Health Care Complaints Commission v Jiang

[1]

Background/History

The proceedings arise out of complaints brought by the Complainant, The Healthcare Complaints Commission (HCCC) against the Respondent, Ms Jennifer Jiang, alleging unsatisfactory professional conduct and professional misconduct as defined in the Healthcare Practitioner Regulation National Law (NSW) (the National Law). The allegations are of breaches by the Respondent of conditions placed on her registration, obtaining of confidential client information from her previous employer, claims made to Medicare for the provision of psychological services to Clients D-N while her registration was suspended. In addition, it was alleged that the Respondent suffers from a recurrent psychotic illness with paranoid and persecutory features and has had several periods of hospitalisation (in mental health facilities between 2013 and 2016) for brief psychotic episodes. Finally, it was alleged that the Respondent is not competent to practice the profession under S.139 of the National Law as the practitioner does not have sufficient mental capacity, knowledge and skill to practice the profession of psychology. There was an initial hearing but prior to determination by the Tribunal a reinstated hearing was convened. It is appropriate to deal with each hearing sequentially and in detail.
The proceedings are constituted by a complaint which is set out below.
We have appended within the document the response of the Respondent (in bold) as a means of clarifying the areas of controversy to be determined by the Tribunal.

[2]

Complaint 1 The Healthcare Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW 2000 having consulted with the Psychology Council of NSW in accordance with Sections 39(2) and 90B(3) of the Healthcare Complaints Act 1993 and Section 145A of the Health Practitioner Regulation National Law (NSW) (the National Law) complains that the Respondent, Ms Jennifer Jiang, being a psychologist registered under the National Law, is guilty of unsatisfactory professional conduct under Section 139B(1)(c) of the National Law in that the practitioner has contravened conditions to which her registration was subject. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified.

[3]

Background to Complaint 1 The Respondent was first registered on 11 September 2009. Between 23 April 2014 and 11 June 2014, the practitioner was employed as a contractor with Mind over Matter Psychological Services. In July 2014, the practice ceased operating. Between June 2014 and December 2015, the practitioner was employed with Intalink Therapy Solutions. Between June 2014 and December 2015, the practitioner was employed with Intalink Therapy Solutions. On 6 August 2015, the practitioner had conditions placed on her registration by the Psychology Council of New South Wales ("the Council") pursuant to s.150 of the National Law. Between 6 August 2015 and 8 December 2015, the practitioner's registration was subject to, inter alia, the following conditions ("the First Set of Conditions"): To nominate a supervisor within two weeks of the date of this decision, to be approved by the Council, to monitor and review her clinical practice and compliance with Public Conditions in accordance with Level 3 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice and health related conditions. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: (1) She and the supervisor meet on a fortnightly basis for at least one hour. (2) At each meeting they review her work progress and address any relevant work-related or professional matters. (3) At each meeting, the supervisor completed a record of matters discussed at the meeting in a format prescribed or approved by the Council. (4) The supervisor forwards to the Council, initially on a monthly basis, a Supervision Report in a format prescribed or approved by the Council. (5) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisors relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. (6) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded to the Council for approval within 14 days or the cessation of the original supervisory relationship.

On 8 December 2015, the practitioner had additional conditions placed on her registration by the Council pursuant to s.150 of the National Law.

[4]

Particulars of Complaint 1

In respect of the first set of conditions, it is alleged that the Respondent, between 6 August 2015 and 8 December 2015, failed to attend supervision in breach of Condition 1. The Respondent admitted that between 6 August 2015 and 8 December 2015, she failed to attend supervision and breached Condition 1. The reason she did not attend supervision was that she disagreed with the supervision objectives. She believed that her supervisor was working against her because of the investigation that started in 2008. She repeated that she suffered from schizophreniform psychosis and was not mentally capable of making decisions back then. She stated that she is now completely recovered and sees the error of her decision. She stated that it will never happen again.
In respect of the second set of conditions, between 8 December 2015 and 16 February 2016, in breach of Condition 1, the practitioner failed to: 1. nominate a supervisor or; 2. attend for supervision. Between 8 December 2015 and 16 February 2016, she failed to nominate a supervisor and breached Condition 1. She disagreed with the diagnosis and applied for an appeal through NCAT in December 2015. During this time she did not see the need to follow the conditions imposed on her registration because she believed the conditions were due to the investigation which started in 2008. She stated that in respect of this later investigation she was innocent. Her decision making capacity was clouded by her schizophreniform psychosis. She stated that she is now cured and sees the error of her decision and that it will never happen again.
Between 8 December 2015 and 16 February 2016, the practitioner failed to nominate or attend for treatment with: 1. a GP, in breach of Condition 10; 2. a psychiatrist, in breach of Condition 11; or 3. a clinical psychologist, in breach of Condition 12. Between 8 December 2015 and 16 February 2016, she admits that she failed to nominate or attend for treatment with a GP, a psychiatrist and a clinical psychologist and that she has breached Conditions 10, 11 and 12. She stated that the reason that she did not nominate a GP, a psychiatrist and a clinical psychologist was that she disagreed with the diagnosis and she had applied for an appeal through NCAT. She believed that she was free from psychotic illness and believed that she did not have to follow the conditions during a time that she had applied for an appeal. Again, her decision making capacity was clouded by her schizophreniform psychosis and she is now completely recovered, she sees the error of her decision and states that it will never happen again.

