1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law), Mr Robert Postlethwaite is reprimanded.
2. Under section 196(2)(b) of the National Law, a condition is imposed on Mr Robert Postlethwaite's registration as set out in the Tribunal's reasons for decision.

1. The Psychology Board of Australia (the Board) has referred to the Tribunal allegations about the respondent registered psychologist, Mr Postlethwaite, under s.193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). The referral was dated 25 June 2020. The referral attached a Notice of Allegations.
2. Mr Postlethwaite first obtained general registration as a psychologist in 1983. At material times he was registered as a psychologist with an endorsement in clinical psychology and was practising as a psychologist.
3. The parties have submitted an Agreed Statement of Facts, Proposed Findings and Proposed Determinations (Agreed Statement).
4. There are two allegations. The first is that Mr Postlethwaite did not hold appropriate professional indemnity insurance (PII) for the period from January 2018 to January 2019 (the relevant period). The second is that Mr Postlethwaite knowingly and/or recklessly made false declarations to AHPRA about his PII.
5. Section 129(1) of the National Law provides in effect that a registered psychologist must not practise the profession unless appropriate professional indemnity insurance arrangements are in force[1]. The version of the Board's Professional indemnity insurance arrangements registration standard that was in operation during the relevant period (the registration standard) states that a registered psychologist must not practise as a psychologist unless PII arrangements are in place that are consistent with the registration standard.[2]
6. We set out the terms of the Notice of Allegations immediately below. We then record the admissions that Mr Postlethwaite has made. Next, we summarise the main points, including what appears in the Agreed Statement, and add important information that is contained in the evidence and submissions. We then record our findings and determinations.

1. That Mr Postlethwaite engaged in:
   • professional misconduct within the meaning of professional misconduct in paragraphs (a) and/or (b) of section 5 of the National Law;

• unprofessional conduct within the meaning of section 5 of the National Law, being professional conduct which is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers,

in that between on or about 10 January 2018 to on or about 4 January 2019, Mr Postlethwaite failed to maintain appropriate professional indemnity insurance (PII) and in so doing breached his obligations under the Board's registration standard and contravened section 129(1) of the National Law.

The particulars include, but are not limited to:

1. Mr Postlethwaite was first registered as a psychologist on 7 February 1983.
2. Mr Postlethwaite held registration as a psychologist, with an endorsement in clinical psychology, including between on or about 10 January 2018 to on or about 4 January 2019 (the period).

c. Mr Postlethwaite practised as a psychologist during the period.

1. Mr Postlethwaite did not hold PII during the period.
2. Section 129(1) of the National Law provides that a registered health practitioner must not practise unless appropriate PII arrangements are in place.
3. The Psychology Board of Australia's Professional indemnity insurance arrangements registration standard (PII registration standard), version in effect from 1 June 2012 to 1 December 2019, sets out the requirements for PII cover for a psychologist, including:

A registered psychologist must not practise as a psychologist unless [PII] arrangements are in place, that are consistent with this registration standard.

A registered psychologist must be covered by an individual insurance arrangement, or employer, union or education provider's insurance arrangements, or a combination.

1. In failing to maintain PII during the period, Mr Postlethwaite contravened section 129(1) of the National Law and the Board's registration standard.

1. That Mr Postlethwaite engaged in:
   • professional misconduct within the meaning of professional misconduct in paragraphs (a) and/or (b) of section 5 of the National Law;

• unprofessional conduct within the meaning of section 5 of the National Law, being professional conduct which is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers,

in that on occasions between on or about 30 November 2018 and on or about 29 February 2019, Mr Postlethwaite knowingly and/or recklessly made false declarations to AHPRA.

The particulars include, but are not limited to:

1. Mr Postlethwaite was first registered as a psychologist on 7 February 1983.
2. Mr Postlethwaite held registration as a psychologist, with an endorsement in clinical psychology, including between on or about 10 January 2018 to on or about 4 January 2019 (the period).

c. Mr Postlethwaite practised as a psychologist during the period.

1. The Board's PII registration standard sets out the requirements for appropriate PII cover for psychologists.

e. Mr Postlethwaite did not hold PII during the period.

