Health Care Complaints Commission v Drysdale

NCAT Occupational|2023-03-21

REASONS FOR DECISION

The Health Care Complaints Commission (referred to hereunder as "the Applicant" or "the Commission"), by application dated 7 September 2022, seeks the following orders against the Respondent ("the Respondent" or "the Practitioner"): "1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(a) and/or (b) of the National Law, with a non-review period of 18 months to 2 years. 2. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed. 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. …"

The Proceedings

The Applicant's complaint consists of six individual complaints with several sub-complaints ("the Complaint"). The Complaint identifies the Respondent as a psychologist registered under the Health Practitioner Regulation National Law (NSW) ("National Law") and sets out the background to all the complaints.

The respondent is guilty of unsatisfactory professional conduct under section 139B (1) (c) and/or (l). "Background to Complaint One On 28 February 2017, conditions were imposed on the practitioner's registration by the Psychology Council of NSW ("the Council") ("February 2017 conditions"). On 26 October 2020, the Council confirmed the conditions and imposed further conditions on the practitioner's registration ("October 2020 conditions"). On 3 March 2021, the Council imposed further conditions on the practitioner's registration ("March 2021 conditions"). Complaint One The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c), and/or (l) of the National Law in that the practitioner has: i. contravened a condition to which the practitioner's registration was subject; ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. Particulars of Complaint One 1. Between 5 January 2019 to 13 May 2021, the practitioner failed to attend supervision meetings as required and in doing so: a. from 5 January 2019 to 25 October 2020, the practitioner contravened condition 1(a) of the February 2017 conditions; b. from 26 October 2020 to 2 March 2021, the practitioner contravened condition 1(a) of the October 2020 conditions; c. from 3 March 2021 to 13 May 2021, the practitioner contravened condition 2(a) of the March 2021 conditions. 2. Between 5 July 2018 and 5 July 2020, on 9 occasions, the practitioner failed to submit supervision reports to the Council by the due date, and in doing so, contravened condition 1(c) of the February 2017 conditions. 3. Between 5 November 2020 and 13 May 2021, the practitioner failed to submit supervision reports to the Council as required and in doing so: a. from 5 November 2020 [sic] to 25 October 2020, the practitioner contravened condition 1(c) of the February 2017 conditions; b. from 26 October 2020 to 2 March 2021, the practitioner contravened condition 1(c) of the October 2020 conditions; c. from 3 March 2021 to 13 May 2021, the practitioner contravened condition 2(d) of the March 2021 conditions."

