Mukonoweshuro v Occupational Therapy Board of Australia

Statutory framework

1. The Health Practitioner Regulation National Law (NSW) (the National Law) governs the regulation of individuals who practise one or more of the 14 health professions listed in s 5 of that Act. Those professions include occupational therapy.
2. The Occupational Therapy Board of Australia (the Board) is one of 14 National Health Practitioners Boards established by s 31(1) of the National Law. The functions of these Boards include registering suitably qualified and competent persons in the health profession and, if necessary, imposing conditions on the registration of persons in the profession: s 35(1)(a).
3. Section 175(1)(f) of the National Law states that a person who is the subject of a decision by a National Board "to refuse to change or remove a condition imposed on the person's registration" may appeal that decision to the "appropriate responsible tribunal". As Mr Mukonoweshuro lives in NSW, NCAT is the appropriate responsible tribunal: s 175(2)(c)(i).
4. After hearing the matter the Tribunal may confirm, amend or substitute another decision for the appealable decision: s 175C of the National Law. If the Tribunal decides to substitute another decision for the decision under appeal, the Tribunal can exercise the same powers as the original decision-maker, here the Board: s 175C(2).
5. Also relevant to this appeal is the role of the Occupational Therapy Council of Australia (the Council). The Board appointed the Council to act as the accreditation authority to perform the assessment of overseas-trained occupational therapists for eligibility to practise occupational therapy in Australia and to oversee supervised practice placements.

Supervision Guidelines for Occupational Therapy

1. In February 2018, exercising the power conferred by s 39 of the National Law, the Board re-issued guidelines for the supervision of Occupational Therapists (Guidelines). To put the appealable decision in context, it is necessary to provide an overview of the Guidelines.
2. The stated purpose of the Guidelines is to enable the delivery to consumers of "safe, competent and contemporary occupational therapy services at all times, including when an occupational therapist is practising while under supervisory arrangements". The Guidelines state: Appropriate supervision provides assurance to both the Board and the community that the registrant's practice is safe and is not putting the public at risk.
3. The Guidelines state that practitioners with limited or provisional registration, or with general registration subject to conditions, may be required to work under supervision. These practitioners may be directed by the Board to work under supervision to "further develop their competence (for example to work towards general registration) or to address a health, conduct or performance issue that has been assessed as impacting on safe and/or appropriate practice". The Guidelines state that supervision requirements will be "tailored to the purpose of the supervision, and the practitioner's particular circumstances, settings, experience and learning needs".
4. The Guidelines state that the Board will determine the level of supervision required for an individual practitioner on a case by case basis. The Guidelines establish and describe four levels of supervision: 1. Direct supervision (Level 1): the supervisor takes direct and principal responsibility for the provision of the occupational therapy service (e.g. assessment and/or treatment of individual patients/clients). The supervisor must be physically present at the workplace, and supervision must include observation of the supervisee when she/he is providing the occupational therapy service. It is the highest level of supervision. 2. Indirect supervision (Level 2): the supervisor is easily contactable and is available to observe and discuss the occupational therapy services being delivered by the supervisee. 3. Remote supervision (Level 3): the supervisor is contactable to discuss the supervisee's occupational therapy practice (e.g. clinical activities), however the supervisor may not be on the premises or required to directly observe or participate in the provision of occupational therapy services by the supervisee. 4. Level 4: the supervisee takes full responsibility for their practice (including individual patients/clients) within the supervisor's general oversight.
5. Table 1 to the Guidelines provides further detail about each level of supervision including the respective roles and responsibilities of the supervisor and supervisee.
6. The Guidelines impose several reporting requirements. Before supervision begins, the supervisor, the supervisee and the Board must enter into a written "supervision agreement", containing among other things, the place of practice and the respective responsibilities of the supervisor and supervisee.
7. In addition, the Guidelines require that no later than two weeks after the supervisee has commenced practice, a "supervised practice plan" agreed to by the supervisor, the supervisee and the Board must be submitted to the Board. The Guidelines stipulate that the plan must set out the objectives for and levels of supervision, the type and amount of supervision, the anticipated duration of the supervision period, and, if the period for review of the supervised practice varies from the standard periods listed in Table 1, the period of review.
8. Finally, the Guidelines require the supervisor to prepare written supervision reports detailing the progress of the supervisee, measured against the supervised practice plan. Unless otherwise stated in the subject plan or the supervisee's conditions of registration, these reports must be provided to the Board at the intervals stipulated by the Guidelines. With respect to Level 2 supervision, the Guidelines require that supervision reports be submitted to the Board, within 3 months of commencement of practice and thereafter at three monthly intervals.
9. With respect to responsibility for complying with these reporting requirements, the Guidelines state: The onus rests with the supervisee to ensure the reporting requirements are met as agreed in the supervised practice plan. However, the supervisor also has a responsibility to adhere to the agreement he or she enters into with the Board, and to appropriately oversee the supervisee's practice.

Background to the appealable decision

1. The background to the appealable decision is complex and involves multiple decisions made about Mr Mukonoweshuro by the Board, the Council and their respective committees. Also relevant are complaints made about Mr Mukonoweshuro to various regulatory bodies. To put in context the submissions made by the parties about the appealable decision, it is necessary to consider some of those decisions.
2. The material filed in this appeal sometimes uses the terms "AHPRA" and "the Board" interchangeably. AHPRA provides administrative assistance and support to the Board. The Board is the decision-maker. For convenience, we will use the term Board even where the relevant action or decision is described in the documents as having been taken or made by AHPRA.

Mr Mukonoweshuro is registered in Australia as an occupational therapist

1. Mr Mukonoweshuro graduated with an Honours degree in Science (OT) from the University of Zimbabwe in 2008. Between 2009 and 2014, Mr Mukonoweshuro worked fulltime as an occupational therapist at Marondera Hospital, Zimbabwe.
2. After travelling to Australia on a "skilled work visa", on 29 August 2014 Mr Mukonoweshuro was registered by the Board as an occupational therapist with the notation that he "will only practise with supervision by a Board approved supervisor or delegate". That notation remained in place until 23 August 2018 when the Board imposed the subject conditions on Mr Mukonoweshuro's registration.

