1. With the Tribunal, having previously found that Mr Jeffrey Wilkinson, a registered psychologist, engaged in unprofessional conduct, with respect to Allegations 1(a) and 2 as described in the reasons below, under section 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law), the Tribunal now makes the following determinations.

1. The Tribunal suspends Mr Wilkinson's registration as a psychologist under the National Law for three months, commencing Monday 17 July 2017 and ending close of business, Monday 16 October 2017.
2. On or before 16 October 2017, Mr Wilkinson is to advise the Board as to whether he intends to return to practice and if he does, his intended date of return.

1. The Tribunal places the following conditions on Mr Wilkinson's registration as a psychologist:

1. Within one month of Mr Wilkinson's return to practice, the Psychology Board of Australia (the Board) is to appoint a registered psychologist (the Auditor) to audit Mr Wilkinson's practice.[1]
2. Within three months of Mr Wilkinson's return to practice following the above suspension, he must submit to an audit (the Audit) of his practice including any supporting records.
3. The Auditor will contact Mr Wilkinson and establish an audit plan outlining the form the audit will take including addressing the three concerns identified in paragraph 10 of these determinations. It is for the Auditor to decide the content of the audit plan.
4. Mr Wilkinson is to permit the Auditor to attend any and all places of his practice (public and private) for the purpose of the audit and permit the Auditor to provide a report to the Board in relation to the findings of the Audit.
5. The Audit and the Audit Report are to focus on record keeping and must, assess whether Mr Wilkinson's records:

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

1. Enable another psychologist to take over treatment of a client should the need arise.

1. Within one month of the Board appointing a supervisor (see below), Mr Wilkinson must, monthly for three months (each session being of one hour's duration) be supervised by another registered psychologist in relation to the ethical obligations of a psychologist ;
   1. Regarding record keeping, including the limitations of client confidentiality ; and
   2. To cooperate with ethics investigations by statutory bodies.
2. For the purposes of this condition, 'supervision' is defined as a professional relationship in which a skilled registered practitioner (the supervisor) helps to guide the professional development of another registered practitioner (the supervisee) to integrate professional knowledge and skills into demonstrated competencies that meet the accepted standard of performance outlined in the Board adopted code of ethics.
3. Within 14 days of Mr Wilkinson's return to practice, he must:
   1. Indicate his intended compliance with this supervision condition by providing to the Board a completed AHPRA form "Attend to Supervision - Practitioner Acknowledgement HP13"; [2] and
   2. Nominate, using AHPRA forms "Attend for Supervision - Nomination of Supervisor HPN13" and "Attend for Supervision - Supervisors Acknowledgement HPNA13", the names of three suitably skilled, registered psychologists for Board's consideration for approval.
4. The above forms address Mr Wilkinson's and the supervisor's obligations during the supervision process. They are to be interpreted with reference to these determinations, not with reference to "the Board's concerns"; wording that appears on the forms.

1. All costs associated with remunerating the Auditor and the supervisor are to be paid by Mr Wilkinson.

1. Under s 196(3) of the National Law, the review period concerning the above conditions is 16 March 2018.

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 above.

1. In May 2015, VCAT received a referral from the Psychologist Board of Australia (the Board) concerning Mr Jeffrey Wilkinson, a registered psychologist.[3]
2. Following a first hearing in November 2016, in March 2017 VCAT found Mr Wilkinson had engaged in unprofessional conduct with respect to the following allegations.[4]

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;

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. Concerning Allegation 1(a) we found, 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 s 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.

1. Mr Wilkinson 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.
2. We said 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. Mr Wilkinson did none of these.
3. Concerning Allegation 2, we found 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.
4. We said when Mr Wilkinson was faced with the Board's requirement that he undergo a performance assessment, he again had the choices of complying with the requirement, seeking review of the requirement at VCAT or going to the courts concerning procedural fairness issues. Again, he did none of these.
5. In May 2017, we conducted a second hearing to hear submissions concerning appropriate determinations in this proceeding.
6. The Board submitted we should determine:

1. To reprimand Mr Wilkinson; 2. That Mr Wilkinson be subject to conditions on his registration: 1. requiring he undergo a performance assessment (or alternatively a file audit if we did not accept the primary submission of a performance assessment); and 2. requiring he undergo supervision; and

1. That his registration as a psychologist be suspended for three months.
2. Mr Wilkinson agreed to the reprimand. He described the prospect of performance assessment, audit and/or supervision as being so unjust that he would relinquish his registration, ending his career as a psychologist rather than comply. In Mr Wilkinson's view, the injustice is that in his judgement there is no basis on which his practice as a psychologist gives rise to any need for such measures.
3. He did not contest the proposed three-month registration regarding that as a sanction arising from him failing to in a timely fashion contest the Board's decisions through appropriate avenues. He says he based his decision concerning this on legal advice.
4. For the following reasons, we reprimand Mr Wilkinson, impose conditions concerning audit and supervision, suspend his registration for three months and order that the Board review the conditions in nine months.
5. We do not do this intending that he will end his career as a psychologist. That is a matter that he will have to decide. Given his long career in psychology and his service to the profession, in the context of positive references discussed below, we fail to see why complying with audit and supervision conditions and being subject to a three-month suspension, would necessarily lead to Mr Wilkinson's career as a registered psychologist ending.
6. The following is based on the assumption that Mr wilkinson will not retire from practice as a registered psychologist.

