1. Jeffrey Wilkinson is reprimanded.
2. Jeffrey Wilkinson is disqualified from applying for registration as a psychologist for a period of 18 months commencing from the date of these orders.

1. Mr Wilkinson is a qualified psychologist, although he has not practised since he surrendered his registration (on 26 September 2019) following the issue of a Notice of Allegations about his conduct by the Psychology Board of Australia (Board) on 23 May 2019 (Notice of Allegations).
2. Broadly, the Notice of Allegations related to Mr Wilkinson's failure to comply with audit and supervision conditions imposed on his registration by the Tribunal in June 2017 (Relevant Conduct). On 3 September 2020, the Tribunal issued its reasons for finding that the Relevant Conduct had been proved (September 2020 Decision).[1] The precise details of the Relevant Conduct, and our reasons for rejecting Mr Wilkinson's defence based on the operation of the Privacy Act 1988 (Cth), are set out in the September 2020 Decision. Relevantly, the Relevant Conduct included returning all of his patient files to his clients, which prevented the Board from completing an audit which had been scheduled to take place.
3. A further hearing was held on 23 November 2020 to enable submissions by the parties as to the characterisation of the Relevant Conduct, as well as the appropriate determinations to be made, under the Health Practitioner Regulation National Law (Victoria) (National Law).
4. On 23 November 2020, we found that the Relevant Conduct was conduct substantially below the standard reasonably expected of a psychologist of an equivalent level of training or experience to Mr Wilkinson, and so amounted to professional misconduct. Our reasons for so finding are set out in these reasons.
5. Having regard to matters of general and specific deterrence, and other relevant considerations discussed below, we have determined that Mr Wilkinson should be:

(b) disqualified from applying for registration as a psychologist for a period of 18 months from the date of these reasons.

1. Under section 196(1) of the National Law, after hearing a matter, the Tribunal may (among other things) find that a health practitioner has behaved in a way that constitutes 'unprofessional conduct' or 'professional misconduct'.
2. Unprofessional conduct is professional conduct that is 'of a lesser standard' than might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.[2]
3. Professional misconduct includes unprofessional conduct that is 'substantially below' the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise.[3]

1. The Board submits that the Relevant Conduct constitutes professional misconduct.[4] In this regard, the Board notes that:
   • The audit and supervision conditions were imposed by the Tribunal by orders made on 16 June 2017 (2017 Tribunal Decision).[5]
   • Correspondence from July 2017 indicates that Mr Wilkinson was aware that the conditions had been imposed.
   • Based on the 2017 Tribunal Decision, Mr Wilkinson was aware that his failure to comply with an earlier Board imposed audit condition was unprofessional conduct.
   • Based on an earlier 2012 Tribunal decision,[6] Mr Wilkinson was aware that the Board imposed audit condition was imposed to ensure he was practising safely and to the expected standard, particularly in relation to adequate record and note keeping.
   • Mr Wilkinson failed to comply with the audit and supervision conditions imposed by the Tribunal in 2017.
   • Mr Wilkinson's failure to comply prevented the Board and the Australian Health Practitioner Regulation Agency (AHPRA) from ensuring that he had been practising in accordance with his professional obligations, particularly in relation to record keeping, as part of their regulatory responsibilities.
   • The Relevant Conduct breached the Code of Ethics (Code) of the Australian Psychological Society (APS), particularly [A.5.2] (regarding confidentiality) and [C.7.1] (regarding ethics investigations and proceedings).
2. Mr Wilkinson filed submissions on characterisation and determinations on 6 November 2020 (Respondent's Submissions). The Respondent's Submissions traverse Mr Wilkinson's long-held beliefs:
   • regarding the validity of his 'extremely parsimonious' approach to notes of his clinical consultations with patients;
   • that the provision of patient identities to the Board for auditing purposes was 'unnecessary' and otherwise in breach of the Privacy Act 1988 (Cth); and
   • the Board has generally been 'biased' and 'vindictive' in requiring any audit or supervision of his practice.
3. While Mr Wilkinson appears to accept that the Tribunal's September 2020 Decision was 'a strictly legal correct Ruling', he nevertheless contends it was based on 'a previously completely improper Ruling' (this appears to be a reference to the 2017 Tribunal Decision). He submits that while an appeal was 'totally and utterly justified' - if he had the financial means - it was impossible because he had spent his 'last dollar building a new house just at that time, and was supervising the construction to the point where [he] was doing very little therapeutic work'.