Supervision by Ms Mills (January 2017 - August 2017)

1. Between February 2017 and September 2018 Mr Mukonoweshuro was employed as an occupational therapist by residential aged care provider River Healthcare. His position was based in Mackay, Queensland. During that period, he worked under the supervision of Ms Sharon Mills, Mrs Jessica Nyenuh and Mr Kevin Gaidies.
2. On 12 January 2017, Mr Mukonoweshuro and Ms Mills entered into a supervised practice plan (the practice plan). Mr Mukonoweshuro apparently commenced working under that plan in late January 2017.
3. Between February 2017 and August 2017, Ms Mills prepared on a regular basis "supervision logs" as required by the Guidelines detailing, with reference to the practice plan, her discussions with Mr Mukonoweshuro about his practice together with her observations about his practice as an occupational therapist. Many, but not all of the comments made by Ms Mills in those logs were favourable to Mr Mukonoweshuro.

Mr Mukonoweshuro applies to the Board for renewal of his limited registration

1. On 22 August 2017, Mr Mukonoweshuro applied to the Board for renewal of his limited registration for supervised practice, attaching in support an undated letter purportedly prepared by Ms Mills stating that Mr Mukonoweshuro "has completed his six months of supervised practice as required by the Board with River Healthcare". On 9 August 2017, Mr Mukonoweshuro submitted various documents to the Council, including a pro forma Council "Stage 2 Supervised Practice Audit Final Report" together with a pro forma Board "Supervision Report Final" (Mr Mukonoweshuro's version of the Board final report). Each report was dated 7 August 2017 and bore the respective signatures of Mr Mukonoweshuro and Ms Mills.
2. In the version of the final Board report submitted by Mr Mukonoweshuro, Ms Mills rated Mr Mukonoweshuro's performance as "consistently poorer than the level expected" in 21 of the 44 specified performance criteria. In the balance of the specified performance criteria, she rated Mr Mukonoweshuro's performance as being "consistently at the level expected". She answered "no" to the question: "Is the registrant (supervisee) suitable for ongoing registration in terms of his/her competency for independent safe practice?" Under the heading "Specify any emerging problem or areas requiring ongoing/close supervision or further development required for regulatory purposes", Ms Mills wrote: Misheck is a kind person and he is always appropriate with the residents but it is his knowledge or his ability to put into place the basics of occupational therapist practice that are currently letting him down plus his reduced awareness of some of his actions being problematic or unethical. Misheck has worked hard at building rapport with the residents and communicating more with them but his communication with the wider team, including staff at the facility he is primarily based at remains noticeably poor and has been commented on by the facility manager and others. It my belief that Misheck requires further supervised practice and possibly in a larger team environment. I do not feel that he is ready to practice by himself as yet as even in this relatively low complex environment there are some key principles of the OT process that are not being met despite 8 months of both direct and indirect supervision plus unrecorded support via email and text. Misheck often lacks initiative and the ability to use his clinical reasoning. I have concerns that should he go into a more complex work scenario eg; community home visits/NDIS that he would not be able to manage a caseload of this type without further supervision. The team that he is working within at the moment requires an OT to be able to work individually, to liaise effectively with the rest of the team who are based in other facilities, to liaise effectively with the facility manager and the ACFl co-ordinator and at present Misheck is found to be lacking in these areas.
3. Directly under these comments appeared the following declaration: Supervisors declaration Based on my observation, and knowledge of the practitioner's practice in the profession I attest to his/her competency for independent practice without condition or restriction: As per comments in the above comments (Emphasis added)
4. A declaration to the same effect was contained on page 2 of the version of the final Council report submitted by Mr Mukonoweshuro to the Board: Supervisors declaration I have directly observed Misheck Mukonoweshuro during the OTC Stage 2 period of supervised practice and based on my experience as supervisor, endorse this practitioner competent for independent practice in the Australian environment. (Emphasis added)
5. In each report, Ms Mills' signature appeared directly below these declarations.
6. Concerned about discrepancies in the material received from Mr Mukonoweshuro, the Council contacted Ms Mills. In an email sent to the Council on 22 August 2017, Ms Mills wrote: "I strongly feel that the document you received is not the document that I signed and gave Misheck to send". In an email sent to the Council on 22 August 2017, Ms Mills provided an unsigned version of the Council report she claimed she and Mr Mukonoweshuro signed on 7 August 2017. She claimed that she did not keep a copy of the signed report and understood that Mr Mukonoweshuro would be sending it to the Board. She pointed to a number of discrepancies between the unsigned report (which she had stored on her computer) and the version of the report submitted by Mr Mukonoweshuro to the Board. The following day in an email sent to the Council, Ms Mills wrote: Please find the re-signed report as requested. I have added the "do not" in the endorsement sentence and have kept the sentence that I was told to add saying "as per the comments in the OTBA report". Misheck and I have both witnessed each other sign this, which I believe was what was required and that I could sign as I had added the "do not" part. As per your suggestion we have used the original dates so it ties in with all the other paperwork.
7. In the "re-signed report" the following declaration appeared under Ms Mills' signature: Supervisors declaration I do not endorse [Mr Mukonoweshuro] competent for independent practice in the Australian environment. As per the comments in the OTBA report. (Emphasis added)
8. On 6 November 2017, the Board notified Mr Mukonoweshuro of its decision made on 31 October 2017 to grant his application for renewal of his limited registration as an occupational therapist but not to recognise his "supervised practice undertaken through the Council" [the supervised practice, undertaken under the supervision of Ms Mills]. The effect of this was that the required supervision period before independent practice was not regarded as completed. In addition, the Board informed Mr Mukonoweshuro of its decision to refer him to the Office of the Health Ombudsman, Queensland for investigation on the ground that "you may have fraudulently altered your supervisor records".

