1. Under sections 5 and 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law), the Tribunal finds Jeffrey Wilkinson, a registered psychologist, engaged in unprofessional conduct, with respect to Allegations 1(a) and 2 in this proceeding, as described in the reasons below.
2. A further hearing in this proceeding to hear submissions concerning determinations is scheduled to commence before us at 10 AM on 23 May 2017 at 55 King Street Melbourne, allow one day.
3. On or before 6 April 2017, the Psychology Board of Australia is to file and serve submissions as to appropriate determinations in this proceeding and any further material on which it seeks to rely.
4. On or before 28 April 2017, Mr Wilkinson may file and serve submissions as to appropriate determinations in this proceeding and any further material on which he seeks to rely.
5. On or before 11 May 2017, the Board may file and serve a submission in reply.
6. If either party seeks a variation to the above schedule or wishes to raise other issues, the party may seek a further directions hearing and is directed to do so without delay.

Orders under section 17 of the Open Courts Act 2013

On 28 November 2016 the Tribunal made the following orders which remain in force:

(a) The publication of a report of this proceeding to the extent that it would disclose the name and address of the notifier whose notification indirectly gave rise to this proceeding, the registered psychologist who was the subject of that notification and/or any patient of any registered psychologist and the publication of any information derived from this proceeding which could reasonably be expected to enable such identification, is prohibited.

(b) These orders apply throughout Australia. VCAT's reasons for decisions are published on the AustLII website, which is accessible throughout Australia.

(c) This order operates until further order of the tribunal or until the death of the last surviving of the notifier or the registered psychologist referred to in Order 1 above.

1. Mr Jeffry Wilkinson has held for decades and holds registration as a psychologist. He has broad professional experience as a psychologist.
2. In April 2010, following notification to the then Psychologists Registration Board of Victoria, that Board referred allegations to VCAT that Mr Wilkinson had failed to maintain accurate current or complete records of services provided to a notifier with sufficient detail to permit planning for continuing the delivering of psychological services in accordance with the standard expected of a reasonably competent psychologist.
3. In VCAT's January 2012 decision, Psychology Board of Australia v Wilkinson (Occupational and Business Regulation) [2012] VCAT 1260, VCAT found Mr Wilkinson had engaged in unprofessional conduct of a serious nature with relation to the allegation, cautioned him, reprimanded him and ordered him to pay a fine of $1,000. As it concluded its reasons, VCAT said [from 58]:

In this case, [Mr Wilkinson] 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 [Mr Wilkinson] 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.

The tribunal is of the opinion that [Mr Wilkinson] knows what his professional obligations in this regard are and what he must do to comply with them. ... In those circumstances, the tribunal is of the view that a course in trying to re-educate [Mr Wilkinson] 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 [Board] may periodically check that [Mr Wilkinson] 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 [Board] has the necessary power to check the performance of [Mr Wilkinson] as a registered health practitioner pursuant to s 118(1)(e) of the HPRA.

1. Following the VCAT decision, in September 2012, the then new Psychology Board of Australia (the Board) wrote to Mr Wilkinson proposing that he either give undertakings, or failing that, the Board would impose conditions concerning the auditing of his clinical records. Mr Wilkinson declined to give an undertaking and the Board placed a condition on his registration.
2. In the following months Mr Wilkinson partially complied with the Board's attempts to enforce the condition. However, Mr Wilkinson and the Board were in dispute about the Board's auditor undertaking an on-site audit at Mr Wilkinson's practice.
3. In the meantime, the Board became aware of a report by Mr Wilkinson in which he commented on the report of another psychologist (Psychologist A). In the Board's view, the manner in which he did was disrespectful and/or intemperate and raised questions concerning whether Mr Wilkinson's practice as a psychologist was or may have been unsatisfactory in relation to his assessment of the patient in question.
4. After an investigation, on 23 September 2013, the Board wrote to Mr Wilkinson advising him that it required him to undergo a performance assessment. Mr Wilkinson refused.
5. In May 2015, VCAT received the Board's referral under s 193 of the National Law from the Board alleging:[1]

