PROFESSIONS AND TRADES - HEALTH PRACTITIONER REGULATION - PSYCHOLOGISTS - DISCIPLINARY PROCEEDINGS - where practitioner charged with offences - where practitioner failed to notify Board of charges - where practitioner convicted of offences - where practitioner failed to notify Board of convictions - where practitioner answered "no" to question pertaining to change in criminal history when applying for renewal of registration - where failure to disclose not deliberate - whether the failure to disclose amounted to unprofessional conduct

Health Practitioner Regulation National Law (Queensland) Act 2009 ss 109, 130

Medical Board of Australia v Putha [2014] QCAT 159

Medical Radiation Practice Board of Australia v Lindberg Unreported QCAT No. OCR258 -13 21 October 2014 per Horneman-Wren, Deputy President

Peeke v The Medical Board of Victoria Unreported Supreme Court of Victoria No 10170 of 1993, 19 January 1993

Medical Board v Jones [2012] QCAT 362

Pharmacy Board v Ludwick [2013] QCAT 235

Medical Board of Australia v Evans [2013] QCAT 217

Health Care Complaints Commission v Parsons [2014] NSWCATOD 97

Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151

Mr A Luchich of Counsell, instructed by Meridian Lawyers

[1] As is the tribunal's practice, the parties participated in a compulsory conference on 11 December 2014, which I chaired. The parties reached an agreed position on the facts and concurred as to the protective orders that the tribunal should make. The parties have consented to my sitting on the tribunal for this hearing and the tribunal orders accordingly.

[2] The tribunal appreciate the parties' cooperation in reaching consensus. However, the parties understand that the tribunal must be satisfied that the proposed orders are, in all the circumstances, appropriate.

[3] Dianah Cameron was first registered to practice psychology in 1989. She practices on the Sunshine Coast.

[4] In the twelve months preceding November 2011, as she was aware, Ms Cameron was charged with the following offences:

1. On 19 June 2010, driving without a licence;

2. On 3 April 2011, driving without a licence, disqualified by court order, repeat offender;

3. On 3 April 2011, driving over the general, but under the high level, of alcohol limit;

4. On 23 July 2011, driving under the influence;

5. On 23 July 2011, driving without a licence, repeat offender;

6. On 28 September 2011, driving over the general, but not over the middle level, of alcohol limit;

7. On 28 September 2011, driving without a licence, disqualified by court order;

[5] In due course, and prior to November 2011, Ms Cameron was convicted on each of these offences.

[6] Section 130 of the Health Practitioner Regulation National Law (Queensland) Act 2009 (National Law) provides that, within seven days of becoming aware of a relevant event, a registered practitioner must give notice of that event to the Board. "Relevant event" includes[1] being charged with an offence punishable by 12 months imprisonment or more or being convicted of an offence punishable by imprisonment. The offences with which Ms Cameron was charged were relevant events. Contrary to s 130, Ms Cameron did not notify the Board of either the charges or her conviction.

[7] In November 2011, Ms Cameron applied for a renewal of her registration. Section 109 of the National Law provides that an application for renewal of registration must include, or be accompanied by a statement that includes details of any change in the applicant's criminal history that occurred during the preceding period of registration. "Criminal history" is defined as "every conviction for an offence", "every plea of guilty of finding of guilt by a court" or" every charge made against a person for an offence".

[8] The application for renewal contained this question:

During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?

Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above?)

[9] Ms Cameron answered "no". She therefore failed to disclose the changes in her criminal history, contrary to s 109 of the National Law.

[10] The Australian Health Practitioner Regulation Agency (AHPRA) received a notification of Ms Cameron's criminal history in April 2012. It wrote to Ms Cameron on 3 July 2012. By letter of 16 August 2012, Ms Cameron admitted that she failed to notify AHPRA as required.

[11] AHPRA referred a disciplinary proceeding to the tribunal on 6 August 2014. The referral related only to Ms Cameron's failure to disclose her criminal history.

[12] Ms Cameron has admitted breaches of ss 109 and 130 of the National Law. She has also admitted that she has behaved in a way that amounts to unprofessional conduct.

[13] Ms Cameron submits that, in relation to her breaches of s 130, she was not aware of her statutory obligation to report to the Board. In relation to her breach of s 109, Ms Cameron submits that she thought the charges and offences were "traffic offences" and not "serious criminal offences". She thought that her obligation to notify related only to "serious criminal offences". The Board accepts that Ms Cameron's failures to notify were not deliberate but the result of a mistaken belief.

[14] At paragraph 10 of the referral notice, the Board alleges Ms Cameron failed to disclose details of changes to her criminal history when she applied for renewal of her registration on November 2012. The Board does not now press this allegation. It is content that Ms Cameron did disclose the changes in her criminal history in her letter of 16 August 2012, so that it was not necessary to declare them a second time in the application. The Board submits that it should formally ask the tribunal's leave to delete the allegation from the referral. It is not necessary for such formality of process; it is enough simply to record that this allegation is abandoned.

[15] The parties submit that, in light of Ms Cameron's admission that she engaged in unprofessional conduct, the tribunal does not need to make findings about whether her conduct amounted to professional misconduct.