Council refuses to issue Mr Mukonoweshuro with a certificate of Practical Completion

1. On 15 September 2017, the Council notified Mr Mukonoweshuro of its decision not to issue him with a certificate of "Practical Completion" in respect of the period he was supervised by Ms Mills and to extend the period of supervised practice for a further 12 months to "assist you in gaining the competence required". In addition, the Council notified Mr Mukonoweshuro of its decision to refer to the Board the discrepancies between the reports he and Ms Mills had provided the Council.
2. In November 2017, Mr Mukonoweshuro exercised his right to appeal the Council's decision. On 29 January 2018, the Council notified Mr Mukonoweshuro that its "Independent Appeals Panel" (the Panel) had recommended that he undertake a further period of 12 months supervised practice in order "to demonstrate that he is able to achieve all necessary competencies". In reasons given for making that recommendation, the Panel stated that Mr Mukonoweshuro had not provided sufficient material to demonstrate that he met the "required criteria". The Panel found that the documentation submitted by Mr Mukonoweshuro did not contain information as to appropriate occupational therapy treatment or targeted intervention tailored to the needs of individual clients; and failed to demonstrate an understanding of the role of occupational therapists in an aged care setting. The Panel noted that it was difficult to determine from the submitted documentation, whether, as claimed by Mr Mukonoweshuro, he had undertaken the requisite "CPD activity".
3. The Panel noted that it had been difficult to assess the extent of feedback given to Mr Mukonoweshuro by his supervisors. While accepting that the assessment procedure had been followed, the Panel noted that it "may have been beneficial for [Mr Mukonoweshuro] to have received more detailed written feedback with respect to his poor performance … with clear explanation as to the areas where he was required to improve to pass the assessment".
4. Following receipt of the Panel's decision, Mr Mukonoweshuro wrote to the Council expressing his dissatisfaction with that decision. He asserted that the Council failed to address the concerns he had raised about Ms Mills and the quality of her supervision. Further, he claimed that Ms Mills was not aware of her duties as a supervisor and "flouted the process left, right and centre". Mr Mukonoweshuro wrote that by requiring him to undertake a further period of supervised practice "against my will", the Council had "infringed his civil rights".
5. The Panel did not address in its reasons, the fraud allegation referred by the Council to the Office of the Health Ombudsman.

The Board finds the Mills complaint not proven

1. On 2 January 2018, as foreshadowed, the Board referred to the Office of the Health Ombudsman, Queensland, the complaint that Mr Mukonoweshuro "may have fraudulently altered [his] supervisor records" (the Mills complaint). The Ombudsman subsequently referred that complaint back to AHPRA.
2. In an email sent to the Ombudsman on 21 February 2018, in response to the Mills complaint, Mr Mukonoweshuro denied altering the final supervision report he and Ms Mills had signed on 7 August 2017. In addition, he denied as claimed by Ms Mills signing "another copy of the stage 2 supervised practice audit report" on 23 August 2017, stating that the signature on the version of the report submitted by Ms Mills to the Council, was a "counterfeit representation of my signature".
3. On 3 July 2018 AHPRA manager, Penelope Polich wrote to Mr Mukonoweshuro notifying him that AHPRA had appointed an investigator to assist it to determine, whether as alleged in the Mills complaint, he had attempted to obtain general registration using falsified documents. Ms Polich advised that in deciding to appoint an investigator, AHPRA relied on the following information: 1. Advice received from the Council that Mr Mukonoweshuro had submitted documents with "conflicting information", specifically an "OTC final report form" dated 7 August 2017, bearing the signatures of Ms Mills and Mr Mukonoweshuro, declaring Mr Mukonoweshuro to be competent and an "OTBA final report form" dated 7 August 2017 bearing Ms Mills' signature, stating otherwise. 2. Information subsequently received from Ms Mills that the version of the OTC final report she signed on 7 August 2017 clearly stated that Mr Mukonoweshuro is not competent to practise without supervision. 3. Information received in response from Mr Mukonoweshuro, including the assertion that the reports he and Ms Mills signed on 7 August 2017 contained a declaration that he was competent to practise without supervision. In addition, Mr Mukonoweshuro's denial that he signed another copy of those reports on 23 August 2017 and his claim that his signature appearing on those reports was a counterfeit.
4. On 15 May 2019, AHPRA informed Mr Mukonoweshuro of the Board's decision to take no further action in relation to the allegations that he (i) "attempted to obtain general registration using falsified documents", and (ii) "fraudulently altered a Supervision Report to reflect a positive endorsement in your favour in order to obtain general registration". In brief reasons for that decision, the Board stated that there was "insufficient evidence" to support those allegations.

Mr Mukonoweshuro is supervised by Mrs Nyenuh (November, December 2017)

1. On 24 November 2017, Mr Mukonoweshuro and Mrs Jessica Nyenuh entered into a supervised practice plan. Mr Mukonoweshuro continued to be employed by River Healthcare. On 28 December 2017, Mrs Nyenuh notified Mr Mukonoweshuro of her decision to terminate the agreement to supervise his practice.
2. In an email sent to the Council's CEO, Mrs Nyenuh wrote that Mr Mukonoweshuro's inability to "communicate transparently" impacted on her ability to discharge her responsibilities as a supervisor. She alleged among other things that Mr Mukonoweshuro had failed to comply with the supervision agreement, including the requirement to provide agendas in advance of each supervision meeting and to respond to or acknowledge her emails. In addition, she alleged that Mr Mukonoweshuro refused to pay to her the agreed fees for providing supervision.

