.

1. The matter is intrinsically complex entailing CHILD FIRST Principles and as such REQUIRED the complex professional forms of causal analysis and communication that I provided pro-bono and for which I am being criticized and censured in unwarranted manner.

5. I gave sufficient treatment details, goals, and progress reports for my client.

2. In order to safeguard against an 'alpha' error of allowing someone to practice in harm of the public, the Board has committed a 'beta' error of punishing and censuring me as someone acting in proper safeguard of the public in my psychological therapy.
3. No conflict of interest occurred, and none would have occurred had I assisted the father in the situation to overcome his drug addiction.
4. the Board is failing to distinguish between THERAPY which in my practice entails no Conflict of Interest ... where seeing people from the one family is a major method for RESOLVING CONFLICT ... and the Adversary Legalistic Paradigm with which the complainant is engaged which fallaciously is posing Conflicts of Interest where there are none: Unless with the Agency if it has an interest in the father maintaining his drug addiction ... which is about maintaining the reasons the children have had their parents removed from them and NOT the reduction of Conflict and Harm.

9. The Board itself has failed the 'Harm Test' it has acted in this case to safeguard.

5. It is a lie that I am or was 'angry' .,.. gave 'personal views' rather than provided evidence based observations or was upset that my own child has been removed by DCP ... and DCP has access to this information and so it is a malicious attack to promulgate these pejorative lies with which the Board accords if it acts upon them.
6. He subsequently filed further grounds of review in a 14 page document entitled "The 15 Consolidated Grounds, which he filed on 12 May 2022. The issues raised in that document traverse the same territory as the responses to AHPRA in the 'show cause process', and the matters raised in the original grounds set out above, and were amplified by Mr Fletcher at the oral hearing. The Tribunal is left comfortably satisfied that it understands the basis for Mr Fletcher's criticisms of the Board and its actions and why he considers that the decision to take immediate action in the form of imposing conditions on his practice, was wrong.

1. At the hearing, the Tribunal received without objection the Board's affidavits.
2. Mr Fletcher gave unsworn evidence in the form of various factual assertions in the course of his submissions. The issues that were evidently important to him were that he considered that the Immediate Action was initiated by the malicious action of the Department's officers following his complaint to them, as required by law, and that what they had done in removing the children from their mother constituted child abuse.
3. By and large Mr Fletcher made submissions in a reasoned and calm manner except on one occasion on which he was asked to lower his voice when his temper flared whilst explaining his view of the effect of the Department's actions in removing children from parents. The Tribunal formed the view that Mr Fletcher holds himself in high regard as a psychologist whose practice is child-focused and whose techniques may not be understood by the Department's social workers and particularly not by those officers in Medicare who are responsible for determining the types of treatment that will be funded under mental health care plans. He described himself as "iconic" on several occasions, but did not establish that this was a descriptor of him given by peers.
4. Despite the issue attracting some discussion through the evidence of Ms Magua, at no stage was the answer to the question regarding the nature of the treatment being provided to Ms CM elaborated upon beyond "problem solving".
5. Ms Magua gave evidence, adopting her affidavit of 16 June 2022 and submitting to questions from Mr Fletcher and the Tribunal. The Tribunal found Ms Magua to be an impressive witness who gave her evidence carefully and respectfully.
6. What was apparent from Ms Magua's evidence is that she had no animosity to Mr Fletcher and did not demonstrate a "belligerent" or "malicious" attitude to Mr Fletcher nor a lack of respect or consideration for Ms CM or the children in the Department's care. She readily acknowledged that the removal of a child from a parent was a traumatic event for the child and that it was undertaken only where the safety of the child required it. We find no evidence, in the written documents or in her evidence, of Ms Magua acting in other than a professional and considered manner in the various tasks required of an officer of the Department contributing to the care of children who have been removed from their parents and the decisions that are made once that has occurred as to whether and if so how reunification with parents may occur.
7. Ms Rayment gave evidence. Her report was obtained by the Board to provide the Tribunal with an expert opinion as to Mr Fletcher's compliance with professional obligations in the practice of psychology.
8. In her report,[20] Ms Rayment expresses the following opinions:
   • Mr Fletcher's reports to the Department ought to have set out how he had provided Ms CM with support and strategies to help her manage her distress arising from the removal of her children and to address any mental health, substance use or relationship issues that impacted on her parenting prior to the removal;
   • Mr Fletcher ought not have conveyed his complaints about the Department's actions in a psychological report with respect to his client but through the various channels for complaints within and outside of the Department;
   • That a psychological report regarding a client is not the place for a mandated report of child abuse;
   • That Mr Fletcher's communications could at times be perceived to be disrespectful, demeaning and denigrating in breach of his ethical obligations under the Code of Ethics (APS, 2007);
   • That Mr Fletcher's treatment reports did not make reference to the therapeutic modality which was inconsistent with the conditions on which Medicare funded particular psychological strategies under mental health care plans;
   • That his responses to the Department were not "beneficial to [Ms CM's] interests" and that his singular focus on his opinion that the removal of the children was unjustified prevented him from providing the information sought by the Department which in turn was required for the making of the Department's decisions concerning reunification of the children with her, and as such he did not collaborate with others for her benefit, contrary to the Code of Ethics;
   • Mr Fletcher's record-keeping of the treatment sessions was "below the standard reasonably expected for a psychologist of his level of experience" as it lacked mental health treatment plan reports, dates, client presentation, assessment and progress and safety and risk issues;
   • He did not readily cooperate with the investigation into the complaint and "demonstrated little insight regarding how the complaint related to his ethical obligations as a registered psychologist";
   • That the circumstances between his client and her former partner gave rise to the reasonably foreseeable outcome that their interests did not coincide and that he should have avoided treating them both.
9. Much of the discussion focused upon the fact that the nature of the treatment provided by Mr Fletcher was required to be identified in order for it to be approved for Medicare purposes under a mental health plan. Mr Fletcher rejected the proposition that the funding body may determine treatment options. He did not accept that the funding body did not determine treatment options but funded treatment options.
10. Of significance to the Tribunal was the issue that emerged from that evidence that the report Mr Fletcher asserts he made as a mandated report was his written response to a request for information from the Department about his treatment of Ms CM that the Department's actions amounted to child abuse. When it was put to Mr Fletcher that it was usual, particularly for a health professional, to report child abuse using the Child Abuse Report Line referred to in s 31 of the Children and Young People (Safety) Act 2017 he maintained that it was usual for him to fulfil his obligations in this way.
11. The Tribunal found Ms Rayment's evidence to be given carefully and thoughtfully. She admitted to some consternation in reaching the conclusion that a peer had failed to meet his professional obligations and yet found that she could not resist such a conclusion in this case. Ms Rayment's opinions were not successfully undermined in cross-examination by Mr Fletcher.
12. The Board also provided the reports of the medical practitioners who had examined Mr Fletcher in the health assessment referral process. These reports did not address directly the issues that were before the Tribunal. At best they may have provided a new additional basis for concluding that immediate action was warranted if any of them had revealed that Mr Fletcher suffered a serious medical condition incompatible with performing his functions as a psychologist. They did not do that and their relevance is limited. However, their content is summarised insofar as it is relevant, below.
13. Associate Professor Kneebone provided an affidavit sworn on 25 May 2022 and a report dated 23 March 2022 following a consultation with Mr Fletcher on 11 March 2022. Associate Professor Kneebone is a registered psychologist with endorsement for the practice of clinical neuropsychology. It was his opinion that:
    • Mr Fletcher does not demonstrate evidence of a neuropsychological disorder.
    • He strongly doubted that Mr Fletcher's "unusual and idiosyncratic style of expression" is a consequence of an impairment of neurocognitive function.
14. Associate Professor Kneebone concluded that:

"I do not have concerns about Mr Fletcher's ability to safely practice from the perspective of his neuropsychological health. However, I understand from Mr Fletcher and AHPRA correspondence that he is required to undergo formal professional development supervision from a registered psychologist for one hour each fortnight. This would appear to be appropriate given the various concerns that have been raised in relation to his professional conduct."

15. Professor Baigent provided an affidavit sworn on 24 May 2022 annexing reports in relation to Mr Fletcher dated 23 November 2021, 14 January 2022 and 25 March 2022. In the latter document, prepared after reviewing Associate Professor Kneebone's report, Professor Baigent said,

"I have carefully considered his opinion together with mine. I could not identify a specific psychiatric impairment in my assessment but felt that it was incomplete without the benefit of the neuropsychological assessment. Consider this result, theoretically there is a small possibility that he has an underlying psychiatric disorder that has not been able to be diagnosed in my cross sectional assessment. For example, Bipolar Disorder is characterised by episodes of mood disturbance and a return to normal baseline in between. However, that is largely conjecture, and there are not enough grounds for me to propose that in Mr Fletcher's case. The accumulation of evidence more strongly supports the explanation that his behaviour, manner of communicating and interacting as described is related to his personality (traits). This shapes judgement, behaviour and preference. Although he has traits of dissociality, I would not classify the extent to which his personality style affects his life as enough to warrant a diagnosis of Personality Disorder. I did not view his traits as sufficiently severe to conclude that he has an impairment as a result. My preferred explanation is that his problems fall in the realm of professional conduct rather than medical impairment. > > On that basis, I do not believe that he has a medical or psychiatric condition that affects his capacity to safely practice psychology."