Section 139B of the National Law defines unsatisfactory professional conduct to include conduct by a practitioner which is in contravention of a condition to which the practitioner's registration is subject (National Law, s 139B(1)(c)) and "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession": National Law, s 139B(1)(l).
Following a performance assessment dated 21 October 2016, the assessors concluded that the Respondent's professional skills were significantly lacking. On 28 February 2017, conditions were imposed upon the Respondent's registration following proceedings brought by the Council to address the perceived deficiencies. The conditions required the Respondent to nominate a psychologist approved by the Council's Board ("the Board) as supervisor within four weeks of notice of the conditions and that the Practitioner was to ensure she and the supervisor met initially on a weekly basis for at least one hour, with the first meeting to occur within one fortnight of the Respondent being advised by the Council that the nominated supervisor had been approved. After six months of weekly supervision, the Practitioner and the supervisor were required to meet on a fortnightly basis for at least an hour. At each meeting, the supervisor was to review the Respondent's work and relevant work-related or professional matters. Matters such as notetaking, report writing, structured assessment, preparation of two case reports and other issues were to be addressed.
Condition 2 required the Practitioner to complete, within six months of commencing supervision, a course on Cognitive Behavioural Therapy ("CBT") recommended or endorsed by the supervisor and approved by the Council. Within three months of commencing supervision, the Practitioner was to provide evidence to the Council of her enrolment in such course (Condition 2(a)). Within two weeks of completing the course, the Practitioner was to provide documentary evidence of satisfactory completion to the Council (Condition 2(b)).
The Respondent was sent repeated reminders of the need to comply with the conditions. On 21 June 2017, the Council approved Lisa Densley (Ms Densley) as the Respondent's supervisor. However, thereafter Ms Densley provided details of attendances of the Respondent which did not comply with the requirements of the conditions in that, between 5 January 2019 and 3 May 2021, the Practitioner failed to attend all supervision meetings as required and her last session was on 7 July 2020. Between 5 July 2018 and 5 July 2020, on approximately eight occasions, the Respondent failed to submit supervision reports to the Council by the due date. Between 5 November 2020 and 13 May 2021 (when the Respondent was suspended), the Respondent failed to submit supervision reports as required, since no report had been submitted from 7 July 2020. Accordingly, particulars 1 to 3 are established.
In particular 4 of Complaint One, the Applicant alleges: "4. The practitioner contravened condition 2 of the February 2017 conditions in that: a. on or by 5 October 2017, the practitioner had not provided evidence to the Council of her enrolment in a course on Cognitive Behavioural Therapy; b. on or by 31 March 2018, the practitioner had not completed a course on Cognitive Behavioural Therapy; c. on or by 14 May 2018, the practitioner had not provided documentary evidence to the Council of her completion of a course on Cognitive Behavioural Therapy.
On 21 October 2016, the performance assessors concluded that the Respondent's professional skills were significantly lacking and made recommendations, including that the Respondent attend active CBT training. On 28 February 2017, a condition was imposed on the Respondent's registration requiring completion of such a course and requiring the Respondent to provide documentary evidence of this fact. By 5 October 2017, that is three months after commencement of supervision on 5 July 2017, the Respondent was to provide evidence to the Council of her enrolment in the course on CBT as required by condition 2(a). On 9 October 2017, the Practitioner emailed the Council regarding a CBT course in March 2018, which was approved. However, thereafter due to alleged financial difficulties, the Respondent was unable to complete the CBT course proposed and enrolled in another course fixed for 26 - 29 April 2018. By 31 March 2018, the Practitioner was required by condition two to complete a CBT course. On 26 - 29 April 2018 (29 days late), the Respondent completed the CBT course. However, by 14 May 2018 (within two weeks of completing the course), the Respondent was required by condition 2(b) to provide documentary evidence to support completion. Despite reminders, the Respondent did not so notify the Council until 12 June 2018. Accordingly, this particular is established.
In particular 5 of Complaint One, the Applicant alleges: "5. Between 4 July 2018 and 2 March 2021, the practitioner failed to undergo a professional performance assessment as required and in doing so: a. from 4 July 2018 to 25 October 2020, the practitioner contravened condition 4 of the February 2017 conditions; b. from 26 October 2020 to 2 March 2021, the practitioner contravened condition 4 of the October 2020 conditions."
On 28 September 2016, the Respondent attended a performance assessment and, on 21 October 2016, the assessors concluded that the Respondent's professional skills were significantly lacking and recommended steps including a further assessment after 12 months. On 28 February 2017, condition 4 was imposed, requiring a Practitioner to undergo a performance assessment within 12 months of commencement of supervision. On 22 June 2018, after having been sent reminders, the Respondent emailed the Council stating she was unable to proceed with a performance assessment because she was unwell and had computer issues. Thereafter, the Respondent indicated she would complete a performance assessment "when I can, however, I will continue to prioritise my income as well as my client care". Despite further emails, by 28 February 2021, the Respondent had not yet undergone a performance assessment. Accordingly, this particular is proved.
In particular 6 of Complaint One, the Applicant alleges: "6. Between 26 October 2020 and 13 May 2021, the practitioner failed to submit to the Council a case treatment plan and in doing so: a. from 26 October 2020 to 2 March 2021, the practitioner contravened additional condition 2(g) of the October 2020 conditions; b. from 3 March 2021 to 13 May 2021, the practitioner contravened condition 5(g) of the March 2021 conditions."
On 21 October 2016, the performance assessors recommended the Practitioner prepare two treatment case reports and, on 28 February 2017, condition 1 required preparation of such reports. Despite reminders, by 13 May 2021, when the Respondent's registration was suspended, no treatment case reports had been provided despite being stipulated in her conditions imposed more than four years prior. Accordingly, this particular is established.
In particular 7 of Complaint One, the Applicant alleges: "7. Between 26 October 2020 and 13 May 2021, the practitioner failed to submit to the Council documents required before a professional performance assessment was conducted and in doing so: a. from 26 October 2020 to 2 March 2021, the practitioner contravened additional condition 2 of the October 2020 conditions; b. from 3 March 2021 to 13 May 2021, the practitioner contravened condition 5 of the March 2021 conditions."