AHPRA investigates the Nyenuh complaint and issues Mr Mukonoweshuro with a caution

1. On 3 January 2018, Mrs Nyenuh made a complaint to the Office of the Health Ombudsman, Queensland alleging that Mr Mukonoweshuro failed to notify his employer that she had terminated the supervision agreement. Apparently, the trigger for that complaint was an email received from Mr Mukonoweshuro's team leader asking Mrs Nyenuh to confirm that she had agreed to continue as Mr Mukonoweshuro's supervisor. On 9 January 2018, the Ombudsman referred that complaint to AHPRA (the Nyenuh complaint). (The Guidelines state that the supervisee must notify the Board immediately if their approved supervisor is no longer able to provide supervision and "immediately cease practice" if there is no back-up supervisor specified in the supervision plan. The supervision plan entered into by Mrs Nyenuh and Mr Mukonoweshuro on 24 November 2017 did not nominate a backup supervisor.)
2. In an email sent to AHPRA on 21 February 2018 in response to the Nyenuh complaint, Mr Mukonoweshuro stated that that complaint was "frivolous, vexatious and not done in good faith" and based on "misleading and untruthful" information. He alleged that Mrs Nyenuh had failed to attend supervision sessions giving "lame excuses"; charged inflated fees for undertaking her role as supervisor and was "verbally abusive and aggressive", when he notified her of his intention to report her for failing to provide him with receipts for fees paid. He wrote that after he notified Mrs Nyenuh that he was not going to continue under her supervision, he informed his manager at River Healthcare.
3. On 3 July 2018, Ms Polich wrote to Mr Mukonoweshuro in relation to the Nyenuh complaint inviting him to make a submission about the Board's proposal to issue him with a caution for failing: 1. To comply with the requirements placed on his registration, specifically that he should only practise under the supervision of another registered practitioner; and 2. To communicate honestly and effectively with his supervisor and employer in relation to his supervised practice requirements.
4. In an email sent to AHPRA on 23 July 2018, Mr Mukonoweshuro "categorically refuted all Mrs Nyenuh allegations" made by Mrs Nyenuh stating that he intended to sue Mrs Nyenuh for her "libellous actions". Mr Mukonoweshuro denied failing to "communicate honestly" with Mrs Nyenuh and claimed it was he, not Mrs Nyenuh, who had terminated the supervision agreement because Mrs Nyenuh had "completely failed to provide proper supervision". He claimed that despite notifying Mrs Nyenuh that the supervision agreement required them to meet weekly for the first six weeks, the only occasion they met was to sign the necessary supervision documentation. He alleged that the fees charged by Mrs Nyenuh for providing supervision were "daylight robbery". He denied Mrs Nyenuh's claim that he had practised without supervision stating that after he terminated the agreement with Mrs Nyenuh "his employer had facilitated the new arrangement with Kevin [Gaidies]".
5. By letter dated 14 September 2018, AHPRA notified Mr Mukonoweshuro of the Board's decision to uphold the Nyenuh complaint and to issue Mr Mukonoweshuro with a caution. The Committee found Mr Mukonoweshuro's conduct to be below the "standard reasonably expected of an occupational therapist" for the following reasons: a. Whilst there are conflicting views from the practitioner and the complainant as to who terminated the supervising relationship and why, the Committee notes that the email correspondence provided by the practitioner supports her account that the supervisory relationship had deteriorated due to the practitioner's poor communication. b. On 28 December 2017, the complainant has advised the practitioner and his employer that the supervision agreement has been terminated. The subsequent communications from the practitioner's employer indicate that the practitioner has possibly misled his employer into believing that the supervision agreement was resuming. c. On 3 January 2018, the complainant contacted the practitioner by phone and noted that he was at work. The practitioner was elusive when asked about his conversations with his employer about the termination of the supervision agreement. d. The Committee refers to the Occupational Therapy Board of Australia's (OTBA) Supervision Guidelines for Occupational Therapy document which requires supervisees to: '...notify the Board in writing within seven calendar days if their approved supervisor is no longer able to provide supervision, and immediately cease practice if there is no back-up supervisor available, as specified in the supervised practice plan, '[emphasis added] e. Whilst the practitioner advises that his employer found a new supervisor, it is unclear when this occurred. It is noted however, that the OTBA did not approve the nomination for new supervisor, Mr Kevin Gaidies, until 13 February 2018. (emphasis in the original)

Mr Mukonoweshuro is supervised by Mr Gaidies (January/February 2018 - September 2018)

1. As noted above, it is not clear when Mr Mukonoweshuro commenced practising under the supervision of Mr Gaidies. In correspondence with AHPRA, he appears to suggest that he commenced shortly after Mrs Nyuneh ceased acting as his supervisor in late December 2018. In these proceedings he appeared to suggest it was not until March 2018. Mr Mukonoweshuro's nomination to be supervised by Mr Gaidies was not approved by the Board until 13 February 2018.
2. In May 2018 the Council withdrew approval for Mr Mukonoweshuro to practise under the supervision of Mr Gaidies, apparently as a result of Mr Mukonoweshuro's failure to provide requested supervision reports and logbooks. In an email sent on 18 May 2018, the Board advised that as a consequence of the Council's decision to withdraw Mr Mukonoweshuro's "current supervised practice arrangement" with Mr Gaidies, his supervised practice will be placed on hold, and as a result he is not permitted to practise as an occupational therapist. In addition, the Board requested "all your original logbooks and supervised practice plans … submitted to the Council".

