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[2014] NSWCATOD 86
NCAT Occupational
2014-05-14
Original judgment source is linked above.
What the Tribunal Decided 1The Tribunal dismissed Mr Holbrook's application for review of the order, made on 13 July 2010 by the Psychology Tribunal of New South Wales, to cancel his registration as a psychologist. 2Having considered Mr Holbrook's application under section 163C of the Health Practitioner Regulation National Law No 86a (the National Law), the Tribunal considered the order under review remains appropriate.
Introduction 3Complaints were made to the Psychology Tribunal in relation to Mr Holbrook and on 13 July 2010 the Tribunal found Mr Holbrook guilty of Unsatisfactory Professional Conduct and Professional Misconduct and considered that he was not of good character and suffered from an impairment that detrimentally affected his mental capacity to practise psychology and made him a risk to children and young persons. 4The Tribunal cancelled Mr Holbrook's registration and ordered that he not be eligible to have that decision reviewed for at least three years from the date of the order. Mr Holbrook was also prohibited from undertaking various related forms of employment. 5Mr Holbrook now applies, in accordance with section 163A of the National Law, to have the decision to cancel his registration reviewed. He wishes to be able to be re-registered as a psychologist and to resume his previous employment as a school counsellor. 6Accordingly the issue to be determined is whether or not the cancellation order remains appropriate and whether a reinstatement order should be made by the Tribunal.
Legislative provisions 7The following provisions of the National Law are relevant: 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of- (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made- (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to a Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section- "decision-making entity" means the following- (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. "relevant order", in relation to a person, means any of the following orders made by a decision-making entity- (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c)an order that conditions be imposed on the person's registration in a health profession. 163B Powers on review [NSW] (1)The appropriate review body must conduct an inquiry into an application for review and may then do any of the following- (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; make an order- (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. .............. (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.
Standard of proof 8The applicant, Mr Holbrook, bears the onus of establishing that the order made by the Psychology Tribunal on 13 July 2010 is no longer appropriate and that a reinstatement order should be made by this Tribunal. 9The standard of proof required is the civil standard so the Tribunal must be reasonably satisfied on the balance of probabilities of the matters to be proved by Mr Holbrook. 10The jurisdiction exercised by this Tribunal is protective and the Tribunal's primary purpose is the protection of the health and safety of the public. Given the seriousness of the matters under consideration, the Tribunal needs to be comfortably satisfied to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336).
Documents 11The Tribunal considered the following documents:
Objections 12Counsel for the Commission objected to some of Mr Holbrook's documents on the basis that their purpose was to examine and cavil with the decision of the earlier Psychology Tribunal. On this basis it was argued they were irrelevant. 13Mr Holbrook's position was that the material demonstrated that he had been involuntarily intoxicated by Zoloft at the time of the misconduct and that the findings of the Tribunal on this point were not sustainable. 14Section 163C (2) provides that "the review is not to review the decision to make the order, or any findings made in connection with the making of that decision." 15The Tribunal explained to Mr Holbrook the difference between an appeal and a review and determined to exclude some of Mr Holbrook's documents as they related to issues which had been determined by the previous Tribunal, provided no new information on these issues and were tendered to challenge the findings of the previous Tribunal.
Witnesses 16The following people gave oral evidence to the Tribunal:
Legal Representation 17Mr Holbrook was unrepresented. The Tribunal explained to Mr Holbrook, amongst other things, the nature and process of the hearing, the nature of the issues for consideration by the Tribunal and that he was able to seek an adjournment at any time, if needed.
