1. The decision of the Psychology Board of Australia made on 11 August 2014, to refuse Dr Hanes' application for general registration, is confirmed.
2. Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal directs that no person other than a party to the proceeding and their legal advisers may inspect the file.

1. Dr Karl Hanes seeks general registration as a psychologist.
2. On 11 August 2014, the Psychology Board of Australia (the Board) refused Dr Hanes' application for general registration. The Board was not satisfied that he is able to practise psychology competently and safely because he last practised as a registered psychologist over 18 years ago and then only for three and a half months. In the Board's view, Dr Hanes does not meet the requirements of its Recency of practice registration standard.
3. This is not the first time that Dr Hanes has applied for registration. He applied in 2009. The Psychology Board of Victoria (PRBV) refused his application. He applied to VCAT for review and in the course of that proceeding entered into an agreement with the Board (the 2010 agreement), which required him, amongst other things, to complete a period of 240 days of supervised practice. In this proceeding, the Board says that Dr Hanes did not complete the required period of supervised practice under the 2010 agreement.
4. Dr Hanes disagrees with the Board's decision. He says that he is qualified and eligible under the National Law, and has the skills and experience to practise competently and safely. He says he has over 18 years experience within the field of counselling, psychology and psychotherapy; is a scientist with over thirteen published papers in peer-reviewed scientific journals; and is respectively considered by many in these fields as an expert and senior clinician.
5. Dr Hanes represented himself at the hearing. He made and relied upon two affidavits, dated 27 January 2015 and 30 March 2015, which set out his detailed evidence and submissions. He made additional oral submissions at the hearing.
6. Ms Robertson of Counsel represented the Board. The Board made written submissions and additional oral submissions at the hearing; and relied on affidavits of:
   • Ms Suza Josevska, Senior Registration Officer in the Health Practitioner Team of the Board, and employed by AHPRA in its Victorian office;[1]
   • Dr Lina Forlano, Professional Officer (Psychology) in the Health Practitioner Registration Team of the Board, and employed by AHPRA in its Victorian office.
7. Each of the three witnesses gave some additional evidence at the hearing and were cross-examined.

1. Dr Hanes has qualifications in psychology. He has the degrees of Bachelor of Arts (Hons) and PhD, obtained in 1994 and 1996 respectively. He has been registered as a psychologist, from September 1996 to December 1996 when his registration lapsed. He was engaged at the time in other pursuits which did not require registration. In the intervening years, he has worked as a research fellow, counsellor and psychotherapist.
2. In 2009, Dr Hanes applied to the PRBV for general registration. The PRBV refused his application but indicated that he could become eligible for general registration if he completed three refresher subjects at fourth year level, applied for provisional registration, and completed 240 days of supervised practice under the relevant guidelines at the time.
3. In July 2010, when the National Law came into effect, the PRBV's functions were transferred to the Board.
4. Dr Hanes applied to the Tribunal in 2010 for a review of the PRBV decision. In the course of that process, the Board and Dr Hanes reached agreement on a pathway to general registration (the 2010 agreement) and he accordingly withdrew his application for review. The agreement included a requirement that Dr Hanes complete a period of supervised practice.
5. From 12 April 2011 until 11 April 2013, Dr Hanes was accordingly registered as a provisional psychologist.
6. The Board contends that Dr Hanes failed to complete the required period of supervised practice in accordance with the Guidelines for the 4+2 internship program. Dr Hanes says that he completed the required period and substantially complied with the 2010 agreement as a whole, but the Board violated the agreement.
7. After some debate with the Board about its requirements, Dr Hanes made the decision in April 2013 to apply for general registration. That application is before the Tribunal in this case.

1. Since July 2010, psychologists and other health practitioners have been regulated under a national scheme, which replaced the previous state-based systems.
2. Not all health professions or health-related occupations are regulated. Counselling and psychotherapy for example are not regulated health professions.
3. Under the National Law, national health profession boards were established. There are currently 14 national boards including the Psychology Board of Australia. The Australian Health Practitioner Regulation Agency ("AHPRA") supports the 14 national boards.
4. Under section 35 of the National Law, the functions of the national boards include to develop or approve standards, codes and guidelines for the health profession and to set the standards and requirements for registration in each profession.
5. Section 3(2) of the National Law sets out the objectives of the national registration and accreditation scheme.
6. One of the objectives is protection of the public -

To provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[2]

1. Section 5 of the National Law defines an 'approved registration standard' as one that the Ministerial Council has approved under section 12, and which has been published on the website of the national board that developed the standard.[3]
2. Three registration standards are relevant in this case -
   • (a) Psychology Board of Australia General Registration Standard, approved 31 March 2010 with effect from 1 July 2010;
   • (b) Psychology Board of Australia Recency of Practice Registration Standard, approved 31 March 2010 with effect from 1 July 2010.;
   • (c) Psychology Board of Australia Provisional Registration Standard, approved 27 April 2012 with effect from 1 June 2012;
3. Each of them meets the definition in section 5. To the extent necessary, we find that each one of the three is an 'approved registration standard' under the National Law.
4. Sections 52 to 56 of the National Law set out the requirements for general registration in a health profession.
5. Section 82 of the National Law sets out the decisions a national board may make when an individual has applied for registration.
6. The Board considered that Dr Hanes did not meet several of the requirements for general registration. It refused his application for general registration on a number of the grounds specified in section 82(1)(c)(i)[4] italicised in the extract below, namely
   • (A) is not qualified for registration; or
     • (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession_; or_
     • (C) is not a suitable person to hold registration; or
     • (D) ......
     • (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or
7. We propose to address these in the following order using the lettering system in section 82(1)(c)(i):
   • Is Dr Hanes qualified for general registration; [A]
   • Is Dr Hanes a suitable person to hold general registration; [C]
   • Has Dr Hanes failed to meet a requirement for general registration stated in an approved registration standard for the profession; [E] and
   • Has Dr Hanes failed to complete a period of supervised practice in the health profession? [B]

IS DR HANES QUALIFIED FOR GENERAL REGISTRATION AS A PSYCHOLOGIST? [A]

1. Section 52(1)(a) to (e) of the National Law sets out five criteria for eligibility for general registration in a health profession.
2. The five eligibility criteria in section 52(1) match the five grounds for refusal of registration in section 82(1)(c)(i) above.
3. The use of the word 'and' at the end of each sub-section in section 52(1) makes it clear that an applicant for general registration must satisfy each of the five criteria. [5]
4. The first is that an individual is qualified.[6]
5. The Board's General registration standard sets out the qualifications approved by the Board -
   • (a) an accredited Master's degree; or
   • (b) a five year accredited sequence of study followed by a one year Board approved internship ( 5+1); or
   • (c) a four year accredited sequence of study followed by a two year Board approved internship (4+2); or
   • (d) a qualification that in the Board's opinion is substantially equivalent to either (a), (b), or (c).[7]
   • (e) In addition to the completion of an approved qualification the Board may require the passing of an examination prior to accepting an application for general registration
6. In addition, under section 53(d), a person is qualified for general registration if they hold a qualification that has been accepted for general registration, and were previously registered. Dr Hanes is qualified under this section, in our view.
7. In correspondence and submissions, the Board appeared to suggest that Dr Hanes was ineligible because of the age of his qualifications.
8. Dr Hanes contends that there is no 'age discrimination' in the National Law and the standards; that in many cases senior practitioners will have qualifications that are decades old; and in itself the age of a person's qualifications does not disqualify them from safely and competently practising psychology. We agree. There are psychologists whose qualifications may be decades old but who have continued to practise as registered psychologists.
9. The Board submitted that its policy for provisional psychologists with qualifications more than 10 years old was relevant in this case. We observe that it appears to apply to applicants for provisional registration, wishing to undertake the 4+2 or 5+1 internship programs in order to qualify, who have a four or five year accredited sequence of study that was completed more than 10 years previously. It does not appear to apply to Dr Hanes.
10. Counsel for the Board clarified, at the hearing, that the age of Dr Hanes' qualifications and the number of years since he has practised as a registered psychologist raised concerns about his ability to practise safely and competently without completing remedial action.
11. The Board now accepts, and we find that Dr Hanes is qualified for general registration, and therefore meets the eligibility criteria in section 52(1)(a) of the National Law.