On 26 October 2020, during the section 150 hearing, the Respondent gave evidence to the effect that her dealings with the Council were not a priority; that her continuing professional development (CPD) records were handwritten as she did not own a computer; that her personal finances and family concerns were the reason for a delay in complying with the conditions; that she had now purchased a laptop which, she stated, would hopefully make things easier. As from 28 October 2020, condition 2 of the Respondent's registration required that, within two months of the imposition of the condition, the Respondent must submit a CPD Learning Plan; CPD log for the previous 24 months; curriculum vitae; supervision log; Peer Supervision Journal; Information Declaration Form. Despite reminders, documentation was not produced as required. From 4 March 2021, further conditions were imposed on the Respondent's registration including condition 5, which required that within two months the same information as referred to in condition 2 (as at 28 October 2020) be supplied. Reminders were sent on several occasions and, on 26 April 2021, the Practitioner informed the Council that she had been sick over the weekend and that she had "taken the day off seeing clients today to get it done". No such documents were provided as required. Accordingly, the Respondent failed to provide the required documents and this particular is established.
In particular 8 of Complaint One, the Applicant alleges: "8. On or about August 2018, the practitioner contravened Practice Condition 5 of the February 2017 conditions, in that she failed to advise the Council in writing seven days before changing the place of her practice. The conduct in any of Particulars 1 to 8 of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct."
Condition 5 imposed on 28 February 2017 required the Practitioner to inform the Council in writing at least seven days before changing the nature or place of her practice. In August 2018, the Practitioner failed to notify the Council of the change of location of her practice. On 3 September 2018, the Respondent's supervisor informed the Council of the new location of the Respondent's practice. On 26 September 2018, the Respondent attended a compliance interview and admitted such failure, which was stated to be due to an oversight. Accordingly, this particular is proved.
In Complaint Two, the Applicant alleges: "Complaint Two The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the [National Law]. Particulars of Complaint Two 1. From on or about 1 December 2015 to 13 May 2021, the practitioner practised in psychology without being covered by approved professional indemnity insurance ("PII"), contrary to section 129 of the National Law."
In the period alleged, the Respondent held no PII insurance. On 28 April 2021 during the second performance assessment, the Respondent claimed she held current PII with AON. On 30 April 2021, the Respondent applied for PII insurance to commence on 30 April 2021. On 6 May 2021, the Respondent emailed the Council stating that: "I checked before my Professional Indemnity Insurance and realised I haven't renewed it."
On 6 May 2021, the Respondent was notified by the Council that she was in breach of section 129 of the National Law and should cease practising psychology forthwith. On that day, she ceased billing clients. On 10 May 2021, the Respondent received a letter from the Council requested she provide PII certificates for the period 2016 to 2020 to the Council by 12 May 2021.
On 13 May 2021, the Respondent emailed the Council stating: "…with regards to current PII, AON have asked for more information which I've sent them and I am waiting their response/quote."
On the same day, the Respondent emailed the Council admitting that she misinformed the assessors because she was "terrified". The Respondent stated she always intended to: "… sort out my PII, however, more stress and expense just keep piling on top of me and I lost sight of it in my struggle to survive the significant stress I was already facing …. The only way I can explain my failure is that I just kept putting it off and hoping to get it sorted as soon as I could and hoping life would get less stressful so that I could focus on the other important professional tasks and responsibilities".
On 13 May 2021, the Respondent emailed the Council concerning her search for PII certificates and provided an AON invoice for the period to 12 August 2015.
Between 1 January 2017 to 2 September 2021, AON had no PII policy which covered the Practitioner. Accordingly, Complaint Two is established.
In particular 1 of Complaint Three, the Applicant alleges" "Complaint Three The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of psychology. Particulars of Complaint Three 1. On or around each of the following dates, being: i. 8 December 2015; ii. 28 December 2016; iii. 31 December 2018; iv. 1 December 2019; v. 15 January 2021; the practitioner made a false declaration that she: a. had, during the preceding period of registration, practised psychology in accordance with the requirements for professional indemnity insurance; and/or b. would not practise in psychology unless appropriate professional indemnity insurance arrangements are in place."
The Respondent submitted five annual renewal applications which contained false information concerning her holding PII insurance. On the dates specified, in particular, the Respondent falsely selected "YES" to the question "During your preceding period of registration, have you practised in accordance with the requirements of the Board's professional indemnity insurance (PII) arrangements registration standard when practising the profession in Australia?". In each case, the statement by the Respondent was false. This particular is proved.
In particulars 2 and 3 of Complaint Three, the Applicant alleges: "2. From on or about 6 March 2007 to 13 May 2021, the practitioner practised in psychology without having the required Working with Children Check clearance. 3. The practitioner's conduct in Particular 2 was contrary to" a. Clause B.1.2. of the Australian Psychological Society Code of Ethics (April 2018); and/or b. section 8 of the Child Protection (Working with Children) Act 2012."
Section 8 of the Child Protection (Working With Children) Act 2012 (NSW) states: 8 Restrictions on engaging in child-related work (1) A worker must not engage in child-related work unless - (a) the worker holds a working with children check clearance of a class applicable to the work …
The Respondent commenced practising psychology on 6 March 2007 and continued until 13 May 2021 when the Council suspended her registration. The Respondent practised psychology with children. When, during the first performance assessment, the Respondent was asked whether she held a working with children check (WWCC), the Respondent was non-committal, and during the second performance assessment the Respondent admitted she had not had that qualification and could not recall when she last held it. On 6 May 2021, the Respondent emailed the Council stating: "I am doing the WWCC registration now". The Respondent did not have such registration. Accordingly, particulars 2 and 3 are established.
In Complaint Four, the Applicant alleges: "Complaint Four The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Particulars of Complaint Four 1. The particulars in Complaint One, Complaint Two, and Complaint Three are repeated and are relied upon individually and cumulatively."