Background 18Mr Holbrook undertook university studies in England and was employed there for some years as a high school teacher. After moving to Australia in 1997 he completed a post graduate diploma in school counselling and was registered as a psychologist in New South Wales in 2000. 19Mr Holbrook was employed as a school counsellor by the Department of Education and Training in various schools. He was the subject of a range of complaints and disciplinary proceedings and his conduct was monitored by the Department for a period of time. In February 2007 he was medically retired on the basis that he was psychologically unfit to be a school counsellor. 20Mr Holbrook describes himself as a shy, introverted person who suffers from social anxiety. He said that in 1999 a general practitioner prescribed the anti-depressant, Zoloft for him and he took this medication for some years to assist with his anxiety and social difficulties. 21Between 2001 and 2006, Mr Holbrook engaged in a number of inappropriate behaviours with young girls who were students under his care. His behaviours involved inappropriate comments and sexually disinhibited behaviour. 22In relation to one such incident, Mr Holbrook was charged with aggravated indecent assault in 2008. He was convicted in the Ballina Local Court in February 2010 and received a suspended sentence with a 12 month good behaviour bond. 23Mr Holbrook appealed the decision to the NSW District Court and in Lismore on 21 June 2010, McLoughlin J dismissed the appeal. The Court found the offence proved and the finding of fault was confirmed. However, the Court ordered an unrecorded conviction, pursuant to s 10 of the Crimes (Sentencing Procedure) Act and released Mr Holbrook on a two year good behaviour bond, which required him to accept the supervision of the Lismore Probation and Parole Office. 24The Complaints made to the Psychology Tribunal related to Mr Holbrook's inappropriate and sexually disinhibited behaviour with school children. On 13 July 2010 the Tribunal cancelled Mr Holbrook's registration after finding him guilty of Unsatisfactory Professional Conduct and Professional Misconduct. Further findings were made that he was not of good character and suffered from a personality disorder, being an impairment which impacted on his ability to practise as a psychologist. (See HCCC v Holbrook [2010] NSWPST 5) 25The Tribunal ordered that no review of its decision could be made within a period of three years and prohibited Mr Holbrook from undertaking a range of work as he was considered to be a risk to children and young persons.
Mr Holbrook's case 26Mr Holbrook wishes to return to employment as a school counsellor and to be re-registered as a psychologist once he is able to update his qualifications and remedy any defects in relation to recency of practice requirements. 27Mr Holbrook acknowledged that his professional behaviour had fallen significantly below an acceptable standard. However he attributed his behaviour to an adverse drug reaction (ADR) to the anti-depressant medication, Zoloft. 28Mr Holbrook stated that he had not self-medicated and described this adverse reaction as being an 'involuntary intoxication'. He referred to the responsibility of the prescriber to alert him to the possibility of an adverse reaction to medication and the failure of his GP to do so. He stated that his involuntary intoxication resulted in his professional misconduct. 29He denied that his misconduct reflected a defect in character. He said that he had been labelled as a deviant practitioner and that such labelling is facilitated by current legislation which encourages and enables people to seek out deviancy. 30Mr Holbrook does not accept he has a diagnosis of a personality disorder and prefers the diagnosis of substance induced mania. 31Mr Holbrook asserts that this diagnosis is no longer relevant as he is not taking any psychotropic medication. On this basis he believes he is not a risk to children or the public in general.
The Commission's Case 32The Commission opposes Mr Holbrook's application. 33The Commission asserts that Mr Holbrook has not established that he is a suitable person to again practise as a psychologist. He remains "not a fit and proper person" and is not able to practise competently and safely as a psychologist. 34The Commission argues that Mr Holbrook has failed to demonstrate reformation of character, continues to suffer from a personality disorder and further that the nature, extent and recency of his practice is not sufficient to allow re-registration. 35The Commission points out that Mr Holbrook has failed to adopt the steps suggested by the Psychology Tribunal, prior to applying for reinstatement and accepts very little, if any, responsibility for his actions.
Character 36In its decision of 13 July 2010, the Psychology Tribunal made a finding that Mr Holbrook is not a person of good character and referred to him taking advantage of one of the most vulnerable groups in our community. The Tribunal stated, at paragraph 232: "The conduct of the Respondent has demonstrated that his character has been seriously flawed for a significant period of time. The defects are absolutely inconsistent with holding registration as a health professional."