[5]

Complaint 2

The complaint alleges that the Respondent 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 of psychology.
Particulars of Complaint 2
Between December 2015 and January 2016, the practitioner improperly or unethically obtained confidential client information from Intalink for Client A which was used to contact Client A's mother inviting her to attend her solo psychology practice to finalise an assessment which had been undertaken whilst the practitioner had been employed at Intalink. The Respondent admits that between December 2015 and January 2016 she obtained Client A's contact details and sent a text message to Client A's mother inviting her to attend her solo psychology practice to finalise an assessment which had been undertaken whilst she had been employed at Intalink. Her decision making capacity was clouded by her schizophreniform psychosis. She states that she is now cured and sees the error of her decision. She states that it will never happen again.
Between December 2015 and January 2016, the practitioner improperly or unethically removed Confidential Client Clinical Assessment Questionnaire forms from Intalink for Client A to use at her solo psychology practice. The Respondent states that she did not remove a confidential client clinical assessment questionnaire from Intalink for Client A to use at her practice. She stated that she uses the newest assessment form GARS3 at her practice while Intalink uses GARS2. She stated that GARS2 assessment results would not be any use for her at her practice. She remembered the GARS2 assessment result and attempted to ask Client A to undergo GARS3 at her practice.
On 22 January 2015 and 25 January 2015, the practitioner improperly or unethically provided psychological services (Item 80110) to Client B and used a Medicare provider number for the practice "Mind over Matter Psychological Services" when she was not authorised to do so. The Respondent denied that she used a Medicare Provider number for the practice Mind Over Matter Psychological Services for Client B. She stated that her decision making capacity was clouded by her schizophreniform psychosis. If she had utilised the provider number, she states that she was not aware of it.

[6]

Complaint 3

The Respondent 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.
In respect of this complaint, on 16 February 2016 the Council suspended the practitioner's registration under Section 150 of the National Law.
On 29 April 2016, the practitioner filed an amended external appeal to the Tribunal appealing the decision of the Council to suspend her registration under Section 150 of the National Law.
On 10 August 2016, the appeal was dismissed.

[7]

Particulars of Complaint 3

Between 16 February 2016 and 29 March 2016, the practitioner worked as a psychologist and provided psychosocial services (Item 80110) while her registration was suspended on the following occasions:

Client D - on 29 February 2016 and 21 March 2016
Client E - on 17 February 2016
Client F - on 16 February 2016, 2 March 2016 and 16 March 2016
Client G - on 11 March 2016 and 18 March 2016
Client H - on 16 February 2016 and 10 March 2016
Client I - on 29 February 2016, 1 March 2016 and 14 March 2016
Client J - on 15 March 2016
Client K - on 23 March 2016
Client C - on 16 February 2016, 29 February 2016, 14 March 2016 and 29 March 2016
Client L - on 24 March 2016
Client M - on 16 March 2016 and 29 March 2016
Client N - on 16 February 2016 The Respondent admits that between 16 February 2016 and 29 March 2016, she worked as a psychologist and provided psychological services while her registration was suspended. She states that she submitted an application for NCAT to review the conditions imposed onto her registration in December 2015. She was not aware that her psychologist registration was suspended until April 2016 when she was verbally informed by NCAT. She states that she did not receive an email notification about the suspension of her registration which apparently had been sent to her. She also did not receive the letter sent to her due to the fact that the Council wrote to an incorrect mailing address. She stated that she had informed the Council of the correct mailing address. She only received verbal notification in April 2016 from NCAT that her registration was suspended on 26 February 2016. On 29 April 2016, she changed her appeal from reviewing the conditions imposed onto her registration to suspension of her registration. She states that she was not aware that her registration was suspended and she did not provide psychological services to clients after April 2016.

Between 16 February 2016 and 29 March 2016, the practitioner made claims to Medicare for the provision of psychological services (Item 80110) to clients outlined above at (1) while her registration was suspended. The Respondent admits that between 16 February 2016 and 29 March 2016, she made claims to Medicare for the provision of psychological services to the clients outlined while her registration was suspended. She was not aware of the fact that her registration was suspended.

[8]

Complaint 4

It is alleged that the Respondent is guilty of professional misconduct under Section 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or engage in more than one incidence of unsatisfactory professional conduct that when the incidences are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of a practitioner's registration.

[9]

Particulars of Complaint 4

Each of the particulars of Complaint 1, 2 and 3 itself justifies a finding of professional misconduct. In the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified. In regard to the particulars of claim the Respondent agreed to the particulars of complaint 1, complaint 2 (section 1) and complaint 3. In regard to complaint 2, sections 2 and 3, she denies misconduct as per her previous responses.

[10]

Complaint 5

It is alleged that the Respondent has an impairment within the meaning of Section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect her capacity to practice psychology.

[11]

Particulars of Complaint 5

The practitioner suffers from a psychotic illness with paranoid and persecutory features, and has had several periods of hospitalisation for brief psychotic episodes to mental health facilities from 2013 to 2016.
The practitioner holds beliefs which are likely to detrimentally affect her mental capacity to practice psychology safely and competently, including delusional beliefs and fear concerning being a victim of poisoning.
The practitioner has a history of being non-complaint or being reluctant to comply with the advice of her treating health practitioners.
The practitioner has had the following hospital admissions: 1. Between 24 April 2013 and 29 April 2013, the practitioner was admitted as an involuntary patient to the psychiatric unit at Royal Darwin Hospital and was diagnosed as suffering from a brief psychotic episode. 2. On 2 March 2014, the practitioner had a voluntary admission to Cumberland Hospital and was diagnosed with depression with psychotic features and a chronic stress disorder. 3. Between 3 March 2014 and 3 April 2014, the practitioner was admitted as a voluntary patient to the Westmead Hospital with schizophrenia with a paranoid subtype. 4. On 24 May 2016, 5 June 2016 and 7 June 2016, the practitioner presented to the Emergency Department of Manning Base Hospital reporting that she thought she had been poisoned, but was not admitted to hospital. 5. Between 21 June 2016 and 4 July 2016, the practitioner was admitted as an involuntary patient to the psychiatric unit of the Manning Base Hospital. The primary diagnosis was brief psychotic episode and the secondary diagnosis was delusional disorder. 6. Between 12 August 2016 and 22 August 2016, the practitioner was admitted as an involuntary patient to Manning Base Hospital with psychosis and a primary psychotic illness.
Additionally, the particulars for Complaint 1 and Complaint 2 are relied upon and repeated, both individually and cumulatively. The Respondent states that she suffered from a psychotic illness with persecutory features. She has completely recovered from her previous episodes of schizophreniform psychosis and refers to a letter provided by Dr Juratowitch. She has been complying with the advice of her treating health practitioners.

