1. Under section 196(2)(a) of the Heath Practitioner Regulation National Law (Victoria) Act 2009 the respondent is reprimanded.
2. Under section 196(2)(d) of the Heath Practitioner Regulation National Law (Victoria) Act 2009 the respondent's registration as a psychologist is suspended for a period of three months commencing on 15 September 2018.
3. Pursuant to section 196(2)(b) of the Heath Practitioner Regulation National Law (Victoria) Act 2009 that upon resumption of practice (following the suspension outlined at paragraph (b) above), a condition is imposed on the respondent's registration requiring that she provide a certificate of currency in respect of appropriate professional indemnity insurance coverage to the applicant and the Australian Health Practitioner Regulation Agency, immediately after renewing her professional indemnity insurance coverage, on an ongoing annual basis.
4. Pursuant to section 196(3) of the Heath Practitioner Regulation National Law (Victoria) Act 2009, the review period for the conditions referred to in paragraph (c) above is five years.

1. Ms Rigley is a psychologist, registered with the Psychology Board of Australia (Board).
2. Between March 2011 and March 2015 she did not hold appropriate professional indemnity insurance (PII). During that period she completed six online applications to renew her registration as a psychologist and declared that she had the appropriate PII at the relevant time.
3. Ms Rigley was subject to a random audit and in the course of that audit she provided a PII certificate, on which she altered the dates so that it purported to cover the period March 2014 to March 2015 when she held no PII during that period.
4. The outcome of the Board's investigation was Ms Rigley's referral to this Tribunal to consider her conduct and decide what, if any, findings or determinations ought to be made about her professional registration. The allegations referred to the Tribunal concerned Ms Rigley's failure to hold PII, falsely declaring in the renewals of her registration that she held PII and altering a PII certificate. The allegations are detailed below.
5. By the time the matter came before this Tribunal for hearing, the parties had prepared an agreed statement of facts and also agreed on proposed findings and determinations to be made under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).
6. Ms Rigley did not deny any of the conduct described in the allegations. She admitted the conduct amounted to professional misconduct.
7. Ms Rigley agreed she should be reprimanded for her conduct. She also agreed her registration as a psychologist be suspended for a period of three months and that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and AHPRA, immediately after renewing her professional indemnity insurance coverage, for a five year period.
8. We had no difficulty finding that the facts as alleged had been established and that Ms Rigley's conduct amounted to professional misconduct and we agreed with the determinations proposed.
9. We were also satisfied that the determinations would assist to maintain proper ethical and professional standards to protect the public and to protect the standing of the profession in the eyes of the public.