Adverse Drug Reaction 37Mr Holbrook asserts that his unethical behaviour was the result of an adverse reaction to the drug Zoloft and is not a reflection of his character. He stated that in the past, he had taken the anti-depressant, Zoloft to deal with stress and social anxiety. 38He relied on the reports of both Dr Lotz, a psychiatrist and Dr Mashi, a clinical psychologist, which refer to Mr Holbrook being disinhibited as a result of the side effects of medication. 39He indicated in cross examination that he had seen Dr Lotz twice. At the first hour long consultation he had not shown Dr Lotz a copy of the original Complaint or the decision of the Psychology Tribunal. He had not provided him with any documentation related to the Tribunal's decision, such as the report of Dr Diamond, psychiatrist, or other information regarding his past conduct. 40At his second visit he said he did discuss one aspect of the Complaint with Dr Lotz, who indicated that he could not assist him further and recommended he see a forensic psychiatrist. Dr Lotz declined to attend the Tribunal's proceedings and was not available to give evidence or be cross examined. 41Mr Holbrook said that Dr Lotz accepted his account of events and acknowledged that Dr Lotz's report reflects the information he provided. For example, he told Dr Lotz that the charge of indecent assault had been overturned as this was his understanding of the outcome of his appeal. 42Mr Holbrook said he had seen Dr Masih twice for the purposes of obtaining a report. He had not shown Dr Masih a copy of the original Complaint or the decision of the Psychology Tribunal. He had not provided her with any other documentation regarding his past circumstances. He was unclear as to whether he told her about the criminal prosecution. 43When asked if he had been formally diagnosed with an adverse drug reaction, Mr Holbrook referred to the letter from Dr Masih, dated 21 January 2014, which refers to a possible diagnosis of "Substance Induced Mood Disorder". 44When asked if a diagnosis of ADR had been made at the time he was taking Zoloft, he replied that HealthQuest had conceded that there was potential for it to be an element of his situation. 45In cross examination Mr Holbrook denied that ADR was a self-diagnosed condition and relied on Dr Masih's report, even though it was written 6 years after he had ceased using Zoloft. 46He acknowledged in his oral evidence that he had not been formally diagnosed with a mood disorder or drug dependence. He said his reference to an "involuntary intoxication" reflected his own opinion and was not supported by medical evidence.
Character references 47Mr Holbrook stated that he has erroneously being labelled as a "deviant psychologist" and that such labelling is facilitated by current legislation which encourages and enables people to seek out deviancy. 48He provided a number of character references to the Tribunal. The referees and the dates of the references are as follows:
Honesty 51Mr Holbrook was questioned about his honesty, specifically in relation to his evidence concerning his use of Zoloft. Mr Holbrook acknowledged he had made false statements about his use of Zoloft to the Local Court, the Commission, HealthQuest and the Department of Education (EPAC). 52He described these false statements as "inadvertent incorrect statements", "technically not correct" and "strictly speaking inaccurate". He denied that he had made a deliberate decision not to tell the truth, but acknowledged that he had been duplicitous in dealing with the Department of Education in 2004 - "I accept that I took advantage there". 53Mr Holbrook also stated that when first taking Zoloft he 'negotiated' a diagnosis of dysthymia rather than social anxiety. He described this as a conscious decision between himself and his GP. Rather than being untrue, he considered this 'advantageous' to himself as this was "a less troubling diagnosis" than the diagnosis of social anxiety.
Suitability for Re-registration 54Section 52 of the National Law provides that an individual is eligible for registration "if the individual is a suitable person to hold general registration in the health profession." Section 55 sets out the criteria for unsuitability. Relevantly it provides: Section 55 Unsuitability to hold registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practice the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practice the profession; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii)unable to practice the profession competently and safely.
Diagnosis 55The Psychology Tribunal found Mr Holbrook to be suffering from a personality disorder, and a coexisting anxiety disorder: "The Tribunal is reasonably satisfied that the Respondent suffers from the impairment of Personality Disorder which detrimentally affects his mental capacity to practise psychology and that he poses a risk to children and young people." (Paragraph 247) 56Mr Holbrook disputes the diagnosis of personality disorder and prefers to refer to his condition as a substance induced mania. His central contention, as it was before the Psychology Tribunal, is that he suffered from an adverse reaction to the drug Zoloft which resulted in him being disinhibited and inappropriate. 57The Psychology Tribunal did not accept this argument. The Tribunal stated at paragraph 246, "The Tribunal is of the view that the Respondent's submissions regarding his conduct being the result of adverse drug reactions should be considered in the context of the evidence in its entirety........ The Tribunal finds the inescapable conclusion to be that the Respondent has retrospectively diagnosed 'ADR' as the excuse for his conduct." 58Mr Holbrook acknowledged in his oral evidence that at the time he was taking Zoloft, he had not been formally diagnosed with mania or disinhibition.