IS DR HANES A SUITABLE PERSON TO HOLD GENERAL REGISTRATION? [C]

1. Under section 82(1)(c)(i)(C) of the National Law, the Board must refuse to grant registration if the applicant is ineligible for registration under a relevant section because the applicant is not a suitable person to hold registration.
2. Section 52(1)(c) is the related eligibility criteria, in issue in this case.[8] It states -

(1) An applicant is eligible for general registration in a health profession if -

(c_) the individual is a suitable person to hold general registration in the health profession;_

1. Section 55 relates to suitability and provides that a national Board may decide an individual is not a suitable person on one or more of eight grounds set out in subsections (1) (a) to (h). The Board contends that subsections (1)(f) and (h) applied to Dr Hanes.
2. Under section 55(1)(f), a national board may decide that an individual is not a suitable person to hold general registration if -

The nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession.

1. Under section 55(1)(h), a national board may decide that an individual is not suitable to hold general registration if -

In the Board's opinion, the individual is for any other reason -

(ii) unable to practise the profession competently and safely.

1. The Board contends that:
   • the Board's Recency of practice registration standard (the recency standard) is the relevant standard for the purposes of section 55(1)(f);.

• Dr Hanes' previous practice [9] does not meet the requirements specified in the recency standard, and he is therefore not a suitable person under s 55(1)(f); and
• Dr Hanes is not suitable under section 55(1)(h) because the lapse of time since he was qualified and his limited practice as a psychologist means that he is unable to practise the profession competently and safely.

1. The Board relies on the requirements of the recency standard, in conjunction with its policy for recency of practice requirements (the recency policy).
2. Dr Hanes contends that he meets the requirements of section 55(1)(f) and (h), because:
   • He was registered as a psychologist in 1996 and has worked for over 18 years as a health practitioner within the field of counselling, psychology and psychotherapy - that should be considered as relevant practice for the purposes of the recency standard;
   • The recency standard is not an approved registration standard;
   • There is no mention of recency of practice in the National Law, and the fact that an applicant may not be able to comply with the recency standard does not prevent them from being granted registration - the Board has a discretion as to what it may require, and will determine a number of relevant matters on a case by case basis;
   • On a review, the Tribunal, as the review authority has all the powers and functions of the Board. The Tribunal is properly guided by the National Law and the registration standard, but can choose to depart from the Guidelines and/or Policies of the Board, and take into account broader considerations;[10]
   • He completed the period of 240 days supervised practice, and the rest of the 2010 agreement, as interpreted under Australian contract law;
   • The supervision report of his second principal supervisor, Ms Jenny McColl, is equivalent to a Final Assessment of Competency Report required under the Guidelines to the 4 + 2 program;
   • While the Board may not have approved Ms McColl as a replacement supervisor, she is a Board-approved supervisor and the period of supervised practice with her should count towards the 240 days required under the 2010 agreement
   • The evidence he has provided including the evidence about his course of study towards his degrees, his experience since qualifying, his expertise, work roles, his case studies and the supervision reports of his supervisors, he says, manifestly demonstrate his mastery and competence of all the 8 core capabilities[11] required to practise the profession competently;
   • He maintains that he demonstrably and manifestly has more than the requisite degree of skill to practise competently and safely.
3. We propose to consider the issues to do with suitability in the following order:
   • Is the recency standard an approved registration standard for the purposes of section 55(1)(f), and other eligibility criteria;
   • What is the role and status of the recency standard - and is the Tribunal bound to apply it;
   • If the recency standard is an approved registration standard for the purposes of section 55(1)(f) and other eligibility criteria, what does the recency standard require - this is also a relevant question in relation to eligibility under section 52(1)(b)(i) and section 52(1)(e); [12]
   • Does Dr Hanes meet the requirements of the recency standard;
   • Does the recency standard allow registration even if an applicant has insufficient recent practice;
   • Is remedial action required for Dr Hanes to become eligible under the recency standard;
   • What is the relevance of the 2010 agreement, and has Dr Hanes complied with it; and
   • Can the Tribunal be satisfied that Dr Hanes is able to practise the profession of psychology competently and safely?

Is the recency standard an approved registration standard for the purposes of suitability and other eligibility criteria?

1. We have found, above, that the recency standard is an approved registration standard.
2. Contrary to Dr Hanes' submission, the National Law makes specific reference to standards concerning recency of practice.
3. Under section 38(1)(e), a national board must develop and recommend to the Ministerial Council registration standards about requirements in relation to -

the nature, extent, period and recency of any previous practice of the profession by applicants for registration in the profession'.

1. The importance of recent practice is also underlined, in our view, by section 55(1)(f) which, as noted above, empowers a national board to decide that an individual is not a suitable person to hold general registration in a profession if

The nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession.

1. We find that the recency standard is an approved registration standard for the purposes of:
   • section 55(1)(f), and therefore section 52(1)(c) (suitability);
   • section 52(1)(e) (meeting any other requirements for registration stated in an approved registration standard for the health profession); and
   • section 52(1)(b)(i) (successful completion of any period of supervised practice required by an approved registration standard for the health profession).

What is the role and status of the recency standard - is the Tribunal bound to apply it?

1. Dr Hanes submitted that on a review, the Tribunal as the 'review authority' has all the powers and functions of the Board and is properly guided by the National Law and the registration standards, but can choose to depart from the guidelines and/or policies of the Board and take into account broader considerations.
2. Dr Hanes referred to the decision of the NSW Psychology Tribunal in Draper v Psychology Board of Australia,[13] as authority for his submission.
3. In Draper, the NSW Tribunal made the following observations in relation to standards[14] -

The status of a Standard and its relationship to the National Law was discussed by the Nursing and Midwifery Tribunal in McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4. The Tribunal said,

While a standard is not a legislative instrument, its authority is recognised under the National Law. Further, the importance of a standard, once approved by the Ministerial Council, is that in various situations compliance with a standard........is mandatory to retain or achieve registration. The legislation contains no discretion that enables a Board, (or a Tribunal), in particular circumstances, not to apply a standard once approved."

The Tribunal concurs with this reasoning and considers that as the Registration Standard has been developed and approved in accordance with the National Law and is specifically referred to in section 98 (1) (b), the authority of the Standard is recognised under the National Law. The Standard, should be interpreted in accordance with the objectives and guiding principles of the legislation, and is binding on the Board when making a decision under section 98 and in this instance on the Tribunal when considering this appeal.

1. We concur with the views expressed above. The recency standard is an approved registration standard, its authority is recognised under the National Law. It should be interpreted in accordance with the objectives and guiding principles of the National Law, and it is binding on the Tribunal when considering whether Dr Hanes is eligible for registration.
2. In relation to guidelines, the NSW Tribunal observed:

The Tribunal considers that guidelines do not have the same status as standards which are recognised under the National Law. Guidelines provide assistance and guidance in the application of the law, or a standard, in individual cases and the Board (and indeed the Tribunal in the context of this appeal) may depart from them.[15]

1. The above observations support Dr Hanes submission that the Board and the Tribunal may depart from guidelines, but the NSW Tribunal went on to say:

However the Tribunal notes that when guidelines have been devised by experienced professional people with a long established relevant knowledge base they should not be disregarded lightly. In McMahon[16] the Tribunal said this about a policy developed in relation to a Recency of Practice Standard,

"The policy was developed to be applied in conjunction with the Standard. We infer this means the policy is designed to facilitate, and guide, application of the standard in particular cases...... The Tribunal, should, as explained by McClelland CJ in Stockland Developments Pty. Ltd v Manly City Council (2004) LGR ERA 254, have regard to such policy and should consistently, so far as practicable, interpret the Standard in conformity with the policy."