1. The Code was adopted by the APS at an annual general meeting of its members in 2007, and the Board has adopted the Code for registered psychologists (since 2010).[7] Relevantly, at [B.2.1], the Code provides that psychologists are required to 'make and keep adequate records'.
2. The APS produced accompanying 'Guidelines on Record Keeping' in May 2011 (Guidelines) which explain that the maintenance of 'accurate, current and complete records of psychological services' is for the service and benefit of the client.[8] It also suggested that such records benefit psychologists themselves 'by guiding them to plan and implement an appropriate course of psychological services, to review work as a whole, and to self-monitor more accurately'.[9]
3. The Guidelines note that the records maintained should contain 'sufficient detail' to:

(a) 'permit planning for continuity in the delivery of psychological services in the event that another psychologist takes over that responsibility, including in the event of death, disability, or retirement';[10] and

(b) 'allow for review of psychological service delivery'.[11]

1. The Code also provides, at [C.7.1], that psychologists 'cooperate with ethics investigations and proceedings' instituted by the APS and the Board/AHPRA.
2. Mr Wilkinson does not, and has never, accepted (or, at least, not fully accepted) the role of the Board/AHPRA in reviewing his clinical practice, particularly in relation to record keeping. This is so despite him having come before the Tribunal on two previous occasions and, on the second occasion, the imposition of audit and supervision conditions by order of the Tribunal.
3. Psychologists, like other health practitioners, are subject to regulation for an important public policy purpose, namely the protection of members of the public to whom health services are provided. The ability to review, audit and supervise health practitioners all form a necessary part of the regulatory regime to that end.
4. The Code reflects the standards agreed upon by psychologists, and has been adopted by the Board to govern registered psychologists.
5. Under the Code, Mr Wilkinson was required to maintain and keep adequate records of his clinical consultations and to co-operate with ethics investigations and proceedings, including in relation to those records.
6. Mr Wilkinson was not entitled to choose which aspects of the Code he would accept or what parts of his patient records he was willing to provide.
7. No matter how fervent his beliefs about the Privacy Act 1988 (Vic), Mr Wilkinson was not entitled to ignore or stymie the audit and supervision conditions which were imposed by the Tribunal. If Mr Wilkinson considered that the 2017 Tribunal Decision was wrong, he could have challenged it by appealing to the Supreme Court of Victoria. That he spent his money and time on his renovations, and as a result did not have the funds to appeal, is a choice that he has made.
8. We are comfortably satisfied that, by engaging in the Relevant Conduct, particularly in transferring all of his clinical records back to his patients in order to prevent a proper audit of his record keeping, Mr Wilkinson engaged in conduct that was substantially below the standards reasonably expected of a psychologist of equivalent training and experience.
9. Accordingly, we find that the conduct amounted to professional misconduct within paragraph (a) of the relevant definition in section 5 of the National Law.

1. Where a practitioner has been found to have engaged in conduct amounting to professional misconduct, the Tribunal can caution or reprimand, impose conditions on registration, fine, suspend or cancel the registration of a practitioner.[12] If a practitioner's registration is cancelled, or a practitioner is not currently registered, the Tribunal can also impose a period of disqualification during which a practitioner cannot apply to be registered.[13]
2. As noted in Medical Board of Australia v Jansz:[14]

Determinations consequent upon adverse findings in relation to members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession, in the sense of maintaining its stature and integrity in the eyes of the public.