1. Mr Postlethwaite completed and submitted to AHPRA an online renewal of his registration on or about 30 November 2018 (registration renewal form).
2. The registration renewal form required Mr Postlethwaite to declare that:
   1. during his [preceding] period of registration, he practised the profession in accordance with the Board's PII standard; and
   2. if his registration was renewed, he would commit to practise the profession in accordance with the Board's PII registration standard.
3. On or about 19 February 2019, Mr Postlethwaite completed an audit checklist which was subsequently submitted to AHPRA. The audit period was described as from 1 December 2017 to current.
4. The audit checklist required Mr Postlethwaite to declare whether he had practised in accordance with the PII registration standard, with a minimum of $2 million per claim during the audit period to present.
5. The audit checklist also required Mr Postlethwaite to declare which PII arrangements he had been covered by.
6. Mr Postlethwaite made a false declaration on the registration renewal form by declaring that he had practised in accordance with the requirements of the Board's PII registration standard during the preceding registration period.

1. Mr Postlethwaite made a false declaration on the registration renewal form by declaring that he would practice in accordance with the Board's PII registration standard.

1. Mr Postlethwaite made a false declaration on the audit checklist by declaring that he had he had practised in accordance with the PII registration standard, with a minimum of $2 million per claim during the audit period to present.
2. Mr Postlethwaite made a false declaration on the audit checklist by declaring that he had been covered by his own PII arrangements.
3. Mr Postlethwaite knew and/or ought reasonably to have known that he did not hold PII cover for the period and knowingly and/or recklessly made the false declaration/s to AHPRA.

1. Mr Postlethwaite admits that he did not hold appropriate PII for the relevant period. With regard to the allegation that he knowingly and/or recklessly made false declarations to AHPRA, Mr Postlethwaite admits the allegation insofar as "his false declarations were made recklessly rather than knowingly". The Agreed Statement indicates that there is agreement between the parties to that effect.
2. Mr Postlethwaite further admits that his conduct constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.

Summary of allegations and admissions and further information

1. Mr Postlethwaite did not hold appropriate PII for the relevant period (January 2018 to January 2019). In November 2018 Mr Postlethwaite completed an online renewal of his registration. The Tribunal Book includes screen shots showing that he responded in the affirmative to both these questions:

During your preceding period of registration, have you practised in accordance with the Board's [PII] arrangements registration standard ...when practising the profession in Australia?

If your registration is renewed, do you commit to practise in accordance with the Board's [PII] arrangements registration standard ...when practising the profession in Australia?

1. In early 2019 Mr Postlethwaite was selected for a random audit of his compliance with the registration standards. On 19 February 2019 he completed an audit checklist for the period from December 2017 to February 2019 and later submitted the checklist to AHPRA. He made a declaration in the checklist to the effect that he had practised in accordance with the Board's PII registration standard, with a minimum of $2 million per claim during the audit period and to the date of the checklist. He further declared that he was covered under his own PII arrangements.
2. The audit checklist required Mr Postlethwaite to provide documentary evidence of his PII coverage from December 2017. He submitted a certificate of currency and a certificate of insurance for the period January 2019-2020.
3. On 23 May 2019 (and on 6 August 2019) AHPRA emailed Mr Postlethwaite and requested him to provide evidence of his cover from December 2017 to January 2019. On 6 August 2019 Mr Postlethwaite submitted two copies of a certificate for January 2017 to January 2018 and again submitted the certificate for January 2019 to January 2020. The next day AHPRA emailed Mr Postlethwaite again and requested him to provide evidence of his PII cover for the relevant period.
4. On 13 August 2019 Mr Postlethwaite responded to AHPRA and advised that he was unable to find evidence of PII for the relevant period. He said that he had checked emails, bank accounts and files and that he had spoken to his insurance broker. He said: "I am feeling somewhat sick about this and firmly believed that I had the insurance in place". He asked AHRPA to advise "what results from this lapse". Not long afterwards AHPRA advised that the audit findings would be referred to the Board.
5. There was further correspondence. In November 2019 Mr Postlethwaite confirmed to AHPRA that he did not have an "active" PII policy for the relevant period but said that his current policy provided retrospective cover that was "unlimited, except for known claims or circumstances". Mr Postlethwaite noted that there were no current claims or complaints and that there never had been any.
6. In January 2020 AHPRA informed Mr Postlethwaite that there would be an investigation.
7. On 20 January 2020 Mr Postlethwaite emailed an AHPRA investigator. He said:

With respect to the issues associated with my professional indemnity insurance from 10/1/18 - 4/1/19 I have little I can say except that I did believe (obviously erroneously) that I had put the insurance in place. There were emails from [the insurance broker] in January 2018 reminding me that I needed to renew my insurance and I recall making a mental note that it was something I had to attend to but clearly failed to do so. I had moved house some months earlier and was still in the process of changing addresses and numerous other administrative issues including insurance associated with that which may explain my failure to renew to insurance but does not excuse it. I was both surprised but also somewhat devastated to realise that I had not renewed the insurance and in the first instance mistakenly sent two copies of the Certificate of Currency to [AHPRA] for 2017 (without properly checking the dates) because I thought they were for consecutive years. It was only when he asked me for the Certificate of Currency for 2018 that I realised my failure to renew the insurance. I have subsequently checked the cover I have with [the insurance broker] and have been reassured that the insurance I put in place in January 2019 and again in 2020 has an unlimited retrospectivity clause that now covers any issues that may arise as a consequence of my practice in 2018. I have now been in practice for 37 years and have never had a claim made against me. I was called before the Ethics Committee of the APS in 1988 as a consequence of a complaint made by a patient and was found to have behaved professionally. I have declared this complaint on every application for Professional Indemnity Insurance since and have attached a copy of the letter for you[r] information.

With respect to the second issue of having made a false statement to the Board regarding my Professional Indemnity Insurance, I did not believe that I was lying at the time I made the statement. Clearly I was reckless in doing so without properly checking the details but honestly (although falsely) believed that I was insured ...

I will obviously comply with whatever the Board requires of me and can only apologise for this serious lapse in my professional conduct ...

1. Mr Postlethwaite provided the investigator with emails he had obtained from his insurance broker. The emails, dated in early 2018, were from the insurer broker to Mr Postlethwaite, first reminding him that his PII was due for renewal and later informing him that his policy had expired.
2. Mr Postlethwaite provided his policy for January 2020 to January 2021[2].
3. Mr Postlethwaite admits that his conduct constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.

Principles concerning the proper approach to an Agreed Statement

1. The principles concerning the proper approach for a disciplinary tribunal to take to an Agreed Statement (especially where they extend to proposed determinations) have been discussed in numerous decisions of courts and tribunals. The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]- [21]. See also, in particular, the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46.
2. Whether the person is legally represented may be an important consideration: see Dental Board of Australia v Powell [2013] VCAT 999. We note that Mr Postlethwaite is not legally represented. Significantly, he has participated in a Compulsory Conference conducted by a presidential member of the Tribunal.

1. The Board carries the burden of proof. The standard of proof is the usual civil standard: on the balance of probabilities. In the context of disciplinary proceedings where serious misconduct is alleged, the Court of Appeal has observed that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 "reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account": see Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 at [26]. In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 the Court referred to Briginshaw before stating that it was entirely proper for VCAT to require that it be "comfortably satisfied" of the facts in issue: at [37]. See also Medical Board of Australia v Alkazali [2017] VCAT 39 at [33]- [36].
2. As we indicated at the hearing, we are comfortably satisfied that Mr Postlethwaite engaged in the conduct alleged in the Notice of Allegations. We are comfortably satisfied on the basis of the Agreed Statement that records Mr Postlethwaite's admissions, Mr Postlethwaite's oral evidence, and the documentary evidence in the Tribunal Book. The Tribunal Book includes the screen shots, audit checklist, and emails we have referred to.