[12]

Complaint 6

It is alleged that the Respondent is not competent to practice the profession under Section 139 of the National Law as the Respondent does not have sufficient mental capacity, knowledge and skill to practice the profession of psychology.
The Particulars for Complaint 1, 2, 3 and 5 are relied upon and repeated, both individually and cumulatively. The Respondent denies the assessment of incompetence. She offers evidence of her competence via the positive constructive feedback from her clients, indicating that she has the capacity to provide good professional services as a psychologist.

[13]

Applicant's Evidence

The first witness to be called by the applicant was Dr Juratowitch, a Consultant Psychiatrist.
Part of the evidence of Dr Juratowitch was a letter dated 10 July 2017, which was referred to as a report and Dr Juratowitch was asked to confirm that he stands by his report. In regard to the evidence of Dr Juratowitch, he confirmed that he is the treating psychiatrist of the Respondent, who is on Palperidone 100mg IM and has completely recovered from previous episodes of schizophreniform psychosis. He indicated that on interview there was no evidence of delusions or hallucinations. He described the Respondent as an intelligent and independent lady who has retained her skills.
On cross-examination, Dr Juratowitch was asked for his current diagnosis, which he described as the Respondent having suffered a recurrent schizophreniform psychotic illness but this illness is controlled on her current treatment. She had delusions about being poisoned and being followed. She is in remission but the treatment seems to have worked and she does not appear to have any of these delusions. He stated that she does get some nasty side effects but she recognises that she has a problem and needs to undergo the treatment. It was put to him that he stated that she was in remission and he was asked whether a person in such condition can be cured. He responded by saying that a person can recover from illnesses and her treatment has got her to the point of being able to say that she is cured.
On questioning about the intramuscular injection, he stated that she finds it better than oral medication and that it gives her certainty that she is in fact getting her medication. In respect of his statement that she is an intelligent and independent lady who has retained her skills, he was asked to explain. He stated that on evaluation, he found that she has fully been able to demonstrate all her CBT skills. On questioning by the Tribunal, Dr Juratowitch was asked whether he had examined her skills in dealing with children. He responded that she has provided references from various patients, many from parents of children but that he has not conducted an analysis of that himself. He is of the view that she is in recovery and that the best thing for her is to go back to work under appropriate conditions.
In respect of her social networks, he indicated that she has a great personality. She had a good childhood with no abuse, etc. She has maintained her familial relationships. He does not suggest that she should be allowed to practice unsupervised. Her peer review should continue with her working in a group practice, and that she should stay on her current medication. He stated that he has seen a lot of impaired practitioners, mainly doctors who have had appropriate conditions imposed upon their registration. He also works in a recovery practice one day a week and has worked with people far worse than the Respondent. He states that she has changed so much since he first saw her when she was very aggressive and hated her medication. In respect of the question as to whether he had views on how to protect the public, he stated that he believes that she can be monitored and her progress can be checked, checking on her behaviour and any signs of relapse. She is at a higher risk of relapse because of the four episodes, but he still believes that that is manageable.

[14]

Respondent's Evidence

The Respondent opened her case and having been affirmed, she indicated that she stands by the response that she has given and which is reflected in the responses to each of the particulars of claim alleged by the Applicant. In essence, she admitted those items referred to in bold above and in addition made certain comments.
In respect of Complaint 2 and the fact that the form in respect of Client A was not found, she stated that she put the form on the client file at Intalink and did not remove the form. She stated that the fact that the form could not be found does not mean that she took it.
She was cross-examined on her understanding about the diagnosis of her condition and accepted the diagnosis. She was asked whether she can see that it impacted on her ability to act as a psychologist. She stated that she can see an impact on her personal life more than on her work because her clients came first. She stated that she provided quality care and that is evident from the feedback forms which she has. She confirmed that she is accepting of the injective medication and has not spoken to her treating psychiatrist about switching to oral medication. In respect of the work that she would like to do, she would want to work clinically and would accept that she has conditions on her registration because the patients need to be protected.
With that, she closed her case.

[15]

Unsatisfactory Professional Conduct

In deciding whether the practitioner is guilty of unsatisfactory professional conduct, the Tribunal will firstly make a decision as to whether each of the particulars have been proven, and then, if so, whether the conduct complained of and proven, amounts to the statutory definition of unsatisfactory professional conduct. In making this decision, the Tribunal may look at all of the conduct found proven, either separately or cumulatively, when making a determination as to whether the conduct amounts to unsatisfactory professional conduct.

[16]

Section 139B(1)(c) Contravention of Conditions of Registration

In relation to the classes of conduct that may amount to unsatisfactory professional conduct, s. 139B(1)(c) provides: "(c) Contravention of Conditions of registration or undertaking 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."

[17]

Section 139(B)(l) Other improper or unethical conduct

In relation to the classes of conduct that may amount to unsatisfactory professional conduct, s. 139B(1)(1) provides: "(l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
In relation to the terms of s. 139B(1)(1), the words "improper" and "unethical" are not defined and must be determined from the context in which they appear. As part of this inquiry, when the Tribunal has regard to the meaning of these words as set out in dictionaries (see below), and as considered in case law (also see below), it will understand the words in the context of the practice of the practitioner's profession, and thus in the context, firstly, of the objectives and guiding principles of the National Law (s. 3), but also as more specifically set out in the relevant Codes of Conduct.
The Tribunal in HCCC v Liu (Liu) [2016] NSWCATOD 133 considered the words "improper" and "unethical": "[51] The words "improper" and "unethical" are not defined in the National Law. The Macquarie Dictionary defines improper as follows: 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular. [52] Unethical is defined as follows 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. [53] The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice Said: .. . the relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous,wrong''. [54] Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety'' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. [55] The Words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes and Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes; 'The difficulty in locating where a line is to be drawn is a 'well known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical… [56] We adopt the discussion of the principles set out Office of Local Government v Toma (bold added).