Dr Masih's evidence 59Mr Holbrook relies on the report of Dr Masih to refute the diagnosis of personality disorder. She states, "In looking at this history and course of the disorder, perhaps Mr Holbrook's volatile and dysfunctional unprofessional behaviours may be better understood with a diagnosis of Substance Induced Mood Disorder rather than a Personality Disorder." 60In her evidence, Dr Masih told the Tribunal that she was reporting a subjective history. She said she was "regurgitating what he said". She saw her role as being supportive of Mr Holbrook and her report was not intended as a forensic opinion or for use in medico legal circumstances. Dr Masih stated that she had little or no forensic experience. 61She confirmed she was not aware of the decision of the Psychology Tribunal or Mr Holbrook's past criminal charges. She indicated she had not performed a psychometric assessment and was not diagnosing him nor purporting to do so. She qualified her comment in relation to substance induced mood disorder as being a speculative opinion only. 62Dr Masih was unaware of Mr Holbrook's full forensic history. She was concerned to learn of it and said that her opinion would change given what she now knows about his history and clinical picture. 63While Dr Masih stood by her report as a means of 'helping Mr Holbrook to be heard' and assisting him with his anxiety. However, she acknowledged in her oral evidence that he may have manipulated her by not making full disclosure of all relevant information. In response to Mr Holbrook's question, "Do you think I am a manipulating person?" she replied "yes' and stated that transparency had been 'missing from day one'. 64The Tribunal asked Dr Masih if she was concerned about Mr Holbrook working with children. She replied that if Mr Holbrook was to work with children again he would need serious limitations, such as a requirement for supervision or the imposition of age limits for his clients.
Treatment 65Mr Holbrook describes himself as shy, introverted and socially anxious. While he disputes the diagnosis of personality disorder, he accepts he has certain schizoid personality traits. However, he does not consider them to be so disabling that he requires specialist assistance. He said he was comfortable with his personality and didn't think he would get much out of therapy. 66Mr Holbrook did undergo some treatment with Dr Huntsman in 2008. This consisted primarily of Cognitive Behavioural Therapy (CBT). He admitted he was just "going through the motions", because other people had concerns about his personality. He said he had to do the therapy but he did not find it constructive and did not continue with it. 67Although Mr Holbrook believes he has suffered from a dependency on the drug Zoloft, he stated that he did not discuss dependency with his doctor or seek treatment for it. 68Mr Holbrook was also prescribed other antidepressants, for example, Prozac and possibly Cipramil. He was also prescribed the sedative hypnotic Stilnox and from time to time, Diazepam. He told the Tribunal he had not researched these medications or considered their potential for ADRs. 69Mr Holbrook also emphasised that as he is not taking medication now, he does not have a substance induced mania and is not a risk to children.
Criminal history 70Mr Holbrook has been charged with and convicted of aggravated indecent assault in relation to one of the school children in his care. Although on appeal Mr Holbrook received an unrecorded conviction, the District Court confirmed the findings of guilt and ultimately dismissed his appeal.
Recency of Practice 71Mr Holbrook acknowledges that he does not meet the requirements for registration in relation to recency of practice and believes he will have to undertake further study in order to satisfy the registration standards currently in place.
Competence 72Mr Holbrook asserts that he is a suitable and competent person to work as a school counsellor and to be re-registered as a psychologist. He states that he has followed the orders of the Psychology Tribunal and abstained from the practice of psychology for more than three years.
Vocational Profile 73To support his claim Mr Holbrook provided a Vocational Profile. 74This Career Profile was produced by www.skillsroad.com.au and was purporting to assess suitability for various careers. The profile was generated via an internet based, multi choice questionnaire. After Mr Holbrook answered certain questions, a profile was automatically generated indicating some of Mr Holbrook's personality traits and linking those traits to a range of "suitable careers". Mr Holbrook was described as having an "analyser/driver" personality style and a list of careers which "analyser/drivers" may find satisfying was provided. The list included over 70 occupations. 75Mr Holbrook asserted that this profile was similar to a personality assessment and established his claim to suitability as a school counsellor. 76In response to questions Mr Holbrook acknowledged he was not aware of any normative or validity studies or peer reviewed research in relation to the Career Profile tool. He conceded that it was not a psychometric instrument.