1. We concur with the NSW Tribunal's observations. In our view, guidelines do not have the same status as approved registration standards but the Board, and the Tribunal on review, should not lightly disregard them. In this case the particular guidelines relied on by the Board, the guidelines for the 4+2 internship program, do not relate to recency of practice. They are relevant to the separate question of whether Dr Hanes complied with the 2010 agreement and we discuss them further below.
2. We also concur with the statements about policies in the quotation from McMahon above. In McMahon, the NSW Nursing and Midwifery Tribunal made its observations about a policy developed in relation to a recency of practice standard. We propose to take the same approach in this case - to 'consistently, so far as practicable' interpret the recency standard in conformity with the Board's recency policy.
3. When interpreting a particular standard, such as the recency of practice registration standard, the Tribunal, in our view, should have regard to relevant guidelines and policies developed by the Board, and should consistently, so far as practicable, interpret the standard in conformity with them.
4. To the extent that Dr Hanes' submission is that the Tribunal can go further than the Board, or take into account broader considerations than the Board can, we disagree with the submission.
5. The role of the Tribunal on review is to stand in the shoes of the decision-maker, exercising the powers of the decision-maker under the enabling legislation, in this case the National Law. The Tribunal does not put on an entirely different pair of shoes. If the Board has a discretion, the Tribunal has the same discretion, but it cannot and does not make decisions outside the framework of the enabling legislation. If the National Law, or an approved registration standard, says that the Board must or must not do something, the Tribunal is under the same constraints.
6. The above approach is also consistent, in our view, with that taken in another decision referred to by Dr Hanes in his submissions, Pardo v Psychology Board of Australia.[17]
7. In Pardo, the Tasmanian Health Practitioners Tribunal said this about the role of the Tribunal:

The National Law provides wide power and discretion to a health profession to set the standards and requirements for registration. This authority resides solely with the applicable National Board and the Tribunal's role in a case such as this is to determine whether or not the applicant satisfied those requirements. The Tribunal must be mindful of maintaining the professional standing and level of competence required of a health profession in order to maintain public confidence and safety.

What does the Recency of practice registration standard require?

1. The Board says that Dr Hanes does not currently meet the recency standard. Dr Hanes says that he has sufficient recent practice and in any event, there is a discretion as to what the Board, and therefore the Tribunal may require in individual cases.
2. We have found that the recency standard is an approved registration standard that is relevant to general registration in the profession.
3. Under the heading Scope of application, the recency standard states that:

This standard applies to all applicants for registration and registered psychologists. It does not apply to applicants applying for or renewing nonpractising registration or student registration.

1. We find that it applied to Dr Hanes' application to the Board in 2013 for general registration, and applies to the question for the Tribunal of whether Dr Hanes ought now to be granted general registration.
2. The recency standard is relevant to the eligibility criteria in section 52(1)(b)(i),[18] and (e),[19] and to suitability under section 55(1)(f).[20]
3. 'Recency of practice' is defined in the standard-

Recency of practice means that a practitioner has maintained an adequate connection with, and recent practice in, the profession since qualifying or obtaining registration.

1. The following is set out under the heading Summary-

An applicant for registration or endorsement or renewal of registration or endorsement must demonstrate satisfactory evidence of recent practice as a registered psychologist within the five years prior to the date of application for registration or endorsement, or renewal of registration or endorsement.

In order to practise as a psychologist in Australia, an individual must be registered by the Board. On this basis, the Board will not accept:

(a) unregistered practice involving activities of a psychological nature; or

(b) practice involving activities of a non psychological nature despite these being performed by a registered psychologist, as satisfactory evidence of recent professional practice.

1. 'Practice' is defined at the end of the standard -

Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a psychologist in their profession. For the purposes of the registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

1. Five 'requirements' are set out in the standard, the first three of which are relevant to applicants for general registration.[21]

Requirement 1: unconditional practice as a registered psychologist within the previous five years

1. Requirement 1 sets out what an applicant must demonstrate:

An individual must, at the time the application is made, be able to demonstrate that he or she has practised unconditionally as a registered psychologist within the previous five years. A person who is eligible for registration and applies for registration within five years of successfully completing a Board-approved sequence of study required for registration is exempt from this standard.

1. Requirement 1 is, in our view, the core requirement of the recency standard. This is reflected in the Summary.
2. To the extent necessary, we are satisfied that Dr Hanes's application for registration in 2013 was not made within five years of completing a Board-approved sequence of study, because he completed his PhD degree in 1996, and he is therefore not exempt from requirement 1.

Does Dr Hanes meet the requirement of recent practice in the recency standard?

1. Can Dr Hanes demonstrate that he has practised unconditionally as a registered psychologist within the previous five years?
2. There is no dispute that Dr Hanes was not registered during the years he says he practised "in the field".
3. He contends that his work was substantially equivalent to practice as a psychologist and gives a detailed analysis of the work in different roles and its proximity to or overlap with practice of a psychological nature.
4. Whether that is so is not to the point, in our view, because requirement 1, and the summary of the recency standard make it clear that applicant must provide evidence of recent practice as a registered psychologist. Substantial equivalence can be relevant to whether someone is qualified[22] but not, in our view, to whether they have recent practice.
5. Further, the standard expressly states in the summary section that the Board will not accept unregistered practice involving activities of a psychological nature.
6. For the reasons set out above,[23] the Tribunal has the same constraint, in our view. In other words, the Board, and in its place the Tribunal, does not have a discretion to accept unregistered practice when considering whether an individual meets the first requirement of the recency standard.
7. We find that Dr Hanes does not meet requirement 1 of the recency standard.
8. In reaching this view, we have considered Dr Hanes' submission that the Board has a discretion under requirement 3 to take a case-by-case approach. Requirement 3 states -

When questions arise as to the quantity or type of practice and whether it constitutes 'psychology practice' for the purposes of this standard, the Board will determine such matters on a case-by-case basis [our underlining]

1. In our view, requirement 3 expressly relates to questions of whether any period of practice constitutes 'psychological practice' for the purpose of the definition of 'practice' It is relevant to the statement in the summary, that the Board will not accept:

practice involving activities of a non psychological nature despite these being performed by a registered psychologist, as satisfactory evidence of recent professional practice

1. It does not, however, override the clear statement that the Board will not accept unregistered practice, and does not, in our view, give the Board and the Tribunal the discretion to accept unregistered practice, whether on a case by case basis or otherwise.
2. Even if there were a discretion, our view is that it would be against the objectives of the National Law to do so.
3. The requirement that the recent practice must be as a registered psychologist is consistent with the importance given to recency of practice in 38(10(e) which refers to '...recency of any previous practice of the profession...' and section 55(1)(f), which also refers to recency of any previous practise of the profession' [our emphasis].
4. There is some discretion, discussed below, when deciding what will happen if an individual cannot meet the requirement to demonstrate that he or she has practised unconditionally as a registered psychologist within the previous five years, but not on the question of whether unregistered practice counts.
5. In short, Dr Hanes cannot rely upon those years of unregistered practice, whether or not it was of a psychological nature, or substantially equivalent, on the question of whether he meets the core requirement in the recency standard.
6. Dr Hanes' period of registration as a psychologist in 1996 does not meet the requirements of the standard because it was 19 years ago.
7. Dr Hanes has had a period of registration as a provisional psychologist in the last five years - the two years between April 2011 and April 2013. But it was not unconditional practice for the purposes of requirement 1. He was subject to the requirements of the 4+2 internship guidelines, was required to be supervised and was not entitled to practise on his own account.
8. For the above reasons, we find that Dr Hanes does not meet the requirement in the recency standard to demonstrate that he has practised unconditionally as a registered psychologist within the previous five years.
9. We find that he does not therefore meet the requirement for suitability in section 55(1)(f). As a separate matter, he does not meet the eligibility criteria in section 52(1)(e), because he has not met a requirement in for registration stated in an approved registration standard for the health profession.

Does the recency standard allow registration even if an applicant has insufficient recent practice?

1. As Dr Hanes submitted, inability to meet the requirement of recent practice (requirement 1) does not automatically exclude an applicant from being granted general registration.
2. Requirement 2 of the recency standard sets out the consequence, which is that the person is not automatically eligible for registration or renewal of registration, and what the Board may do in such a case.

An applicant who has not practised as a registered psychologist for five years or more is not automatically eligible for registration or renewal of registration, but may be required to undertake remedial action in order to become eligible for registration or renewal of registration. If the Board grants or renews registration under these circumstances it may impose a condition on registration that the applicant must undertake remedial action within a specified period

1. Requirement 2 gives the Board a discretion to require a person to undertake remedial action in order to become eligible. The Board may also grant or renew registration but impose a condition that the person undertake remedial action within a specified period.
2. The Board is also given discretion in the section of the recency standard headed Inability to comply with this standard-

In the event that an applicant for registration or renewal of registration or renewal of registration is unable to demonstrate evidence of recent practice in accordance with this standard the Board may:

(a) refuse registration or endorsement or renewal of registration or endorsement; or

(b) grant or renew registration, but impose a condition on registration or endorsement that the applicant must undertake a period of supervised practice under the supervision of a supervisor approved by the Board; and/or

(c) require the applicant to undergo a performance assessment; and/or

(d) require the applicant to successfully complete further education aimed at remedying shortfalls in their professional knowledge or skills resulting from their recent lack of practice; and/or

(e) require the applicant to successfully complete an examination.