[18]

Professional Misconduct

For professional misconduct to be proved, the Tribunal must be satisfied that the conduct complained of and proved, and found to amount to unsatisfactory professional conduct, further satisfies the statutory definition of professional misconduct within the meaning of s. 139E of the National Law. In this, the conduct must meet the statutory standard of professional misconduct, which is: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; or 2. 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 or the practitioners registration.

[19]

Impairment

The substance of Complaint Five can be seen to derive from the National Law statutory definition of impairment (s. 5), and relevantly provides: 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 registration in a health profession, the person's capacity to practise the profession (bold added).
In relation to this provision, it is noted there are two limbs to the definition. Firstly, that there is a condition (or disability, etc) present, and secondly, that this condition detrimentally affects, or is likely to affect, the practice of the profession (see Tung v HCCC & Anor [2011] NSWCA 219 (Tung)). Together these limbs constitute the statutory elements of "impairment".
It is further noted that, in considering whether Complaint Five (or any other Complaint, including that of unsatisfactory professional conduct or professional misconduct) has been proved, the Tribunal may have regard to all of the evidence before it (i.e., evidence from all Complaints) (National Law, Sch 5D cl. 6(3)).
The inquiry as to whether the practitioner suffers from an impairment relates to the status of the practitioner at the time the hearing takes place (Tung [58], [60]).

[20]

Competence

Complaint Six refers to competence within s. 139 of the National Law which provides:

[21]

139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language (bold added).

[22]

Impairment and Competence

The inclusion of 'capacity' in the definition of 'competence' provides a clear statutory connection between a complaint of impairment and a complaint of lack of competence.
In Lindsay v HCCC [2010] NSWCA 194 (Lindsay) Sackville AJA (Giles and Young JJA agreeing) drew attention to the connection between 'impairment' and 'competence to practise medicine' and stated: [168] The appellant's submission on the question of impairment overlooked the definitions of "impairment" and "competence to practise medicine" in the Dictionary to the Act. The definition of "impairment" includes any "condition or disorder which detrimentally affects or is likely to detrimentally affect" the practitioner's mental capacity to practise medicine (cl 3). A person is "competent to practise medicine" only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act. [169] While the argument advanced by the appellant is not supported by the terms of the Act, there is in my view a difficulty with the approach taken by the Tribunal. Its reasoning does not clearly explain why its finding of impairment against the appellant led to the conclusion that he was not competent to practise medicine. The Tribunal gave extensive reasons (at [668]) for its finding that the appellant suffered from "a relevant impairment", by which it meant a delusional disorder with persecutory and paranoid traits. However, the Tribunal (at [672]) then merely asserted, without further reasons, that by reason of his impairment, the appellant was not competent to practise medicine. [170] The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.

[23]

Standard of Proof

The standard of proof required to establish a Complaint is the civil standard. However, because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must achieve a 'reasonable satisfaction' that the particulars of the Complaint have been established. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J (as he then was) at 362-363 said: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences… This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained (bold added).

[24]

Legal principles

Conduct must be measured against what is reasonably expected of a practitioner of an equivalent level of training and experience and by the standard of the profession. In HCCC v Litchfield (1977) 41 NSWLR 630 the Court made the following comment (at 638): The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
It is well established that the jurisdiction exercised by this Tribunal is protective, not punitive. In Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202, the High Court said: Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.
Although the primary role of the Tribunal is protective, it also has a role in maintaining public confidence in the profession and maintaining the reputation of the profession. Orders of the Tribunal may operate to have a general deterrent effect for other members of the profession.
The reach of the concept of protection of the public has recently been set out by the NSW Court of Appeal in HCCC v Do [2014] NSWCA 307 (Do), where the court made clear that a broad understanding of protection was appropriate. ln this, the Court (Meagher JA, Basten and Emmett JJA agreeing) stated: [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. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a detriment to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done." … [43] These significant and continuing departures from acceptable and safe medical practice required that the respondent's conduct be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time. The Commission's submission that the period should be at least 18 months should be accepted. The making of orders under s 149C(4) will make plain that conduct of the kind engaged in is unacceptable, particularly in circumstances where there is a risk that the practitioner's objective and independent judgment might be compromised because the patient is someone with whom he or she has a close personal relationship, as was the case here (bold added).

[25]

Issues

In view of the above, the issues to be decided by the Tribunal are: 1. Have the particulars of Complaints One and Two and Three been proved to the reasonable satisfaction of the Tribunal? 2. If yes, (per each of Complaints One, Two and Three), has the Tribunal achieved a reasonable satisfaction that the proven conduct amounts to unsatisfactory professional conduct? 3. If yes, has the Tribunal achieved a reasonable satisfaction that the unsatisfactory professional conduct further amounts to professional misconduct, within the meaning of s. 139E? 4. Does the practitioner suffer from an impairment? 5. Is the practitioner not competent to practice the profession? 6. If yes (to any of the above), what are the appropriate Protective Orders?

[26]

Submissions on findings of particulars from Complaints One, Two and Three

The practitioner admits to the particulars of Complaint One: and parts of the particulars in Complaints Two and Three. It is submitted that such admissions provide an evidentiary basis for the Tribunal to make positive findings in relation to those particulars (per s. 149(b) of the National Law).
The Commission relies on documentary evidence to prove these complaints, in addition relies on the oral evidence provided during the course of the proceedings, including that of the practitioner herself.
Whilst the practitioner admits to much of the conduct particularised in Complaint Three, she states that she was not aware that her registration had been cancelled until April 2016.
On the basis of the evidence set out above, it is submitted that the Tribunal will achieve a reasonable satisfaction that the particulars of Complaints One and Two and Three have been proved.

