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[2004] QCA 405
Court of Appeal (Qld)
2004-10-29
de Jersey CJ, Davies JA and Chesterman J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Psychologists Board of Qld v Robinson [2004] QCA 405
PARTIES: PSYCHOLOGISTS BOARD OF QUEENSLAND (registrant’s board/respondent) v / SUSAN MAUREEN ROBINSON (registrant/appellant)
FILE NO: Appeal No 5114 of 2004 / BD No 557 of 2003
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Health Practitioners Tribunal at Brisbane
DELIVERED ON: 29 October 2004
DELIVERED AT: Brisbane
HEARING DATE: 19 October 2004
JUDGES: de Jersey CJ, Davies JA and Chesterman J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1. Appeal dismissed 2. Costs to be assessed on the standard basis
CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITONERS – DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER – PROCEDURE, EVIDENCE AND APPEAL – QUEENSLAND – where appellant psychologist found guilty of unsatisfactory professional conduct involving acts of sexual intercourse with a former patient – whether the appellant’s relationship with her former client amounted to unsatisfactory professional conduct by breaching ethical standards of the profession / Health Practitioners (Professional Standards) Act 1999 (Qld), s 26, s 124, s 126, s 219, s 374, s 376, s 348 / Psychologists Registration Act 2001 (Qld) / Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, discussed / Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, discussed / Jo**nes v National Coal Board [1957] 2 QB 55, cited / Medical Board of Queensland v Cooke [1992] 2 Qd R 608, discussed / Mercer v Pharmacy Board of Victoria [1968] VR 72, cited
COUNSEL: Mr J G Crowley QC, with Mr J P Crowley, for the appellant / Mr J A Logan SC, with Mr R P Devlin, for the respondent
SOLICITORS: A W Bale & Son for the appellant / Gilshenan & Luton for the respondent
de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Chesterman J. I agree with the orders proposed by His Honour, and with his reasons.
DAVIES JA: I agree with the reasons for judgment of Chesterman J and with the orders he proposes.
CHESTERMAN J:
‘Every art and every investigation, and similarly every action and pursuit is considered to aim at some good. … Does it not follow, then, that a knowledge of the good is of great importance to us for the conduct of our lives?’ – Aristotle Ethics Book 1
‘Into whatsoever houses I enter, I will do so to help the sick, keeping myself free from all intentional wrong-doing and harm, especially from fornication with woman or man, bond or free. … Now if I keep this oath and break it not, may I enjoy honour, in my life and art, among all men for all time, but if I transgress and foreswear myself, may the opposite befall me.’ – Extract from the Hippocratic Oath
The appellant is a psychologist registered to practise as such in this State. She was first registered, conditionally, on 17 June 1999. On 18 May 2004 the Health Practitioners Tribunal ordered that her registration be suspended for six months and that, following the suspension, she should practise only under the supervision of a psychologist approved by the Psychologists Board of Queensland and in that 12 month period demonstrate ‘clear understanding of ethical obligations …’.
The appellant has appealed against the Tribunal’s order which she seeks to have set aside.
The Tribunal was established by s 26 of the Health Practitioners (Professional Standards) Act 1999 (Qld) (‘the Act’). Its members are the judges of the District Court assisted by assessors chosen from a panel by the Tribunal’s Registrar for a particular hearing. The ‘primary function’ of the Tribunal is to ‘conduct hearings, and make decisions, relating to disciplinary matters’ about health practitioners included amongst whom are psychologists, like the appellant, registered to practise pursuant to the Psychologists Registration Act 2001 (Qld).
By notice dated 17 October 2003 the Psychologists Board of Queensland, the respondent to the appeal, referred to the Tribunal for its determination the question whether the appellant had behaved in a way that constituted unsatisfactory professional conduct which might provide a ground for suspending or cancelling her registration. The respondent provided particulars of the question for determination. They were:
‘(a)Between the 19th day of July 1999 and the 9th day of February 2000 one MRN was a client of the Registrant and received psychological counselling from her.
Between the 1st day of February 2001 and the 31st day of January 2002 the Registrant did engage in a sexual relationship with MRN, her former client.