1. These provisions give the Board a reasonable amount of flexibility to determine what may be required in a particular case and what will best meet the objectives of the National Law. But the Board is not required to grant registration, with or without conditions, and, clearly, may refuse registration. The Tribunal is in the same position.
2. We discuss below the approach the Board took in the 2010 agreement, but first consider the question of whether, putting to one side the 2010 agreement, remedial action is appropriate before Dr Hanes becomes eligible for registration.

Is remedial action required in order for Dr Hanes to be eligible under the recency standard?

1. Dr Hanes contends that he does not need to undertake remedial action to be eligible for registration under the recency standard. The Board disagrees.
2. In such a case, the Board's recency policy becomes relevant to the Tribunal's decision.
3. The Board's recency policy states that, if an applicant has not practised as a registered psychologist for 15 years or more, the Board may refuse the application and require the applicant to complete a minimum of 3080 hours[24] of supervised practice as a provisional psychologist under the national 4+2 internship program and meet the requirements of that program.
4. If an applicant has not practised as a registered psychologist for between five and nine years the requirement is 770 hours; and between 10 and 14 years is 1540 hours.
5. The policy also states that:

On successful completion of the remedial action to the satisfaction of the Board, the applicant may apply for general registration. The Board reserves the right to vary the conditions in this policy in accordance with individual circumstances.

1. In our view, in a case where an applicant last practised as a registered psychologist 15 or more years ago, and particularly where the period of practice as a registered psychologist was only three and a half months, the policy represents a reasonable requirement and should guide interpretation and application of the recency standard.
2. We would not consider it to be an appropriate case to exercise the discretion to grant registration but impose conditions. We discuss this issue further in relation to the 2010 agreement.
3. We are mindful of the express reference to recency of practice considerations in 55(1)(f), and the objective of the National Law to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified and are able to practise in a competent and ethical manner are registered.
4. We accept Dr Forlano's summary of the importance of recent practice in her affidavit at paragraph 33, which also accords with common sense, in our view.
5. In particular, professional knowledge and the skills that form the basis of competence may deteriorate over time if they are not reinforced through application in practice, and through accredited or approved professional development programs. Rapid changes may take place in the profession and the healthcare environment that a person who is not in practice as a registered psychologist may miss - such things as currency of knowledge, changes in the current evidence base, ethical codes, diagnostic classification systems, new tests and new versions of tests.
6. Dr Hanes last practised as a registered psychologist over 18 years ago. And he only practised as a registered psychologist for three and a half months. Until he registered as a provisional psychologist, in 2011, any work he did was outside the system of registration; was not subject to the oversight of the regulator; was not subject to the ethical requirements of the profession; and was not subject to the complaint mechanism in place for clients of regulated professionals.
7. In such a case, a substantial period of approved supervised practice, under the undoubted rigours of the guidelines for the 4+2 internship program, protects both the public and the practitioner from error or inadvertent incompetence. A period of approved supervised practice, in our view:
   • operates as a practical and measurable way of refreshing professional skills;
   • addresses any need for re-training or re-education under the supervision of, and as assessed by an appropriately qualified psychologist; and
   • gives the Board, through the supervisor's final assessment of competence, a reliable means of assessing whether the person has achieved the core competencies.
8. We find that the recency standard, interpreted and applied consistently with the Board's policy would require Dr Hanes to undertake remedial action in the form of a period of approved supervised practice, at the least, and that a period of between 1540 to 3080 hours of approved supervised practice is reasonable in all the circumstances
9. This is not the same as finding that the eligibility criteria in section 52(1)(b)(i) [25] applies to any such period of supervised practice. We discuss this further below in the section of these reasons relating to whether Dr Hanes completed a period of supervised practice required by a registration standard.
10. We acknowledge that it may be an unnecessarily fine distinction. The Board clearly had the power, under the recency standard to require Dr Hanes to undertake remedial action, and under its policy, may impose a period of approved supervised practice.
11. In this context, it is relevant to consider the evidence about whether Dr Hanes in fact successfully completed the requirement of supervised practice and the other matters set out in the 2010 agreement.

What is the relevance of the 2010 agreement, and has Dr Hanes complied with it?

1. The 2010 agreement is relevant in a number of respects:
   • Dr Hanes says he complied with the requirement in the 2010 agreement and fulfilled the other terms of his agreement with the Board, and that doing so gives him a right to general registration;[26]
   • The Board says that Dr Hanes did not complete the required period of supervised practice and therefore fails the eligibility criterion in section 52(1)((b)(i) because it was a period of supervised practice required under an approved registration standard (the recency standard);
   • If Dr Hanes complied with the requirements of the 2010 agreement, it may well be appropriate to exercise the discretion in the recency standard to grant registration, with or without conditions

1. The 2010 agreement is set out in a letter dated 5 October 2010 from the Board's solicitors at the time to Dr Hanes. He signed a copy of the letter on 6 October 2010.
2. Terms of Agreement are set out under a paragraph confirming that on 4 October 2010 Dr Hanes and the Board agreed to resolve Dr Hanes application for review on a confidential basis without a Tribunal hearing.
3. Because Dr Hanes raises a number of issues about the terms of the agreement, we set them out in full -

• 1.1 In full and final settlement of the Application, you and the Board have agreed in good faith to resolve the Application on a confidential basis.
  • 1.2 In accordance with the Agreement, you have undertaken to:
    • (i) on or before 7 October 2010, seek leave of VCAT pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998 to withdraw the Application; and
      • (ii) on or before 7 October 2010, provide an undertaking to the Board that you will not use the titles 'psychologist' or 'registered psychologist, or hold yourself out as having general registration as a psychologist during the period that you hold provisional registration.

1.3 In accordance with the Agreement, prior to you obtaining provisional registration as a psychologist, you will need to:

(a) obtain the Board's approval of a suitable work role;

(b) obtain the Board's approval of a primary and secondary supervisor; and

(c) obtain the Board's approval of a Supervised Practice Plan (Form SPPR 10).

1.4 In accordance with the Agreement, upon you satisfying the requirements at paragraph 1.3 above and being granted provisional registration, you will be required to:

(a) complete a minimum of 240 days of approved supervised practice in accordance with the Board's Guidelines for the 4+2 Internship Program; and

(b) provide evidence of completion of an additional 20 points of suitable Continuing Professional Development (CPD) in accordance with the Board's Guidelines on CPD, within 12 months of obtaining provisional registration and prior to applying for general registration. At least half of the 20 CPD points must be obtained through 'active' CPD activities. The 20 CPD points are in addition to the ongoing professional development activities that are required to be completed under the Board's Guidelines for the 4+2 internship program.

1.5 In accordance with the Agreement, upon completion of a minimum of 240 days of supervised practice, you may apply for general registration as a psychologist.

1.6 Pursuant to the Board's Guidelines for the 4+2 Internship Program, you will be required to submit three final case studies (having previously submitted six case studies to your supervisor for approval) and your supervisor's final report as part of your application for general registration. Your application will be assessed by the Board against the Board's Registration Standard for General Registration and against the competencies required under the Board's Guidelines for the 4+2 Internship Program (as amended from time to time)

1. In our view, the course of action set out in the 2010 agreement was appropriate and reasonable in the circumstances, and represented a reasonable pathway to general registration that addressed recency of practice issues.[27] We express that view, taking into account all of the evidence from Dr Hanes about the work he did in the years from 1996 to 2009.
2. The required period of supervised practice was less than what is required under the Board's current policy on recency of practice for someone who was last registered 15 years or more ago, which is 3080 hours. 240 days is equivalent to 1680 hours.[28]
3. 240 days is also less than the two year internship for provisional psychologists following the 4+2 pathway, who must complete 3080 hours.
4. We also note that Dr Hanes was not required to undertake any refresher subjects, which might well have been required to address any currency of knowledge issues.