[27]

Submissions on finding of Unsatisfactory Professional Conduct

It is further submitted, having been satisfied that the particulars of the complaints are proved, the Tribunal will be satisfied that the particularised conduct amounts to unsatisfactory professional conduct for each of the three complaints.
It is submitted that each of the particulars of each of the complaints, in itself, justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, that a finding of unsatisfactory professional conduct is justified.
In relation to Complaint One, the Tribunal will note that the practitioner herself admits that the particularised conduct amounts to unsatisfactory professional conduct.
Complaints Two and Three allege the practitioner engaged in improper or unethical conduct relating to the practice of the profession. It is submitted that the evidence before the Tribunal will support such a finding.
In making its submissions as to the findings the Tribunal ought make, the Commission relies upon its submissions as to the meaning of improper and unethical as set out above.
In relation to Complaint Two, in obtaining confidential information as particularised, and using a Medicare provider number she was not authorised to, it is submitted that the conduct of the practitioner was not proper; not strictly belonging, applicable, or right: an improper use for a thing; not in accordance with propriety of behaviour, manners, etc.: improper conduct; unsuitable or inappropriate, as for the purpose or occasion: improper tools; and abnormal or irregular. It is further submitted that the conduct would be regarded by reasonable persons as falling below the standards of conduct to be expected of a person in the position of the practitioner.
In relation to Complaint Three, the evidence discloses that the decision to suspend the practitioner's registration was made on 16 February 2011 (HCCC Tab 48) and that she was informed of this decision in an email of the same day (HCCC Tabs 49 and 50). On her own admission (see Complaints One and Two) the practitioner continued to practice as a psychologist, and in this context, was obliged to continue to check her email messages, especially given the then status of her registration - being subject to conditions. As part of this, it is submitted the practitioner was obliged to ensure that she stayed in contact with the Psychology Council and was otherwise professionally contactable.

[28]

Submissions on finding of Professional Misconduct

It is submitted that the unsatisfactory professional conduct, as ought to be found by the Tribunal, further amounts to professional misconduct, within the meaning of s. 139E. That is, the unsatisfactory professional conduct was of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and there was 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.
Having regard to this, it is clear from the evidence before the Tribunal that there was more than one instance of the conduct complained of, which occurred over the course of a period of time. The "totality" of the conduct, it is submitted was serious in relation to the departure from the standard of conduct expected of a practitioner. Given this, the nature of this conduct may be considered to be serious.
The seriousness of the conduct is also well highlighted by the steps taken following the s. 150 proceedings on 16 February 2016 to suspend the registration of the practitioner. It is submitted that the seriousness of the conduct of the practitioner, which includes breaching practice conditions and practicing whilst her registration was suspended (see HCCC v Mitchell [2015] NSWCATOD 151), is of such a nature as to justify cancellation of the practitioner's registration.

[29]

Submissions on finding of impairment

It is submitted that the Tribunal will be well satisfied on the evidence that the practitioner has an impairment which detrimentally affects or is likely to affect her capacity to practice psychology. In making this submission, the Commission relies on the whole of the medical evidence before the Tribunal, but also more specifically the expert evidence of psychiatrist, Dr Samuels.

[30]

Submissions on finding of competence

It is submitted that the Tribunal will also achieve a reasonable satisfaction that the practitioner is not competent to practice the profession. In making this finding, the Tribunal will have regard to the overwhelming evidence before it that the practitioner does not have sufficient mental capacity to practice the profession (see evidence going to "impairment"), but further, that that she does not have adequate knowledge and skills to practise, given the concerns as to the practitioner's clinical competency and appropriateness of her clinical interactions with patients.

[31]

General Legal Principles

The Tribunal's powers may be exercised if it finds the subject-matter of a complaint against the practitioner to have been proved, or if the practitioner admits to it in writing to the Tribunal (s. 149 (a) and (b) of the National Law). The powers to make protective orders when a complaint is proved are set out in ss. 149A to 149(c) of the National Law.
If the Tribunal makes a finding of professional misconduct. the powers available to it include the power to suspend or cancel the registration of the Respondent (s. 149C(1)(b)). The finding of professional misconduct means that at the time of the conduct the practitioner's conduct was sufficiently serious to warrant deregistration or suspension.
In determining the appropriate is required to consider the whole of the practitioner's conduct.
The jurisdiction of the Tribunal is protective rather than punitive, that is, protective of the public and the profession. In protective jurisdictions the object of protection of the public includes deterring the practitioner from repeating his or her misconduct and deterring others who might be tempted to behave in a similar way.
The issue of the importance of the deterrent effect of any orders made in relation to protection of the public has already been cited above in the decision from the Court of Appeal in Do. In finding the Tribunal below has been in error in only imposing conditions upon a practitioner's registration, considering this was all that was required in order to protect the public, the Court of Appeal stated: [39] In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondents conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondents conduct, although contained or confined, had revealed her "knowledge, skill and judgment in the practice of medicine" to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience: [2013] NSWMT 7 at [144]. [40] In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law. It follows that the Commission's principal argument should be upheld and that this Court must re-exercise the Tribunal's disciplinary power in the light of the Tribunal's earlier findings (bold added).

[32]

Protective Order Submissions

In the event the Tribunal makes a finding that the practitioner is guilty of professional misconduct, the Tribunal's power to order a wide range of protective orders will be enlivened, including those set out in ss. 149A, 149B, and 149C.
The specific orders sought by the Commission are set out as follows:

[33]

Draft Orders sought by the Commission 1. The Respondent is found guilty of unsatisfactory professional conduct. 2. The Respondent is found guilty of professional misconduct. 3. That the suspension imposed upon the Respondent pursuant to s. 150 of the National Law be lifted pursuant to s. 150G of the National Law subject to the conditions set out in Conditions Sought. 4. The Respondent is to pay the costs of the Complainant as agreed or assessed.