With respect to Complaint One, the Respondent, it may be assumed, has been aware since October 2020 at least when she attended the section 150 hearing and received the decision of the conditions imposed in March 2021. Such assumption is confirmed by her signed acceptance of the conditions. Despite numerous requests from the Council that she comply with the conditions, the Respondent ceased attending supervisory sessions in July 2020 yet continued to practice and bill patients for psychology services until 6 May 2021. Further, in breach of the supervision condition, the Respondent continued to see child patients. Due to the Respondent delaying her completion of the CBT course, the Council was deprived of information required to assess the risk of the Respondent's practice to patients. The Tribunal finds that the Practitioner's conduct placed patients at risk.
With respect to Complaint Two, the Respondent must have known that she was practising contrary to the requirements of the National Law by failing to implement professional indemnity insurance. Her explanations of other priorities constitutes professional misconduct.
With respect to the conduct referred to in particular 1 of Complaint Three, the Respondent knowingly deceived the Council and obtained her registration by deception. Such conduct is inimical to the requirements of the National Law.
With respect to particulars 2 and 3 of Complaint Three, the purpose of the WWCC requirement is to protect children. The Respondent was reminded repeatedly of that requirement and her failure to undertake such course shows a disregard for child safety.
The term professional misconduct is defined in section 139E of the National Law as including: 139E Meaning of "professional misconduct" [NSW] ... (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The conduct of the Respondent by virtue of the above collectively constitutes professional misconduct and, in respect of the deception referred to in particular 1 of Complaint Three and practising without the requisite WWCC constitutes, by themselves, professional misconduct.
In Complaint Five, the Applicant alleges: "Complaint Five Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of psychology. Particulars of Complaint Five 1. The practitioner suffers from the following conditions or disorders: a. Major Depression; b. Attention Deficit Hyperactivity Disorder."
The term "impairment" is defined in s 5 of the National Law, relevantly, as follows: 5 Definitions … 'impairment', in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for a registration in a health profession, the person's capacity to practise the profession; …
Dr Samuels, who has provided two reports to the Tribunal as discussed in more detail hereunder, considers that the Respondent is suffering from an "impairment" as defined in the National Law. In the absence of any evidence to the contrary, the Tribunal accepts the opinion of Dr Samuels, and accordingly the Tribunal finds that the Respondent is suffering from an "impairment" as defined.
In Complaint Six, the Applicant alleges: "Complaint Six The practitioner is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental capacity to practise as a psychologist. Particulars of Complaint Six 1. The particulars of Complaint Five are repeated and relied upon. 2. On 28 September 2016, the practitioner attended an independent performance assessment which had been requested by the Psychology Council. The independent performance assessment was conducted by independent assessors, who concluded that the practitioner's professional skills were significantly lacking and inadequate in some areas. The independent assessors recommended supervision that would focus on the following areas: a. note taking; b. report writing; c. structured delivery of cognitive behavioural therapy; d. reflection and demonstration of adequate ethical depth in regard to the focus client base; e. demonstrated work/life balance; f. structured review of ethical issues. 3. On 28 April 2021 the practitioner attended an independent performance re-assessment which had been requested by the Psychology Council. The independent performance assessment was conducted by independent assessors using the Psychology Board of Australia's Codes, Guidelines and Standards, and the Australian Psychology Society's Code of Ethics. The independent assessors concluded that the practitioner's professional skills were lacking or inadequate in the following areas: a. non-compliance with the supervision conditions placed on the practitioner's registration; b. lack of regular supervision or professional support, including peer meetings; c. lack of clarity regarding the practitioner's completion of continuing professional development (CPD) requirements for the previous year and plans for the current year, including the absence of CPD logs or learning plans; d. out of date clinical resources; e. no evidence of case conceptualisation, protocols and evaluation of treatment or outcomes; f. concern about ability to relay information related to areas of expertise including Attention Deficit Hyperactivity Disorder, including non-completion of case reports in this area; g. unsatisfactory record keeping; h. lack of organisational skills including not having resources to hand."
The first performance assessment of the Respondent made on 28 September 2016 concluded that the Respondent's professional skills were significantly lacking. In particular, the assessors noted with concern her notetaking, maintaining files and confidentiality, consent issues, the absence of structured interviews/assessment format, the need for risk assessment tools, the need for more professional education/involvement with others and working too many hours. Recommendations were made for the rectification of these deficiencies.
Dr Samuels' first report observed (at par 71): "… These impairments do have the potential to impact upon her professional functioning and certainly her depression, anxiety and attentional problems appear to have been impacted on her ability to comply with the Council's requests for information and to adhere to requirements set out by the Council."
The second performance assessment conducted on 28 April 2021 concluded that the Respondent's performance did not meet the standard reasonably expected of a practitioner with an equivalent level of training and experience. In particular, concern was expressed as to the absence of the Respondent's PII and having no WWCC. Defects were noted in the Respondent's compliance with supervision conditions; lack of regular supervision or professional support; lack of clarity regarding the Respondent's completion of continuing professional development requirements for the previous year and the current year; out of date clinical resources; no evidence of case conceptualisation, protocols and evaluation of treatment or outcomes; concern about ability to relay information related to areas of expertise including Attention Deficit Hyperactivity Disorder (ADHD), including non-completion of case reports; unsatisfactory record keeping and lack of organisational skills.
Dr Samuel second report noted: "It seems clear that she suffers from a number of Mental Health Impairments, and that presentation at the most recent performance assessment and identified deficits would seem to confirm that the are serious concerns regarding her professional functioning…. The performance assessment raises serious concerns in regard to her competency. Her depressive condition, PTSD and attentional problems may be compounding the situation. The concerns raised in that review will need to be addressed at appropriate safeguards put in place to manage clinical risks. Until she has completely addressed the issues raised in the assessment she should not return to clinical practice."
The Tribunal concludes in light of this evidence that Complaint Six is established.