1. The following comes from the parties' statement of agreed facts.
2. Ms Rigley was first registered as a psychologist on 21 July 2003.
3. At all relevant times when practising as a psychologist, Ms Rigley was required to hold appropriate PII.
4. Section 129(1) of the National Law provides that a registered health practitioner must not practise unless appropriate professional indemnity insurance arrangements are in force.
5. The Board's Guideline on Professional Indemnity Insurance for Psychologists states:
   • All persons registered under the Health Practitioner National Law...who practise psychology, must have appropriate professional indemnity insurance (PII) arrangements in place.
   • Guideline on Professional Indemnity Insurance for Psychologist additionally sets out the amount of PII coverage required by psychologists.
6. Ms Rigley practised as a psychologist throughout the period March 2011 to March 2015 and was required to hold appropriate professional indemnity insurance throughout that period.
7. Ms Rigley failed to obtain and hold appropriate professional indemnity insurance for the period March 2011 to March 2015.
8. Ms Rigley completed online applications for renewal of her registration as a psychologist under section 107 of the National Law on the following dates:
   • 31 January 2011;
   • 30 November 2011;
   • 13 November 2012;
   • 21 November 2013;
   • 15 October 2014; and
   • 30 November 2015.
9. When renewing her registration above, Ms Rigley made the following declarations:
   • that in the preceding period of registration, Ms Rigley practised in accordance with the requirements of the Board's Professional Indemnity Insurance (PII) standards; and
   • that if Ms Rigley's registration was renewed, she would practise in accordance with the requirements of the Board's PII standards.
10. The declarations made by Ms Rigley as to her past compliance with PII standards and her intention to practise in compliance with them in future were false.
11. On 8 July 2016, Ms Rigley received an Audit Notice from the Australian Health Practitioner Regulation Agency (AHPRA), notifying her of her selection for a random audit of compliance with the Board's registration standards for the period of 1 December 2014 to 30 November 2015 (Audit Period).
12. On 10 August 2016, Ms Rigley submitted a completed audit checklist. At Part 8 of the checklist, Ms Rigley declared that she had practised in accordance with the requirements of the PII standards during the Audit Period. Ms Rigley additionally submitted valid PII certificates demonstrating that she was covered under PII from the periods of 11 March 2015 to 11 March 2016 and from 11 March 2016 to 11 March 2017.
13. On 18 October 2016 Ms Rigley sent an email to Mr Evans of AHPRA, in which she stated that she was not covered for a period of time during the Audit Period, specifically between December 2014 and April 2015.
14. On 19 October 2016, Ms Rigley emailed Mr Evans, stating 'I have found a certificate of currency from March 2014 to March 2015 however when I scanned it was too light so I will have to forward that to you tomorrow'.
15. On or about 20 October 2016, Ms Rigley amended the PII Certificate of Currency for the period March 2016-2017 which she had already sent to Mr Evans by altering the dates by hand so that it purported to cover her from 11 March 2014 to 11 March 2015.
16. On 20 October 2016 Ms Rigley sent the falsified PII Certificate of Currency to Mr Evans by email. In the email she asserted that she had been unable to find the certificate because it had been filed away during the period it was current.
17. On 24 October 2016 Mr Evans sent an email to Ms Rigley noting that the dates on the certificate she had provided appeared to have been altered. He asked her to arrange for an original certificate to be emailed directly from the insurer.
18. On 28 October 2016, Ms Rigley emailed Mr Evans and advised 'it appears as though I was only insured from March 2009 - March 2011 and then March 2015 - March 2017. I honestly thought I was insured for those years in between and I know that I wrote over the numbers on a piece of paper that I found in my papers that was very faint and I thought was for the 2014 - 2015.'
19. At the time she altered the certificate and sent it to Mr Evans, Ms Rigley was aware that:
    • the correct dates on the certificate she had altered were 2016 to 2017 and that the dates of 2014 and 2015 which she inserted were false; and
    • that her assertion that she had found the document amongst her papers and altered it believing the dates to be accurate was also false.

1. On 12 July 2017, in the course of AHPRA's investigation, Ms Rigley signed a Statement of Agreed Facts. In signing this statement, Ms Rigley acknowledged:
   • that she did not hold PII for the period March 2011 to 11 March 2015;
   • that during this period, she declared in her online registration renewals that she was compliant with her PII obligations. These declarations were made for the years 2011 to 2015; and
   • that she declared on the audit checklist that she practised in accordance with the requirements of the PII registration standard for the period 1 December 2014 to 30 November 2015.

1. The allegations were that Ms Rigley had engaged in professional misconduct contrary to the National Law.
2. The National Law defines 'professional misconduct'[1], in the context of a registered health practitioner, as including:

(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. The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law.
2. Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.
3. The Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences - the latter is known as general deterrence.[2]
4. Where parties have reached a proposed agreement of the kind presented in this case, it remains the Tribunal's duty to determine the level of conduct alleged and the determinations to be imposed as no agreement between a regulator and the professional person under review can supplant that duty. However, it is appropriate for the Tribunal to give weight to and take into account the agreement between the parties as a highly relevant and important matter. That is particularly so if it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.[3]
5. The Board made submissions about how the Tribunal ought to approach the proposed agreed findings and determinations under the National Law. Ms Rigley's counsel did not take issue with those submissions.
6. We agreed:
   • It is the Tribunal's duty to determine the level of conduct alleged and the determinations to be imposed;
   • No agreement between a regulator and the professional person under review can supplant that duty; but
   • The agreement between the parties is, though, a highly relevant and important matter to be taken into account.
7. The High Court of Australia considered the role of agreed submissions similar to these in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors[4], a civil penalty case under the Building and Construction Industry Improvement Act 2005 (Cth).
8. The Board drew our attention to the Court's statement that: there were important public policy benefits in receiving, and if appropriate, accepting agreed penalty submissions. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances it is, highly desirable in practice for the court to accept the parties' proposal.