The sexual relationship as alleged commenced without a sufficient period of time elapsing after the termination of the counselling of MRN by the Registrant;
The Registrant exploited the treating relationship by engaging in a sexual relationship with the said MRN as alleged
By engaging in the conduct alleged, the Registrant’s unsatisfactory professional conduct amounts to any one or more of the following:
professional conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public or the Registrant’s professional peers;
Infamous conduct in a professional respect;
Misconduct in a professional respect;
Conduct discreditable to the Registrant’s profession;
Other improper or unethical conduct.’
must comply with natural justice
must act as quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the matter before it
is not bound by the rules of evidence
may inform itself of anything in the way it considers appropriate.
‘(1)A code of practice developed or adopted by a board and approved under section 374 is admissible as evidence in disciplinary proceedings brought by the board against 1 of its registrants under this Act.
The code may only be used to provide evidence, in the disciplinary proceedings, of appropriate professional conduct or practice for the profession.’
‘… includes the following –
(a)professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers;
(b)professional conduct demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practise of the … profession;
(c)infamous conduct in a professional respect;
(d)misconduct in a professional respect;
(e)conduct discreditable to the registrant’s profession;
(f)providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person’s wellbeing;
(g)influencing, or attempting to influence, the conduct of another registrant in a way that may compromise patient care;
(h)fraudulent or dishonest behaviour in the practise of the registrant’s profession;
(i)other improper or unethical conduct.’
By s 348 of the Act an appeal to the Court of Appeal against the Tribunal’s decision is limited to questions of law.
The facts giving rise to the referral to the Tribunal of the question whether the appellant had behaved in an unsatisfactory professional way were not substantially disputed and were set out in the Tribunal’s findings. They were:
‘[4]The [appellant] was employed at the Arthur Gorrie Correctional Centre as a counsellor from 15 May 1999. On 17 June 1999 she obtained conditional registration as a psychologist in Queensland and on 27 July 1999 Mark Boschen, a psychologist employed at the Centre undertook her supervision.
[5]The first contact between the [appellant] and MRN took place on 17 June 1999. On 17 August 1999 the [appellant] advised Mr Boschen that she thought that MRN was attracted to her. It was appropriate that the [appellant] decided to speak to her supervisor about this matter at that stage. During this discussion boundary issues were canvassed and “how acting as a therapist specifically called for behaviour that was contrary to the concurrent conduct of a social relationship” During that discussion she said that she did not think that his perceived attraction for her would impact on her therapeutic contact with MRN and that she would continue her contact with him.
[6]There is no suggestion that there was any inappropriate relationship between the [appellant] and MRN whilst he was in the Arthur Gorrie Correctional Centre and whilst she was counselling him.
[7]From 9 September 1999 to 9 February 2000 there were 20 documented counselling sessions between the [appellant] and Mr MRN. … The [appellant] … has acknowledged that the sessions with MRN involved a therapeutic relationship including cognitive behaviour therapy. The [appellant] also agreed that she had to show empathy, unconditional positive regard as well as genuine care and concern to the client during these sessions.
[8]On 18 February 2000, MRN was transferred from Arthur Gorrie Correctional Centre and did not have any further contact with the [appellant] before he was released.
[9]On 15 March 2000 the [appellant] commenced supervision with Karl Weiner. She began employment as a psychologist at Arthur Gorrie Correctional Centre on 5 June 2000 until she resigned from Corrective Services on 25 January 2001.
[10]On 23 February 2001 MRN was discharged from Woodford prison. In late February/early March 2001 the [appellant] was walking through Brisbane city when an accidental meeting with MRN occurred. She gave him her mobile number and they arranged to have a chat some time. He called her later that day and they met for coffee. He indicated that he had nowhere to stay and asked if he could stay with her for a short time. She was uncertain initially and said … “I don’t know what the ethics of the situation is or how it could be perceived or that type of thing”. She agreed to accommodate him and decided to talk to Mr Weiner about it.