That, between on or about 23 November 2012 and on or about 16 May 2013, Mr Wilkinson engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law and/or engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that:

(a) by not permitting an auditor nominated by the Board to conduct a practice site visit and an audit of random files selected by the auditor, he did not comply with a condition on his registration requiring audits of his clinical files (Condition) in circumstances where he knew or ought to have known that the audits that were the subject of the Condition were to be conducted by way of a practice site visit and an audit of random files selected by the auditor; or

(b) in the alternative, he refused to permit an audit of his clinical records in the manner required by the Board and/or as the auditor saw fit, involving a practice site visit and an audit of random files selected by the auditor.

That, on 10 October 2013, Mr Wilkinson engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law and/or engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that he refused to undergo a performance assessment as required by the Board.

1. In November 2016, the referral came before us for hearing. The Board called:
   1. Ms Sera Chong, Manager, Notifications, AHPRA to give evidence concerning the chronology of events, including much relevant correspondence between the parties; and
   2. Professor James Ogloff, Foundation Professor of Forensic Behavioural Science, Director of the Centre for Forensic Behavioural Science at Swinburne University and Director of Psychological Services and Research, Forensicare, Juris Doctor in Law, who gave his opinion concerning the appropriate characterisation of Mr Wilkinson's conduct.
2. Mr Wilkinson gave evidence concerning the chronology of events and his opinions as to why, in his view, the Board, not him, was at fault concerning this entire affair. At Mr Wilkinson's request, the patient who was the subject of Psychologist A's report gave evidence by telephone.
3. The Board proposed that closing submissions be in written form. Mr Wilkinson agreed. While this was an appropriate course, the disadvantage was with the end of year break, submissions were not fully received until early February 2017, after which we would make this decision without further hearing.
4. We received and considered those submissions. As is clear from what follows, we have largely accepted the Board's submissions[2] and rejected Mr Wilkinson submissions.[3]

Allegation 1 - failure to comply with audit condition

1. We find the particulars related to Allegation 1(a), concerning the events in question proven. Therefore, we have not considered the alternate Allegation 1(b).
2. We accept Ms Chong's relevant evidence concerning the chronology of events, with reference to correspondence which was before us. Her evidence was not weakened during cross examination.[4]
3. On or about 21 September 2012, under s 178(2)(c) of the National Law, the Board imposed a condition (the Condition) on Mr Wilkinson's registration:

Mr Wilkinson's clinical records are to be audited by a psychologist approved by the Board within 3 months of the Board approving the auditor, and at 6 and 12 months thereafter.

1. At the time of writing this decision the Condition remains current on Mr Wilkinson's registration.[5]
2. By letter dated 3 October 2012,[6] AHPRA wrote to Mr Wilkinson to advise him that the Board had imposed the Condition on his registration and the terms of the Condition, including that the auditor assess whether Mr Wilkinson's records:

1. were an accurate, current and a complete record of psychological services provided to clients; 2. were kept in such detail to permit the treating psychologist to plan for continuity in the delivery of psychological services; and

1. would enable another psychologist to take over treatment of a client should the need arise.
2. In that letter, AHPRA advised Mr Wilkinson of his right to apply to VCAT for review of that decision.
3. On 23 November 2012, AHPRA emailed Mr Wilkinson a proposed schedule for the first audit of his records, proposing the auditor would, on 18 January 2013, travel to Ballarat for the purposes of the audit, meet with Mr Wilkinson for an orientation of his practice offices and file storage area, conduct a randomised file retrieval and audit the retrieved files.[7]
4. By email dated 23 November 2012, Mr Wilkinson objected to having his case files audited and disputed the Board's authority to require such. He concluded:

Although I am not obliged to even meet with [the auditor], if she 'audits' the case files and wants to ask a few questions I will allow this. This could easily be by telephone or in person at my office, I consider this a considerable concession, but I do not intend to spend any more than one hour on any such process. The case files will be made available by 18 January.[8]

1. The auditor, Ms Gail Bradley, a clinical psychologist, provided a first File Audit Report dated 8 February 2013. She identified strengths in Mr Wilkinson's practice including a clear sense of care with which he approached his clients and work, as well as a strong sense of client and therapist engagement. She noted that the treatment was valued by clients with many cases involving positive outcomes and reported that Mr Wilkinson was endeavouring to improve his documentation practice. She also made recommendations concerning improvement of documentation.

