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[2020] SACAT 39
mixed. The Tribunal set aside the Board's decision of 8 April 2020 (which suspended the practitioner's registration) and substituted a decision under s 156 to take immediate action by imposing conditions on...
A patient alleged a registered psychologist committed serious sexual misconduct during a home visit. The Psychology Board suspended the psychologist's registration under the National Law's immediate-action power. The psychologist challenged the suspension in SACAT, accepting immediate action was justified but arguing suspension was disproportionate. SACAT found the statutory threshold for immediate action was met but, after the parties jointly proposed an alternative, set aside the suspension and imposed conditions preventing the psychologist from seeing or contacting female patients. The Tribunal found those conditions proportionate and necessary to protect public health and safety while the matter is investigated.
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1,720 words · generated 13/07/2026
A single patient complaint alleged that the practitioner, Mr Khodadad Mikhchi (a registered psychologist), behaved in a way amounting to serious sexual misconduct during a home visit ([1]). The Psychology Board of Australia commenced an investigation and, on 8 April 2020, took immediate action under s 156 of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 by suspending the practitioner’s registration ([3]). The practitioner sought merits review of that immediate-action decision in the South Australian Civil and Administrative Tribunal (SACAT) under s 199 of the National Law and s 34 of the SACAT Act ([4]).
3 cited instruments linked from this judgment.
At the SACAT hearing the practitioner conceded that some form of immediate action was appropriate in light of the seriousness of the allegation; his complaint was that suspension was unnecessary and disproportionate ([4]). The parties then agreed on an alternative: rather than continuance of a suspension, the Board's decision should be set aside and replaced with an order imposing conditions on registration designed to prevent the practitioner from treating or otherwise having contact with female patients ([7]–[8]; Schedule A). SACAT accepted the parties’ joint proposal. It found the statutory threshold in s 156 was met, namely that the Tribunal reasonably believed the practitioner posed a serious risk to persons and that immediate action was necessary to protect public health and safety and was in the public interest, but concluded that the proposed gender-based restriction conditions were appropriate and proportionate as substitute immediate action. SACAT set aside the suspension and imposed the conditions listed in Schedule A, leaving them in place until further order or removal by the Board under s 159(2)(b) ([6], [9]; Orders).
Two linked legal propositions drive the decision.
First, SACAT applied the statutory test in s 156: immediate action is available where there is a reasonable belief that, because of the practitioner’s conduct, the practitioner poses a serious risk to persons and immediate action is necessary to protect public health and safety or is otherwise in the public interest ([5]–[6]). SACAT emphasised the nature of its review: it is a merits review and its task at the interim stage is not to decide whether the underlying allegation is true, but to decide whether the s 156 threshold is satisfied ([5]). On the material before it the Tribunal formed the requisite reasonable belief ([6]).
Second, having found the s 156 threshold satisfied, SACAT considered the appropriate form of immediate action. The Tribunal acknowledged that immediate action need not always take the form of suspension; less restrictive measures such as conditions on registration can be used where they adequately address the risk and are proportionate to the circumstances ([4], [7]–[9]). The parties jointly proposed conditions that would effectively prevent the practitioner from consulting, treating or otherwise having contact with female patients, and would impose detailed administrative safeguards (approved locations, nominated booking and check-in staff, forms and acknowledgements, the Gender-based restriction protocol, and notification letters to clients) (Schedule A). SACAT assessed those conditions against the twin requirements of necessity and proportionality. It accepted that, given the allegation was untested and denied, the conditions represented a proportionate means of protecting public health and safety while the investigation continues ([9]). The Tribunal therefore substituted those conditions for the suspension.
In short, SACAT concluded the immediate-action power under s 156 was engaged, but that the particular facts supported a tailored, less intrusive measure than suspension to manage the risk, specifically, a gender-based restriction preventing contact with female patients together with administrative safeguards.
The judgment applies the statutory framework set out in the National Law governing immediate action against registered health practitioners. That framework permits boards to take immediate action where necessary to manage serious risks to the public. This SACAT decision illustrates how, on merits review, the Tribunal approaches s 156 decisions:
Before: the Board may exercise s 156 to suspend registration when it reasonably believes there is a serious risk to persons. Suspension is a common immediate action where a high level of risk is alleged or evident.
After (as demonstrated by this decision): SACAT will scrutinise whether suspension is necessary and proportionate and, where appropriate, can substitute less intrusive immediate action in the form of registration conditions that manage the specific risk. The decision exemplifies the Tribunal’s willingness to tailor immediate action to risk, particularly where allegations are untested and the practitioner denies wrongdoing ([5], [9]).
This case therefore reinforces that s 156 is a flexible power: its exercise must be tied to a reasonable belief about risk; the form of immediate action must be necessary and proportionate; and SACAT will consider alternative measures on merits review.
"The Tribunal is required to conduct a review on the merits and determine to the correct and preferable outcome. It is not the task of the Tribunal at this stage to make any findings as to whether the alleged conduct actually occurred." ([5])
Plain English: SACAT does not decide guilt or innocence at this interim stage. It makes a merits-based assessment about whether the statutory test for immediate action has been met, based on available material.