History of Registration

The Respondent holds a Bachelor of Science degree awarded in 1998, and a Graduate Diploma in Applied Psychology awarded in 1999. The Respondent was first registered as a psychologist with general registration on 6 March 2007.
The Respondent was thereafter registered from 1 July 2010 to 9 January 2012 and was thereafter unregistered between 9 January 2012 to 18 January 2012. The Respondent was re-registered until 2 January 2018. She was unregistered from 2 January 2018 to 23 January 2018; was registered again from 23 January 2018 to 5 January 2021. Thereafter, the Respondent was unregistered from 5 January 2021 to 4 March 2021. She was re-registered on 4 March 2021 until 13 May 2021. On 13 May 2021, the Respondent's registration was suspended and currently remains suspended.

Conditions on Registration and Proceedings under Section 150 of the National Law

Following a performance review on 14 June 2016, the Respondent consented to conditions being placed on her registration which became effective on 28 February 2017. On 11 September 2018, the Council determined that the Respondent was in breach of such conditions. The Respondent agreed to comply.
On 15 September 2020, the Council issued the Respondent with a notice to show cause because the Respondent had not met the required supervision sessions.
On 26 October 2020, proceedings were held under section 150 of the National Law. As a result of such hearing, additional conditions were imposed on the Respondent's registration.
On 3 March 2021, the Respondent's registration as a psychologist was renewed by the Australian Health Practitioner Regulation Agency ("AHPRA") subject to conditions. A performance assessment was held on 28 April 2021 and in consequence the Respondent was informed that a further hearing would take place under section 150 of the National Law on 13 May 2021. On the morning of the hearing, the Respondent advised the Council that she would not be attending because she "had not had enough sleep". The delegates thereupon determined to suspend the Respondent's registration and refer the matter to the Commission. The Council, pursuant to section 150(1)(a) of the National Law ordered that the Respondent's registration be terminated on and from 13 May 2021.
The conduct which resulted in the imposition of conditions related to issues such as non-compliance with supervision conditions and lack of any other regular supervision or professional support; absence of CPD logs or learning plans; outdated clinical resources; non-completion of case reports; record-keeping skills which were below the satisfactory standard; concerns about security of records; inability to provide documents to the Council in a timely manner or at all.
Of particular significance is the fact that the Respondent did not hold professional indemnity insurance as required by the National Law. A Certificate of Currency from Aon Risk Services Australia Limited states that that the required indemnity insurance expired on 30 June 2021. Further, there is a lack of evidence of the requirement that the Respondent had been granted a current Working with Children Check.
On 11 October 2021, the Commission requested the Council to appoint a practitioner to determine whether the Respondent had sufficient mental and physical capacity to practise as a psychologist and the Respondent underwent such examination.

Expert report: Dr Anthony Samuels:

Dr Samuels, a psychiatrist, interviewed the Respondent by Zoom on 30 November 2021 at the request of the Council. In his report, Dr Samuels had available the written reasons for decision of the section 150 hearing held on 13 May 2021 and reports of assessors that referred to the fact that the Respondent had displayed a lack of acknowledgement of performance issues that may be putting the public at risk. The documentation provided to Dr Samuels also referred to the fact that the Respondent had been provided on multiple occasions in the previous five years with the opportunity to engage with the Council to rectify performance issues that gave rise to her coming to the Council's notice. He also recorded that the Respondent had, in the assessors' opinion, behaved in an unethical way, had shown a disregard for the regulations and constant unwillingness to engage in the necessary present processes, which had led to the suspension of her registration.
Dr Samuels recorded that the Respondent, who was born in 1976, was diagnosed with PTSD at the age of 16 or 17. The report recorded that the Respondent had worked in child protection before going into private practice at the age of 31. The Respondent stated that she specialised in child and adolescent psychology and stated that her interests were in trauma, anxiety and depression, and asserted that she was a specialist in ADHD.
Dr Samuels stated in his opinion: "Ms Drysdale does in my view have an impairment within the meaning of the National Law, namely a problem of Major Depression and Attention Deficit Hyperactivity Disorder these conditions seem to be reasonably well-controlled on her current medication. These impairments do have the potential to impact upon her professional functioning and certainly her depression, anxiety and attention problems appear to have impacted on her ability to comply with the Council's request for information and to adhere to requirements set out by the Council."
Dr Samuels, in his recommendations stated: "I understand there are some concerns about Ms Drysdale's performance and that further assessment of her professional functioning may be required. From a psychiatric perspective I have no particular concerns about the stability of the mental health in regard to returning to the practice of psychology. However she should be monitored through the auspices of the Impairment Program with some health conditions in place."
Dr Samuels then provided a list of suggested ongoing monitoring conditions, including consulting a general practitioner, consulting a psychiatrist, and engaging in regular supervision.

Report dated 13 February 2023: Supplementary Report

On 30 November 2021, the Respondent underwent a psychiatric assessment with Dr Samuels, who found that the Respondent had a confirmed diagnosis of Major Depression and ADHD which had the potential to impact upon her professional functioning.