[34]

Employment 1. The Respondent is to notify the Psychology Council of New South Wales ("the Council") of her place of employment. 2. The Respondent is to only work in a group practice comprising of at least two psychologists with no restrictions on their registration. 3. The Respondent is not to work more than 20 hours per week. 4. The Respondent is to not change employment without first obtaining approval from the Council in writing. 5. The Respondent is to give any new employer a copy of the Tribunal's decision and orders, and a copy of these conditions, before commencing such employment.

[35]

Supervision 1. The Respondent is to nominate a supervisor, to be approved by the Council, to monitor and review her clinical practice and compliance with Public Conditions in accordance with Category B Supervision as contained in the Council's Compliance Policy - Supervision. 2. The Supervisor must be: 1. On-site and working in close proximity with the Respondent; and 2. Able to oversee and provide advice about the Respondent's practice when necessary. 1. The Respondent must: 1. Provide the Council with the name, contact details and resume of the nominated supervisor within two weeks of commencing work; 2. Authorise the nominated supervisor to notify the Council of any breach of the conditions or unsafe practice; 3. Provide the Council with a copy of the conditions signed by the Respondent and by the nominated supervisor indicating awareness of the conditions and authorisation; and 4. Authorise the nominated supervisor to provide a written report about the Respondent's performance to be provided to the Council at three-monthly intervals.

[36]

Mentor 1. Within three months of the date of publication of this decision the Respondent is to nominate a registered psychologist who does not have any conditions on his/her practice to act as her professional mentor, which must be approved by the Council. 2. The mentoring sessions may be conducted in person or remotely. 3. The Respondent must provide the mentor with a copy of the decision imposing these conditions. 4. The Respondent is to meet with her approved mentor no less than once a month. 5. The Respondent is to authorise the mentor to inform the Council (in an approved reporting format), that these meetings have occurred. 6. The Respondent is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any concerns regarding the performance of the practitioner, her professional conduct or well-being. 7. The Respondent is to immediately nominate a proposed replacement mentor to be approved by the Council if the approved mentorship arrangement ends or is suspended. 8. The Respondent is to be mentored for a minimum of 12 months, and as subsequently determined by the Council. 9. The Respondent is to meet the costs of compliance with the conditions.

[37]

Health Conditions 1. The Respondent must continue to engage with her Case Worker at Ryde Community Mental Health Centre, or at another appropriate organisation. The Respondent should accept the Case Worker's treatment advice and recommendations. 2. The Respondent must continue treatment with her psychiatrist, Dr Rodney Juratowitch, or another psychiatrist. The Respondent should see the psychiatrist at a mutually agreed frequency. The Respondent should accept the psychiatrist's treatment advice and recommendations. 3. The Respondent must undertake treatment with a psychologist of her choosing. The Respondent should see the psychologist at a mutually agreed frequency. The Respondent should accept the psychologist's treatment advice and recommendations. 4. The Respondent must undertake regular treatment with a general practitioner of her choosing. The Respondent should see the general practitioner as required. The Respondent should accept the general practitioner's treatment advice and recommendations. 5. The Respondent is to authorise her treating health professional outlined above at 18-21 to contact the Council if she discontinues taking her psychotropic medication as directed or she changes from taking intramuscular injections to oral medication. 6. The Respondent must: 1. Provide the Council with the name and contact details of all treating health practitioners. 2. Inform all current and any future treating health practitioners of these conditions. 3. Authorise each treating practitioner to inform the Council of termination of treatment, serious or immediate concerns about fitness to practise or repeated failure to attend appointments. 4. Provide to the Council a copy of the conditions signed by the Respondent and by each of the treating health practitioners indicating awareness of the conditions and authorisation. 5. Notify the Council of any change of any of her treating health practitioners, within two weeks of the change. 1. The Respondent must be reviewed by a Council appointed psychiatrist in six months from the date of this decision.

[38]

General conditions 1. The Respondent is to be responsible for any costs associated with the compliance of these conditions, unless otherwise specified. 2. Sections 125 to 127 of the National Law are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the Psychology Board of New South Wales. 3. While the registrant's principal place of practice is in New South Wales, the appropriate review body for the purpose of a review under sections 163 to 163C of the National Law is the Council.

[39]

Costs 1. That the Respondent pay the Complainant's costs pursuant to Clause 7, Schedule 5D of the National Law, as agreed or assessed.

[40]

Submission on Costs

The Commission seeks an order that the practitioner pay the Commission's costs.
Whilst the Tribunal has discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles.
In Qasim v HCCC [2015] NSWCA 282 (Qasim), the Court of Appeal (per Meagher JA, McColl JA and Ward JA agreeing) has set out the principles to be applied by Tribunals in relation to the issues of costs: [84] Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordingarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) (bold added).
In Qasim the Court of Appeal decided that the costs discretion of the Tribunal below miscarried because it approached the exercise of that discretion from the starting point that each party should pay its own costs (at [87]), however that the general rule is that costs should follow the event (at [85]). The Court found that the respondent in the appeal should be granted leave to appeal against the costs order, and the appellant was ordered to pay the respondent's costs of the proceedings before the Tribunal (at [89]).

[41]

Respondent's Submissions

The Respondent made very brief submissions indicating that she believes that she is able to work more than 20 hours per week.
She submitted that she would be able to work full time seeing 6 clients per day.
In respect of any additional training which she might require she conceded that this would impact on her working time and that she would deduct any training time from her working hours, if she were working full time.
On questioning as to how she could be confident that she can go from not working as a psychologist to full time straight away, she submitted that she could do that because she is well.

[42]

REHEARING

Following the hearing, the parties closed their cases and the decision was reserved. Before the decision could be delivered, notification was given to AHPRA that the Respondent had decided to terminate the medication that was central to any decision. The Applicant sought leave to reinstate the matter which application was granted and the matter returned to the Tribunal for further hearing on 9 April 2018.