1. However, Ms Bradley noted limitations of the audit procedure:[9]

Best practice surrounding documentation audit process would entail visiting the practice rooms of the psychologist to conduct a random audit. This procedure allows the auditor to review the security arrangements for storage of confidential records, to match files and entries against client booked appointments to review the consistency of documentation practice, and to randomly select files for audit.

The current audit was not conducted at the practitioner's office at his request. Alternatively, a pdf containing records selected by the practitioner was provided to the auditor electronically.

1. On 5 March 2013, AHPRA wrote to Mr Wilkinson advising that the Board had considered the File Audit Report. It noted Mr Wilkinson had refused to allow the auditor to conduct an on site visit for the purpose of the audit. The Board considered that site visits of his practice were necessary for the remaining audits, in order to provide the auditor with the opportunity to review the security arrangements for Mr Wilkinson's storage of clinical records, match files and entries against the client booked appointments and review consistency of documentation practice and randomly select files for audit.
2. The letter went on to say that the Board was not satisfied that the File Audit Report demonstrated Mr Wilkinson's records met the expected standard and that he may be required to undergo a further audit or further education. The Board warned Mr Wilkinson that failure to cooperate in the course of audits may be considered a contravention of the Condition for which, 'health, conduct or performance action may be taken'. [10]
3. On 14 March 2013, Ms Chong emailed Mr Wilkinson asking him to confirm his availability for a second audit by 21 March 2013. On 15 March, Mr Wilkinson replied to Ms Chong querying the qualifications of a Ms Lewis and of Ms Bradley. That day, Ms Chong provided the requested information. Ms Bradley had referred to her qualifications in the body of the File Audit Report.
4. On 18 March 2013, Mr Wilkinson sent a strongly worded email to Ms Chong refuting the Board's power to engage in an on site visit by an auditor, and to set deadlines for the provision of case notes, but agreeing to provide quarterly case notes selected by him.,. He also sent a complaint addressed to the Board concerning seven named members of the Board.. He described the Board as, "outrageously unethical in a manner which is completely hypocritical".[11]
5. It is unnecessary to detail the adversarial correspondence between Mr Wilkinson and the Board from 20 March to 11 April 2013.[12]
6. Mr Wilkinson did not, at any time between 23 November 2012 and 16 May 2013 permit the auditor to conduct an onsite practice visit and select random files for audit.
7. The 16 May 2013 File Audit Report by Ms Bradley noted:

As with the initial order, the outcome of the current audit is significantly limited by the procedure as the records were self-selected by the practitioner, rather than randomly selected by the auditor.

The current audit was not conducted at the practitioner's office at his request.

1. On the basis of the above findings of fact, we find, that between on or about 23 November 2012 and on or about 16 May 2013, Mr Wilkinson engaged in unprofessional conduct within its meaning as defined in section 5 of the National Law. His professional conduct was of a lesser standard than that which might reasonably be expected of him as a registered psychologist by his professional peers.
2. He failed to permit an auditor nominated by the Board to conduct a practice site visit and an audit of random files selected by the auditor. He did not comply with the Condition requiring audits of his clinical files in circumstances where he knew or ought to have known that the audits that were the subject of the Condition were to be conducted by way of a practice site visit and an audit of random files selected by the auditor.
3. We accept Professor Ogloff's opinion that Mr Wilkinson's conduct constituted unprofessional conduct as specified in the National Law. We quote from his expert report:

Based on the information provided in this report, it is my opinion that Mr. Wilkinson's conduct fell below the standard reasonably expected by a registered psychologists of an equivalent level of training or experience by failing to allow the Board appointed auditor to conduct her audits as she determined necessary under the circumstances. Mr Wilkinson had an ethical and legal obligation to ensure that his records were maintained in an accurate and complete manner. Based on the ethical standards and Ethical Guidelines on Record Keeping Mr. Wilkinson should have known that an audit of his records would necessitate a visit to the location where the files are maintained, followed by a review of the record keeping system, the manner in which the files are stored, and a review of a selection of files drawn by the auditor.