Mr Mukonoweshuro makes further application for limited registration

1. On 11 June 2018, Mr Mukonoweshuro lodged a further application with AHPRA seeking limited registration, again nominating Mr Gaidies as his supervisor. (Mr Mukonoweshuro and Mr Gaidies signed an "Agreement of supervision" on 24 May 2018.) In support of that application, Mr Mukonoweshuro submitted a reference written by the Managing Director of River Healthcare, John Camuglia-May, dated 1 June 2018. Mr Camuglia-May wrote: Misheck's rapport with residents and staff of the Residential Aged Care facilities has been fantastic, all reports are always of punctuality, courtesy, hardworking and meeting and exceeding client needs.
2. In a further letter dated 5 July 2018, apparently prepared in answer to a request by the Board for details about Mr Mukonoweshuro's "progress towards meeting the requirements for General registration", Mr Camuglia-May did not answer that request, instead confirming that Mr Gaidies is Mr Mukonoweshuro's supervisor and repeating the favourable comments about Mr Mukonoweshuro's work he had made in the earlier reference referred to above.
3. On 15 August 2018, the Board wrote to Mr Mukonoweshuro inviting him to comment on its proposal to grant him limited registration for a further 12 months and to re-impose the subject conditions. On 20 August 2018, Mr Mukonoweshuro advised that he is prepared to "accept" the proposed conditions but believes they are not warranted. He went on to repeat the criticisms he had previously made about Ms Mills and Mrs Nyenuh.
4. On 23 August 2018, the Board advised Mr Mukonoweshuro of its decision to implement the decision it foreshadowed on 15 August 2018. In addition, the Board requested Mr Mukonoweshuro to provide it with the original supervision log and progress reports in relation to the period of supervision under Mr Gaidies, which it asserted were overdue. Further, the Board reminded Mr Mukonoweshuro of his ongoing obligation to submit supervision logs and progress reports.

Council withdraws Mr Mukonoweshuro's supervised practice position at River Healthcare under the supervision of Mr Gaidies

1. The Council repeatedly requested Mr Mukonoweshuro to provide various documents relating to his practice at River Healthcare under the supervision of Mr Gaidies, including supervision logs and progress reports. On 20 September 2018, not having received supervision logs and progress reports due 7 September 2018, the Council withdrew Mr Mukonoweshuro's supervised practice position at River Healthcare under the supervision of Mr Gaidies.

Board instructs Mr Mukonoweshuro to cease practice as an occupational therapist

1. On 25 September 2018, the Board advised Mr Mukonoweshuro that, in light of the Council's decision to withdraw his supervised practice position at River Healthcare, he must cease to practise as an occupational therapist until new supervised practice arrangements have been approved. On 3 October 2018, the Board advised River Healthcare that Mr Mukonoweshuro was no longer permitted to practise as an occupational therapist and that the public register has been amended to include, in addition to the subject conditions, the following: The practitioner must not practice until supervised practice arrangements have been approved by the Board.

Mr Mukonoweshuro lodges with the Board "request for change in circumstances"

1. In November 2018, Mr Mukonoweshuro commenced employment with rehabilitation consultant, RehabCo in a position based in Tamworth, NSW. On 28 November 2018, Mr Mukonoweshuro lodged with the Board a request for "change in circumstances" to permit him to work under the supervision of Mr James Mah at Level 4 supervision as a rehabilitation consultant with RehabCo. The Guidelines state that under Level 4 supervision, the supervisee "takes full responsibility for their practice (including individual patients/clients) within the supervisor's general oversight". The Guidelines give an example of the possible use of Level 4 supervision "after the practitioner has progressed through Level 1, 2 or 3 supervision".
2. On 6 December 2018, the Board requested Mr Mukonoweshuro to provide various documents relating to the proposed role with RehabCo. In addition, the Board requested that Mr Mukonoweshuro provide the outstanding supervision logs relating to his employment with River Healthcare and a written explanation for his failure to provide those documents.
3. For reasons not entirely clear, on 19 December 2018 Mr Mukonoweshuro lodged with the Board a further request for a change in circumstances, again nominating Mr Mah as his supervisor and proposing Level 4 supervision.
4. On 4 February 2019, the Board notified Mr Mukonoweshuro of its decision to approve his role as a rehabilitation consultant with RehabCo working under the supervision of Mr Mah at Supervision Level 2, not Level 4 as requested.
5. On 8 February 2019, Mr Mah wrote to the Board advising that RehabCo was unable to provide Level 2 supervision to Mr Mukonoweshuro and therefore had decided to terminate his employment. (Mr Mah had previously written to the Board urging it to accede to Mr Mukonoweshuro's request to approve Level 4 supervision. Mr Mah pointed out that RehabCo did not employ any occupational therapists at its Tamworth offices, where Mr Mukonoweshuro was based and therefore was only able to provide remote supervision.)
6. On the same day the Board advised Mr Mukonoweshuro that his registration has been amended to "[Mr Mukonoweshuro] may not practice until supervised practice arrangements have been approved by the Board".

Mr Mukonoweshuro seeks review of the subject conditions by the Board

1. On 11 February 2019, Mr Mukonoweshuro applied to the Board for review of the subject conditions. In that application in answer to the question "Why should these condition(s)… be reviewed?", he wrote: I have the capacity to function at level 3 supervision …I am a Senior OT with 8 years' experience … have an Honours degree in OT, experience in clinical and consultancy roles, wide spectrum of OT skills, 3 monthly reports are sufficient considering my length of service in OT.
2. On 1 March 2019, Mr Mukonoweshuro made a further application to the Board again seeking review of the subject conditions. In that application in answer to the question "Why should these condition(s)… be reviewed?", he repeated the comments made in his original application, adding "as I have already practiced at level 3 I should not go back to level 2 … level 2 supervision would only be suitable for new graduates".
3. In a letter dated 20 March 2019, the Board requested Mr Mukonoweshuro to provide a certified copy of the evidence he sought to rely on in support of his application. Mr Mukonoweshuro did not provide that material, responding that the application was based on "material previously submitted".
4. On 2 May 2019, the Board advised Mr Mukonoweshuro of its decision made on 16 April 2019 to decline to exercise the power to remove the subject conditions giving brief reasons for that decision: You have not complied with the conditions on your registration since their imposition on 24 August 2018. You have not supplied evidence of having fulfilled or made progress towards meeting the requirements of his registration that would persuade the Committee that your supervision level could be changed. Level 2 supervision is consistent with the supervision guidelines for overseas qualified practitioners.