[43]

Evidence at Re-Hearing

The Applicant indicated that the Respondent proposed to lead evidence from two witnesses; Dr Juratowitch and Ms Oey.

[44]

Evidence of Ms Oey

In evidence-in-chief, Ms Oey states that the Respondent has been compliant with her medication, and she confirmed the contents of her letter of 19 February 2018 where she had indicated that.
The witness was then cross-examined, on the contents of her letter and the fact that she indicated that the Respondent has an impairment and sometimes lacks insight. The witness stated that she has in the past shown some insight, but from time to time she wants to stop the medication.
The witness was asked about the fact that she stated that the Respondent wants to cease the medication, as she has recovered from her illness. The witness stated that the Respondent was aware of her past and her psychotic episodes, and indicated that in the view of the witness, she requires long-term medication. She does, however, state that in terms of her mental illness, the Respondent has recovered. It was put to her that that might be because she is on medication. The witness confirmed that it is the case, and it is a long process. The witness confirmed that in the discussions which she had with the Respondent, the Respondent indicated that she wished to consult with Dr Juratowitch on the issue of the medication. The Respondent indicated that she wanted to have a baby with her partner and the medication was interfering with her menstrual cycle, and preventing her from being able to fall pregnant.
The balance of the cross-examination centred on the fact that the Respondent believes that she has recovered and does not need medication, which is the basis for Ms Oey's view that the Respondent has some lack of insight. .
Questions were put to Ms Oey by the Tribunal and in particular, whether the Respondent attended her medical meetings without needing to be prompted. The witness indicated that in the early stages she needed prompting with telephone calls or messages, and gentle reminders, but she has always attended on the day of medication and she now comes without any prompting.
The witness was asked to explain the use of the word "recovery". She indicated that by recovery she means that the Respondent is in a recovery stage, and as long as she continues with the medication, she will continue to recover. The witness indicated that if the Respondent were to cease the medication, the witness would be particularly concerned.

[45]

Evidence of Dr Juratowitch

Dr Juratowitch was asked in evidence in chief whether he wrote a letter on 26 February 2018 supporting the Respondent being able to work as a psychologist. Dr Juratowitch indicated that as long as she stays on her medication, he supports her ability to work as a psychologist, and in fact indicated that it would be beneficial for her to work, as long as she stays on her medication.
In cross-examination, the issue of the medication and any side effects was addressed. Dr Juratowitch indicated that she had some very bad side effects, but that other forms of medications that might be available would be worse. He stated that it would not be possible to stop her from going off her medication, but he has told the Respondent that without the medication, she would not be able to work as a psychologist.
He indicated that she is on a low-dose and that she might not suffer a relapse, but he stated that there are reasons for believing that she would have a relapse if she went off the medication, despite the fact that the Respondent believes that she will not have a relapse.
Dr Juratowitch confirmed to the Tribunal that without the medication, she would not be in a position to work as a psychologist.
Dr Juratowitch indicated that the discussions in February 2018 were not the first time they had a discussion about the medication, and that discussions had been held on regular appointments. Dr Juratowitch has made it clear to the Respondent that she cannot be forced to stay on her medication, but reiterated to her that she would not be able to work as a psychologist, unless on the medication.
Cross-examination turned to the fact that the Respondent has been with a partner for approximately two years, with whom she wishes to have a baby. He got that information from her.
In respect of engagement with the partner by the treating psychiatrist, Dr Juratowitch indicated that he would always want to engage with the partner in circumstances such as this. He was asked whether he had ever had contact with the partner, to which he replied 'no'.
He was asked whether he would want to have contact with the partner if she wanted to cease or change her medication, to which he indicated that he would want to discuss with the partner early warning signs, symptoms etc. designed to avoid hospitalisation.

[46]

Evidence of Ms Jiang

Ms Jiang indicated that she misunderstood what Dr Juratowitch had said about her wanting to become pregnant and wanting to work as a psychologist. She stated that she had not had any symptoms for a very long time, so she discussed wanting to fall pregnant.
Dr Juratowitch just mentioned that he would support her and she thought he intended to support her going off her medication and continuing to work as a psychologist. She realised her misunderstanding, so she continued to take her medication.
Under cross-examination, Ms Jiang was asked whether the evidence of Dr Juratowitch in the hearing was the first time she understood the misunderstanding, to which she replied 'yes'.
The Respondent was referred to her visit on 23 January 2018, when she indicated that Dr Juratowitch "agreed with her plan" and was asked what she meant. She indicated that he agreed that she could cease the medication to fall pregnant. She was asked whether she told him that she had ceased the medication, and whether she had told him about the misunderstanding, to which she responded positively. It was pointed out to her that there is no reference to that in the note. She indicated that she told him that she had no symptoms and that she could cease the medication, to which he replied that she could cease, but he would have to report that to AHPRA.
Approximately three weeks later when she saw her case worker she became aware that he had reported the matter to AHPRA and only then did she realise that he would not support her working as a psychologist if she went off the medication.
It was clear to her that Dr Juratowitch would only support her working as a psychologist if she did not cease the medication, but did indicate that he would help her and her partner if she decided that she wished to try and fall pregnant.
She was asked what her current plan was. She indicated that she preferred to be practicing as a psychologist, rather than the pregnancy.
The Respondent was asked various questions by the Tribunal, and in particular what she understands the concerns of the Tribunal to be about her working as a psychologist. She indicated that she is aware they are concerned that she needs to comply with her medication, because the medication gives security to the public. If she relapses, however, she knew that she would become unwell and there is a risk to the public. The public would receive poor treatment. She did however state, that if she became unwell, she would probably know, and she would know how to protect the public.