[11]In early March 2001 and within a day or two of the meeting with MRN, the [appellant] spoke to Weiner, her former supervisor, and told him that she had run into a former inmate and offered him her spare room. Mr Weiner told her that she was not to engage in a sexual relationship with a former client and that there could be problems with her professional and ethical standing if she mixed with ex-criminals and their associates. His advice to her was to refrain from engaging in a relationship with him and that he would contact the [respondent] and the APS [Australian Psychological Society] on her behalf. He asked her for further details of her professional contact with MRN. That further information was provided by e-mail on 9 March 2001. It was only at this stage that Weiner realised that she had had substantial professional contact with MRN …
[12]The [appellant] rented the room in her house for two weeks to Mr MRN and on 13 March 2001 he moved out. The [appellant] wrote to the [respondent] on 15 March 2001 indicating that she had done this and it was to be a temporary measure of a business nature, not romantic, sexual or otherwise inappropriate. This was an inaccurate representation of the situation because at that stage she was at least attracted to MRN.
On 18 April 2001 MRN was discovered hiding at the [appellant’s] home and at that stage the registrant advised the detectives that she was in a relationship with MRN and that he slept over at her place approximately three times per week.
On 6 June 2001 the [appellant] again wrote to the [respondent] advising them that the article appearing in the paper was inaccurate and implying that the relationship with MRN was no more than that stated in her letter of 15 March 2001. The [appellant] finally wrote to the [respondent] on 6 July 2001 again indicating that the relationship was only one of friendship.
The [appellant] has continued contact with MRN and intends to continue contact with MRN into the future.
It is accepted by the [appellant] that there was a sexual relationship between [her] and MRN which commenced sometime soon after 13 March 2001 until 18 April 2001 when he was taken into custody.’
[13] The Tribunal noted that the ‘only real question’ litigated was whether the relationship between the appellant and MRN amounted to ‘unsatisfactory professional conduct by breaching the ethical standards of the profession’. The Tribunal noted that the appellant ‘relied heavily … on the fact that … the [respondent] has not promulgated ethical standards … which would be legally binding on the [appellant].’ The Tribunal observed that ‘the fact that there are no proclaimed standards does not relieve the [appellant] from a duty to follow the ethical standards of the profession.’
[14] It was accepted that the respondent had not utilised the provisions of s 374 of the Act to develop a code of practice setting out the ethical obligations of registered psychologists. This was the cornerstone of the appellant’s submissions in this Court as well. Before dealing with the arguments addressed to the Court, it is convenient to set out the way in which the Tribunal dealt with the point.
[15] The Tribunal said:
‘[20]… the [appellant] was sent a registration kit by the [respondent] prior to her applying for registration. In that kit under general information potential applicants are told:
“The [respondent] expects Psychologists to act ethically and draws your attention to the Psychologists Act and By-law (in particular Sections 28, 29 and 30). The [respondent] uses as a guide the Code of Ethics of the Australian Psychological Society (APS) and draws your attention to this Code. The [respondent] also has endorsed, in conjunction with other Health Professional Registration Boards in Queensland, the Position Statement of Health Professional Boards on Sexual Relationships between Health Practitioners and their Patients and draws your attention to this Position Statement.”
[21]The [appellant] understood from her studies that the APS code was a guideline. Karl Weiner had also referred her to the APS code and she had been given a copy of the 1995 version of the APS code by Manuela Habid, a previous supervisor. Mr Weiner gave evidence and the [appellant] agreed that the APS code was on the computer at work. Mr Weiner said it was also discussed often at meetings. The [appellant] could not remember if this was the case.
…
[23]The [respondent], it seems, relies on it’s [sic] registrants following the APS guidelines and the Position Statement of Health Practitioners Boards on Sexual Relationships between Health Practitioners and Their Patients [“Position Statement”].
[24]Section B of the APS code of conduct provides:
“(7)Members must avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to, provision of psychological services to employees, students, supervisees, close friends or relatives.
(8)Members must not exploit their professional relationships with clients sexually or otherwise…..
(10)No member may engage in a sexual relationship with a former client when less than two years have expired since the ending or termination of the professional relationship.
(11)In circumstances where more than two years have elapsed since the ending or termination of the professional relationship between the member and former client, in determining whether a sexual relationship between the member and former client is unethical the following matters must be taken into consideration:
(a)the length of the professional relationship;
(b)the nature of the professional relationship;
(c)the client’s mental state at the time he or she commenced the sexual relationship with the member;
(d)the circumstances in which the professional relationship ended or was terminated;
(e)the duration of time that has expired since the ending of the professional relationship.