The argument that Mr Wilkinson proffered that a visit to his professional premises and a review of the files was an invasion of his client's privacy and his personal and professional space is spurious since his obligation is to make the records, including his record keeping system, available for review by the auditor irrespective of where the records are maintained. It is his choice to locate his practice in his home and this choice does not obviate in any way his ethical or legal obligations.[13]

Finally, the ethical principles and standards, as well as the Guidelines, make clear that neither Mr Wilkinson, nor his clients, have an absolute right of confidentiality to the records. File audits are routinely required in psychologists' and other health professionals' practices and the auditors have ethical and legal obligations to maintain confidentiality of the content of the files reviewed. Indeed, as specified by the Board, the auditor appointed was a psychologist who would therefore be required to comply with the Code, including provisions regarding confidentiality.

In my opinion, Mr. Wilkinson's conduct, by failing to subject his records to audit, constitutes unprofessional conduct as specified in the National Law insofar as it was of a lesser standard than that which might reasonably be expected of the health practitioner.

As specified in this report, Ethical Standard C.7 requires that psychologists cooperate with ethics investigations by statutory bodies charged with the responsibility to investigate complaints against psychologists. In addition, Ethical standard B.1.2 requires that psychologists provide services within the boundaries of their professional competence, which includes complying with the law of the jurisdiction in which they practice including, in this instance, the National Law.

It is my view that Mr Wilkinson's argument that no rulings existed to enable the auditor to conduct an on site inspection of his records is spurious. He should have reasonably expected that the condition imposed by the Board that his 'clinical records are to be audited by a psychologist' would involve a review of his record keeping system, storage, and actual files selected by the auditor, which would require a visit to his professional premises. This interpretation of the condition is consistent with the Code and Ethical Guidelines on Record Keeping.

In my opinion, Mr. Wilkinson's conduct, by failing to comply with a condition of his registration, constitutes unprofessional conduct as specified in the National Law. His conduct was of a lesser standard than that which might reasonably be expected of the health practitioner and includes a contravention by Mr Wilkinson of a condition to which his registration was subjected.