1. The Board made three allegations when it referred Ms Rigley to the Tribunal.
2. Allegation 1 was that Ms Rigley engaged in

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law:

(b) unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct contained in section 5 of the National Law. Meaning professional conduct that 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 she contravened section 129(1) of the National Law, namely:

between March 2011 and March 2015, Ms Rigley failed to maintain adequate and appropriate professional indemnity insurance (PII) cover in accordance with the Board's registration standards, in breach of the Board's Registration Standard and in contravention of section 129 of the National Law.

1. On 8 July 2016, Ms Rigley received an Audit Notice from the Australian Health Practitioner Regulation Agency (AHPRA), notifying her of her selection for a random audit of compliance with the Board's registration standards for the period 1 December 2014 to 30 November 2015 (audit period).
2. On 10 August 2016, AHPRA received a completed audit checklist from Ms Rigley.
3. At Part 8 of the checklist Ms Rigley declared that she had practised in accordance with the requirements of the PII Arrangements Registration Standard during the audit period.
4. On 18 October 2016, Mr Rigley emailed Craig Evans (Mr Evans), National Audit Officer at AHPRA, and admitted that she did not have PII for a period of time during the audit period, specifically between December 2014 and April 2015.
5. On 28 October 2016, Mr Rigley emailed Mr Evans of AHPRA and admitted that she did not have PII between March 2011 and March 2015.
6. Ms Rigley was practising as a psychologist between March 2011 and March 2015.
7. The Board's Guideline on Professional Indemnity Insurance for Psychologists states:

All persons registered under the Health Practitioner National Law... who practise psychology, must have appropriate professional indemnity insurance (PII) arrangements in place.

1. Guideline on Professional Indemnity Insurance for Psychologist additionally sets out the amount of PII coverage required by psychologists.
2. Section 129(1) of the National Law provides that a registered health practitioner must not practise unless appropriate professional indemnity insurance arrangements are in force.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that 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 31 January 2011 and on or about 30 November 2015, Ms Rigley knowingly or recklessly made a false declaration to AHPRA during her renewal of general registration to practise as a psychologist.

1. Ms Rigley completed and submitted to AHPRA online registration renewal forms on the following dates:
   • 31 January 2011;
   • 30 November 2011;
   • 13 November 2012;
   • 21 November 2013;
   • 15 October 2014; and
   • 30 November 2015.
2. The registration renewal forms required that Ms Rigley declare that:
   1. during the preceding period of registration, she practised the profession only while covered by professional indemnity insurance that meets the Board's standards; and
   2. if her registration was renewed, she would only practise the profession while covered by professional indemnity insurance that meets the Board's standards.
3. Ms Rigley made false declarations on the registration renewal forms, by declaring that she was covered by PII during the proceeding registration period, and would only practise the procession while covered by PII.
4. On 28 October 2016, Ms Rigley emailed Craig Evans of AHPRA and admitted that she did not have PII between March 2011 and March 2015.
5. The declarations made by Ms Rigley on the dates outlined in paragraph (i) were false.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that 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 or about 19 October 2016, Ms Rigley wilfully attempted to mislead AHPRA and the Board and or was reckless as to the possibility that AHPRA and the Board would be misled, by amending the dates on a PII Certificate of Currency to purportedly cover the period March 2014 to March 2015.