"The Tribunal reasonably believes that, because of the conduct of the appellant, the appellant poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety. The Tribunal also has a reasonable belief that immediate action is necessary in the public interest." ([6])
Plain English: SACAT concluded that the complaint, and the surrounding circumstances, were serious enough to form the view that the practitioner posed a risk, and that action had to be taken quickly to protect the public and the public interest.
"The Tribunal agrees that the proposed conditions are appropriate and sufficient to protect public health and safety. The conditions are proportionate to the circumstances of this matter, given that the allegations are at this stage untested and denied." ([9])
Plain English: Rather than continuing a full suspension, the Tribunal decided that carefully designed restrictions preventing the practitioner from dealing with female patients would adequately manage the risk and would be a fair, proportionate interim measure while the complaint is investigated.
This decision is engaged when the following factual pattern or similar circumstances arise:
An allegation of serious sexual misconduct connected to the practice of psychology (or comparable serious allegations about a health practitioner) where the alleged conduct raises concerns about physical or sexual boundary violations during practitioner-patient interactions (the allegation here involved conduct during a home visit) ([1]);
The Board commences an investigation and considers taking urgent interim measures under s 156 because of the nature of the allegation and apparent risk ([2]–[3]);
The practitioner contests the form of immediate action (for example, accepting that action is needed but contending suspension is disproportionate), and asks a merits tribunal to review whether the statutory threshold for immediate action is met and whether the Board's chosen measure is necessary and proportionate ([4]);
The parties may agree on an alternative, less restrictive immediate action designed to target the precise risk identified, allowing the Tribunal to substitute appropriate conditions when those conditions adequately protect public health and safety and are proportionate given the untested nature of the allegations ([7]–[9]; Schedule A).
In short, where the alleged misconduct suggests risk to a particular patient cohort (here, female patients), the Tribunal may accept gender-based restrictions as a tailored risk-management response.
This decision is a SACAT merits-review determination of a Board decision. The judgment itself does not cite subsequent judicial or tribunal treatment of its reasoning. The document contains no references to later authorities or later appellate consideration of this specific decision. Therefore, from the text of the judgment alone, it is not possible to identify how later courts or tribunals have treated this particular decision. Practitioners should check later reported decisions and AHPRA publications for any authoritative developments or appellate review that addresses the approach taken by SACAT here.
The decision resolves the immediate factual question in this case, but leaves several matters open for future clarification:
Scope and limits of gender-based restrictions: The conditions here prohibit any contact with "female" patients and define "female" to include both biological sex and gender identity or expression (Schedule A). While the Tribunal accepted such a restriction as proportionate in the circumstances, broader questions remain about when gender-based exclusions of this kind will be permitted, how they must be justified on the facts, and how they interact with non-discrimination obligations and employment law. This judgment does not address those tensions in depth.
Granularity of proportionality analysis on merits review: SACAT accepted the parties' joint proposal and found it proportionate given the untested allegations ([9]). Future cases may explore how the Tribunal approaches proportionality where the Board and practitioner disagree about appropriate alternative measures, or where the evidentiary basis for a reasonable belief is closer.
Procedural safeguards and monitoring of compliance: The conditions impose detailed administrative measures (nominated booking services, check-in staff, approved locations, forms and client communications) (Schedule A). The judgment does not elaborate on how AHPRA should monitor ongoing compliance, including how disputes about compliance are to be resolved or what proof will satisfy AHPRA that the conditions are being followed.
Temporary nature and reviewability of conditions: The conditions were left in place until further order or removal under s 159(2)(b). This raises questions about timing and mechanisms for review, including what material will be required for the Tribunal to revisit whether continuing conditions remain necessary or proportionate.
Interaction with disciplinary proceedings: The Tribunal emphasised it was not resolving the underlying allegation ([5]). How the eventual outcome of any disciplinary proceeding (or absence of a finding) should inform retrospective assessment of the appropriateness of immediate action remains a procedural and evidentiary question for future cases.
Practitioners, regulators and advisers should therefore treat this decision as a practical example of the Tribunal's willingness to tailor immediate action to risk, while also recognising that many legal and policy questions about the use, scope and monitoring of gender-based restrictions and other tailored conditions remain to be explored in subsequent decisions or legislative/regulatory guidance.
Mikhchi v Psychology Board of Australia [2020] SACAT 39
The Psychology Board of Australia made a decision to take immediate action to suspend the registration of the applicant (appellant) after a patient alleged the appellant engaged in conduct that amounted to serious sexual misconduct. The appellant denies any misconduct and brought an application to review the decision of the Psychology Board of Australia.
The parties made joint submissions as to the orders the Tribunal should make.