Additionally, any other salient matters may be taken into consideration when evaluating the conduct of a member who has engaged in a sexual relationship with a former client.”
[25]It must have been abundantly clear to the [appellant], knowing the APS code of ethics, that there was a significant problem with entering into this relationship with MRN. The code clearly indicated that there was a complete prohibition on entering into such a relationship. She was, in those circumstances, prudent to seek the advice of a more senior practitioner such as Mr Weiner. Unfortunately she chose not to follow his advice when he told her in no uncertain terms that she shouldn’t do anything until he found out more and that she should not enter into a sexual relationship with MRN. He was also worried about the arrangement about which he was aware namely that of temporary landlord.
[26]The Position Statement is not as proscriptive as the APS code in relation to the time that must pass between the end of a therapeutic relationship and the commencement of a sexual relationship. In that document the ethical situation is set out at paragraph 4:
“4.2A sexual relationship between a health practitioner and a former patient will be considered individually by the relevant board. It may be deemed to be improper and unprofessional if any of the following apply:
4.2.1The professional relationship involves psychotherapy, long term counselling or support.
4.2.2The patient suffered a disorder likely to impair judgment or hinder decision making.
4.2.3The health practitioner is aware that the patient has been sexually abused in the past.
4.2.4The patient was under the age of 18 when the personal sexual relationship commenced.
4.2.5Their [sic] treating relationship has not been properly terminated with appropriate referral arrangements were [sic] continuing and future health needs made.
4.3In any case of a sexual relationship between a health practitioner and a former patient, it will be deemed improper and unprofessional if it can be shown that there was any exploitation of power imbalance or of any knowledge or influence gained by the practitioner within the professional relationship.”
[27]Dr Dooley gave evidence that the APS guidelines were the predominant standard and code of behaviour in Australia and therefore the ones that should be followed by a psychologist such as the [appellant]. Even if those guidelines are not binding by force of legislation it is accepted by the [appellant] that they should be used as a guide. The Position statement is a little more flexible in terms of the time required between treatment and the development of a relationship. However those guidelines also point to a breach of ethics in the opinion of the tribunal.’
[16] There is no doubt that the appellant, having commenced an intimate relationship with MRN on or about 13 March 2001, had not obeyed the precept found in paragraph 10 of section B of the APS code. She had only ceased treating MRN on 18 February 2001. The Tribunal went on to explain why it concluded that the appellant had breached the ethical guidelines constituted by the Position Statement. The appellant’s professional relationship with MRN involved long-term counselling and support over five months during which she came to know much about him and his circumstances. It considered that the appellant had exploited that knowledge. She knew that he had no family in Queensland and that he was apprehensive about his ability to re-enter society when released from prison. He was almost ten years younger than the appellant. He was estranged from his family and had no friends to offer support. He was homeless with a history of impulsive behaviour. He was also a drug addict. The appellant had demonstrated considerable care and support for MRN while counselling him in prison. It was, therefore, the Tribunal thought, ‘not surprising that he clung to her upon meeting her.’ It also thought that there was, in the terms of the Position Statement, a ‘power imbalance’ between them due to MRN’s vulnerability on release and the fact that he had confided in the appellant his intimate thoughts and personal history.
The Tribunal also noted that the relationship had had a harmful effect on MRN. He had re-offended after release from prison and was returned to custody. He continues to need counselling but has refused it, claiming it was unnecessary. The refusal was based upon his relationship with the appellant. He was not prepared to share his thoughts with any other counsellor. The appellant noted in a telephone conversation with MRN that his refusal to speak to another psychologist was because he spoke to her ‘three times a day’. She confessed to him ‘ … I’m no help I think I make you worse.’
The Tribunal accepted that there is a mutual attraction between the appellant and MRN which continues. It also accepted that the appellant has genuine feelings of friendship and affection for MRN but, nevertheless, pointed out the adverse consequences for MRN the appellant’s attraction has had. The Tribunal concluded that the appellant had breached the ethical standards of her profession and that she knew, when she engaged in the relationship with MRN that she was contravening those ethical standards. The Tribunal noted that the appellant ‘was aware that she was in breach of her ethical obligations when she wrote to the [respondent] on 15 March 2001, 6 June 2001 and 6 July 2001 and chose to conceal cogent information …’
The amended notice of appeal contains eight grounds of objection to the Tribunal’s order, but as the appellant’s argument was presented they fell into two categories. The first, and most sustained, was that the evidence was insufficient, or legally inadequate, to support the finding made against the appellant. The second category consisted of a number of disparate complaints that the Tribunal had not conducted proceedings properly and so deprived the appellant of natural justice.