Reports 77Dr Masih and Dr Lotz provided reports to which Mr Holbrook also referred to support his claim to competence and suitability. Dr Lotz's report was dated May 2013 and states, in part, "He has no prior forensic history other than recent charge which was overturned. Mr Holbrook gives a rational history suggesting a disinhibition as a result of medication. There does not appear to be a history of any unlawful behaviours either in England or prior to six years ago, Mr Holbrook took the Zoloft and then Diazepam which from his history appears to have caused the disinhibition. In summary Mr Holbrook does not have an Axis 1 psychiatric diagnosis. It does not appear that he fulfils the criteria for paedophilic behaviour or thoughts and should he wish to re-register with AHPRA and the Psychology Board, there should be no obstacles for him to do so." 78Dr Masih states in her report, dated 21 January 2014, "Mr Holbrook reported no prior forensic history or dealings with the law. Mr Holbrook provided a rational history support his understanding of his professional behaviour that led to his deregistration...... Mr Holbrook reports increased ability to manage his social limitations without medications and as it appears that the side effects of these medications may have significantly and directly contributed to his behavioural disinhibition, but it may be timely now to allow him to return to his profession." 79As noted above, both the reports of Dr Lotz and Dr Masih were prepared without any background documentation being provided and without a full and frank disclosure by Mr Holbrook of all of his circumstances. 80Dr Lotz was not available to be questioned on his report and as set above, Dr Masih in her oral evidence, retracted several of the opinions expressed in her written report.
Actions since the decision of the Psychology Tribunal 81Mr Holbrook described the decision of the Psychology Tribunal as 'not balanced'. He was asked if he had read the decision and he replied that he had seen it on the internet, but had not digested it in full. He then said he had read it. Mr Holbrook acknowledged that "in his heart" he did not accept the findings of the Tribunal. 82Mr Holbrook stated that he was aware there were suggestions in the decision about what he should do if he wished to apply for re-registration. However, he said he was not clear about them and thought that the main thing was not to work as a psychologist for three years. 83Mr Holbrook stated that he had not taken any psychotropic medication since the decision of the Psychology Tribunal and there had been no incidents of inappropriate conduct in that time. 84He stated that he had not undertaken any formal continuing professional education. He has done his own reading and he did commence a massage course, which involved studying ethics as a health practitioner, but did not complete it. 85He was asked what work he had undertaken since the cancellation of his registration. He said he had not worked in New South Wales but had undertaken a short period of employment in the Queensland Department of Disability Services. He was dismissed from that employment after 6 months. 86He travels to visit relatives in the United Kingdom for three months each year and while in Australia manages on Newstart allowance. He stated that he is overqualified for many jobs and after his experience in Queensland decided to 'wait it out' and apply for re-registration. He spends his time on recreational activities and some volunteer work. 87The Psychology Tribunal suggested that consistent therapy with an appropriately qualified practitioner would be of assistance to Mr Holbrook, particularly in seeking re-registration. Dr Diamond, a psychiatrist who saw Mr Holbrook prior to the Psychology Tribunal in 2010, also suggested the need for ongoing therapy. 88As noted above, Mr Holbrook does not believe he has a problem which requires therapy. Mr Holbrook consulted Dr Lotz and Dr Masih primarily for the purpose of obtaining reports to support his application. He is not engaged in ongoing therapy with either of them. 89The Tribunal asked Mr Holbrook if he considered that he needed treatment. He said he was willing to have an assessment. He was also willing to concede that other people had things to offer, especially if they were experts in social skills, however he felt he "has his own style". He did not see his personality as likely to change or being amenable to change. Mr Holbrook feels he is capable of working as a school counsellor and repeated that he felt the real problem was the medication. 90Further, Mr Holbrook believes it would be "fraudulent" to seek therapy for a personality disorder when he does not have this condition. He asserts that the fact of not seeking therapy in this situation is evidence of integrity and good character. 91On the issue of professional supervision, he stated he did not have peer supervision while in the role of a school counsellor and has been reluctant to talk to other members of the profession since de-registration. 92He said that since the Tribunal's decision he had read the Psychologist's Code of Conduct. He is aware of his ethical obligations, and described himself as an "ethically minded person", but referred to the impact of the drug on his ethical decision making. 93Late in his evidence Mr Holbrook did accept that not all of the ethical deficiencies in his behaviour were related to his use of medication. He said he accepted that his behaviour demonstrated some flaws in his character. He acknowledged he had not always been entirely honest and he said he had been wrong to get involved with the medication. He also felt he should have been more responsive to the needs of "senior stakeholders" and people in authority. 94Mr Holbrook accepts he breached professional boundaries in the past. He stated that he has observed all the conditions imposed by the Psychology Tribunal and has abstained from work as a psychologist. He said he had had time to reflect on his conduct and now understood that a substance induced mood disorder was the issue. He said the Tribunal's decision had provided him with a period for reflection, but it was also 'just time off a productive role'. 95Mr Holbrook was questioned about his insight into his past conduct. The Commission referred him to Dr Diamond's comments in relation to his need to develop understanding and insight into his behaviour, "In order for Mr Holbrook at some future time to practice safely with children and young people he would have to demonstrate a significant and deep appreciation of those shortcomings and provide evidence that he has overcome these deficiencies in a way that would convince his peers and registration body that he is no longer susceptible to any conduct that might place children and young people at risk in the future." 96Mr Holbrook does not accept the views of Dr Diamond. 97Mr Holbrook told the Tribunal that he was dismissed by the Department of Education and Training because he was "perceived" to be a liability. He was cynical about the Department's decision and felt they had simply decided he had to go, regardless of his competence as a practitioner. 98Mr Holbrook acknowledged that his behaviour had been "deficient" over a number of years. It was only with the indecent assault charge that he realised "he had to stop". Mr Holbrook stated that the medication and his dependence on it had clouded his judgement, but he denied that he lacked insight into his behaviour.