1. On 18 October 2016, throughout the course of the audit process, Ms Rigley emailed Craig Evans of AHPRA and admitted that she did not have PII for a period of time during the audit period, specifically between December 2014 and April 2015.
2. On 19 October 2016, Ms Rigley emailed Mr Evans, stating 'I have found a certificate of currency from March 2014 to March 2015 however when I scanned it was too light so I will have to forward that to you tomorrow'.
3. On 20 October 2016, Ms Rigley provided Mr Evans with a PII Certificate of Currency purporting to cover her from11 March 2014 to 11 March 2015.
4. Ms Rigley amended or marked the Certificate of Currency by hand to show the 2014 to 2015 dates.
5. On 28 October 2016, Ms Rigley emailed Mr Evans and advised 'it appears as though I was only insured from March 2009 - March 2011 and then March 2015 - March 2017. I honestly thought I was insured for those years in between and I know that I wrote over the numbers on a piece of paper that I found in my papers that was very faint and I thought was for the 2014 - 2015'

1. Ms Rigley admitted to the conduct described in the allegations and also agreed that the conduct described in those allegations constituted professional misconduct within the meaning of paragraphs (a) of section 5 of the National Law.

1. We made these findings on the balance of probabilities, comfortably satisfied they were open on the evidence taking into account the seriousness of the allegations and the consequences of findings such as these.
2. As a question of fact, we were satisfied on the material before us and on the admissions made by Ms Rigley that she engaged in the conduct described in the three allegations that is:
   • Between March 2011 and March 2015 Ms Rigley engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law in that she failed to maintain adequate and appropriate PII cover in accordance with the Board's registration standards, in breach of the Board's Registration Standard and in contravention of section 129 of the National Law.
   • Between on or about 31 January 2011 and on or about 30 November 2015 Ms Rigley engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law in that she knowingly made false declarations about her insurance status to AHPRA during her renewals of general registration to practise as a psychologist.
   • On or about 19 October 2016 Ms Rigley engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law in that she wilfully attempted to mislead AHPRA and the Board by amending the dates on a PII Certificate of Currency to purportedly cover the period March 2014 to March 2015.
3. We were satisfied that the conduct that formed the basis for all three allegations amounted to professional misconduct within paragraph (a) of the definition of that term, because it was substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience.
4. The honesty and reliability of health practitioners is essential to ensuring that clients receive proper care and that patients and other practitioners may place trust in the expertise of those providing health care. It also impacts on the trust that the public places in psychologists and may have an impact on the willingness of persons to seek out appropriate and necessary treatments, or to recommend them to others in need. It is also essential when practitioners are dealing with the Board and other regulatory agencies - those bodies rely on practitioners honestly providing information which is important to decisions regarding registration and other matters. Making false declarations and falsifying documents in the course of professional registration and deliberately attempting to mislead APHRA and the Board is substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience to Ms Rigley. Further the public should be confident that practitioners have the appropriate PII and they will be able to have recourse to that PII if something goes amiss. Clients of psychologists are often in an especially vulnerable state when they attend for treatment, and therefore knowledge of this recourse may be important in providing them with confidence in the profession.

1. As described above, the Tribunal's role is not to punish but it considers specific deterrence, general deterrence and the need to uphold the standards and reputation of the profession.
2. In relation to the principles to be applied when making determinations the Board submitted[5] and we agreed that:
   • The objects of the determinations are achieved by specific deterrence, general deterrence and the facilitation of the rehabilitation of the part of the practitioner.
   • Personal matters such as shame, personal ordeal and financial difficulty are of little relevance except insofar they contribute to the specific deterrence of the practitioner.
   • An assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination.
   • The degree to which the practitioner has acquired insight into her conduct is relevant to the assessment of the ongoing risk posed by the practitioner.
   • Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong and appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and or a willingness to take measures to identify risk factors and to do what is necessary to avoid further transgressions.
   • Any form of official censure is of consequence.
3. As stated earlier, the parties agreed and we accepted the Tribunal had the power to impose a reprimand.[6]

52 It is well understood that a reprimand is not a trivial determination. For a health practitioner it has the potential for serious adverse implications.[7] It tells the public, patients and other health practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured. We had no difficulty being satisfied it was appropriate to reprimand Ms Rigley for her conduct under section 196(2)(a) of the National Law and so ordered.