The principal argument for the appellant was that, because the respondent had not developed a code of practice pursuant to s 374 of the Act, there was no basis for the Tribunal to find that the appellant’s conduct, which contravened the APS code, was unethical or constituted unsatisfactory professional conduct. The argument, which was not coherently advanced, was that in the absence of a code of practice developed pursuant to the section there can be no set of ethical rules or guidelines ‘binding’ on a psychologist registered to practice by the respondent.
The argument misunderstands the effect of s 374 and the nature of ethics. The submissions assumed that only a code of practice developed in accordance with the section would be ‘legally binding’ on registered psychologists. This depiction begs the question of how ethics bind the members of a profession. Such a code of practice is not legally binding in the sense that it entails a statutory obligation to comply with the contents of the code. Contravention of any of the provisions of a code developed under s 374 could not result in a prosecution brought under the Justices Act. The only legal consequence of the development of a code of practice and its approval by the Minister and subsequent gazettal is that the process provides definitive evidence of what constitutes ethical and proper professional conduct for psychologists. Without such an adoption and gazettal the content of the rules of ethics for a profession have to be established by less certain means of proof. There can be cases where reputable professional men and women disagree about the propriety of certain types of professional conduct. [1992] 2 Qd R 608 is an example of such a case. There can be no scope for disagreement about the content of the ethical obligations of the member of a profession subject to the Act where the relevant Board has developed a code of practice in accordance with s 374. That, it seems to me, is its only function.
‘The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.’
The same test has been applied by the Supreme Court of Victoria with respect to pharmacists. See Mercer v Pharmacy Board of Victoria [1968] VR 72 at 85.
The question for the Tribunal was whether the appellant had engaged in unsatisfactory professional conduct, as particularised in the reference. The answer was to be found by the test described in the cases. It is the test which the Tribunal did apply. Whether the appellant’s conduct, the subject of the referral, was of a lesser standard than that to be reasonably expected by the appellant’s peers, or was discreditable to her profession, or was unethical, was, obviously a question of fact to be determined on the evidence. The Tribunal had evidence before it, principally from Dr Dooley, that the appellant’s conduct did satisfy that description. Both Dr Dooley, and the Tribunal, relied upon the contents of the APS code and the Position Statement. There can be no possible objection to this use of the APS code, or the Position Statement, by the Tribunal. It is to miss the point entirely to say that neither document was ‘binding’ on the appellant by force of law. The point is that psychologists of good repute and standing regarded the rules in question, the APS code and Position Statement concerning sexual relationships between psychologists and former patients, as setting forth standards to which they, as professionals, should adhere. They regarded those rules as ‘binding’ on themselves and their conduct notwithstanding that the rules had no statutory force and breach of them could not result in a prosecution. This is the very nature of an ethic. It is a voluntarily observed rule which is obeyed because obedience to it is seen to be good for the reputation of the profession and the proper performance of its members’ functions.
The Tribunal clearly understood the position. It accepted that the APS code and the Position Statement were evidence of rules of conduct concerning sexual relationships between psychologists and former patients which psychologists of good standing and repute observed. There was evidence before the Tribunal that that was the position. The Tribunal was entitled to accept that evidence and it did so. The Tribunal made no error in accepting the evidence. It certainly made no error of law in doing so.
There is marked inconsistency between the submissions advanced on behalf of the appellant and her own acceptance of the existence and validity of the rule. Before commencing her relationship with MRN the appellant spoke to an experienced and reputable psychologist who had been her supervisor. He advised her in plain and strong terms not to begin an intimate relationship with her former patient. She ignored his advice. When questioned by the respondent about the nature of her relationship the appellant, as the Tribunal noted, dissembled. She concealed and mis-stated the true nature of that relationship. This can only be for the reason, as the Tribunal hinted, that she knew her conduct to be improper from a professional point of view. It is a clear, if implied, admission of wrongdoing.
