PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - PSYCHOLOGISTS - where the applicant reviewed the respondent's decision to refuse the applicant's application for provisional registration as a psychologist - where an applicant is eligible for provisional registration, under s 62(1)(d) of the Health Practitioner Regulation National Law (Queensland), if the applicant meets any requirements for registration stated in an approved standard for the health profession - where the Psychology Board of Australia - Guidelines for 4+2 internship programs for provisional psychologists and supervisors ('the Guidelines') are an approved standard - where the applicant could not complete the application in accordance with the Guidelines - whether the Tribunal should refuse the applicant's application

Health Practitioner Regulation National Law (Queensland), s 12(1)(a), s 62(1)(d), s 82(1)(c)(i)(E), s 199(1)(a)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Pearse v Medical Board of Australia [2013] QCAT 392

Mr R Barnes of Rogers, Barnes & Green for the Board.

[1] Mr Richard West was born in Poland in 1954. He arrived in Australia in 1981. He worked variously as a production labourer in the motor industry, a machine operator, a courier delivery owner/operator, an offset printer, a mobile nursery owner/operator, the owner/operator of a business transporting dangerous goods, and the owner/operator of a business involved in the production of honey. He describes himself as a workaholic. As an eastern European migrant he has been subjected to racial discrimination during his life in Australia. He has become an Australian citizen, but still considers that he has been the subject of discrimination on the basis of his ethnic origin and age.

[2] Between 2003 and 2010 he undertook a Bachelor of Psychology degree at James Cook University in Cairns.[1] On 25 November 2010, in apparent anticipation of the completion of his studies, Mr West completed an application for provisional registration as a psychologist. The application was lodged with the Australian Health Practitioner Regulation Agency ('AHPRA') on 29 November 2010.

[3] On 14 June 2012 the Psychology Board of Australia decided to refuse Mr West's application for provisional registration. The Board's decision was notified to Mr West in a notice of refusal dated 11 July 2012 given to him pursuant to s 84 of the Health Practitioner Regulation National Law (Queensland) ('National Law'). Mr West has appealed to the Tribunal from the Board's decision. The decision is an appealable decision as defined by s 199(1)(a) of the National Law. Although termed an "appealable decision", the appeal in the Tribunal proceeds as a review pursuant to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).[2] The review is by way of a full hearing de novo upon the material for the Tribunal applying the law as at the time of the review.[3]

[4] The object of the National Law is, relevantly, to establish a national registration and accreditation scheme for the regulation of health practitioners.[4]

[5] The objectives of the national registration and accreditation scheme include:

• (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and

(c) to facilitate the provision of high quality education and training of health practitioners.[5]

[6] By s 12(1)(a) of the National Law, the Australian Health Workforce Ministerial Council may approve a registration standard about, relevantly, the registration of persons in a health profession. Pursuant to s 62(1) of the National Law, an individual is eligible for provisional registration in a health profession, to enable a person to complete a period of supervised practice that he or she requires to be eligible for general registration in the health profession if the person, relevantly, meets any requirement for registration stated in an approved registration standard for the profession.[6]

[7] By s 82(1)(c)(i)(E) of the National Law, a National Board must decide to refuse to grant an applicant registration in the health profession if the applicant is ineligible for registration because he or she does not meet a requirement for registration stated in an approved registration standard for the profession.

[8] The Australian Health Workforce Ministerial Council, on 31 March 2010, in accordance with s 12(1)(a) of the National Law, approved the Psychology Board of Australia provisional registration standard with effect from 1 July 2010. Later, a further standard was approved by the Council on 27 April 2012 with effect from 1 June 2012. Each of the standards explains that the Board has determined that the qualification that leads to registration as a general Psychologist is a six year accredited sequence of study, comprising a masters degree minimum qualification or equivalent. The Board will recognise as an equivalent qualification either a five year accredited sequence of study followed by a one year Board approved internship, or a four year accredited sequence of study followed by a two year board approved internship. These are known, respectively, as 5 + 1 and 4 + 2 internships. The standards state that provisional registration is granted to enable the completion of supervised practice in the fifth and sixth years as part of the minimum six year sequence of study. The standards apply to both applicants for provisional registration and provisionally registered psychologists.