Should the appealable decision be confirmed, amended or another decision substituted for that decision?

Role of the Tribunal

1. In this appeal the role of the Tribunal is to consider afresh Mr Mukonoweshuro's application to the Board for review of the subject conditions. In undertaking that task, the Tribunal is not bound by the decision of the original decision-maker: CWV v Medical Board of Australia [2016] NSWCATOD 161; D'Rozario v Dental Board of Australia [2015] NSWCATOD 19 at [4]-[5]; Linquist v Nursing and Midwifery Board of Australia [2019] NSWCATOD 185 at [32]. In short, the Tribunal must determine the merits of the application made by Mr Mukonoweshuro seeking the removal of the subject condition. To succeed in the appeal Mr Mukonoweshuro does not need to demonstrate error on the part of the Board.

Onus of proof

1. In this appeal we must determine several disputed facts. In cases such as this, where the allegations, if found proven, carry potentially serious consequences, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at p 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities.
2. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrased adopted from Rich J in Briginshaw at p 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

Submissions by the parties

1. Mr Mukonoweshuro urges the Tribunal to exercise the discretion to remove the subject conditions from his registration. The Board, on the other hand, urges the Tribunal to confirm the appealable decision. In short, the Board contends that the reasons it gave for the appealable decision remain valid.
2. In submissions made in this appeal, Mr Mukonoweshuro addressed a broad range of issues. Those submissions reveal that Mr Mukonoweshuro is aggrieved by many of the decisions made by both the Board and the Council. Our role in this appeal is confined to determining afresh Mr Mukonoweshuro's application for removal of the subject conditions. Decisions made by other decision makers are only relevant to the extent to which they relate to that task.
3. The primary submissions advanced by Mr Mukonoweshuro that are relevant to the question of whether the power to remove the subject conditions should be exercised, can be summarised as follows.
4. First, Mr Mukonoweshuro contends that, contrary to the conclusion reached by the Board, he has successfully completed six months' supervised practice at Supervision Level 2, pointing to the documentation he filed in support of his application for limited registration in August 2017. In support he points to the purported decision made the Board and the Health Ombudsman QLD to "exonerate" him in respect of the allegation that he falsified documents in support of his application to obtain limited registration in 2017. In addition, he contends that the period he worked under the supervision of Mr Gaidies provides further evidence of having successfully completed a period of supervised practice.
5. Second, he asserts that he has demonstrated that he is competent to practise independently as an occupational therapist. In support of that assertion, he points to the favourable reference he was given by the Managing Director of River Healthcare, RehabCo's support of his application to be permitted to practise under Supervision Level 4 and the absence of any evidence of complaints made by patients throughout the period he was employed at River Healthcare.
6. Third, he contends that, contrary to the assertion made by the Board and the Council, throughout the period he practised under the supervision of Mr Gaidies, all relevant reporting requirements relating to the supervision of his practice were complied with. In the alternative, he contends that responsibility for any non-compliance (which is not conceded) lay with Mr Gaidies. Mr Mukonoweshuro contends Mr Gaidies was responsible for submitting "official reports" to the Council.
7. Finally, citing the Supervision Guidelines, Mr Mukonoweshuro contends that the Board is mistaken in asserting, as it did in its reasons for the appealable decision, that "Level 2 supervision is consistent with the supervision guidelines for overseas qualified practitioners". He asserts that the Guidelines do not require overseas qualified practitioners such as himself "who are experienced, have huge skillset and honours degrees", to work under Level 2 supervision.

Did Mr Mukonoweshuro successfully complete six months' supervised practice under the supervision of Ms Mills?