Respondent's Material

In her undated statement, the Respondent informed the Tribunal that she cannot afford legal representation despite her efforts to seek such assistance. The statement refers to the fact that her interaction with the Council and or AHPRA and their processes was excessively stressful "and made it impossible to manage all the additional demands being placed upon me". The Respondent states in summary that she suffered from environmental stress, the bringing up of three teenage children each of whom was diagnosed with ADHD, anxiety and depression; associated school avoidance and refusal; associated behavioural psychological concerns. The Respondent states that despite the diagnosis of her children and their being bullied and unsupported, it led to issues with the Department of Education and her attendance at numerous meetings. However, the Respondent states that despite an educational support plan being prepared for the children, the teaching staff seem to be unaware of it. The Respondent also states that the school required her to obtain a medical certificate for every single absence for all three children and that whilst she wasn't always able to comply, the stress and demands in addition "to the other environmental stressors was enormous".
The Respondent states that she arranged for different schools for her twin children which provided some assistance, but that was not apparent until February 2020.
In addition to parental stress and responsibility, namely facilitating appointments for all of her children with psychiatrists and psychologists and other medical appointments, she had incidents of other issues namely injuries to her children and illnesses requiring medical treatment. The Respondent states that with the family issues and her husband relocating to Townsville, she was effectively a single parent and she found it very difficult to meet the requirements of the Council.
In addition, the Respondent states that she herself suffered medical conditions resulting in medical treatment. The Respondent disputes the correctness of Dr Samuels' report in that Dr Samuels referred to the drug lamotrigine being prescribed due to a belief of the Respondent's psychiatrist concerning a bipolar component to the Respondent's mental health concerns. The statement of the Respondent takes issue with the diagnosis of Dr Samuels and is critical of his report in this respect. The Respondent questions the ethics of Dr Samuels in making a report concerning herself without discussing his findings with her.
The Respondent states that she is no longer a single parent of three "neuro divergent and challenging young adults"; that she lives alone and engages regularly in work, social interactions and enjoyable activities and psychological and psychiatric treatment. She stated she continues to regularly attend her consultations with her treating psychiatrist, Dr Burnhan, and has complied with his treatment "other than one occasion taking an increased dose of Efflexor/venlafaxline", which she later reduced. She states she now sees her psychiatrist every three months due to a stable mood and improved functioning. No evidence was called by the Respondent from any treating specialist.
The Respondent states that she has attended "significant psychology appointments for treatment of my depression and resurgence of my PTSD symptoms from childhood trauma". She states that she has engaged in strategies such as exercise, social engagement, meditation, and trauma processing. During 2022, she engaged in 20 such sessions and during 2023 to date she has engaged in 7 sessions. The Respondent states that she is progressing with improvement in her mood and functioning and has engaged in part-time work over the past three months. She engages in a weekly singing group and engages with friends and family regularly. The Respondent's statement continues: "Please also consider the significant impact of the current proceedings on my level of stress. It has been a very traumatic and stressful process which has been lengthy and weighed heavily on me. I haven't been engaged in any psychological work since May 2021 (nearly 2 years) and have faced additional stressors due to this. My children were no longer able to reside with me as I was no longer able to afford the cost of rent and had to relocate to a small granny flat. My children relocated [permanently] to Townsville and this created some grief which I've had to address which I have. There have been other losses - my home, and my pets which have all contributed, however, I have continued to work through all of this and in functioning well with part-time work and general life. All the above additional issues as well as the impending loss of my beloved career obviously initially cause some emotional difficulty and decline in mood - again I addressed this with Psychiatrist, Dr Burnhan and he prescribed Lamotrigine - beginning at a very low dose and increasing very gradually which also took me some weeks before the required dose and effectiveness. I am pleased to say that my mood is manageable and I'm continuing to function despite ongoing financial issues of trying to repay debt and background and the impending hearing and impending loss of career which I have always loved and been passionate about".
The Respondent's statement dated 17 March 2023 contains the Respondent's criticisms of the process she has undergone in relations with the Council, AHPRA and the Commission. The statement refers to the severe impact of the process and that she has had to work "extremely hard to rebuild a life for myself despite the ongoing stressful nature of this process". The statement alleges that the environmental stress and medical conditions to which the Respondent has been subjected were disregarded. The Respondent alleges that there has been "no support and complete disregard for my financial situation following the loss of my career in been [sic] unable to attain legal representation". The Respondent asserts that "the lengthy investigations and documents and information are very detrimental to the health professionals involved by burying them in thousands and thousands of pages of documents and information designed to overwhelm and it makes it extremely difficult to address and defend in any effective manner". Her statement expresses no contrition for her failure to comply with the conditions but her statements imply disdain or resentment at the conditions imposed upon her.
The remainder of the statement is in similar vein, namely criticisms of the professional bodies namely AHPRA, the Council and the Commission. The Respondent states that she is "of above average intelligence" and has worked successfully as a counsellor and psychologist for over 20 years and that as recently as "last week 22 months after ceasing psychological practice I have been contacted by clients I had previously treated and supported to enquire about where I was practising and if they could return to treatment…".

Additional Submissions

At the conclusion of the hearing on 20 March 2023, the Tribunal made additional orders since the Respondent had not attended the hearing. The orders made were as follows: 1. The Respondent to file and serve any submissions in reply to the Applicant's submissions on before 27 March 2023. 2. The Applicant to file and serve any submissions in response to any written submissions of the Respondent on before 3 April 2023. 3. The decision be reserved from 3 April 2023.

Respondent's Additional Material

In response, the Respondent provided 19 emails which included an additional submission in the form of a statement and an updated curriculum vitae.
The statement dated 27 March 2023 refers to attempts by the Respondent since October 2022 to obtain employment positions. The Respondent states that she has worked approximately 13.63 hours per week in the period 20 December 2022 to the present, but she is currently working 18 hours per week. The Respondent states she is able to obtain qualifications as a first aid worker, NDIS worker check, NSW working with children checks, national police/criminal record check. The Respondent states that she can organise, plan, and implement actions for task completion which contradicts comments of the Psychology Council in its Assessment Report. The date of the assessment is not identified. The Respondent also claims that the information contradicts the evidence provided by psychiatrist Dr Samuels in his original report.
The Respondent refers to additional medication which she is taking and other treatments which she is undergoing by way of therapy. She refers to attendances with Dr Zahida Chaudry (general practitioner), Mrs Patricia Shirvington (clinical psychologist), and Dr Abdul Burhan (psychologist).
Invoices for consultations are attached together with numerous articles relating to ADHD and other psychological conditions.
The Applicant has provided submissions in reply in accordance with the Tribunal's directions made on 20 March 2023. The Applicant submits that most of the items provided by way of "additional submissions" comprises evidence which cannot be tested and submits that would be procedurally unfair to the Applicant if it has not been able to test the material. However, in the interest of minimising future costs, the Applicant accepts that because the Respondent is legally unrepresented, she will not be familiar with the difference between evidence and submissions, nor with procedural matters. The Applicant submits that it would be futile to reopen the evidence and the Applicant makes no such application. The Applicant submits that the material provided should be afforded little weight.