The appellant’s counsel also complained that the Tribunal’s finding was unfair because the ethical requirements set out in the APS code and the Position Statement were contradictory and that the Board did not tell the appellant which set of rules she should observe. When analysed the complaint is a submission that the evidence of what the appellant’s ethical constraints were, was unsatisfactory and thus unacceptable. This is for the reason that the proof offered of the constraint was contradictory.
The appellant firstly complains about the findings made by the Tribunal in reaching the conclusion that the appellant had breached the terms of the Position Statement. Given the limited nature of the right of appeal the only legitimate complaint can be that there was no evidence to support the findings. Although the notice of appeal and one of the appellant’s outlines of argument made that assertion, counsel for the appellant did not advance that argument to the Court. It could not have succeeded given the evidence which the Tribunal accepted.
The appellant’s counsel next complained that his legitimate cross-examination of Dr Dooley had been unfairly interrupted by the Tribunal which thereby deprived the appellant of a fair chance of challenging the witnesses’ evidence. If made out the proceedings before the Tribunal would have been tainted by an error of law, but the test is severe. It is whether the intervention of the judge or Tribunal of fact in the examination or cross-examination of witnesses prevented the adduction of all relevant evidence which a party wished to lead. See Jo**nes v National Coal Board [1957] 2 QB 55.
The cross-examination of Dr Dooley occupies some 46 pages of transcript. As far as I can see there were eight or nine occasions on which Judge Richards, who constituted the Tribunal, interrupted. There is no occasion on which the interruption was not temperate and appropriate. The occasions were either to prevent a question which was clearly improper or to seek elucidation of the point being explored in cross-examination. There is no hint of the Tribunal attempting to influence the course of cross-examination or to prevent a proper test of the evidence, or to suppress evidence.
The crux of the complaint concerns what occurred in a passage recorded at T 124. The appellant’s counsel was questioning Dr Dooley about his opinion that the APS code was a rule of conduct which should be observed by registered psychologists. The questioning went to whether his opinion to that effect was based upon a misunderstanding about the legal status of the code. The relevant passage is:
‘… if it be that as a matter of law the ethics don’t bind her, I take it that you’d want to reconstruct some of the views you’ve given in your … report? - The only basis on which I would reconstruct it would be on saying which code I referred to … I would not alter anything else …
… I think you’ve already said that you referred to the APS code? - -Well, indeed. … That’s the substance of my report.
… [Y]ou’ve referred to it on the basis that this registrant was bound by its provisions? -- Bound in the sense that I understood her to be bound, which is in a certain way, yes, not in that statutory way that you defined earlier.
No, no, but by contract or by agreement because she was a registrant in Queensland and the Board has said to [her] … “abide by the code”? -- That’s right.
And if it emerges later … that she’s not bound in that way, then the foundation of your opinion would be exploded, wouldn’t it? -- … [I]f that was taken away, yes. …
HER HONOUR: Sorry, can I just … clear that up. Mr Dooley, if she’s not legally bound to follow those code of ethics … you say that would change [your] opinion? -- … [I]f she is … not legally bound … It doesn’t alter my interpretation of her behaviour in terms of that code of ethics to which I have referred.
Right? -- And I would still make the same conclusions about her behaviour, whether she was legally bound by that particular code or not.’
The appellant’s point is that her counsel had extracted a damaging admission from Dr Dooley that ‘the foundation’ of his opinion had been ‘exploded’ if the APS code were not legally binding on the appellant when the Tribunal intervened to obtain a contrary opinion from Dr Dooley which the Tribunal later accepted.
This characterisation of the passage is untenable. The cross-examination immediately prior to Judge Richards’ interruption had produced some confusion in Dr Dooley’s answers. He had said both that he regarded the appellant as bound by the APS code despite it having no statutory force, but also that the basis for his opinion would disappear if the appellant were not legally bound to comply with the code. It was entirely proper, and indeed responsible, for the Tribunal to seek clarification of Dr Dooley’s opinion. Moreover the cross-examination had proceeded on a false premise created by counsel’s misunderstanding of how an ethic binds a professional person, and the operation of s 374. The misunderstanding was likely to give rise to confusion, as it did. The ‘admission’ was a product of the confusion. It was of no consequence. The APS code was binding, not by force of a statute, but because reputable psychologists chose to comply with it.