[47]

The Applicant

In respect of proposed orders, the Applicant retracted the previously proposed orders and seeks de-registration of the Respondent with no ability to reapply for registration for at least 12 months.
The Applicant submitted that the Respondent and the treating team are not on the same page at really critical times in her treatment. A lot of what Ms Oey had to say was non-responsive to questions, and there was more advocacy than objectivity. The Applicant cautioned the Tribunal in relying on her evidence.
The Tribunal cannot be comforted by her assertions that the Respondent is fine and recovered.
The Applicant relied on the previous submissions made by the Applicant in the first hearing, and in addition, stated that in the Respondent's own evidence, she indicated that she was wanting to cease medication against advice, but in evidence today she says that there was a misunderstanding. This displays a lack of insight and a lack of understanding. She was given advice by her treating psychiatrist and yet she did not understand.
The Applicant submitted that de-registration for 12 months would give the Respondent an opportunity to get to the point where she and her medical team are in sync.
Of particular concern to the Applicant, is the fact that on 27 November 2017, in the initial hearing, she said that she was going to stick to her medication and only six weeks later, she made a plan to cease medication. That alone should cause the Tribunal to be concerned about her being able to practice.
In respect of the Respondent's indication that she would know that she was unwell, the Applicant submitted that the Tribunal cannot be comforted by that nor believe that the public would not be at risk.
In respect of the Respondent's desire to fall pregnant, she did say in evidence in this hearing that she would think of falling pregnant later when she no longer needs medication. That demonstrates, based on the evidence today, that she lacks insight.
She has returned to taking medication, but they submitted that that is not because she understands the need for medication, but that she needs to say that.

[48]

Submissions by the Respondent

The Respondent stated that her main reason for ceasing the medication was not a lack of insight, but that she wanted to fall pregnant.
In respect of the fact that there was a misunderstanding between her and Dr Juratowitch, she submitted that it was a very short consultation and that it was possible for there to be misunderstanding.
She submitted that there is no evidence of any symptoms recorded by them and when Dr Juratowitch indicated that he would report to AHPRA, she thought he would still support her wanting to be a psychologist. She submitted that if she has to choose she would prefer to be a psychologist.
She submitted that she went to the centre voluntarily, and based on the fact that Dr Juratowitch's advice was that it was okay to cease medication, she wanted to do so. She submitted that if she knew that he would then not be able to support her as a psychologist, she would not have planned to cease the medication.
She submitted that as soon as she realised that Dr Juratowitch would not support her in practicing psychology if she ceased the medication, she continued with the medication and she has not missed a day of medication since.
The Tribunal sought an explanation from the Applicant as to the significant change in the orders being sought, simply by virtue of the evidence which had been heard that day. In that respect the Applicant stated that the behaviour between the initial hearing and the resumed hearing was simply the "straw that broke the camel's back".
In respect of the insight of the Respondent, the Applicant stated that the Respondent indicated in November 2017 that nobody should worry as she will take her medication. It was on the basis of that agreement and demonstration of a relationship with her treating team that they were comfortable with the proposed orders and protections which were then suggested.
Then, less than six weeks later she decided to cease the medication because she believes she does not need the medication. The Applicant submitted that it is not a tiny change. There has been a fundamental failure of communication between her and her treating psychiatrist and the protection of the public is paramount.

[49]

Decision and Reasons

The Tribunal had available to it at the initial hearing, the very voluminous papers provided by the Applicant, and the documents provided by the Respondent. Included in these papers the Tribunal had available to it the medical reports of Dr Juratowitch and Dr Samuel.
Dr Juratowitch is the Respondent's treating doctor and opined that the Respondent has recovered from her illness and is capable of working, albeit under appropriate conditions.
Dr Samuel in his early reports was of the view that the Respondent was not in a position to work as a psychologist but in his later report before the Tribunal dated 4 October 2017, Dr Samuel opined that, subject to appropriate conditions being applied on the Respondent's registration, she is capable of working as a psychologist.
The Tribunal heard the evidence of the two Doctors and was satisfied that their views as expressed in their reports coincide with the evidence they gave in the Hearing.
The Tribunal also heard the evidence of the Respondent, who in large measure, demonstrated some level of insight into her condition and certainly recognised that her medication was an essential element of her ability to work as a psychologist, and that she would be required to maintain the medicating regime.
At the resumed hearing, the Tribunal had available documents produced under summons by Ryde Community Mental Health Centre, a summary of complaint or concern dated 5 February 2018 sent by Dr Juratowitch to AHPRA, a letter dated 19 February 2018 written by Ms Oey to whom it may concern and a letter dated 26 February 2018 written by Dr Juratowitch to NCAT. They also had a chronology provided by the Applicant indicating various relevant dates and circumstances between 27 November 2017 (the date of the first hearing) and 9 April 2018 (the date of the resumed hearing).
The Tribunal had regard to the evidence given by the various witnesses at the resumed hearing, including the evidence of the Respondent. The Tribunal was significantly concerned at the turn of events, and the indications that the Respondent does lack insight into the realities of her condition. The Respondent appears to believe that the medication has cured her of her illness, which is in contrast to all the evidence available to the Tribunal that the only basis on which the Respondent should be permitted to work as a psychologist is that she remains on her medication. Recognition of this as a fact is vital to an indication of insight on the part of the Respondent. The Tribunal was also concerned that the Respondent gave a clear indication to the Tribunal at the initial hearing that she intended to comply with the medical regime which had been put in place as being essential to her ability to work as a psychologist. However, within a period of six weeks, she made a decision to cease the medication and advised not only her mental health worker, but also advised Dr Juratowitch that she had ceased her medication, which prompted Dr Juratowitch to report the matter to AHPRA.

[50]

Orders 1. The registration of the Respondent is cancelled. 2. The Respondent is not permitted to seek registration for a period of at least 12 months. 3. The Respondent is to pay the costs of the complainant as agreed or assessed.

[51]

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

[52]

Amendments 26 June 2018 - Paragraph inserted for clarity 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: 26 June 2018

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