1. Nothing in Mr Wilkinson's cross-examination of Professor Ogloff at the hearing before us detracted from his opinion.[14]
2. We were not persuaded by Mr Wilkinson's explanations,[15] some of which we describe here.
3. Mr Wilkinson makes much of his understanding that in 2012, VCAT cautioned, reprimanded and fined him, only with respect to what it viewed as failings in how he kept clinical case notes. In his view, the Board should have restricted any further oversight of his practice with respect to clinical case notes only and there was no basis for the Board to then progressively widen the scope of its enquiries.
4. He viewed the undertaking which the Board proposed, as beyond the scope of what was reasonable in terms of what VCAT had decided and an inappropriate intrusion in its scope, into the nature of his practice and the confidentiality of his patients. While he refused to agree to it, he proposed to provide all his case notes, de-identified for review. He assumed this could be through a psychologist supervisor arrangement.
5. According to Mr Wilkinson, the next thing he heard was the Board had imposed the Condition. In his view, it contained new language such as reference to "clinical records" which was beyond the scope of the VCAT decision.
6. He viewed the condition as reasonable only in so far as it related to what he decided was an appropriate level of cooperation. He was content for a year to provide all of his de-identified clinical case notes for the Board to audit on a quarterly basis. He described himself as doing so, receiving the first File Audit Report, providing further notes and then being left in limbo (our word) in the context of the issue of the Board requiring him to undergo a performance assessment, him not being provided with the second File Audit Report and hearing no more about the case note auditing process.
7. He decided not to seek review of the condition by VCAT, given his view of how he could comply with it, which he was happy to do and did.[16] He commented he met timelines in properly providing the de-identified clinical notes. He described the Board as consistently failing to act in a timely fashion.
8. He said he had not anticipated that the Board would require an on-site audit. He had not heard of such a practice in Australia. He refused to participate. At that stage, he thought it was too late to appeal the condition to VCAT given the time that had passed since it had been imposed. He said if he had been aware of the Board's intentions at the time he became aware of the condition, he would have sought review.
9. In Mr Wilkinson's view, in any case the Condition did not require him to permit an on-site audit.
10. At this time, Mr Wilkinson's conduct was not in any way based on his views on the operation of privacy laws concerning the validity of the Board's requirements, a view formed at a later time.[17]
11. When he received the first File Audit Report, he noted that the criteria in the report relating to appropriate records to be kept by a psychologist was the first real guidance provided in what he described as the codes and guidelines very general descriptions concerning record-keeping. He spoke of his broad experience as a supervisor of other psychologists (having supervised up to 50 persons) and in that context seeing the wide diversity of how records are kept in particular contexts, resulting in bad to excellent record-keeping in the profession.
12. He described himself as well experienced in writing case notes, in the context of a profession which had undergone massive changes in the last 25 years. He said he had corrected his approach from writing "parsimonious case notes" to protect clients' confidentiality to now making a full record. He noted ongoing "interesting" practices in the profession, quoting an Australian Psychological Association publication "Professional Practice Management Standards for Psychologists", which in his view amounted to a suggestion that psychologists keep one set of limited records to be released when required and more detailed records to be kept confidential. He described this as contrary to the law that when required, say under a witness summons, all records must be provided (page 16).
13. Mr Wilkinson was critical of the Board in not providing him with a copy of the second File Audit Report at the time, which he later received. He regarded the Board to be in breach of legislation concerning this.
14. Mr Wilkinson also opined that the Board had no power to require audits which would intrude on the privacy of his patients given protections offered under privacy law. He said his opinion was based on his own legal research as the events in question unfolded, as well as legal advice during the time he had legal representation with respect to these issues. He commented this is a crucial matter which in Victoria has been completely ignored. He described himself as a "stickler for confidentiality".
15. Finally, as matters developed, in November 2015 Mr Wilkinson applied to VCAT for review of the auditing condition. However, given the time that had passed, in January 2016 VCAT refused his application for an extension of time.[18]

1. We are struck by the following words from VCAT's 2012 decision [at 45]:

At the end of the evidence, the tribunal was left with the impression from [Mr Wilkinson] that he took the attitude to 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 [Mr Wilkinson] reflects a somewhat arrogant view of the world.

1. We agree.
2. Under the National Law, the Psychology Board of Australia has broad power to impose conditions on psychologists' registration and to enforce compliance with conditions.
3. We reject Mr Wilkinson's submissions that the Board had no power to impose the Condition, given the reach of the Privacy Act 1988 (Cth). We agree with Professor Ogloff's opinion (noting his legal qualifications as well as his expertise in the field of psychology) that the view Mr Wilkinson puts is spurious.
4. We adopt but do not repeat the Board's submissions[19] that under the National Law, the Board had and has the power to impose the condition, requiring Mr Wilkinson to disclose client files to an auditor appointed by the Board, here another psychologist, and that rather than prevent this, the Privacy Act recognises that issues of privacy may appropriately be subordinated to issues such as the protection of the public, under the National Law.
5. We agree with the Board's submission that the Condition, properly interpreted, empowered the Board to require on-site audits.
6. The condition was:

Mr Wilkinson's clinical records are to be audited by a psychologist approved by the Board within 3 months of the Board approving the auditor, and at 6 and 12 months thereafter.

1. Reference to auditing of "clinical records" clearly envisages a much broader scope than simply being sent case notes written by the practitioner. It includes an audit of the whole records, where they are kept and how they are kept. We accept Professor Ogloff's opinion, quoted above, in the same vein.
2. A psychologist subject to a condition has three choices, to comply with the condition, to seek review of the condition under the National Law, here by application to VCAT or to go to the courts concerning procedural issues.
3. Mr Wilkinson did none of these. His non-compliance with the Condition clearly constitutes unprofessional conduct as described above.