Submissions 99At the conclusion of the evidence the Tribunal adjourned overnight to allow Mr Holbrook sufficient time to prepare his submissions. He wished to provide oral submissions only. 100The Commission provided written submissions which were supplemented by brief oral submissions.
Mr Holbrook 101Mr Holbrook stated that he hopes to work again as a school counsellor, possibly in Queensland, and that if he is registered to practise and employed as a counsellor, he would be willing to work in the far west of the state. 102Mr Holbrook relies on an ADR as the basis for his past unethical behaviour and professional misconduct. He asserts he does not have significant defects in his character. He argues that the diagnosis of personality disorder adopted by the Psychology Tribunal is erroneous, but it "has stuck". He asserts he had a substance induced mood disorder which no longer exists as he no longer takes psychotropic medication. 103Mr Holbrook states that he previously worked with children and young people for several years with no child protection issues arising. He describes the period between 2001 and 2006 as a special period in which Zoloft acted as a catalyst, latent issues emerged in response to the Zoloft and the misconduct occurred. He now understands he has to avoid all psychotropic medication. 104 He considers he is no longer a risk to the public or young people in particular. He submitted that risk is a flexible and subjective thing and the assessment of risk is an imprecise science. 105He said he has moved on. His criminal conviction is an old issue. He said the aggravated indecent assault occurred ten years ago and he has been punished. He had 'done his time' by serving a two year good behaviour bond and being suspended from the profession for three years. He is therefore entitled to a 'clean slate', to be re-registered and to 'start again'. 106He asserted he did not intend to manipulate Dr Lotz or Dr Masih but wished to provide material to the Tribunal to support his case. He did not have the resources to obtain an expert witness. 107Mr Holbrook asserted that the best way to demonstrate he is not a risk and the most effective "therapy" for him would be to work again as a school counsellor. Mr Holbrook accepts that supervisory conditions would be necessary. 108Mr Holbrook spoke of how he had enjoyed his job as a school counsellor. He said that children were his favourite clients. They did not judge him socially and he found working with and supporting students to be a rewarding endeavour. He stated that as a school counsellor he had autonomy because he was a specialist within the school system. He undertook a professional 'expert' role to support colleagues and he found this very satisfying. He said he was highly motivated to work with children. 109Mr Holbrook submitted that no orders for costs be made and explained his difficult financial situation to the Tribunal.