1. While the power to make determinations is not intended to be punitive, specific and general deterrence, as well as the facilitation of rehabilitation, will be relevant.[15]
2. Relevant factors to be considered by the Tribunal include the nature and seriousness of the conduct, evidence of contrition, the need or otherwise for specific deterrence, other disciplinary findings, evidence of character, evidence of rehabilitation, any delay between the start of the investigation until the completion of the Tribunal hearing, and other mitigating factors.[16] Also relevant is the degree of insight that the practitioner has into his or her offending conduct.[17]
3. Penalties which have been 'imposed in other cases involving similar or analogous conduct will be a useful guide to proportionality', although this does not 'override the need to consider the unique facts and circumstances of the case at hand'.[18]

1. The Board submits that the appropriate determinations in this case are that Mr Wilkinson be reprimanded and disqualified from applying for registration as a psychologist for a period of 24 months.[19]
2. The Board says that the proposed determinations are warranted for the following reasons:[20]
   • the audit and supervision conditions imposed by the Tribunal in 2017 related to Mr Wilkinson's failure to make and keep adequate records and 'self-evidently' arose out of his practice;
   • Mr Wilkinson's conduct was 'obstructive and/or illustrative of a wilful disregard' towards the Board and its attempts to facilitate and monitor his compliance with those conditions;
   • the conduct was serious, including providing patients with clinical records without a careful assessment of those records and the potential to expose patients to clinical information and observations which may be harmful;
   • the conduct was not isolated, and demonstrates ongoing disregard for the supervisory jurisdiction of the Board, AHPRA and the Tribunal;
   • Mr Wilkinson 'evidently lacks insight into his conduct', including as to the 'fundamental supervisory role played by the Board and Tribunal in ensuring the protection of the public';
   • the serious reputational risk for the profession posed by Mr Wilkinson's conduct in terms of real potential to expose clients to risk of harm and the concern that it may cause for an objective, public observer;
   • the community expectation that psychologists will abide by applicable professional standards and orders of the regulatory bodies or Tribunal; and
   • the breaches of the Code.
3. The Board highlights the need for specific deterrence and submits that 'any lesser disqualification period does not serve as adequate specific deterrence' given Mr Wilkinson's 'ongoing disregard for professional expectations and the regulator'.[21]
4. Mr Wilkinson seeks that the proceeding be 'dismissed outright' and that his psychology registration be returned to him.[22] As explained at the hearing, the Tribunal has no power to order registration in this proceeding. Further, it is only open to the Tribunal to determine that no further action is to be taken if the Tribunal does not find that the practitioner engaged in conduct amounting to unsatisfactory professional performance, unprofessional conduct or professional misconduct.[23]
5. In seeking the dismissal of the proceeding, Mr Wilkinson contends that:

this is merely a power game of persecution with virtually no substance from the [Board], and the [Board] has consistently been breaching their legal charter to provide public protection against improper psychologist conduct (of their own), that they have consistently breached various Federal law, have dragged in completely unqualified non-practising psychologists as so-called expert witnesses, have bent and twisted Court Orders, have instituted and abused their own [immediate action committee] practices and turned it into a star chamber, where I have been made a victim. ... I do not care how legally correct your [September 2020 Decision] may be. It is based on a 2017 tribunal decision which promotes breaking of the law by the [Board], and allows ongoing abuse of the Australian public who happen to be psychologist clients, as well as abuse of those psychologists who fall foul of the [Board] for some minor case note issue.

1. In our view, both a reprimand and a period of disqualification are necessary.
2. This is largely because of the need for both general and specific deterrence.
3. The Tribunal must denounce Mr Wilkinson's conduct and send a clear message to the psychology profession that failure to comply with conditions imposed by the Tribunal to protect the public will not be tolerated.
4. As is well known, a reprimand is a strong form of censure, not just a 'slap on the wrist'.[24] It is appropriate in this case.
5. In terms of the period of disqualification, the Board pointed us to two relevant decisions of the State Administrative Tribunal of Western Australia (WASAT).
6. Nursing and Midwifery Board of Australia and Stoksik[25] (Stoksik) concerned a nurse who had been subject to restricted practice and supervision conditions imposed by that Tribunal in earlier proceedings. The nurse continued to practice in a manner which was contrary to those conditions. She voluntarily surrendered her registration in July 2017, about 15 months prior to the hearing. The allegations related to both breaches of the conditions and the provision of false and misleading information to AHPRA. The nurse admitted her breaches and apologised to the Board. She was reprimanded and disqualified from applying for registration for a period of 12 months.
7. Pharmacy Board of Australia and Nyoni[26] (Nyoni) concerned a pharmacist who had been found guilty of professional misconduct in possessing, supplying and selling Schedule 8 drugs in breach of conditions which had been imposed on his registration by the Pharmacy Board of Australia. In addition to cancelling Mr Nyoni's registration, the WASAT imposed a period of two years' disqualification. The Tribunal observed that this period was 'not insignificant, but nor is it excessive in the circumstances', and that it

achieves the appropriate balance of protection of the public whilst still allowing Mr Nyoni the opportunity to reengage with his profession in the not too distant future if he chooses to do so and can satisfy the Board that he is fit to practise.