1. His much belated application to VCAT to review the condition in November 2015, concerning a condition imposed in September 2012, in no way excuses his conduct. Unsurprisingly, VCAT refused to extend the time for him to lodge the application.
2. We note here that Mr Wilkinson, and the Board, in response, invested much time and effort debating when Mr Wilkinson received correspondence during 2012 concerning this issue. While we accept correspondence for a period from early 2012 to sometime in the middle of 2012 may not have reached him, with the Board sending correspondence to an incorrect address, on any view by August 2012 he was aware of the issue.
3. We are considering an allegation concerning Mr Wilkinson's conduct from November 2012 to May 2013, not the Board's conduct.
4. While Mr Wilkinson's submissions have been considered in the course of writing these reasons, we will not address his accusations of maladministration by the Board, missing mail, lack of procedural fairness by the Board and the Board acting improperly. Those are not matters properly before VCAT. Again, this proceeding concerns Mr Wilkinson's conduct.

Allegation 2 - Failure to undertake performance assessment

1. We find the particulars of Allegation 2 concerning the events in question proven, accepting the evidence of Ms Chong concerning the chronology of events. Ms Chong's witness statement set out that chronology and attached relevant correspondence.
2. On 4 March 2013, under s 170 of the National Law, the Board determined to require Mr Wilkinson to undergo a performance assessment.
3. On 12 March 2013, AHPRA wrote to Mr Wilkinson[20] to advise him of that decision and advised it had been taken after the following issues had been identified:
   1. that Mr Wilkinson was disrespectful and/or intemperate in the manner in which, in his report dated 10 September 2010, he criticised Psychologist A's report concerning a patient; and
   2. that his practice of the profession is or may have been unsatisfactory in relation to his assessment and/or diagnosis of that patient.
4. Following a further letter AHPRA to Mr Wilkinson dated 11 July 2013, concerning the required performance assessment,[21] by letter dated 15 July, Mr Wilkinson advised he had not received the 12 March letter and indicated he would not be subject to a performance assessment, "without proper basis or genuine grounds". He characterised the proposed performance assessment as, "a continuing exercise of persecution and harassment".[22]
5. Mr Wilkinson gave evidence that he received legal advice that unless the Board provided a basis for its decision, he had a right to object to undertaking the performance assessment.[23] He refuted the suggestion that his response to Psychologist A's report breached his ethical obligations, noting such reports are necessarily short given the very limited remuneration offered by WorkCover to produce them.[24]
6. By letter dated 5 August 2013, Mr Wilkinson advised AHPRA that he did not intend to respond concerning the performance assessment until the outcome of the complaint he had made to the National Health Practitioner Ombudsman and Privacy Commissioner (the NHPOPC) had been decided. He requested further correspondence be directed to his solicitors.
7. Correspondence continued between AHPRA and Mr Wilkinson's solicitors.
8. A seven page letter, with 16 attachments, dated 23 September 2013 from AHPRA to Mr Wilkinson's solicitors set out in detail the Board's reasons for requiring the performance assessment and asked whether Mr Wilkinson would undertake the performance assessment.[25]
9. By letter dated 10 October 2013 Mr Wilkinson's solicitors advised that Mr Wilkinson refused to undergo a performance assessment unless:
   1. Mr Wilkinson's complaint to the NHPOPC concerning the Board's conduct in respect of its unfair treatment and harassment of him is properly investigated; and
   2. The grounds for, and fairness and objectivity of the performance assessment were properly demonstrated on an objective basis.[26]
10. During cross-examination, Mr Wilkinson agreed the Board had provided what it considered to be reasonable explanations but without any consideration of a number of factors.[27]
11. Mr Wilkinson has not undergone the performance assessment.