1. Dr Hanes says that he commenced the supervised practice program in accordance with the 2010 agreement and had the following periods of supervised practice:
   • From 17 January to 28 April 2011 as a Job Capacity Assessor with Mission Australia. He applied for approval of this work role in December 2010 but approval was not granted until 12 April 2011. By that date he says that he had completed 46 days of 'approved supervised practice' because the role was approved by the Board; supervision was provided by his primary and secondary supervisors, also approved by the Board, and there was onsite supervision by a registered psychologist who was 'likely' also a Board approved supervisor. He says the Board wrongly acknowledged 0 days;
   • He continued in his supervised practice program as a Specialist Practitioner at Anglicare Victoria from 17 March 2011 to 28 February 2012, a total, he says, of 210 days of approved supervised practice in accordance with the agreement, but the Board, wrongly, only acknowledged 5 days;
   • From June 2012 to 11 August 2013, he worked as an Alcohol and Drugs Clinician with Stepping Up Consortium, completing, he says, a further 245 days of supervised practice activities. He says he did not apply for Board approval of this work role due to the Board's insistence on on-site supervision.
   • He submits that the 2010 agreement requires 'approved supervised practice, not 'Board-approved supervised practice'; the work role at Stepping Up was suitable to the internship program based on 'normative decision-making' of the Board, and points to the cases of two other psychologists who completed requirements in exactly the same role.
   • He says he was supervised by his three main supervisors - Christine Ellingworth (10.5 hours), Jenny McColl (11 hours), and Tina Cocking (3 hours) during all of his work roles at Mission Australia, Anglicare and Stepping Up Consortium,[29] and received additional on-site supervision, including direct observation by registered psychologists and other professionals totalling approximately 137.5 hours of supervision, more than satisfying the requirement in the 2010 agreement to undertake approximately 96 hours of supervision.
2. The following chronology is supported by documents in evidence:
   • The Board received Dr Hanes application for provisional registration and a proposed supervised practice plan on 23 November 2010. The supervised practice plan required amendment;
   • On 8 December 2010, Dr Hanes submitted an amended supervised practice plan. It nominated Ms Christine Ellingworth as the principal supervisor and Ms Tina Cocking as the secondary supervisor; and specified the work role as being at Mission Australia;
   • On 27 April 2011, the Board advised Dr Hanes that it had approved his application for provisional registration, with effect from 12 April 2011. The Board's letter of approval noted that the work role at Mission Australia had been approved for a maximum of period of six months due, the Boards says, to the limitations of the work role;[30]
   • On 10 May 2011, Dr Hanes submitted a new Supervised Practice Plan, SPPR-10, seeking approval for a new work role at Anglicare Victoria;[31]
   • On 10 October 2011, the Board approved Dr Hanes' new work role as a specialist practitioner with Anglicare Victoria effective 16 August 2011;
   • On 7 November 2011, the Board received a letter from Christine Ellingworth informing the Board that she needed to cease acting as Dr Hanes' principal supervisor and recommending that he be supervised by an experienced psychologist in an on-site arrangement. She gave as reasons that after working with Dr Hanes in this role over the past six months she highly recommended that for his professional growth in broadening his knowledge and skills relating to the core capabilities that he engage a more experienced psychologist and an experienced supervisor as his principal supervisor. She also recommended that he have on-site supervision with a psychologist who is an expert in the field and more suited to his level of competence and abilities;
   • Ms Ellingworth also provided a Supervision Transition Report to the Board dated 7 November 2011 noting that Dr Hanes had completed 267 hours of psychological practice, and that 11.5 hours of supervised sessions had been completed including 10.5 hours of face to face supervision, and one hour of supervision with his secondary supervisor;
   • On 25 November 2011, Dr Hanes submitted a letter seeking approval of Jenny McColl as a new principal supervisor, and enclosed a form he and Ms McColl signed. He referred to a 'slight breakdown' in his relationship with his previous principal supervisor, and other issues with the progress and content of the supervision;
   • On 28 February 2012, the Board wrote to Dr Hanes informing him that it was not prepared to approve his new principal supervisor, Ms McColl, and that in order for his request to be re-considered, he needed to provide clarification as to whether Ms McColl was available to supervise him on-site;
   • On 1 March 2012, Dr Hanes wrote to the Board seeking to appeal the Board's decision not to approve Ms McColl and not to recognise a number of days of supervised practice and supervision under Ms Ellingworth. He raised other issues including relating to the fairness of the decision and the impact on his progress towards registration;
   • On 4 March 2012, Dr Hanes provided further detailed submissions by way of appeal, including an analysis of Ms Ellingworth's transition report. He raised the issue of whether the Board's decision may be a violation of the 2010 agreement;
   • On 12 April 2012, Dr Hanes registration as a provisional psychologist was renewed;
   • On 22 May 2012, the Board wrote to Dr Hanes stating that it had determined, based on his logbooks that while he did undertake 17.5 hours per week of psychological practice, he did not maintain the required supervision frequency. It therefore recognised 36 hours or 5 days of professional practice, 3 hours of supervision and 8 hours of professional development. The Board reaffirmed its decision not to approve the 6 month transitional report and not to recognise the remainder of the hours claimed in the reporting period (231 hours or 33 days professional practice, 8.5 hours of supervision and 33 hours of professional development);
   • On 15 October 2012, Dr Hanes wrote to the Board strongly protesting against its decision, withdrawing his assent to Ms Ellingworth's report and advising that that he would seek an alternative legal pathway to registration.

Dr Hanes' contentions in relation to the 2010 agreement

1. Dr Hanes contends that he has fulfilled the terms of the 2010 agreement 'in accordance with Australian contract law' and is therefore entitled to general registration. He also says that the Board deviated from normative decision making during its administration of the agreement, and speculates that this may result from the fact that he has a long history of conflict with the Board, governments and various individuals.
2. The contractual matters he relies on are in summary;
   • The 2010 agreement was a confidential agreement entered into in full and final settlement of his application for review by VCAT of the Board's 2010 decision to refuse him general registration;
   • As such, it is in effect until its fulfilment, it is rendered void, or the parties agree to vary it;
   • The 2010 agreement involved an exchange - the Board effectively set aside a range of requirements it was demanding of him such as APAC accredited units of study, and he gave up the opportunity to be granted general registration by the Tribunal on review;
   • In the negotiations, the Board's legal counsel expressed the view that this would be a good deal and all things considered Dr Hanes may be able to be registered in 12-18 months - this was, Dr Hanes says, an 'oral term' and part of the agreement;
   • In accordance with the agreement, he withdrew his VCAT application, made an undertaking, obtained the Board's approval of suitable work role, a primary and secondary supervisor, filed a Supervised Practice Plan and was granted provisional registration;
   • He completed 240 days of 'approved supervised practice' (referred to in the terms of agreement) in circumstances of ambiguity in the precise terms of the contract - the terms of agreement do not say Board approved supervised practice, and in accordance with contract law, the word 'Board' will not necessarily be implied. The term is open to interpretation;
   • Even if 'approved supervised practice' means Board approved supervised practice, this is also open to interpretation, as is the reference to 'in accordance with the guidelines'.
3. The Board did not make any submissions about the contractual matters raised by Dr Hanes other than to contend that he had not complied with the agreement. The following sets out our view in relation to the above contentions and our findings in relation to compliance with the 2010 agreement.