1. Mr Mukonoweshuro is mistaken in contending that he has been "exonerated" by the Board and the QLD Health Ombudsman in relation the Mills complaint. The QLD Health Ombudsman did not determine that complaint but rather referred it to the Board for determination. On referral from the Health Ombudsman, the Board decided to take no further action, finding that there was "insufficient evidence" to support the allegation that Mr Mukonoweshuro "falsified" the supervision reports submitted to the Board in August 2017.
2. It will be recalled that the versions of the final Board and Council reports submitted to the Board by Mr Mukonoweshuro in August 2017 each contained a "supervisor declaration" to the effect that Mr Mukonoweshuro was competent to practise as an occupational therapist independently, without conditions or restrictions. Ms Mills claims that the version of the Board and Council reports that she and Mr Mukonoweshuro signed on 7 August 2017 did not contain a declaration to that effect. She claimed the declaration contained in each report was to the effect that Mr Mukonoweshuro was not competent for independent practice as an occupational therapist without condition or restriction. Mr Mukonoweshuro, on the other hand, insists that the reports that he and Ms Mills signed on 7 August 2017 each contained a declaration to the effect that he was competent to practise as an occupational therapist independently, without conditions or restrictions. Mr Mukonoweshuro strenuously denied altering the declarations before submitting the signed reports to the Board. In addition, he denied, as claimed by Ms Mills, signing a second set of reports on 23 August 2017, each containing a declaration that he was not competent to practise independently.
3. For the following reasons, it is apparent that the version of the Board report submitted by Mr Mukonoweshuro to the Board in August 2017 is inconsistent with the declaration purportedly made by Ms Mills in that report - that Mr Mukonoweshuro is competent for independent practice. First, in that report Ms Mills rated Mr Mukonoweshuro's performance "consistently poorer than the level expected" in 21 of the 44 specified performance criteria. Second, Ms Mills answered "No" to the question: "Is the registrant (supervisee) suitable for ongoing registration in terms of his/her competency for independent safe practice?" Finally, as evidenced by the following passage, the detailed commentary under the heading "Specify any emerging problem or areas requiring ongoing/close supervision or further development required for regulatory purposes", is inconsistent with the purported favourable supervisor declaration: … It my belief that Misheck requires further supervised practice and possibly in a larger team environment. I do not feel that he is ready to practice by himself as yet as even in this relatively low complex environment there are some key principles of the OT process that are not being met despite 8 months of both direct and indirect supervision plus unrecorded support via email and text. …
4. There are a number of possible explanations for the inconsistencies between the differing versions of the supervision reports. It may be that after signing those reports in the presence of Ms Mills on 7 August 2017, Mr Mukonoweshuro altered the wording in the supervisor's declaration before submitting those reports to the Board. Alternatively, it may be that in the versions of those reports signed by Ms Mills and Mr Mukonoweshuro on 7 August 2017, Ms Mills inadvertently failed to include the word "not" in the supervisor's declaration and did not notice that error until it was pointed out by the Council. In these proceedings, the Board did not ask the Tribunal to determine whether, as originally alleged, Mr Mukonoweshuro had altered the wording in the supervisor's declaration in the reports he had submitted to the Board.
5. Whatever the explanation, the inescapable conclusion is that Ms Mills did not or did not intend to declare Mr Mukonoweshuro to be competent for independent practice. While as pointed out by Mr Mukonoweshuro, the supervision logs prepared by Ms Mills contained several positive comments about his practice, they also included a number of unfavourable comments. See for example, the supervision log dated 16 March 2017 in which Ms Mills was critical of aspects of the patient progress notes made by Mr Mukonoweshuro. That concern apparently was the reason Ms Mills amended the original supervision plan, to include, "working according to ACFI [Aged Care Funding Instrument] guidelines" as one of the "actions to achieve goal" in that plan.
6. Finally, it is necessary to address the eleventh-hour claim made by Mr Mukonoweshuro that the version of the Board report he submitted in support of his application to the Board in August 2017 was a "forgery". Mr Mukonoweshuro made this claim for the first time in these proceedings when taken to the unfavourable comments about his practice as set out above. Taken in context, we understand Mr Mukonoweshuro to mean that those comments did not reflect Ms Mills' genuine belief about his practice, not that the report had been altered by a person, with an intent to defraud, and was a forgery. We note that Mr Mukonoweshuro's contention is not without some basis. While satisfied that "the assessment procedure was followed" the Council's Appeal Panel in its decision made in January 2018, was gently critical of Ms Mills, observing that the comments she made in the supervision logs "could have been more explicit so that [Mr Mukonoweshuro] had a clear understanding of the areas where he was not performing to standard". Nonetheless, having regard to all of the documents relating to Ms Mills' supervision of Mr Mukonoweshuro we reject the contention that the unfavourable comments contained in the final Board report did not reflect Ms Mills' true opinion about Mr Mukonoweshuro's performance during the period she supervised his practice.
7. The contention that Ms Mills declared Mr Mukonoweshuro competent for independent practice without conditions and that Mr Mukonoweshuro successfully completed six months' supervised practice under Ms Mills' supervision must be rejected.

Were the relevant reporting requirements relating to the period Mr Mukonoweshuro practised under the supervision of Mr Gaidies complied with?

1. As outlined above, the Board and the Council repeatedly requested Mr Mukonoweshuro to submit various documents relating to his practice under the supervision of Mr Gaidies, including supervision logs and progress reports. Many of the documents were submitted late and then only after repeated demands made by the Council. A number remain outstanding.
2. In these proceedings, Mr Mukonoweshuro claimed for the first time that Mr Gaidies submitted to the Council the supervision logs and progress reports due 7 September 2018. It will be recalled that the stated reason given for the Council's decision to withdraw its approval for Mr Mukonoweshuro to work under the supervision of Mr Gaidies and the Board's subsequent decision to withdraw Mr Mukonoweshuro's right to practise, was because neither body had received those documents. There is no reference to the claim that Mr Gaidies provided those documents to the Council in the numerous emails Mr Mukonoweshuro sent to the Council after being notified that the Council had not received those documents. Notably, after being advised by the Board in September 2018 that his approval to work under the supervision of Mr Gaidies had been withdrawn because of his failure to submit those documents, he did not notify the Board that those documents had already been submitted by Mr Gaidies. Mr Mukonoweshuro's claim that Mr Gaidies submitted those documents to the Council, is unsupported, inconsistent with the contemporaneous records and cannot be accepted.
3. In the alternative, Mr Mukonoweshuro submits that any shortcomings in complying with the reporting requirements under the supervised practice plan, is attributable to Mr Gaidies, not himself. It was a condition of Mr Mukonoweshuro's registration that supervision reports and logs be submitted. That condition was not complied with. The Guidelines make clear that the onus rests with the supervisee to ensure the reporting requirements specified in the supervised practice plan are met.
4. The assertion that all relevant reporting requirements were complied with during the period during which Mr Mukonoweshuro practised under the supervision of Mr Gaidies is rejected.