1. On the basis of the above findings of fact we find that on 10 October 2013, Mr Wilkinson engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that he refused to undergo a performance assessment as required by the Board. His professional conduct was of a lesser standard than that which might reasonably be expected of him as a registered psychologist by his professional peers.
2. We accept Professor Ogloff's opinion that Mr Wilkinson's conduct constituted unprofessional conduct as specified in the National Law. We quote from his expert report:

... Ethical Standard C.7 requires that psychologists cooperate with ethics investigations by statutory bodies charged with the responsibility to investigate complaints against psychologists. In addition, Ethical standard B.1.2 requires that psychologists provide services within the boundaries of their professional competence, which includes complying with the law of the jurisdiction in which they practice including, in this instance, the National Law.

In my opinion, Mr. Wilkinson's conduct, by failing to attend a performance assessment as required by the Board under the National Law, was of a lesser standard than that which might reasonably be expected of the health practitioner and constitutes a contravention by Mr. Wilkinson of a requirement by the Psychology Board of Australia.

1. We accepted Mr Wilkinson's patient's evidence that she regarded him as a highly skilled psychologist, who she had been seeing for years and continues to see, who she regards as saving her life and marriage. Her evidence is consistent with the positive aspects of Ms Bradley's first File Audit Report, quoted above.
2. We accepted the patient understood that Mr Wilkinson's report was pivotal in her succeeding at the WorkCover conciliation conference.
3. However, when Mr Wilkinson was faced with the Board's requirement that he undergo a performance assessment, he had the choices of complying with the requirement, seeking review of the requirement at VCAT or going to the courts concerning procedural fairness issues. Given the scope of the Board's powers under the National Law, he was not entitled to delay compliance on the basis that he had made a complaint to the NHPOPC.
4. We reject Mr Wilkinson's submissions that:
   1. it was not lawful for the Board to require the performance assessment - See s 170 of the National Law; and
   2. the Board did not have objective grounds for requiring the performance assessment - While that may be grounds for seeking review at VCAT, it is not a proper basis for simply refusing to undergo the assessment. In any case the Board provided such in its 23 September 2013 letter.

1. With findings made, the next step in this proceeding is to hear from the parties concerning appropriate determinations under the National Law.
2. Not making reference to this proceeding concerning outcome, determinations range from no action to be taken, through reprimand, fine, suspension to cancellation of registration.
3. We have made orders concerning the filing and serving of written submissions and scheduled a further one day hearing on 23 May 2017.
4. On reading these reasons, the parties will be aware that we have not regarded it as necessary to address comprehensively all the submissions put to us to date. Neither have we regarded as necessary to address a substantial amount of evidence given by Mr Wilkinson in cross-examination. In our view, much of that material is more properly considered as we consider determinations.
5. We record here that after the hearing, the Board obtained a transcript of the hearing and provided it to us. We are unaware whether the Board provided that transcript to Mr Wilkinson. If it has not, we urge the Board to provide the transcript to him to enable the more efficient running of the next hearing.
6. Concerning submissions, we encourage the parties not to repeat submissions already made, but to focus on submissions concerning determinations under s 196(2) of the National Law, where necessary referring to earlier submissions made.
7. If variations to the schedule for filing and serving of material and the hearing date are required, the parties may either agree a variation of the schedule between themselves and jointly propose such, or seek a directions hearing to consider such variation.

[1] For clarity in these reasons we have renumbered Allegation 1.1 as Allegation 1 and Allegation 1.2 as Allegation 2.

[2] Dated 20 December 2016 and 9 February 2017.

[5] Search of AHPRA registration database on 7 March 2017.

[13] Professor Ogloff addressed this further during cross-examination. He explained that if privacy obligations prevented the auditing of health professionals records, no such auditing would practically be possible. He also noted that in this case the auditor was a registered psychologist, bound by the same obligations as Mr Wilkinson is bound by. See transcript, page 44 and 48.

[16] We take Mr Wilkinson to be referring to late 2012/early 2013.

[18] VCAT Proceeding Z903/2015 Wilkinson v Psychology Board of Australia - orders and oral decisions only

[19] See the Board's closing submissions dated 20 September 2016.