1. The task of the Tribunal is to determine whether to uphold Mr Fletcher's challenge to the Psychology Board of Australia's decision of 27 September 2021. In doing so, we determine whether the decision to take immediate action and impose conditions of supervision on Mr Fletcher's practice is the correct or preferable outcome in light of the evidence that was before the Board and the evidence we have received since that time.
2. Having reviewed the decision-making process as it was performed by the Board, and considered the evidence that has been gathered since the decision and the evidence provided to the Tribunal for and at the hearing, we are satisfied that the criteria for taking immediate action were, and remain, met.
3. In reaching this conclusion, we are mindful that an immediate action order does not require proof of the conduct but rather whether there is a reasonable belief that the health practitioner poses a serious risk to persons.[21] We respectfully adopt the analysis of Horneman-Wren J in Oglesby v Nursing & Midwifery Board of Australia:[22]

[20] ... I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons. [Emphasis added]

4. We are satisfied that, because of manner in which Mr Fletcher responded to the Department's requests for information, his attitude to the issues raised with him, the content of his communications to the Department and the Board, and his evidence to the Tribunal, he poses a serious risk to Ms CM and possibly to other clients.
5. The hostile style of Mr Fletcher's communication with the Department is inimical to the interests of his client. The content of the communications is strongly suggestive that his treatment of Ms CM, and possibly other clients, is not driven by and tailored to an assessment of her needs but by a narrowly-focused approach responsive to his perception of the Department's motives and deficiencies. The content of the communications and his evidence to the Tribunal demonstrates a lack of adherence to ethical obligations and a failure to recognise and address conflicting interests.
6. The risks of serious harm we find to exist are that Mr Fletcher is reasonably likely to:
   • Fail to identify the serious harm to a client (including but not limited to Ms CM) that may arise where he seeks to treat members of a family unit whose treatment interests do not coincide,
   • Communicate to a client who is working with the Department with respect to his or her children (including but not limited to Ms CM) that the Department's actions are not in the interests of the child,
   • Fail to use appropriate treatment methodologies with Ms CM or another client.
7. These are actions or failures that we consider give rise to a risk of serious harm to persons, as such actions or failures are liable to prevent appropriate treatment to such persons where a lack of such treatment could create serious psychological harm.
8. We recognise that not all deficiencies in practice create a risk of serious harm to persons, although they may nevertheless justify disciplinary action (as opposed to immediate action) because they breach other professional obligations, undermine confidence in the profession or undermine other policy objectives of the regulatory regime.
9. We consider that there are other behaviours that Mr Fletcher has engaged in, such as record-keeping and report writing, that give rise to concerns that his conduct may have breached professional standards. However, we do not find that these are matters that give rise, in a sufficiently direct way, to a risk of s_erious harm to persons_. As such, those matters are excluded from our consideration of whether immediate action is required.
10. We accept the medical evidence and in particular that there is no basis for the Tribunal to conclude that medical impairment presents a new intervening basis upon which we might reach the conclusion that immediate action is warranted.
11. The action taken by the Board was to impose a requirement of supervision which, to his credit, Mr Fletcher has embraced in the sense that he has welcomed the interactions with the supervisor. Nevertheless, Mr Fletcher opposes the supervision requirement because of the burden it places upon him and the fact that it is consequent upon the Board's view of his actions which he considers to be unfair and unfounded.
12. We accept that because immediate action is undertaken without a fact-finding process as in-depth as that which is entailed for a disciplinary action, the action taken must be the minimum necessary to achieve the protection of the public.[23] We consider that the imposition of conditions achieves that balance of the protection of the public and the interference with Mr Fletcher's practice, and is the response that least interferes with his practice as is consistent with that outcome.

1. The Tribunal affirms the decision under review.
2. Pursuant to section 60 of the South Australian Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the publication of the names of any of Mr Fletcher's clients, relatives or any other persons seen by him in a professional capacity.

[1] Referred to as the "Section 35 Documents".

[2] Health Practitioners Regulation National Law (South Australia) Act 2010 (SA) s 6A(1).

[3] Cheema v Medical Board of Australia [2020] SACAT 40.

[4] Paragraph 31 of the Affidavit of K-S Magua sworn 16 June 2022.

[5] Paragraphs 30-34 of the Affidavit of K-S Magua sworn 16 June 2022.

[6] Paragraphs 24-27 of the Affidavit of K-S Magua sworn 16 June 2022.

[7] Exhibit KM-1 of the Affidavit of K-S Magua sworn 16 June 2022.

[9] Exhibit KM-2 of the Affidavit of K-S Magua sworn 16 June 2022.

[10] Exhibit KM-3 of the Affidavit of K-S Magua sworn 16 June 2022.

[11] Exhibit KM4 of the Affidavit of K-S Magua sworn 16 June 2022.

[12] Paragraph 17 of the Affidavit of K-S Magua sworn 16 June 2022.

[13] Exhibit KM 8 of the Affidavit of K-S Magua sworn 16 June 2022.

[14] Exhibit KM 9 of the Affidavit of K-S Magua sworn 16 June 2022.

[20] Exhibit PR-1 of the affidavit of P Rayment sworn on 25 May 2022.

[21] WD v Medical Board of Australia [2013] QCAT 614 [8]; Cheema v Medical Board of Australia [2020] SACAT 40 [43].

[22] [2014] QCAT 701 [20].

[23] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295.