Conclusion

1. The Board gave as the reason for its decision made in August 2018 to impose the subject conditions, Mr Mukonoweshuro's failure to achieve the "required level of competence to practise safely and independently as an occupational therapist". It will be recalled that seven months earlier an Independent Appeal Panel of the Council reached much the same conclusion, finding that Mr Mukonoweshuro had failed to demonstrate that he met the Council's "minimum competency standards" and giving detailed reasons for that decision.
2. While Mr Mukonoweshuro may hold the genuine belief that he has demonstrated that he is competent to practise as an occupational therapist without supervision, he has provided no independent evidence to support that opinion. None of his supervisors at River Healthcare have expressed that view to either the Board or the Council. Neither Ms Mills, Mrs Nyenuh nor Mr Gaidies declared Mr Mukonoweshuro to be competent to practise independently, or stated that he is ready to progress beyond Supervision Level 2. As noted above, in a comprehensive report, Ms Mills detailed numerous shortcomings in Mr Mukonoweshuro's practice, rating his performance as consistently poorer than the level expected in just under half of the performance criteria used by the Board to assess the competence of occupational therapists.
3. Mr Mukonoweshuro's claim of having demonstrated competence to practise without supervision is not assisted, as he asserts, by the reference provided by Mr Camuglia-May. While it is clear from that reference that Mr Camuglia-May held a favourable opinion about Mr Mukonoweshuro's work at River Healthcare, he did not state that Mr Mukonoweshuro successfully completed a period of practice while working under supervision at River Healthcare or that in his opinion Mr Mukonoweshuro is competent to practise as an occupational therapist without supervision. In any event, it is not known whether Mr Camuglia-May is suitably qualified in the field of occupational therapy to enable him to provide an opinion about Mr Mukonoweshuro's competence to practise as an occupational therapist.
4. In the intervening period between the decision made by the Board in August 2018 to impose the subject conditions and its subsequent decision made in May 2019 to decline to remove those conditions, Mr Mukonoweshuro did not work as an occupational therapist, apart from the final few weeks of his employment at River Healthcare when he continued to work under the supervision of Mr Gaidies. As noted above, in that period, Mr Mukonoweshuro did not comply with Condition 2 on his registration, to submit on a monthly basis, supervision logs and progress report.
5. Finally, Mr Mukonoweshuro has contended that the requirement that overseas qualified practitioners, work under Level 2 Supervision is inappropriate and inconsistent with the Guidelines. He asserts that the Guidelines do not require overseas qualified practitioners such as himself "who are experienced, have huge skillsets and honours degrees", to work under Level 2 supervision. He points out that the Guidelines expressly state that "supervision requirements may be different for each practitioner" and will be tailored to the "purpose of the supervision, and the practitioner's particular circumstances, settings, experience and learning needs". Whether the purported blanket rule imposed by the Board is appropriate is outside the scope of this appeal. Suffice to say that notwithstanding Mr Mukonoweshuro's previous experience and qualifications, he is yet to demonstrate that he has been assessed by a suitably qualified person as being competent to practise independently without conditions, or is ready to progress beyond Level 2 supervision.
6. For these reasons we conclude that it is necessary and appropriate that the subject conditions remain in place. The appealable decision must be confirmed.

Additional orders sought by Mr Mukonoweshuro

1. In an email to the Tribunal sent after the hearing of the appeal, Mr Mukonoweshuro urged the Tribunal to make the following orders: 1. No further supervised practice for Misheck Mukonoweshuro. 2. One month of supervised practice with no telephone conferences and only for the goals in which Sharon Mills materially misrepresented that I performed consistently poorer than the level expected. 3. Misheck Mukonoweshuro can practice without the approval of supervision arrangements by the Board. 4. Recognition of the period of supervised practice at River Healthcare. 5. Misheck Mukonoweshuro to be put on the register for generally registered occupational therapists.
2. For the reasons above, the proposed orders in our view are inappropriate. Further Proposed Orders 1 to 3 each relate to the regulation of Mr Mukonoweshuro's registration requirement to complete supervised practice, which is a requirement separate to, and independent of, the subject conditions. The requirement to complete a period of supervised practice and the recognition of any previously completed period of supervised practice are both matters outside the scope of s 175(1) of the National Law. Proposed Order 5 is also outside the scope of the Tribunal's powers in this appeal.

Leave to appeal out of time is refused

1. Mr Mukonoweshuro was required to lodge an appeal within 28 days after the day he was given notice of the decision being appealed against, or, within the longer period allowed by the Tribunal: s 161 of the National Law. The appeal in relation to the decision made by the Board on 23 August 2018 to impose the subject conditions and the subsequent decision made on 3 October 2018 restraining Mr Mukonoweshuro from engaging in practice until "compliance with the supervision condition", were each lodged out of time.
2. Therefore, the appeal against those decisions cannot proceed unless we exercise the discretion conferred by s 161(b) of the National Law to permit Mr Mr Mukonoweshuro to appeal out of time. It is to be recalled that on 19 July 2019, a differently constituted Tribunal gave Mr Mukonoweshuro leave to amend his appeal to be an appeal against the above mentioned decisions, together with the decision made on 2 May 2019. That Tribunal did not determine the question of whether leave to appeal out of time should be granted.
3. While unfettered, the discretionary power to extend the period of time for lodging an appeal must be exercised judicially having regard to the guiding principle that the Tribunal is to facilitate the just, quick and cheap resolution of the real issue in the proceedings: s 36 of the Civil and Administrative Tribunal Act 2013 (NCAT Act); Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]. The appeal brought in relation to each appeal is grossly out of time. The explanation given by Mr Mukonoweshuro for appealing out of time is unclear and unpersuasive. In our view, given the passage of time, no useful purpose would be served in permitting Mr Mukonoweshuro to appeal the decisions made on 23 August 2018 and 3 October 2018. For these reasons we decline to exercise the power to extend the period of time for lodging the appeal against those decisions.

Costs

1. The Commission seeks to be heard on the issue of costs. The parties are invited to make brief written submissions in accordance with the following timetable: 1. Any party seeking an order for costs must file and serve that application together with supporting submissions within 14 days of the date of this decision. 2. Any party opposing that application must file and serve any submissions in reply within 14 days of receipt of the other party's submissions.
2. We are of the view that the issue of the costs can adequately be dealt with by way of written submissions without holding a hearing, as permitted by s 50(2) of the NCAT Act. The parties are invited to indicate in their respective submissions whether they share this view.

Orders 1. The decision made by the Occupational Therapy Board of Australia on 2 May 2019 to refuse to grant Mr Mukonoweshuro's application to remove conditions imposed on his registration as an occupational therapist by the Board in August 2018, is confirmed.

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: 31 January 2020