Additional Material: Finding

Insofar as the information is sought to comprise fresh evidence, no leave has been granted to adduce fresh evidence and any such application would need to be made to the Tribunal to reopen the hearing which has already concluded. The order made at the conclusion of the hearing was simply to give the Respondent the opportunity to address the Applicant's submissions. The Respondent has made no application to reopen the hearing and to adduce evidence. Accordingly, the Tribunal will treat the above material as constituting submissions.
The information provided does not contain any statement which provides the Tribunal with any proposed future plan to comply with the requirements of the Applicant. Nor does it indicate any acknowledgement or insight by the Respondent that she was required to comply with the requirements of the Council if she wishes to practise as a psychologist. The information does reveal that the Respondent appears to be receiving treatment, but without evidence from the medical practitioners whom she has consulted, it is not possible to know the nature and extent of the treatment nor of any prognosis.

Principles

Section 3B of the National Law provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

Chronology and Section 150 Proceedings

The chronology records there have been numerous assessments conducted in respect of the Respondent's practice since February 2015 when a complaint was made in respect of the practice of the Respondent. A further complaint was made in February 2016. Various appointments were made during 2016 and on 28 September 2016 the Respondent attended a performance assessment ("the first performance assessment"). Following such appointment, the Respondent failed to comply with a request to provide information. On 20 December 2016, the Respondent was invited to consent to conditions or to attend a performance review panel. On 28 December 2016, the Respondent made a false declaration that she had during the preceding period of registration practised psychology in accordance with the requirements for professional indemnity insurance and that she would not practise psychology until appropriate professional indemnity insurance arrangements were in place.
On 27 February 2017, the Respondent consented to conditions being imposed on her registration (February 2017 conditions).
Thereafter, throughout 2017, correspondence ensued between the Applicant and the Respondent.
Between 2 January and 23 January 2018, the Practitioner was unregistered. Thereafter, on 31 March 2018, because the Respondent failed to complete a course as required by condition 2(b), the condition was extended. Throughout 2018, further correspondence ensued. On 26 September 2018, the Respondent attended a compliance interview.
During 2019, the Respondent failed to attend supervision meetings as required. On 2 January 2020, the Respondent made another false declaration that she had practised in accordance with the requirements when she in fact had no professional indemnity insurance at the relevant time. Throughout 2020, further correspondence ensued. On 26 October 2020, the Council conducted a section 150 hearing ("the first section 150 hearing"). Effective from 28 October 2020, the Council confirmed the current conditions and imposed two additional conditions.
Between 26 October 2020 and 13 May 2020, the Respondent failed to submit to the Council a treatment case plan and failed to submit documents required before a professional performance assessment was conducted.
Between 5 January 2021 and 4 March 2021, the Practitioner was unregistered. On 15 January 2021, the Respondent made a false declaration concerning the currency of her professional indemnity insurance.
On 3 March 2021, the Respondent received a letter from the Board confirming her application for general registration had been approved subject to the conditions previously imposed by the Council and the agreed conditions.
On 28 April 2021, the Respondent attended an independent performance reassessment ("the second performance assessment"). In such assessments, she provided her 2018 curriculum vitae which stated that she held current professional indemnity insurance. Numerous items of correspondence followed.
On 13 May 2020, the Practitioner informed the Council that she would not attend a section 150 hearing that day due to "insufficient sleep" and stated: "With regard to current PII, AON and have asked for more information which I've sent them and I'm awaiting their response/quote following their assessment of the information."
The Council conducted the section 150 hearing ("the second section 150 hearing") on 13 May 2021 and suspended the Respondent's registration from that date.
In Steel v Medical Council of New South Wales [2020] NSWCATOD 77, the Presiding Member (Boland J) when dealing with an appeal under section 159B of the National Law, summarised the principles derived from recent decisions of the Court of Appeal to be applied in s 150 proceedings and appeals. The Presiding Member said, relevantly, at [26]: "Three recent decision of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Subdivision 7 and Division 6 Subdivision 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: 'Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. … In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A [now s 3B], the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public. …'"
Despite the imposition of conditions by the Council, they have proved to be of no avail leading to the filing of the application to this Tribunal on 9 September 2022 for the orders sought in the application.