1. Section 5 of the National Law includes the following definition of "professional misconduct".

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. We have noted the requirements of section 129 of the National Law and of the registration standard. The registration standard, referred to in the Notice of Allegations, is evidence of what constitutes appropriate professional conduct or practice for the psychology profession: see section 41 of the National Law.
2. Mr Imrie, on behalf of the Board, cited several decisions concerning psychologists and other health care practitioners who practised without PII: see further below. In most of the cases the conduct was characterised as professional misconduct under paragraph (a) (or, where there was more than one instance, paragraph (a) and (b)) of the definition of professional misconduct in section 5 of the National Law[3].
3. Mr Imrie highlighted VCAT's decision in Psychology Board of Australia v McDonald [2020] VCAT 158 at [9] in submitting that Mr Postlethwaite's conduct in practising without PII was substantially below the relevant standard and was therefore professional misconduct under paragraph (a). VCAT said:

The reason that we say that the conduct is substantially below the standard reasonably expected is that professional indemnity insurance is a base requirement for registration ... The requirement for professional indemnity insurance to be held by a psychologist is one which is there for the protection of the public so that if there was some circumstance which would lead to a claim by a member of the public against the psychologist there is an assurance that there is a mechanism in place for dealing with the complaint and if necessary compensating the claimant. That is one of the pillars upon which the profession of psychologist can stake its reputation, that there is an assurance that those who consult psychologists are treated in appropriate ways and that goes beyond the actual treatment by the psychologist. It goes to the system of assurance which is in place to give members of the public comfort that if anything does go wrong there are ways of dealing with it.

1. Mr Postlethwaite not only practised without PII but also recklessly made the declarations we have referred to. We consider that the whole of his conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. On the basis of our findings of fact, and having regard to the registration standard referred to in the Notice of Allegations, we are satisfied that Mr Postlethwaite's conduct constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law. We announced that finding to the parties at the hearing.

1. The parties submit that the appropriate determinations are that Mr Postlethwaite be reprimanded and that a condition be imposed on his registration that requires him to provide a certificate in respect of appropriate PII coverage to the Board and/or AHPRA on an ongoing annual basis. The proposed review period is five years.
2. The decisions concerning health care practitioners who practised without PII cited on behalf of the Board were Medical Board of Australia v Stewart [2018] VR 6[4]; Chiropractic Board of Australia v Carbery [2018] VCAT 147; Psychology Board of Australia v Rigley [2018] VCAT 1400; Chiropractic Board of Australia v Northeast [2019] VCAT 1279; Psychology Board of Australia v McDonald [2020] VCAT 158; Psychology Board of Australia v Elzo [2020] VCAT 345; and Pharmacy Board of Australia v Elias [2020] VCAT 496.
3. The circumstances in the cases vary. For instance, in some cases the practitioner practised without PII for several years and made false declarations when renewing registration on a number of occasions: Rigley, McDonald, Elzo. In some cases, there was an additional allegation that the practitioner failed to notify the regulator under section 130 of the National Law that PII was no longer in place: Northeast, McDonald. Not all of the practitioners cooperated with the regulator during investigations. In cases such as Stewart (where the practitioner was warned that he did not have current PII but continued to practise, advising the regulator that he was not doing so) and Rigley (where the practitioner altered the dates on a PII certificate submitted to the regulator) there was particularly serious misconduct. The reasons practitioners gave for practising without PII varied, with some of them referring to personal or financial problems: Carbery, Rigley, Northeast.
4. As we have noted, our characterisation of Mr Postlethwaite's conduct is consistent with the characterisation of the conduct in these cases.
5. The determinations in the cases ranged from the imposition of a condition directed to ensuring that the practitioner had PII (with no reprimand) - in Elias, where the period for which the practitioner did not have PII was three months and there no false declaration was made to the regulator, to determinations that there be a reprimand together with the imposition of a condition and the suspension of registration for three months - in Rigley.
6. These cases generally set out the proper approach for a disciplinary tribunal to take to making determinations under the National Law. The purpose of the proceeding is not to punish the practitioner but to protect the public and maintain professional standards in the eyes of the public. In a case like the present one it is sufficient to note that a tribunal will consider matters including the nature and seriousness of the conduct; whether the practitioner has made admissions or otherwise shown insight and remorse; whether there have been other relevant disciplinary findings; and whether there is a need for specific or general deterrence.
7. For reasons we gave when discussing the characterisation of the conduct, we consider that Mr Postlethwaite's conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Mr Postlethwaite's omission to renew PII in early 2018 was evidently an isolated event. He said, essentially, that it was an oversight. The consequences for the public of a psychologist's failure to maintain appropriate PII, however, are not determined by whether the failure is intentional or unintentional. Mr Postlethwaite also made more than one reckless false declaration about his PII. We therefore regard the matter as serious. We do also note however that Mr Postlethwaite has been in practice for a period approaching 40 years. There is no indication that he has ever been the subject of disciplinary action in relation to his PII or otherwise.
8. Mr Postlethwaite has made admissions and shown insight and remorse. The email that Mr Postlethwaite sent the investigator in January 2020, quoted above, is significant. He apologised and said that he would cooperate with the Board (as we consider he has done). He noted that he had moved house not long before the episode, which may have explained what happened, but he also said that it was not an excuse. He acknowledged that he had been reckless in what he declared to the Board, but he maintained his honesty and referred to his good record.
9. In his oral evidence to the Tribunal, Mr Postlethwaite was unable to say how it came about that he practised without PII and made the false declarations. He said more or less that as he had always maintained PII he believed that he had it for the relevant period and that he made the declarations on that basis. Responding to our questions, Mr Postlethwaite demonstrated a sound understanding of the importance of practitioners having current PII, and of practitioners being truthful with the regulator. He could not explain how he missed the insurance broker's emails in early 2018 warning him that his policy was about to expire and confirming that it had expired. He said that for some reason he did not pay attention. He said he was busy and the emails "slipped through to the keeper". Mr Postlethwaite did not seek to excuse his actions. He acknowledged that what he should have done was to look through his records to make sure that he had current PII when he told the regulator he did. Mr Postlethwaite said that at the time he had no reason to doubt that he had current PII.
10. In all the circumstances we do not consider there is a need for specific deterrence. We do consider that there is a need for general deterrence, however. It needs to be made clear to members of the profession that they must comply with section 129 the National Law and the registration standard, because the requirements are there to protect the public. It also needs to be made clear to members of the profession that they must never be reckless when they make relevant declarations to the Board.
11. The joint proposal that the parties have put forward is that there be a reprimand and that a condition be imposed on Mr Postlethwaite's registration. The Board did not submit that we should suspend Mr Postlethwaite's registration or, for that matter, that we should take any other available action under section 196 of the National Law.
12. Having regard to all the above matters, we agree that we should reprimand Mr Postlethwaite. In relation to the reprimand, we note that in Peeke v. The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) Marks J expressed the view that a reprimand is not a trivial penalty. His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had a potential for serious adverse implications.
13. We also agree that there should be no suspension of registration but that the following condition should be imposed on Mr Postlethwaite's registration, with a review period of five years:

Mr Postlethwaite must provide a certificate in respect of appropriate professional indemnity insurance coverage to the Psychology Board of Australia and/or the Australian Health Practitioner Regulation Agency on an ongoing annual basis.

[1] Section 129(4) of the National Law relevantly provides that a contravention of s 129(1) does not constitute and offence but may constitute behaviour for which health, conduct or performance action may be taken.

1. [2]The guiding principle for the registration standard is said to be to ensure that the public have access to compensation when required, and that practitioners are adequately protected, by having appropriate PII cover. The registration standard goes on to deal with the specific requirements for PII and states that all practising psychologist must have a minimum level of $2 million for any one claim. The registration standard states that a registered psychologist is required to maintain certificates of currency for the duration of their registration as a psychologist. The Board may request to see evidence of PII arrangements for any period of registration. The registration standard warns that in the event that a registered psychologist fails to meet the requirements of the registration standard, the Board may refuse to renew registration or endorsement, or instigate disciplinary proceedings.

[2] We have not seen the policy for January 2021 - January 2022 but the Board does not submit that there is any doubt that it exists. The condition to be imposed on registration will ensure that it is provided to the Board.

[3] In Medical Board of Australia v Stewart [2018] VR 6 the paragraph was not specified. In Pharmacy Board of Australia v Elias [2020] VCAT 496 (where the relevant period was about three months and there was no false declaration to the regulator) the conduct was characterised as unprofessional conduct.

[4] Stewart is a decision of the Western Australian State Administrative Tribunal. The decision is accessible at https://ecourts.justice.wa.gov.au/eCourtsPortal/