The second complaint about procedure is that the appellant was denied natural justice because the Tribunal had regard to bundles of documents which were described as Exhibits A and B but did not formally become part of the evidence. They were given to the Tribunal ‘for identification’. The argument was that the Tribunal had reached its decision partly by reference to documents in the bundle to which the appellant’s lawyers had not had access and about which they were ignorant. They had therefore been deprived of the chance to challenge or answer the evidence on which the Tribunal relied. The Tribunal’s reasons did refer to parts of the documents comprising Exhibits A and B. Only the second reference is of substance. The first was mentioned only as part of the factual background to the referral. The second reference, though, was given in support of the finding that the appellant’s relationship had been detrimental to MRN’s acceptance of further counselling and his rehabilitation. It was important to the conclusion that the relationship had been harmful to MRN.
The Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit. Nevertheless if the Tribunal had behaved as the appellant describes the proceedings may have been irregular.
The assertion that the appellant was denied natural justice because the Tribunal referred to Exhibit B, and relied upon it is, in the circumstances, absurd. The evidence which was reproduced in the Tribunal’s reasons (and is set out in paragraph 14 of these reasons) and which the appellant’s counsel says he had no opportunity to consider, contest or answer was in fact the subject of specific questioning of the appellant by the Tribunal. The document from Exhibit B, which contained the evidence, was identified and produced. Judge Richards asked counsel for the appellant and respondent whether they wished to question the appellant about the topic. Both said no.
Psychologists Board of Qld
Robinson
The obvious corollary to the appellant’s counsel’s submission is that in the absence of a code of practice developed in accordance with s 374 there are no ethical obligations to regulate the professional conduct of psychologists. The proposition is preposterous and the appellant’s counsel disclaimed it, without ever making clear what he contended the content of those ethical obligations to be, or how they are to be ascertained.
The answer is obvious. As long ago as 1894 it was decided in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 that the question whether a doctor had been guilty of ‘infamous conduct in a professional respect’ was to be decided by reference to whether the conduct ‘would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency’. The same test was applied with respect to solicitors in Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507 and in Cooke at 616. In each case it was said that:
There is no substance in the complaint. The two sets of rules do not conflict. It is possible for a psychologist to comply with both. The APS code is, as the Tribunal said, proscriptive in its terms. The Position Statement allows for more flexibility in approach and allows for a degree of personal judgment about when and in what circumstances an intimate relationship may be developed between psychologist and former patient. The Tribunal accepted Dr Dooley’s evidence that the APS code was regarded by professional psychologists as the appropriate rules for regulating their professional conduct. The answer to the complaint is that the Tribunal analysed the appellant’s conduct by reference to both sets of rules and found that she had offended each of them. The evidence and the Tribunal’s analysis of it, which I have set out, plainly supported the conclusion.
The appellant’s principal attack on the Tribunal’s findings is without merit.
The appellant’s complaints about the hearing before the Tribunal can be dealt with shortly. They too are groundless.
The third criticism of the Tribunal’s conduct was that it wrongly excluded the evidence of Dr Williams, a Californian psychologist, who expressed the opinion that there was nothing improper or unprofessional about the appellant’s relationship with MRN. A refusal by the Tribunal to admit relevant evidence in support of the appellant’s defence would be an error of law. It would constitute a ground of appeal under s 348 of the Act. The Tribunal did not, however, exclude Dr Williams’ evidence. His report was admitted and became Exhibit 11. Dr Williams himself gave evidence via telephone link and was examined and cross-examined. The Tribunal did not accept his opinion. It preferred the evidence of Dr Dooley. It gave reasons for doing so which are ex facie, rational and relevant. It is a function of a tribunal of fact to choose between opposing testimony and opinions by reference to the content of the evidence. The appellant has not demonstrated any error in the Tribunal’s preference for Dr Dooley’s opinion over that of Dr Williams. If there were an error it was one of fact and not of law and does not give rise to a ground of appeal.
The appellant has not demonstrated any error in the judgment of the Tribunal or its conduct of the reference to it by the respondent. The appeal should be dismissed with costs to be assessed on the standard basis.