1. The tribunal accepts and acts upon the evidence of Dr Kennedy.
2. The applicant also called Professor Anthony Love to give expert evidence. He is a Professor of Psychology at the Ballarat University. His qualifications also were not contested. Professor Love provided a report which went into evidence as Exhibit E.[13]
3. Like Dr Kennedy, Professor Love also opined that psychologists practising in any State in Australia were required as part of their professional obligations to maintain adequate and contemporaneous records of treatment of clients. He based this opinion upon a review of ethical guidelines and ethical standards.
4. As to the file submitted by the respondent and whether this constituted an adequate record of his treatment of GW, Professor Love opined:
   • The file submitted by Mr Wilkinson as provided to me comprises a cover letter to the PRBV, a 3.5 page report to the client's solicitors, a letter to an insurance company, requesting payments, and two letters of referral from the client's GP. If this is the full extent of the clinical files kept by Mr Wilkinson in relation to his client then in my opinion it is inadequate.
   • My reasons for this conclusion relate to the functions that client records are required to perform. These functions are reviewed earlier. In my view, the files do not permit these functions to be performed and hence are inadequate for their purpose.[14]
5. Professor Love, in his written opinion, thought that it makes no difference as to what the professional orientation of the psychologist is. There remains an obligation to keep adequate contemporaneous records of treatment of a client.
6. The tribunal accepts and acts upon the whole of the evidence of Professor Love.
7. In his witness statement that was admitted into evidence as Exhibit 1, the respondent said, inter alia:
   1. My particular orientation of practice is existential/experiential therapy and so the focus of therapy is consistently in the here and now with clients.
   2. As a consequence of my mode of treatment, my emphasis is consistently on what is going on with a client at the time of their therapy. If history in past events are relevant to that moment in time then they are introduced and worked with as a appropriate. If future concerns are also relevant at that particular time they are also worked with.
   3. As a consequence of my training and practice as an experiential psychologist, I do not write or maintain usual notes in relation to the clients I treat.[15]
8. It can be seen that the respondent does not keep contemporaneous records of his treatment for any client. He justifies his practice of not keeping notes or records primarily upon his particular orientation as a practising psychologist, namely, existential/experiential therapy. At paragraph 30 of his witness statement, the respondent asserts his records are adequate[16] and denies the allegations made against him.
9. In evidence, the respondent did not dispute that, apart from his letter to the solicitor for GW in December 2006 and a referral and a letter to an insurer, and diary entries and tax invoices, there were no other records of his treatment of GW.[17]
10. In cross-examination, a document first written by the respondent in 1986 intended for supervised students entitled 'Rough Outline Guidelines for Case Notes first written 1986', found its way into evidence as Exhibit G. The respondent admitted writing the document and giving it to students he supervised. The document contains instruction as to what should be recorded in notes. The respondent attempted to distinguish himself from the requirements of his document by saying the document was a guideline for students employed by institutions and organisations that specifically require record-keeping. The tribunal does not accept the distinction made by the respondent.
11. The tribunal was not impressed by the evidence of the respondent who often refused to answer even the simplest of questions directly. An example of this appears in the transcript at page 126, line 20, through to page 130, line 9. The respondent tended to ramble on in his answers, looking for excuses as to why he refuses to practise in accordance with the Code of Ethics.
12. In his letter of explanation to the Psychologists Registration Board of 28 August 2009,[18] the respondent said, inter alia, as follows:

As a consequence of my formal training, which is as an experiential psychologist, I do not write sessional notes.

1. The respondent said the same thing in paragraph 8 of his witness statement set out above. The respondent was asked by the tribunal what he meant by the words 'as a consequence'. His explanation was that, because in his training, there was no mention of writing case notes, then that justified what he said in the letter.[19] The tribunal does not accept this evidence.
2. In making its decision in this case, the tribunal rejects the evidence of the respondent as to why he did not keep contemporaneous notes of his treatment of GW. At the end of the evidence, the tribunal was left with the impression from the respondent that he took the attitude that the principles set out in the Code of Ethics and the Ethical Guidelines do not apply to him. In the tribunal's opinion, such an approach by the respondent reflects a somewhat arrogant view of the world. In the tribunal's opinion, psychologists in practice should keep accurate, current and complete records of treatment they give to their clients. The tribunal rejects the respondent's evidence that he is not required to keep records because of his orientation as an existential or experiential psychologist. The tribunal does not accept any suggestion that he would have received formal training not to keep records.
3. The tribunal accepts and acts upon the evidence of Dr Kennedy and Professor Love. The tribunal finds that there is a requirement of practising psychologists to keep and maintain an accurate, current and complete record of psychological services provided to any client. The records should be kept in such detail to permit not only the treating psychologist to plan for continuity in the delivery of psychological services, but also enable another psychologist to take over treatment of a client should the need arise.
4. The requirement in the Code of Ethics and the Ethical Guidelines needs little rationalisation. It makes for common sense especially when looked at from an emergency situation where the treating psychologist, for whatever reason, suddenly becomes unable to continue treating the client in the result that another psychologist is required to take over treatment. The existence of proper note would greatly assist in continuity of treatment in such a scenario even if only to assist in establishing what past treatment has been directed to and where it left off.
5. The tribunal finds that the only records of relevance kept by the respondent that relate to GW were the relevant parts of Exhibits F and his diary notes. The tribunal finds these are not adequate records of the respondent's treatment of GW. Had the solicitors for GW not requested a psychological report, virtually no record of the respondent's treatment of GW would exist at all. That was the position between April 2006 and December 2006 when that letter was written.
6. The tribunal finds the respondent, between April 2006 and December 2007, engaged in unprofessional conduct as defined within s 3(1)(b) of the Psychologist Registration Act 2000 and the HPRA. That is to say, the respondent engaged himself in conduct which was of a lesser standard than that which might reasonably be expected of a registered psychologist by his or her peers.
7. The respondent failed to maintain an adequate clinical record of his treatment of GW. Any record that he did keep did not permit planning for continuity in the delivery of psychological services.
8. The tribunal finds the allegation made by the applicant against the respondent is proved.
9. That leaves the question of whether the conduct of the respondent was of a serious nature. In this regard, the tribunal applies a test set out by President Kellam in Re Parr and the Nurses Board of Victoria 16 VAR 118 at 123 where His Honour said:

In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend upon the facts of each case. Clearly such conduct would not be serious if it was trivial, or of a momentary affect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.

1. In evidence, Dr Kennedy said he regarded the respondent's conduct in not keeping adequate records of his treatment of GW as a major departure from proper practice.[20] Professor Love thought the respondent's conduct towards being more serious.
2. In the tribunal's opinion, by not keeping adequate records of his treatment of GW, the respondent's conduct was a departure from acceptable standards expected of a treating psychologist in a substantial manner. The tribunal does not accept that a treating psychologist should agree with the client not to keep records. The tribunal does not accept the respondent in fact agreed with GW not to keep records and rejects the respondent's evidence that he did so noting that there is no mention of this evidence either in the respondent's witness statement[21] or in his letter of explanation of his conduct.[22] The tribunal is of the opinion that keeping of an adequate record of treatment of any client by a psychologist is an important requirement that must be adhered to. To deliberately fail to comply with the requirement as the respondent did in this case is, in the tribunal's view, unprofessional conduct of a serious nature.
3. That leaves the question of penalty. The respondent is an experienced psychologist with 30 years plus experience. Although no longer a member of the Australian Psychological Society, he is a former president of its Victorian branch. He has never been disciplined before.
4. Dr Keeling asked the tribunal to caution and/or reprimand the respondent and have him undertake further education in record-keeping. Ms Mandie, in submissions, conceded that if the charges were proven that the dispositions sought by the applicant would be appropriate.
5. There is no proper evidence before the tribunal as to when and where courses in record-keeping would be available to the respondent if he were ordered to undertake such a course. Section 48(2) of the PRA sets out the applicable penalties as does s 77(1) of the HPRA. In deciding on an appropriate penalty, a tribunal is not to punish the psychologist, but to impose a penalty that properly reflects the need to protect the public from a repetition of such conduct and to reflect general deterrence.
6. In this case, the respondent maintains he will continue to act as he does, unless the tribunal rules a different practice is required. By these findings, the tribunal intends to send a strong message to the respondent and others who may be minded to engage in a similar mode of practice that it is unacceptable practice. Simply put, all psychologists must keep adequate, current, up-to-date records of treatment of clients.
7. The tribunal is of the opinion that the respondent knows what his professional obligations in this regard are and what he must do to comply with them. Exhibit G itself reflects a proper understanding. In those circumstances, the tribunal is of the view that a course in trying to re-educate the respondent would not protect the public and would not sufficiently reflect general deterrence. The penalty the tribunal has imposed is designed to address these specific issues. In arriving at the penalty imposed the tribunal is conscious of the fact that in the future the applicant may periodically check that the respondent in fact complies with his continuing obligation to keep proper records of the psychological services he provides to clients. If that is done the public will have further protection. The tribunal notes the applicant has the necessary power to check the performance of the respondent as a registered health practitioner pursuant to s 118(1)(e) of the HPRA.
8. In the circumstances here, the tribunal cautions the respondent and also reprimands him for his conduct. In addition, it orders the respondent to pay a fine of $1,000.00.

1. The tribunal finds that the respondent engaged in unprofessional conduct of a serious nature between approximately April 2006 and December 2007 by failing to exercise the care and skill of a reasonably competent psychologist in that he failed to maintain accurate, current and complete records of the psychological services provided to a client, with sufficient detail to permit planning for continuity in the delivery of psychological services to his client.

1. The tribunal orders that the respondent is cautioned and also reprimanded and he is ordered to pay a fine in the sum of $1,000.00.