[16] "Professional misconduct" is defined[2] to include:

1. Unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a health practitioner of equivalent training or experience;

2. More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a health practitioner of equivalent training or experience; and

3. Conduct that is inconsistent with the practitioner being a fit and proper person to hold registration.

[17] Ms Cameron failed to disclose the change in her criminal history on five separate occasions. Ordinarily, that multiple failure would fall within the second definition of professional misconduct. Counsel for Ms Cameron submits that the tribunal should view the failures as one course of conduct, similar to the tribunal's approach in Pharmacy Board of Australia v Kinsey[3] and therefore the second definition of professional misconduct did not apply. The Board was not of the same mind. It submitted that Ms Cameron did fail to report on multiple occasions and that the tribunal should not treat Ms Cameron's omissions as one course of conduct.

[18] The tribunal prefers the Board's view. While Ms Cameron's failure to notify the Board of the charges might all have been the subject of the same misapprehension, the convictions had a different character. The tribunal does not accept that the failure to notify the convictions can be construed as part of the one course of conduct arising from charges months, or even years, before. Similarly, the tribunal takes the view that failure to report under s 130 of the National Law has a very different character from Ms Cameron's incorrect answer on her application for renewal.

[19] Ordinarily, the tribunal considers misrepresentation in an application for registration to be a very serious matter. Full and frank disclosure of accurate information is an importance part of the registration regime[4]. Without proper disclosure, Boards lack a complete picture of the registrant's work history and may lose the opportunity to act prospectively to avoid problems, rather than retrospectively to pick up the pieces of a registrant's career. The failure to disclose may indicate poor character on the part of the practitioner[5]. The tribunal must also be mindful of the need for general deterrence[6] so that practitioners are not tempted to limit their disclosure by omitting unfavourable material.

[20] The parties submit there are two reasons why Ms Cameron's behaviour should be categorised as unprofessional conduct. The reasons are interconnected. The parties submits that Ms Cameron's insight into her behaviour, demonstrated by her early admission and full cooperation, and that her actions were not deliberate, justify a finding of unprofessional conduct.

[21] The parties submit that Ms Cameron has demonstrated insight by her early admissions. Given that the tribunal's examination of Ms Cameron's behaviour is limited to the failure to notify, it is accepted that Ms Cameron did make a timely admission, which avoided the cost and delay of an investigation and full hearing.

[22] The parties also submit that the evidence shows Ms Cameron's failure to notify was not a deliberate act, or one designed to avoid the consequences of notification. The parties point to Ms Cameron's statement that she was unaware of her statutory obligations and that she did not consider her offences as "serious criminal offences". Once again, as the tribunal's deliberations are limited to the issue of non-disclosure, and there is no evidence to the contrary, the tribunal accepts Ms Cameron's submissions.

[23] There are cases in which a tribunal has found the failure to notify constitutes unprofessional conduct, not professional misconduct[7]. In each of those cases, the registrant was facing more serious charges. The issue of non-disclosure was not the central issue in the case. The cases are, however, authority for the proposition that non-disclosure, while serious, is not a basis for a finding of professional misconduct.

[24] In Medical Radiation Practice Board of Australia v Lindberg[8] the registrant omitted the word "equine" from the description of a hospital in which she had practised in Dubai. The tribunal found[9] that the registrant deliberately omitted information that was relevant to her application. Even so, the tribunal found that the registrant's omission constituted unsatisfactory professional conduct, not professional misconduct[10]. The tribunal accepts that Ms Cameron's conduct is less serious than that of the registrant in Lindberg. The tribunal therefore accepts that the appropriate finding is that Ms Cameron's behaviour constituted unprofessional conduct.

[25] The tribunal raised the question of whether, in light of Ms Cameron's criminal history, a reprimand would have any preventative effect. Again, the tribunal was reminded that the scope of its deliberations was restricted to the issue of non-disclosure. The tribunal was assured that Ms Cameron understood the serious nature of these proceedings and the consequences of any tribunal orders on her future career. Counsel for Ms Cameron referred the tribunal to Peeke v The Medical Board of Victoria[11]. In that case, Marks J noted that a reprimand was not a trivial penalty and that it had the potential for serious adverse implications to a professional person. That view has been endorsed by this tribunal[12] and is adopted in the present circumstances.

[26] Although it is not part of the referral, the behaviour underlying this referral - excessive alcohol consumption and driving whilst either disqualified or under the influence - and Ms Cameron's fitness to practice, is of concern.

[27] Counsel for Ms Cameron submitted a copy of a psychological treatment progress report dated 22 April 2013[13] that shows Ms Cameron responded well to psychological intervention and that no further intervention was required. The Board told the tribunal that it has investigated Ms Cameron's fitness to practice and, as late as March 2015, was satisfied that she was fit to practice. Ms Cameron is fortunate that these matters have resolved in her favour.

[28] Ms Cameron is reprimanded.

[29] Ms Cameron shall pay the applicant's costs of and incidental to the proceedings as agreed or as assessed on a standard basis on the District Court Scale.

[3] [2012] QCAT 359.

[4] Medical Radiation Practice Board of Australia v Lindberg Unreported QCAT No. OCR258 -13 21 October 2014 per Horneman-Wren, Deputy President.

[5] See Medical Board of Australia v Putha [2014] QCAT 159 at [32].

[7] Health Care Complaints Commission v Parsons [2014] NSWCATOD 97; Medical Board of Australia v Evans [2013] QCAT 217; Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151.

[11] Unreported Supreme Court of Victoria No 10170 of 1993, 19 January 1993.

[12] Medical Board v Jones [2012] QCAT 362 at [14]; Pharmacy Board v Ludwick [2013] QCAT 235 at [57].