The Commission 110The Respondent's submissions refer to the reasons for the cancellation of Mr Holbrook's registration and assert that Mr Holbrook has failed to demonstrate he has remedied the defects in his character identified by the Psychology Tribunal. He continues to use an alleged adverse drug reaction as an excuse for his professional misconduct. Even if drugs were involved, it is the underlying issues which are pivotal. As Dr Diamond has stated, "What he fails to acknowledge is that whatever drug effect occurred, it remains that the exposure of existing underlying emotions and sources of gratification are the source of concern. It is these underlying features that are the cause, in my view, of the recurrent difficulties and unacceptable behaviour that he has exhibited over a number of years." 111The Commission asserts that Mr Holbrook continues to suffer from a personality disorder. He has not engaged in treatment as the previous Tribunal recommended. He lacks insight into the issues raised by the Tribunal and the actions he should take to address them. 112The Commission summarised the issues for the Tribunal as follows, "The Tribunal...... is required to determine whether, on the evidence before it, Mr Holbrook has discharged the heavy onus that he carries...... to demonstrate, accepting and notwithstanding the findings of the former Tribunal, that he now has sufficient insight into his former behaviours, and has sufficiently reformed his character to enable this Tribunal to reasonably conclude, with the paramount consideration of the protection of the public in mind, that he could be safely permitted to be reinstated as a health practitioner." 113The Commission made various submissions in relation to the weight which could be attributed to the evidence presented by Mr Holbrook and submitted that merely sitting out 'the time' does not constitute a basis for an argument for successful rehabilitation or an entitlement to registration. 114The Commission submits that Mr Holbrook's application should be dismissed and that a further period of three years should be imposed during which time a further application for review cannot be made. 115The Commission also sought an order for costs.
The Tribunal's Decision 116Having considered all of the evidence before it, the Tribunal is comfortably satisfied that the cancellation order, made in relation to Mr Holbrook, remains appropriate. The Tribunal is not satisfied that Mr Holbrook is a suitable person to hold registration as a psychologist, so as to justify the making of a reinstatement order. 117Mr Holbrook's position remains that his past professional misconduct, his defects in character and his diagnosis of personality disorder can be explained, in the main, by an adverse drug reaction to Zoloft. He continues to maintain that an ADR is the primary reason for his transgressions when this diagnosis has not been formally made for him. Mr Holbrook's assertion that he suffered from an ADR is not supported by any credible medical or psychiatric assessment. It appears to be a self diagnosis only. 118r Holbrook was not honest about his use of Zoloft. He also continued to use it, even after he had experienced 'problems' with it. His use of a number of other psychotropic medications did not attract his interest or concern. 119His assertion that he does not suffer from a personality disorder is not supported by persuasive evidence. The Tribunal could attach very little weight to the report provided by Dr Masih, given that in her oral evidence she retracted many of her opinions and indicated that her professional opinion was provided without full disclosure of all relevant material and without psychometric evaluation. Dr Masih expressed her personal support for Mr Holbrook but also stated that she considered him to be manipulative. 120Comments by Dr Lotz and Dr Masih were made without reference to any previous relevant documentation and are based on Mr Holbrook's own account of his condition. 121The Tribunal accepts the Commission's submission that Mr Holbrook fails to accept or take responsibility for the findings of the Psychology Tribunal in this regard. "He continues to pursue his discredited 'theory' that his conduct arose as a result of an ADR. There is no credible evidence to support such a theory." 122Mr Holbrook has been diagnosed with a personality disorder and anxiety. He has been found to suffer from an impairment which prevents him from practising safely as a psychologist. However, he has not demonstrated that he has accepted this and addressed the issues raised by the various clinicians who have assessed him. 123He has not sought treatment for aspects of his personality that appear to have underpinned his boundary violations and other inappropriate behaviours. Indeed he does not appear to accept that any treatment could be beneficial or effective. 124He acknowledged that he would have great difficulty in engaging in a therapeutic relationship. He said he would not get enough out of therapy to justify an investment in it. He accepts his personality as it is. "I don't think I need therapy to sort things out." 125Mr Holbrook has not demonstrated that he has overcome the deficiencies in his character identified by the Psychology Tribunal in 2010. Indeed, Mr Holbrook does not accept the Psychology Tribunal's findings in relation to his character. 126The Tribunal could attach very little weight to the character references provided by Mr Holbrook. Many were written several years ago and did not relate to his current circumstances. The more recent references were written without adequate background information being provided to the referees. 127The Tribunal was also troubled by Mr Holbrook's dishonest behaviour in not telling the truth to various agencies in relation to his use of Zoloft and in making a conscious decision to deceive the Department of Education. It is also of concern that Mr Holbrook spoke of having 'negotiated' a diagnosis of dysthymia with a GP, when this was not in fact an accurate diagnosis of his condition and treatment needs. 