1. Once we found Ms Rigley had engaged in professional misconduct, we had power to suspend her registration under section 196(2)(d) of the National Law. We were satisfied that it was appropriate to suspend Ms Rigley's registration for a period of three months under section 196(2)(d) of the national law and so ordered.
2. When considering whether three months was an appropriate period of suspension, the Tribunal took into account the repeated nature of the conduct and the lengthy period over which it continued. In the Tribunal's view the alteration of the PII certificate with the intention to mislead the Board was particularly concerning conduct. It was not an oversight or inadvertence.
3. Ms Rigley's counsel noted that it is was fortunate that none of her clients made a claim on her PII during the period that she was not insured so none of her clients were disadvantaged. This is true but the Tribunal also notes that the time for making claims that arose during that period has not yet expired and there may still be clients that make claims. It will be sometime before Ms Rigley can be certain that no claims will be brought are clients without recourse to her PII.
4. Ms Rigley had been a registered psychologist since July 2003 and on the one hand there had been no concerns with her conduct until the current proceeding and she had held PII from 2003 until March 2011. However, on the other hand a health practitioner of her experience would be well aware the importance of holding PII and being honest in her dealings with the Board and APHRA.
5. The Tribunal also had regard to Ms Rigley's personal circumstances. In her evidence to the Tribunal she described some protracted and distressing family court proceedings that she was involved in between 2011 and 2015 regarding her son who is now aged nine years. In her evidence she described being stressed and anxious during this time. It appears that Ms Rigley was overwhelmed by what was happening in her personal life to the detriment of her professional obligations. These court proceedings also created financial difficulties for her, Ms Rigley had to sell her home to pay back her parents who had been funding the legal proceedings.
6. We had the opportunity of observing Ms Rigley in the witness box. It was apparent to us that this has been a very distressing and salutary experience for her. Ms Rigley was remorseful and understood the gravity of her conduct and described the effect that it could have on her patients. She showed insight into her conduct. She was aware that her conduct could bring the reputation of the profession into question. She noted that the three months suspension would affect her clients and would also impact on her financially.
7. We were satisfied that the period of suspension is meaningful without being punitive. Being unable to practice one's profession for that period has personal, financial and reputational consequences. Those are relevant to general deterrence and the maintenance of the standard and reputation of the profession. It sent a clear message to Ms Rigley that her conduct was unacceptable and would also serve as a deterrent to other psychologists.
8. We regarded the condition that it was proposed to impose on Ms Rigley's registration as appropriate given the nature of her conduct and so ordered that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and AHPRA, immediately after renewing her professional indemnity insurance coverage, for a five year period. Although we assessed that the degree of ongoing risk posed by Ms Rigley was low, it will ensure that for the next five years she holds the appropriate PII.
9. We were also satisfied that the period of suspension and subsequent conditions would assist to maintain proper ethical and professional standards to protect the public and to protect the stature and integrity of the profession.

[1] Health Practitioner Regulation National Law (Victoria) Act 2009, Section 5.

[2] See Medical Board of Australia v Janz [2011] VCAT 1026 at paragraphs 358 to 373; and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 at paragraphs 60 to 61.

[3] Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408 at paragraph 6 as confirmed in Medical Board of Australia v Willcourt (Review and Regulation) [2018] VCAT 1032 at paragraph 13; and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46 at paragraphs 46 to 29.

[4] [2015] HCA 46; (2015) 326 ALR 476

[5]The Board referred to Medical Board of Australia v. Janz [2011] VCAT 1026 at [358]- [373] and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 at [60]- [61]

[6] Section 196(2)(a) of the National Law.

[7] Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, 19 January 1993 at p 6.