Held, setting aside and substituting the decision under review:
Health practitioners - Review a decision of the Psychology Board of Australia - Immediate action - Allegations of sexual misconduct in connection with the practice of psychology - Reasonable belief practitioner poses serious risk to persons - Set aside decision under review - Conditions imposed on registration
Health Practitioner Regulation National Law (South Australia) 2010 ss 156, 159
SCHEDULE OF CONDITIONS - GENDER-BASED RESTRICTION
1. The practitioner must not practise as a psychologist:
(a) at any place other than the following approved practice locations:
(i) The Blair Athol Medical Centre, located at 502 Main North Road, Blair Athol, SA 5084;
(ii) EMDR Adelaide, located within the SA Natural Therapies Medical Centre at 297 Waymouth Street, Adelaide SA; and
(i) the forms referred to in conditions 4 and 5 below; and
(ii) a list of names and contact details of the nominated booking service staff referred to in condition 3(a) below and nominated check-in staff referred to in condition 3(c) below;
(iii) acknowledgement from each of the nominated check-in staff and the nominated booking service staff on the approved form; and
(iv) a copy of the written direction referred to in condition 3(d) below; and
(c) until after confirmation by AHPRA that it has carried out the necessary enquiries following receipt of the documents referred to in condition 1(b) above, with AHPRA to carry out those enquiries within 2 business days, except in the event that the nominated booking service staff, check-in staff and senior persons are unavailable to be contacted by AHPRA within that timeframe in which case the necessary enquiries are to be carried out with all reasonable expediency thereafter.
For the purposes of this condition, the following definitions apply:
'Practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a psychologist in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a psychologist in a direct non- clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the psychologist.
'Practice location' means any location where the practitioner practises the profession including any place where the practitioner:
(a) is self-employed
(b) shares premises with other registered health practitioners
(c) is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement
(d) provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or
(e) provides professional services at the residential premises of a patient.
'Patient' is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member or guardian/carer of this individual.
'Contact with a patient' includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.
'Male' is defined as any individual whose biological sex is that of a male, as well as all individuals whose gender identity or gender expression is that of a male.
'Female' is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.
(a) The practitioner must nominate and utilise a single service for the booking of appointments, with such service being independent of either of the approved practice locations (the nominated booking service);
(b) All appointments with the Practitioner must be made through the nominated booking service and only by individual staff who have signed the acknowledgement forms detailed in condition 1(b)iii;
(c) The Practitioner will nominate staff at each approved practice location who will welcome and check-in patients attending appointments with the Practitioner (nominated check-in staff);
(d) The Practitioner is to direct the approved practice locations and the nominated check-in staff in writing to:
(i) maintain a record of each patient who attends an appointment with the Practitioner at that location or who pursuant to the following criteria, attends a remote appointment with the Practitioner;
(ii) in the event of any appointments with the Practitioner being conducted by telephone, the nominated check-in staff are to initiate the call and transfer it to the Practitioner after confirming the name of the Patient;
(iii) in the event of any appointments with the Practitioner being conducted by video- conference, the nominated check-in staff are to be present at the commencement of the video-conference and confirm the name of the Patient; and
(iv) in the event of any patients presenting at, or otherwise directly contacting, the approved practice locations and requesting an appointment with the Practitioner, direct the patient to the nominated booking service.
(e) The provisions of the Gender-based restriction protocol in respect of the nominated booking staff, including the provision of acknowledgement from each nominated check-in staff and the nominated booking services on the approved form, are to otherwise be read as referring to the nominated booking service and to the nominated check-in staff.
(a) they have read and understood the Gender-based restriction protocol
(b) they are aware that they are not permitted to practise other than at the approved practice locations and until such time as the Practitioner has complied with condition 5 below;
(c) they understand the definition of 'patient', 'practise', 'practice location', 'male', 'female', and 'contact' as detailed in this condition, and
(d) they are aware of the actions AHPRA may take for the purposes of monitoring compliance with the gender-based restriction.
In providing these forms, the practitioner acknowledges that:
(a) AHPRA will contact the senior persons and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior persons have received a copy of the conditions from the Practitioner, and
(b) The Practitioner will be required to provide the same form:
(i) within seven days of the commencement of practice at each and every subsequent place of practice, and
(ii) within seven days of each and every notice of any subsequent alteration of these conditions.
I am now able to once again resume our treatment if you would like to do so.
I appreciate that you may already have found another psychologist and established a relationship with them in which case I wish you well with your future treatment.
If you would like to resume your sessions with me, please contact (insert booking service details) to make an appointment at either Blair Athol Medial Centre or EMDR Adelaide.
Since that time conditions have been imposed on my registration while AHPRA investigates a complaint about me. The effect of those conditions is that I am not presently permitted to provide psychological services to female clients. The full conditions are available on the AHPRA website.
As I indicated in my earlier email, the following other psychologists utilise a similar treatment methodology and may be available to see you as a new client. (list of alternatives)
If you need urgent support or assistance, the following services are available to assist (insert appropriate crisis service relevant to that client)
Mikhchi
Psychology Board of Australia [2020] SACAT 39
The Tribunal set aside the Board's decision of 8 April 2020 (which suspended the practitioner's registration) and substituted a decision under s 156 to take immediate action by imposing conditions on the practitioner's registration (Schedule A). The gender-based restriction conditions remain in place until further order or removal by the respondent under s 159(2)(b). Each party bears their own costs (Orders).