Standards to be Observed

The need to protect the health and safety of the public has been repeatedly referred to. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said (inter alia) at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. …"
In this application, the conduct relied upon by the Applicant is said to constitute unsatisfactory professional conduct under section 139B(1) of the National Law in respect of the following, namely: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) … (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The allegations made against the Respondent extend beyond the failure to comply with the requirements of conditions and the making of false declarations. It is also alleged that the Practitioner practised without requisite insurance contrary to the provisions of s 129 of the National Law, which relevantly states: 129 Professional indemnity insurance arrangements (1) A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession.
Additionally, it is alleged in Complaint Five that the Respondent, pursuant to s 144(d) of the National Law, is suffering from an impairment, disability condition or disorder that affects or is likely to detrimentally affect her capacity to practise the profession of psychology. Further, it is alleged that pursuant to s 139(a) of the National Law the Respondent lacks the mental capacity to practise as a psychologist.
The Tribunal must be satisfied that the Respondent is fit to carry out the responsibilities of a registered psychologist. In Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at [15], Judicial Member P Molony stated the test as follows: "The issue of whether a person is fit and proper due to past … conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which may have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation."
The issues which brought this matter to the Tribunal have arisen from the Respondent's conduct in failing to observe the regulatory requirements necessary for registration as a registered psychologist. Those failings have been evidenced by the failure to submit documentation, a repeated failure to abide by conditions imposed upon the Respondent's registration, and by an apparent unwillingness to feel bound by regulations. Of particular note is the fact that the Respondent has practised in the absence of the required professional indemnity insurance and in the absence of a valid WWCC. The explanation for her shortcomings appears to be that she has been excessively busy caring for her three (now adult) children and a virtual disregard of the regulatory requirements. The Respondent has acted as sole parent for approximately 14 years. No other explanation, however, has been offered for her failure to comply with the conditions imposed upon her practice.
In oral evidence before the Tribunal, Dr Samuels found it difficult to associate the impairment which he identified with the Respondent's behaviour in failing to cooperate with the conditions. He observed that the Respondent was not significantly depressed and he had not diagnosed any bipolar condition. He did not know the condition for which Dr Burhan was treating the Respondent. Dr Samuels stated that nothing could account for the unwillingness or the inability of the Respondent to cooperate and felt that until she could contain the chaotic elements in her life the position will remain unchanged. Overall, he considered that the Respondent could not manage her professional obligations.
The Tribunal has taken into consideration the statements of the Respondent. However, whilst they explain her past difficulties and her priorities, her statements are bereft of any proposals for the future. They do not, for example, indicate that the Respondent has any insight into the necessity for regulation of the profession of psychology. Rather, such regulation has been afforded a low priority in the Respondent's professional life, finding that other priorities are more important. Further, there is no indication from the Respondent that she is willing to comply with future regulation and requirements of the Council. These are significant shortcomings which is of great concern to the Tribunal. If the Respondent wishes to resume her practice of psychology, it will be necessary for her to have an understanding of the requirements and their purpose, and to undergo a period of training. For these reasons, the Tribunal considers that the registration of the Respondent should be cancelled and that she should not be permitted to make further application for registration until a period of 18 months has elapsed.
There is no suggestion that the Respondent is incompetent in her work; rather, the issues relate to regulatory compliance. Dr Samuels observed that there is no reason why the Respondent should not be permitted to resume practice provided she agrees to accept certain supervision conditions. Because the Respondent has not participated in the hearing, the Tribunal has been deprived of hearing from her any proposal she may advance to rectify the shortcomings which are perceived in her compliance.
However, the expert diagnosis of Dr Samuels is that the Respondent is suffering from an impairment which is likely to adversely affect her professional work. Until such impairment is addressed, the Tribunal is of the opinion that the Respondent is impaired and that such impairment could adversely affect the health and safety of the public, which is the prime consideration for the Tribunal's assessment. The circumstances justify the cancellation of the Respondent's registration as sought in the application and that a non-review period of 18 months be imposed. Such period is significantly less than the period sought by the Applicant. In the 18-month period, the Respondent, should she wish to seek to resume her profession, will have the opportunity to show what has been made to overcome her current impairment and deficiencies.
It should be observed that the imposition of the sanction is not intended to be by way of punishment. Punishment forms no part of the disciplinary system: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 184; [1968] HCA 20.
The Tribunal reiterates that the conduct of the Respondent as detailed in the particulars above constitutes both unsatisfactory professional conduct and professional misconduct as alleged.

Costs

The Applicant makes an application that its costs be paid by the Respondent. Whilst n award of costs is discretionary, the New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 has held that the usual order will require that the unsuccessful party meet the successful party's costs. This principle was established previously in Ohn v Walton (1995) 36 NSWLR 77 where the court, considering the extant Medical Practitioners Regulations, reg 27(1), found that the Medical Tribunal had a discretion to award costs similar to those applied by a court in similar circumstances such that costs should follow the event unless the circumstances of the case required that the exercise of discretion not to do so. Such principle has been followed in other proceedings, such as NSW Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67].
It should be observed that an award of costs is not intended to punish the losing party, but rather the costs are solely compensatory: Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59.
As the Applicant has been successful, the Tribunal considers that the usual rule should apply that costs should be paid by the Respondent, and it will accordingly so order pursuant to clause 13(1) of Schedule 5D of the National Law.

Orders

The Tribunal orders that: 1. Cancellation of the Respondent's registration, pursuant to ss 149C(1)(a) and (b) of the National Law, with a non-review period of 18 months. 2. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for the same period as the non-review period imposed. 3. An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.

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

Amendments 28 April 2023 - Order (3) corrected. "Commissioner's" replaced with "Commission's". Insert the words "as agreed or assessed". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2023

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Judgment (18 paragraphs)

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Cases Cited (13)