1. The 2010 agreement was certainly an agreement entered into by the Board and Dr Hanes in settlement of his application for review to the Tribunal. In that sense, it is binding on the Board.
2. While it is not the role of the Tribunal in its review jurisdiction to resolve contractual disputes between parties, our view is that it is relevant to determine whether Dr Hanes complied with the agreement in this case. The 2010 agreement represented an agreed pathway to general registration that constituted, in our view, a reasonable course of remedial action to address recency of practice issues.
3. Whether such an agreement is generally binding on the Tribunal on a review application is an open question, which we do not need to determine in this case.
4. Whatever each party 'gave up' in negotiations towards the agreement, the agreement they reached is the one set out. Any opinion expressed by the Board's legal counsel about the merits of the 'deal' is not a term of the agreement in our view. In any event, we have expressed the view above that it was a reasonable outcome for Dr Hanes.
5. Our general approach has been to interpret the 2010 agreement by reference to its terms and its context. The Board has responsibility under the National Law for setting and implementing the requirements for registration in psychology. The 2010 agreement is an agreement reached between a national board and an applicant for registration in the context of the National Law.
6. Dr Hanes referred to a number of court decisions on the question of how ambiguity in a contract will be resolved.[32] He submitted that there was ambiguity in the agreement about whether any supervised practice had to be approved by the Board. He says that clause 1.5 refers only to '240 days of supervised practice'; not 'approved supervised practice' or 'Board-approved supervised practice' Therefore, Dr Hanes submits, whether or not the Board approved a particular period of supervised practice, it should count towards the 240 days.
7. In our view, paragraph 1.4 clearly sets out the requirement to 'complete a minimum of 240 days of approved supervised practice in accordance with the Board's Guidelines for the 4+2 Internship Program'. That means, in our view, it must be approved; it must be Board-approved (because only the Board has the power under the guidelines to approve a period of supervised practice); it must be supervised practice that meets the requirements of the guidelines, and it must be completed in accordance with the guidelines.
8. Further, in our view, under the 2010 agreement, Dr Hanes was required to gain provisional registration before commencing the 240 days of approved supervised practice in accordance with the guidelines for the 4+2 internship program:
   • 1.3 states that prior to obtaining provisional registration Dr Hanes will need to obtain Board approval of a suitable work role, a primary and secondary supervisor and a Supervised Practice Plan; and.
   • 1.4 states 'upon you satisfying the requirements at paragraph 1.3 above and being granted provisional registration [our emphasis] you will be required to [complete 240 days....]'
9. This means, in our view, that any period of supervised practice before Dr Hanes was granted provisional registration (with effect 12 April 2011) is not supervised practice in accordance with the 2010 agreement. Dr Hanes cannot count the 46 days at Mission Australia between 17 January 2011 and 12 April 2011, and cannot count any time at Anglicare Australia before 12 April 2011.
10. Dr Hanes did not apply for approval of the new work role at Anglicare Victoria until May 2011. The Board approved that role and the new supervised practice plan in October 2011 with (retrospective) effect from 16 August 2011. From 16 August 2011 until 7 November 2011, Dr Hanes had a period of approved supervised practice in the Anglicare role under the supervision of Christine Ellingworth.
11. Christine Ellingworth certified that Dr Hanes completed 267 hours of psychological practice under her supervision. Of that, the Board recognised 36 hours or 5 days, and did not recognise the remaining 231 hours or 33 days of practice. However, even if all of the hours/days of practice had been recognised by the Board, the total days would be 38.
12. We find that Dr Hanes did not complete 240 days of approved supervised practice under Ms Ellingworth's supervision.
13. There is no dispute that the Board did not approve Jenny McColl as a replacement principal supervisor for Dr Hanes.
14. Dr Hanes submitted that even if the Board did not expressly approve Ms McColl as his second principal supervisor, she is a Board approved supervisor and therefore the period in which she supervised his practice was Board-approved supervised practice.
15. It is the case that Ms McColl is one of a number of Board-approved supervisors, but clause 1.3 of the 2010 agreement requires Dr Hanes to obtain the Board's approval of a primary and secondary supervisor and the Board's approval of a Supervised Practice Plan. The Supervised Practice Plans submitted by Dr Hanes and approved by the Board named Christine Ellingworth as his principal supervisor.
16. The guidelines set out the requirements for changes to supervisory arrangements, at paragraph 7.2 of the guidelines, and disruption to supervision, at 5.5. It is clear, in our view, that the Board must approve any change in supervisor. [33]
17. We find that the Board did not approve the new arrangement, because Jenny McColl could only supervise Dr Hanes off-site. It determined that any further supervision be on-site, as recommended by Christine Ellingworth.
18. As Dr Hanes submitted, the Board had approved off-site supervision when it approved his supervised practice plan. But when Christine Ellingworth withdrew, the Board had the discretion, in our view, to require any further supervision to be on-site. The guidelines state, at 5.3, that:

On-site workplace supervision is preferred unless other off-site arrangements(s) have been approved. Any such arrangements will be considered on a case by case basis.

1. Dr Hanes submitted that the Board's decision not to approve the new supervision arrangement with Jenny McColl was in breach of normative decision-making.
2. Dr Hanes does not agree that on-site supervision was required, and made it clear in correspondence with the Board and in his affidavit that he rejected Ms Ellingworth's opinion on the matter, and rejected other opinions expressed by her in her letter and report of 7 November 2011.
3. In our view, the Board was acting within the guidelines in not approving the new supervision arrangement.
4. We find that the period of supervision under Ms McColl, which her letter states to be from 1 December 2011 to 15 March 2012 - was not a period of approved supervised practice in accordance with the 2010 agreement.
5. We acknowledge Dr Hanes' concerns that the Board's decisions made it more difficult for him to complete the period of supervised practice under the 2010 agreement quickly and that some of the Board's decisions took some months to make. We do not agree that the Board violated the agreement.
6. We also note that under the guidelines for the 4+2 internship program a provisional psychologist has five years to complete their internship program from the date of their registration as a provisional psychologist.[34]
7. In any event, our role on review is to determine whether Dr Hanes ought to be granted general registration, not to examine in detail the Board's decisions or its decision-making process. As noted above, in this case our view is that it is relevant to determine whether Dr Hanes complied with the terms of the 2010 agreement because it represented an agreed pathway to general registration that constituted a reasonable course of remedial action to address recency of practice issues.
8. Dr Hanes submitted that he had a further period of supervised practice in his role at the Stepping Up Consortium from June 2012 to 11 August 2013.
9. We find that, whether or not that period could objectively constitute psychological practice, it was not a period of approved supervised practice in accordance with the 2010 agreement. The Board did not approve the work role; no supervised practice plan was submitted or approved; no replacement supervisor had been approved; and any supervision by the persons referred to in Dr Hanes' submissions was not in accordance with the 2010 agreement or the guidelines to the 4+ 2 internship program.
10. Additionally, any practice after Dr Hanes provision registration lapsed, in April 2013, is not, in any event, compliant with the guidelines and the 2010 agreement.
11. For the reasons above, we find that Dr Hanes did not complete 240 days of approved supervised practice in accordance with the Board's guidelines for the 4+2 internship program, and had therefore not complied with clause 1.4 of the 2010 agreement at the time he applied for general registration in 2013.
12. We are also not satisfied that it is appropriate in the circumstances to exercise the discretion in the recency standard to grant registration but impose conditions. In all the circumstances, we consider that a period of approved supervised practice, at the least, would need to be successfully completed before Dr Hanes becomes eligible for registration under the standard.
13. Even if Dr Hanes had completed 240 days of supervised practice in accordance with the guidelines and the 2010 agreement, there remains the difficulty for him that he did not obtain a crucial component of successful completion of the period of supervised practice - a final assessment of competence in the required form from his principal supervisor, required under the guidelines of the 4+2 internship program.
14. We discuss the importance of this component next. It is relevant to the question of whether Dr Hanes met other requirements of the 2010 agreement, in particular clause 1.6; and it is also relevant to the question of suitability under section 55(1)(h) of the National Law - ability to practise the profession competently and safely. We note that it is also a requirement of the Provisional registration standard.

Can the Tribunal be satisfied that Dr Hanes is able to practise competently and safely?

1. The guidelines for the 4+2 internship program require the provisional psychologist's principal supervisor to complete a final assessment of competence. The Provisional registration standard also requires at the completion of the internship program, a final assessment of competence signed by the supervisor to be submitted with the application for general registration (requirement 7)
2. This final assessment of competence must be made in a particular format.
3. Paragraph 8.4 sets out the requirement -

When the supervisor believes that a provisional psychologist has satisfied the requirements of the internship program, he or she must certify that in their opinion the provisional psychologist has acquired proficiency in the core capabilities to a level where he or she can independently, accurately and ethically offer opinion and practise in the capability.