1. In our view, Mr Wilkinson's conduct can be seen to fall somewhere between the conduct considered in Stoksik and Nyoni.
2. In that regard, unlike Ms Stoksik, Mr Wilkinson has never admitted his breaches or apologised for his conduct. On the other hand, the nature of Mr Wilkinson's breaches (ie. failing to comply with audit and supervision conditions) are less likely to create a direct risk to patients than Mr Nyoni's prescribing of Schedule 8 drugs in breach of his conditions. In the latter regard, while the provision of a patient's psychological records could expose them to risk, there is no evidence that any of Mr Wilkinson's patients did in fact suffer adverse consequences as a result.
3. Further, Mr Nyoni's conduct resulted in him committing criminal offences, for which he was convicted. Mr Wilkinson's conduct was inappropriate and should be condemned, but it was not criminal. Indeed, he mistakenly viewed his conduct as being necessary to avoid breaching Federal privacy law. (For completeness, as indicated in our September 2020 Decision, the provision of patient records to the Board for auditing purposes in compliance with the Tribunal's orders was not in breach of the privacy principles in the Privacy Act 1998 (Cth).)
4. Like Mr Nyoni, it is fair to say that Mr Wilkinson has 'demonstrated a flagrant disregard for the obligations which are imposed on [health practitioners] by legislation designed to protect the public'[27] and therefore a lack of insight or contrition. Indeed, again like Mr Nyoni,[28] instead of focusing on his own behaviour, Mr Wilkinson raises concerns about the motives of the Board in pursuing him.
5. On the other hand, unlike Mr Nyoni, Mr Wilkinson has participated in the proceeding; although it is relevant to observe that he recanted the Agreed Statement of Facts, Proposed Findings and Determinations[29] which substantially explains the prolongation of the proceedings.
6. Mr Wilkinson gave evidence that, although he is working in some unspecified field, his income has been substantially affected since he surrendered his registration. It would appear that, despite earlier indications to the contrary, Mr Wilkinson does seek to return to practice as a psychologist and to enjoy the financial rewards which accrue to registered practitioners. Of course, it will be a matter for the Board to determine whether he is fit to practise, should he apply for registration at the end of any period of disqualification.
7. Having regard to all of these matters, we consider that a period of disqualification of 18 months is appropriate.

[1] Psychology Board of Australia v Wilkinson [2020] VCAT 961.

[2] National Law, s 5 'unprofessional conduct'.

[3] National Law, s 5 'professional misconduct', paragraph (a).

[4] Applicant's Outline of Submissions as to Facts, Findings and Determinations dated 9 December 2019 (Applicant's Submissions) [15].

[5] Psychology Board of Australia v Wilkinson [2017] VCAT 807.

[6] Psychology Board of Australia v Wilkinson [2012] VCAT 1260.

[7] See APS, 'APS Code of Ethics' (available at www.psychology.org.au/About-Us/What-we-do/ethics-and-practice-standards/APS-Code-of-Ethics) and Board, 'Guidelines and Policies' (available at www.psychologyboard.gov.au/Standards-and-Guidelines/Codes-Guidelines-Policies.aspx).

[14] [2011] VCAT 1026 [362] (citation omitted).

[16] Medical Board of Australia v Griffiths [2017] VCAT 822 [43].

[17] Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784 [99].

[18] Medical Board of Australia v Griffiths [2017] VCAT 822 [49].

[24] Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 [15].

[25] [2018] VR 110 (for clarity, it is noted that the medium neutral citation is not a reference to the Victorian Reports).

[26] [2018] WASAT 134.

[29] These were dated 17 September 2019 and filed with the Tribunal on 26 September 2019 following a compulsory conference.