1. Once VCAT has made findings in a proceeding such as this, the next step is to make the determinations necessary to protect the public and uphold the profession's reputation.
2. VCAT's role is not to punish the practitioner, although its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual in question from repeating the misconduct) or general deterrence (to warn others in the profession against such misconduct). VCAT's role is to protect the public and the profession's reputation.[5]
3. To make determinations, we go back to the original issues which gave rise to the Board placing the original audit condition on Mr Wilkinson's practice.
4. In 2012, in an entirely separate proceeding to this proceeding, arising from the previous allegations made by the Board against Mr Wilkinson, VCAT found he had engaged in unprofessional conduct. Mr Wilkinson kept no file notes or adequate records concerning a patient identified as GW. This was said to promote trust with the patient. VCAT rejected Mr Wilkinson's view.
5. In Psychology Board of Australia v Wilkinson (Occupational and Business Regulation) [2012] VCAT 1260, VCAT found [at 50]:

[Mr Wilkinson] failed to maintain an adequate clinical record of his treatment of GW. Any record that he did keep did not permit planning for continuing in the delivery of psychological services.

In the tribunal's opinion, by not keeping adequate records of his treatment of GW, [Mr Wilkinson]'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 [Mr Wilkinson] in fact agreed with GW not to keep records and rejects [his] evidence that he did so noting that there is no mention of this evidence either in [his] witness statement[6] or in his letter of explanation of his conduct.[7] 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.

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 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 applicant 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. This was the context in which the Board, reasonably and understandably and given VCAT's above decision by way of virtual obligation, sought to have an audit of Mr Wilkinson's practice, first by way of agreement with him and when he refused by way of condition.
2. To this day, a full audit of Mr Wilkinson's practice has not happened.
3. In the context of Mr Wilkinson's failure to cooperate with the Board, the Board became aware of a report by Mr Wilkinson in which he commented on the report of another psychologist. 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.

1. Mr Wilkinson's conduct in avoiding the full audit and refusing the performance assessment, demands reprimand. We note Marks J's comments in Peeke v Medical Board of Victoria[8] that a reprimand is a serious form of censure and condemnation.[9]
2. Mr Wilkinson's position that he acted on legal advice, noting correspondence on his behalf from solicitors to the Board, indicating that may have been so, is not an acceptable explanation.
3. Legal advice is a basis for either seeking administrative or judicial review of the Board's actions, or deciding to comply with the Board's requirement. It is not a sound basis for refusing to comply.

1. We have suspended Mr Wilkinson's registration for three months. We do this as a matter of general deterrence, to send a message to the profession that registered psychologists may not simply refuse to cooperate with conditions placed on registration by the Board. A psychologist may seek review of conditions at VCAT or in the courts. He or she may comply with the conditions. He or she cannot ignore the Board, or decide on some form of partial co-operation, as Mr Wilkinson did with respect to earlier audits.
2. In discussion with us at hearing Mr Wilkinson was clear that he views his cooperation with the Board's requirements as conditional on him regarding the particular requirement is reasonable and justified. If he does not view a requirement as such, he does not view himself as obliged to comply. That course of conduct is not open to a registered psychologist.

1. If Mr Wilkinson decides to continue to practise a psychologist, the long attempted full audit is required.
2. This relates to specific deterrence. Without an audit, the Board and VCAT cannot be satisfied that Mr Wilkinson now complies with his professional obligations concerning record-keeping.
3. While the parties will note that we have streamlined the administrative process of the audit which the Board proposed, it is not necessary to detail that here.
4. We have not agreed with the Board's submission that a performance assessment of his practice is required in order to protect the public.
5. At the hearing before us, the Board proposed a somewhat generic performance assessment process, largely leaving the methodology to the performance assessor. In our view, there was not sufficient rigour in that proposal to indicate it was proportionate to the issues before us and reasonably likely to have any positive effect on Mr Wilkinson's practice methodology.
6. Here we note supportive references for him from Mr Daniel McGlade, a lawyer who has used his psychological reporting services for over 25 years, Ms Denise Reid, Psychologist/Senior Clinician working in Victoria's prison system who says she has known him in a professional capacity for over 15 years, Dr Marion Kostanski, a consultant psychologist and senior lecturer who says she worked with him for years in volunteer work for the Australian Psychological Society, Mr Nick Lyons, a lawyer who has also used Mr Wilkinson's psychological reporting services for over 25 years and Mr Justin Burke, another lawyer who has used his psychological reporting services for over 20 years.
7. While these referees do not address the issues before us, they do indicate respect in the community for the services he has provided over decades and continues to provide.

1. We agree with the Board's submission that it is appropriate to require Mr Wilkinson to undergo professional supervision. The Board envisaged what could be a potentially ongoing process.
2. In our view, a short defined supervision process will likely be more productive and seems a proportionate response. Again we have simplified the text of the condition, compared to what the Board proposed.
3. Mr Wilkinson will either reflect on the issues raised (see paragraph 11 of the determinations) or he will not, given his long involvement in the profession and his strong views about appropriate practice.
4. We have rejected the Board's submission that supervision should in part address, "the ethical obligations of the psychologist to provide services within the bounds of their professions competence". Neither the allegations nor the evidence before us causes concern on this issue.
5. Once the Board receives the supervisor's report (and/or the auditor's report), it is open to the Board to consider further action.

1. Section 196(3) of the National Law, requires us to set a review period concerning the above conditions, which we set nine months from the date of these orders; 16 March 2018.

[1] The Board will presumably use AHPRA form, "Undertake in Order to Practice - Auditor Acknowledgement HPNA8" as part of this process.

[2] Available at www.psychologyboard.gov.au

[3] Under s 193 the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law).

[4] See Psychology Board of Australia v Wilkinson (Review and Regulation) [2017] 378.

[5] See Stirling v Legal Services Commissioner [2013] VSCA 374

[8] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6.

[9] As quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].