The principal supervisor must complete a Final Assessment of Competence form (PPAC - 76) and ensure that Board's evaluation requirements for each capability have been completed. [our emphasis]

1. The importance of the final assessment of competence is underlined in paragraph 10.2 of the guidelines -

To apply for general registration the provisional psychologist must submit to the Board:

• Application for general registration and supporting documents
• Final assessment of competence form, completed by the principal supervisor
• Three case studies completed by the provisional psychologist that have previously been assessed as satisfactory by the Board

1. In his affidavit, Dr Hanes set out in detail his experience and his training, including his work towards his PhD and general registration in 1996. He sets out the evidence that he says demonstrates that he has achieved mastery of each of the core competencies. He asks the Tribunal to find that he has done so. He included documents which were headed 'Final Assessment of Competence Attachments'. In cross-examination he agreed that these were documents that he had created - although he said that Ms McColl had reviewed them.
2. Dr Hanes attached to his affidavit six case studies some of which had not been assessed by the Board, or seen by the Board before they were included in his evidence. As we understand it, he asks the Tribunal to make its own assessment of the case studies and draw the conclusion that they demonstrate his competence.
3. Dr Hanes also submitted that a letter from Ms McColl amounted to a final assessment of competence. We consider that below.
4. The first difficulty for Dr Hanes is that under the registration framework for psychology, competence and the ability to practise safely are not self-assessed. He may consider that he has the required core competencies but that will not be enough. Objective assessment is required.
5. The second difficulty is that in the context of the National Law, the approved registration standards set out the methods by which competence, and other required qualities, will be measured ahead of general registration. The Tribunal cannot create a new method of assessing competence or apply a different or lesser standard. It cannot ignore the standards already in place.
6. Where an applicant has been registered before, and is applying to be registered again, as in Dr Hanes' case, the recency standard applies and asks the threshold question relevant to assessing competence - has the applicant engaged in practice as a registered psychologist within the last five years? If they have not, as Dr Hanes has not, the next question to be asked under is what, if any, remedial action will be required to ensure that the person is able to practise competently and safely.
7. Our view, discussed above, is that remedial action was appropriate in 2010 when the Board reached agreement with Dr Hanes about a pathway to general registration, and that the remedial action set out in the 2010 agreement was appropriate in the circumstances.
8. The period of supervised practice agreed to was roughly equivalent to a one-year internship within the framework of the guidelines for the 4+2 internship program. Those guidelines set out in detail how the internship was to be undertaken, and how successful completion would be measured.
9. Undertaking the internship in accordance with the guidelines would have given Dr Hanes guided experience within a carefully thought out framework. It would have given him the required updating of his skills to ensure that those skills met the current requirements of registered practice.
10. Relevantly, it would have given him the opportunity to demonstrate achievement of the core competencies by the appropriate means - a certificate of his principal supervisor.
11. As the Board submits, the report Christine Ellingworth made to the Board in November 2011 was not a final assessment of competence.
12. Ms Ellingworth's report was a Progress/Transitional Report (PPR-10). It records completion by Dr Hanes of 267 hours of psychological practice, excluding supervision and professional development. It records 33 hours of professional development, and 11.5 hours of supervision. The report records progress towards each of the competencies but does not record an opinion that Dr Hanes had achieved all of the competencies.
13. We also agree with the Board's submission that the undated letter from Jenny McColl, exhibited to Dr Hanes' affidavit, is not a final assessment of competence in the required form and contrary to Dr Hanes' submission, is not equivalent to the report required under the Guidelines.
14. There is no doubt that Ms McColl's letter reports positively on a number of matters, including his case studies, which she says were -

Thoroughly discussed and evaluated and met all the specific requirements of the guidelines as well as working to show proficiency in terms of cross cultural and lifespan issues.

They utilised the implementation of recognised developmental and remedial interventions, showing theoretical flexibility and understanding in choice of interventions. They were extremely thorough and detailed and in the concluding reflections on practice, context and outcome, showed thoughtful and realistic assessment.

Mr Haines [sic] has had previous registration as a psychologist and has a wide range of clinical experience which he is applying well within the provisional psychologist 4 × 2 [sic] internship program.

1. The letter, however, is not headed 'Final Assessment of Competence'. Apart from the defects of form, there is no certification, required by clause 8.4 of the guidelines, that in Ms McColl's opinion Dr Hanes has acquired proficiency in the core capabilities to a level where he can independently, accurately and ethically offer opinion and practise in the capability.
2. The letter lacks the crucial detail and detailed evaluation required of a final assessment of competence under the guidelines, and the required unambiguous expression of opinion that, to paraphrase clause 8.4, the intern is now competent and safe to practise on their own.
3. We find that Dr Hanes did not comply with the requirement in the guidelines for the 4+2 internship program, and thereby a requirement of the 2010 agreement, that he submit a final assessment of competence.
4. In the absence of such a final assessment of competence, and given the lapse of time since he last practised, and the short period of that registered practice, we are unable to be satisfied that he is able to practise the profession competently and safely.
5. In all the circumstances, we are not satisfied that he is suitable under section 55(1)(h). On this additional basis, we find that he does not meet the eligibility criteria in section 52(1)(c) and under section 82(1)(c)(i)(C) determine to refuse to grant registration.

HAS DR HANES FAILED TO MEET A REQUIREMENT FOR GENERAL REGISTRATION STATED IN AN APPROVED REGISTRATION STANDARD FOR THE PROFESSION? [E]

1. We have found above that Dr Hanes did not meet the core requirement, requirement 1, in the recency standard. For the same reasons, we find that Dr Hanes does not meet the eligibility criteria in section 52(1)(e), and that his application for general registration should be refused under section 82(1)(c)(i)(E).
2. For completeness, we discuss some other submissions made by Dr Hanes and by the Board.

HAS DR HANES FAILED TO COMPLETE A PERIOD OF SUPERVISED PRACTICE REQUIRED BY AN APPROVED REGISTRATION STANDARD? [B]

1. Contrary to the submissions of the Board,[35] the recency standard itself does not expressly require a period of approved supervised practice to address recency of practice issues. It gives the Board discretion to require the person to undertake remedial action before becoming eligible for registration. That remedial action, under the Board's policy, may include a period of supervised practice if the person has not practised as a registered psychologist for five or more years, and we agree with that policy. But, as Dr Hanes submitted, the Board has a discretion, and it may vary the conditions in individual circumstances.
2. The only express reference to supervised practice in the recency standard is in the section headed Inability to comply with this standard. Under option (b):

the Board may grant or renew registration, but impose a condition on registration...that the applicant must undertake a period of supervised practice.

1. In contrast, a period of supervised practice is clearly required by the Provisional registration standard, discussed above, where a provisional psychologist is undertaking the 4+2 internship program or the 5+2 internship program, and is not undertaking an accredited Master's degree.
2. We think the better view is that the period of supervised practice under the 2010 agreement was a period of supervised practice required by the Board (rather than expressly by the recency standard), acting properly within its discretion under the recency standard, to require remedial action.
3. Accordingly, we are not satisfied that the period of supervised practice under the 2010 agreement comes within the terms of section 52(1)b) but, as noted above, the distinction may be a fine one. There may be more persuasive submissions that the Board is able to put to the Tribunal on another occasion.
4. In any event it was, in our view, a period of supervised practice that represented a reasonable course of remedial action to address Dr Hanes' recency of practice issues. Because he did not successfully complete the required period, amongst other reasons, those recency issues remain for him.
5. For completeness we address Dr Hanes submission on the matter.

Relevance of any supervised practice in the 1990s

1. Dr Hanes contends that the Board's view, that he did not complete a period of supervised practice required under an approved registration standard, is an error of law.
2. Review by the Tribunal is merits review not judicial review. In that sense, it is irrelevant whether the Board acted in error of law. We have nevertheless treated Dr Hanes' submissions as relating to the correct interpretation of section 52(1)(b).
3. Dr Hanes says that the period of supervised practice set out in the 2010 agreement was not required under 'an approved registration standard'. We have expressed our view about this matter above.
4. Dr Hanes also says he completed the only necessary period of supervised practice in the 1990s and, by reason of his program of study including clinical placements and supervised practice, mastered the core competencies required in the registration standard.[36]
5. He relies on the 1996 placement report form of supervising psychologist Dr David Andrews, which stated he had completed 132 days of clinical research placement. Dr Hanes says that when read carefully, the course of study he completed meets all the requirements for attaining competence to practise in the profession.
6. In his affidavit, Dr Hanes went into some detail about the nature of his supervised practice in the 1990s, which he says he completed as part of a tailored PhD program after he had been refused entry into the Clinical Masters Program.
7. He says that the course work, supervised practice and psychological practice completed in his PhD program would more than satisfy present day requirements and afforded him mastery of the eight core competencies set out in the Guidelines to the National Law as required for eligibility to practise safely and competently.
8. In our view, whether or not the placement report form and attached documents lead to that conclusion, there is no doubt that in 1996, Dr Hanes met the requirements for general registration and was granted registration.
9. Clearly, the nature and duration of that supervised practice were relevant to him obtaining general registration at the time. And Dr Hanes may well have mastered the core competencies by the time of his 1996 registration. But the supervised practice then does not assist him now, because of the length of the time that has passed since he was last registered.
10. Even if he had achieved the core competencies in 1996, remedial action is required now to address recency of practice issues before Dr Hanes would be eligible for general registration under the recency standard, and suitable for general registration under section 55(1)(f). Further, it is his competence now that it is relevant. For the reasons above, we are unable to be satisfied that he is currently able to practise the profession competently and safely.