128There appears to have been a lack of transparency when Mr Holbrook was organising his references and supporting reports, which appeared in part to suggest some manipulation on his part. 129The Tribunal also notes Mr Holbrook's criminal history. 130In terms of addressing the question of his competence to practise, Mr Holbrook has undertaken no relevant educational courses or professional development since the cancellation of his registration. He has not studied ethics (except in the context of a massage course) nor has he engaged with peers in any mentoring or 'supervisory' capacity. The Psychology Tribunal prevented Mr Holbrook from seeking a review within three years of its decision, to allow him opportunities for rehabilitation. He does not appear to have pursued any active rehabilitation and took the view that simply not working for three years was all he had to do. 131The Tribunal considered there was very little weight which could be attributed to the Vocational Profile which Mr Holbrook tendered to establish his competency, as the validity and reliability of the instrument was not established by evidence. The Commission asserted that the Career Profile could be anything to anyone and the Tribunal agreed as the Profile did not appear to measure what Mr Holbrook asserted it measured. 132Mr Holbrook demonstrated a lack of critical evaluation of his behaviour and a lack of insight in relation to his transgression of personal boundaries. Almost all of Mr Holbrook's evidence referred to his needs, his goals and future wishes. He did not discuss the impact of his behaviour on the children in his care or their families. He did not express remorse. There was no evidence of empathy or understanding of the impact of his behaviour on others. 133Mr Holbrook has rejected any diagnosis or suggested treatment that does not accord with his entrenched view that his behaviour was caused by an ADR. The Tribunal also noted with concern a tendency for Mr Holbrook to attribute bad faith to others, if their views differed from his own. He inferred that the processes of the Psychology Tribunal and the Department of Education were designed to achieve a particular end, and that information was manipulated to achieve that end. 134Mr Holbrook has difficulty acknowledging his shortcomings. For example, he did not appear to understand the outcomes in the criminal proceedings and considered that he had been to some extent exonerated or that his level of culpability significantly reduced. 135He did acknowledge some schizoid traits as well as his social anxiety/awkwardness. Concern has been expressed that such traits may be inconsistent with a role as a psychologist, particularly one working with children and adolescents. 136The issue to be determined is whether or not the cancellation order remains appropriate at the time of this review and whether a reinstatement order should be made by the Tribunal. The onus is on Mr Holbrook to demonstrate that the issues raised by the Psychology Tribunal in 2010 have been addressed, so as to render the cancellation order no longer appropriate, and to demonstrate that he is now a suitable person to be registered as a psychologist. (See Re Mansour Haider Zaidi [2006] NSWMT 6) 137Mr Holbrook has failed to discharge this onus. He has not provided persuasive evidence that he has remedied the defects in his character identified by the previous Tribunal. He has neither effectively challenged the diagnosis of personality disorder not indicated that he has actively treated or effectively managed this condition. His assertions about his competence and suitability to practise rest on evidence, such as a Career Profile and character references, which have very limited probative value. 138The Commission submits that, "The Applicant has failed to demonstrate the heavy onus that he is a fit and proper person to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence and that he is to be trusted to exercise the high responsibilities of the profession. He has failed to displace the decision for deregistration which has been made. There is no basis for the Tribunal to find that for the future the Applicant will act in accordance with the high standards and responsibilities of the profession." 139The Tribunal accepts this submission and for the reasons set out above, determines to dismiss Mr Holbrook's application. 140The Tribunal also considers it appropriate that Mr Holbrook not seek a further review until a period of three years has elapsed from the date of this order. Mr Holbrook did not adopt the suggestions of the Psychology Tribunal in relation to ongoing therapy and this remains an outstanding matter for him to address. In addition, undertaking an ethics course and other appropriate educational activities requires time. Mr Holbrook also needs time for reflection and to develop insight and an understanding of the impact of his behaviour on those in his care. 141The Tribunal notes that the prohibition order made by the Psychology Tribunal in 2010 continues. 142In relation to costs, Mr Holbrook's submission rests solely on his financial difficulties, and while the Tribunal accepts Mr Holbrook has these difficulties, they do not provide a persuasive reason for not following the usual course in these matters.
Orders 143Accordingly, the Tribunal makes the following orders: (1)Mr Holbrook's application for review is dismissed. (2)Mr Holbrook is not eligible to apply for another review of the cancellation order within three years from the date of this order. Any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. (3)Mr Holbrook is to pay the costs of the Health Care Complaints Commission.
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 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: 30 July 2014
Holbrook
Health Care Complaints Commission
(1938) 60 CLR 336