DETERMINATION: IS DR HANES ELIGIBLE FOR GENERAL REGISTRATION?

1. We find that Dr Hanes did not comply with the requirement in the guidelines for the 4+2 internship program, and thereby a requirement of the 2010 agreement, that he submit a final assessment of competence.
2. In the absence of such a final assessment of competence, we are unable to be satisfied that he is able to practise the profession competently and safely.
3. We find that section 55(1)(h) of the National Law applies and that as a result Dr Hanes is unsuitable for general registration under that section.
4. We also find that Dr Hanes is unsuitable for general registration under section 55(1)(f) of the National Law because, as discussed above, without remedial action the nature, extent, period and recency of his previous practise of the profession is not sufficient to meet the requirements specified in the recency standard.
5. Accordingly, Dr Hanes does not meet the eligibility criteria of suitability in section 52((1)(c), and under section 82(1)(c)(i)(C) we determine that his application for general registration should be refused.
6. In the circumstances we do not need to determine whether the period of supervised practice under the 2010 agreement was a period of approved supervised practice within the meaning of section 52(1)(b)(i). In any event, we have found that he did not complete the period as required, and without remedial action is not eligible for general registration under the recency standard.
7. We are also of the view that he did not meet requirement 1 of the recency standard, which is a requirement of an approved registration standard within the meaning of section 52(1)(e), and section 82(1)(c)(i)(E) of the National Law and on this additional basis refuse to grant registration.

1. For the above reasons, our view is that Dr Hanes is not at this time eligible for general registration in the health profession of psychology because:
   • (a) Under section 55(1)(f) of the National Law, the nature, extent, period and recency of his previous practice of the profession is not sufficient to meet the requirements for unconditional registration specified in the Psychology Board of Australia Recency of Practice Registration Standard without him undertaking remedial action;
   • (b) Under section 55(1)(h)(ii) of the National Law, by reason of the age of his qualifications, the limited period of his practice as a registered psychologist, the time that has elapsed since that practice, the limited period of his practice as a provisional psychologist, and the absence of a final assessment of competence, we are unable to be satisfied that he is able to practise the profession competently and safely;
   • (c) Under section 52(1)(e) he does not meet a requirement of an approved registration standard, namely requirement 1 of the recency of practice registration standard.
2. We are satisfied that Dr Hanes did not complete the supervised practice period required under the pathway to registration agreement he made with the Board on 5 October 2010. He did not complete 240 days of supervised practice in accordance with the Guidelines to the 4+ 2 internship program, and has not satisfied other requirements set out in the 2010 agreement, including provision of a final assessment of competence.
3. In the circumstances, he has not completed an agreed pathway to general registration under the 2010 agreement, and the Board is not bound to grant him registration under that agreement. Relevantly for our decision, he has not completed a course of remedial action that was required to address his recency of practice issues.
4. The Tribunal's decision does not prevent Dr Hanes from re-applying for provisional registration in the future and pursuing a pathway to general registration, subject to any requirements of the Board consistent with any relevant Standards, Guidelines or Policies.
5. Our decision does not prevent Dr Hanes from continuing to work in the fields he has worked in for the last 18 years. He cannot, of course, engage in unregistered practice as a psychologist, or call himself a psychologist.
6. At the conclusion of the hearing, the Board asked that if we affirmed its decision, we make recommendations as to what would be required should Dr Hanes wish to apply for general registration in the future. The Board annexed to its submissions a proposed pathway to general registration that included refresher training prior to provisional registration, a period of 3080 hours of supervised practice under the 4+2 guidelines, with on-site supervision, and that he sit and pass the National Psychology Examination.
7. We decline to do so for a number of reasons. It is not yet five years since Dr Hanes commenced the period of approved supervised practice under the 2010 agreement. It may be too late for him now to complete the required period of approved supervised practice within the time allowed (five years) under the guidelines for the 4+2 internship program for completion of an internship and comply with the other requirements of the 2010 agreement, but it is not appropriate now to impose different requirements.
8. Even if it is now too late for him to complete the requirements of the 2010 agreement, it is not appropriate in our view, to make recommendations for any future application he may make. It will be for the Board to determine, in the particular circumstances at the time of any application, whether Dr Hanes has become eligible in the intervening time.
9. Finally, there is some doubt as to whether the Tribunal has the power to make such recommendations under the National Law, and what would be the status of any recommendations made. It may be appropriate to do so in particular cases where the circumstances and considerations are reasonably straightforward, but not in this case, in our view.

[1] Under the National Law, the Australian Health Practitioner Regulation Agency (AHPRA) supports a number of national health profession boards. There are currently 14 National Boards.

[4] [a national board ] must....(c) decide to refuse to grant the applicant registration in the health profession if - (i) the applicant is ineligible for registration in the profession under a relevant section because the Applicant... [A-E]

[5] We note, however, that section 52(2) gives a national board the discretion to address eligibility issues by imposing conditions on the registration. It states -

Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration by imposing conditions on the registration under section 83.

[7] As stated in Ms Forlano's witness statement at paragraph 16: 'Essentially, to obtain general registration as a psychologist, it is necessary to have completed a six-year accredited sequence of study comprising a Master's degree minimum qualification or equivalent.'

[8] As with the extracts from section 52 above, we have italicised the criteria in issue.

[9] In the Board's submission, practice as a psychologist means practice as a registered psychologist. We consider that below.

[10] Referring to Draper v Psychology Board of Australia [2013] NSWPST 3, which we discuss below

[11] The Provisional Registration Standard sets out 8 'core capabilities and attributes' of the 4+2 and 5+1 internship programs that must be achieved by the provisional psychologist. These are knowledge of the discipline; ethical, legal and professional matters; psychological assessment and measurement; intervention strategies; research and evaluation; communication and interpersonal relationships; working within a cross-cultural context; and practice across the lifespan.

[12] (1)(b): the individual has successfully completed ...any period of supervised practice required by an approved registration for the standard for the health profession; (1)(e) the individual meets any other requirement for registration in an approved registration standard for the health profession

[13] [2013] NSWPST 3.

[16] [2013] NSWNMT 4

[17] [2013] TASHPT 1 (24 September 2013), a decision of the Tasmanian Health Practitioner's Tribunal.

[18] ...has successfully completed a period of supervised practice required by an approved registration standard for the health profession.

[19] ...meets any other requirements for registration stated in an approved registration standard for the health profession.

[20] ....the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession.

[21] Requirements 4 and 5 apply to applications for provisional registration and applications to recommence internship programs.

[23] Referring to Draper v Psychology Board of Australia; and Pardo v Psychology Board of Australia

[24] The Board says that is equivalent to about 440 days, based on 7 hour days.

[25] 'The individual has successfully completed...any period of supervised practice required by an approved registration standard for the health profession'

[26] We note here that he also says that whether or not he complied with the agreement he is eligible for registration and has the skills and experience to practise competently and safely.

[27] At the time of Dr Hanes application for registration in 2009, the requirement under the Health Professions Registration Act 2005 was for recent practice within the previous 2 years - section 4(2)(c), referred to in the affidavit of Dr Lina Forlano at paragraph 27. She states at paragraph 28 that at the time, there were no guidelines for addressing lapses in recency of practice and it was in the discretion of the PRBV

[29] We note that, according to the letter relied on by Dr Hanes for other purposes, Ms McColl's supervision was from 1 December 2011 to 15 March 2012 and would not, therefore cover the period he was employed at Stepping Up Consortium.

[30] According to Dr Hanes affidavit, the role at Mission Australia concluded in April 2011.

[31] According to Dr Hanes' affidavit, he commenced this role in March 2011.

[32] Australian Broadcasting Commission v Australasian Performing Rights Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 108; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24, 149; Royal Botanic Gardens and Domain Trust v South Sydney Council [2002] HCA 5; [2002] 186 ALR 289

[33] ...In the event of the new supervision arrangement not being approved by the Board, the applicant will be informed of the reasons. {7.2]

[35] That the period of supervised practice under the 2010 agreement was required by the recency standard, and that because Dr Hanes did not successfully complete it, he is not eligible under section 52(1)(b)(i).

[36]The Provisional Registration Standard sets out 8 'core capabilities and attributes' of the 4+2 and 5+1 internship programs that must be achieved by the provisional psychologist. These are knowledge of the discipline; ethical, legal and professional matters; psychological assessment and measurement; intervention strategies; research and evaluation; communication and interpersonal relationships; working within a cross-cultural context; and practice across the lifespan.