[9] Because he has completed a four year undergraduate degree, Mr West will need to complete a two year internship as a provisionally registered psychologist in order to be eligible for general registration.

[10] The standards provide that a provisional psychologist undertaking the Board approved two year internship must successfully complete the internship in accordance with the Board's internship guidelines. Those guidelines are set out in the Psychology Board of Australia - Guidelines for 4+2 internship programs for provisional psychologists and supervisors.

[11] Section 2.3 of the guidelines provides that registration as a provisional psychologist is dependant upon the Board being satisfied that the applicant meets the mandatory registration standard; has completed an accredited four year sequence of study in psychology within the last 10 years; and also has proposed a supervised practice program that is consistent with the guidelines and agreed by the applicant for provisional registration and his or her principal and secondary supervisors.

[12] Section 3.3.1 of the guidelines provides that a provisional psychologist's internship program commences on the date on which the Board approves the provisional registration. Quite clearly, this would require the details of the internship program to be settled prior to the Board's approval of provisional registration.

[13] Section 3.4 provides the steps which must be completed by applicants for provisional registration in arranging their internship program. Step 1 is to find a work role, or roles, of a psychological nature. The role may be paid or unpaid, but must be one which enables the provisional psychologist to complete a minimum of 17.5 hours of internship per week.

[14] Section 3.5 explains the requirements for work roles of a psychological nature. They must be based on direct client contact and involve psychology specific tasks of psychological assessment, problem formulation, diagnosis, intervention and prevention. Where the work role does not exclusively involve duties of a psychological nature, only the time spent performing duties in a psychological nature can be counted toward the total of 3080 hours of supervised practice which the guidelines require over the programs life. Therefore, the supervisor's estimate of the percentage of work which is of a psychological nature helps to determine the expected completion date of the internship program.

[15] Also, the duties of psychological nature need to be directed to each of the eight core capabilities identified in the provisional registration standard and the guidelines. If one work role is limited in its scope such that it does not meet all of the core capabilities, then the provisional psychologist may need to be engaged in more than one work role in order to meet the requirements of the internship.

[16] Step 2 in arranging an internship is finding and entering into a supervision arrangement with a Board approved supervisor. The guidelines identify that the Board approved supervisor must be able to regularly oversee the provisional psychologists work and will preferably be a person who works onsite with the provisional psychologist. The Board may approve an offsite supervisory arrangement based on the applicant's supervised practice program, job description or other information requested by the Board. The guidelines state that if an applicant submits an application for an offsite supervisory arrangement, the applicant and supervisor should ensure, before submitting the application, that the proposed employer of the applicant is aware of the requirements of the supervised practice program. In developing a supervised practice program, a primary supervisor must assist the provisional psychologist to identify an appropriate secondary supervisor or supervisors.

[17] Step 3 is nominating for the approval by the Board a secondary supervisor who has agreed to assist in the internship program. A secondary supervisor (or supervisors) may contribute to no more than 25% of the total supervision of the provisional psychologist, unless a higher proportion is approved by the Board.

[18] Step 4 in arranging an internship is developing a supervised practice program to be approved by the Board. The program must be developed in accordance with the requirements and the guidelines. It must consist of supervised psychological practice and professional development activities designed to ensure that the psychological capabilities required for general registration are developed.

[19] Step 5 requires the applicant to submit to the Board all of the required materials including: an application form for provisional registration; the supervised practice program form; and a formal position description from the organisation or agency for each proposed work role.

[20] I have set out these requirements of the standard and guidelines at some length because they make plain that in order to attain registration as a provisional psychologist an applicant must be able to identify the particular work role or roles in which he or she will undertake his or her supervised practice, and the details of the supervised practice program which will be undertaken.

[21] Mr West submitted his application for provisional registration in the approved form. Item 12 of the application required the attachment of a completed supervision plan form and a copy of the position description relating to the proposed supervised practice program. That position description was to be on the letterhead of the organisation which was proposing to employ him for the purposes of supervised practice and was required to include a brief description of his work role, including duties, responsibilities and reporting requirements, and the hours of work. It was required to be signed by an authorised person within the workplace.

[22] Neither a supervision plan form nor a position description was attached as required.

[23] In an email to AHPRA on 13 December 2010 Mr West explained that the university had not informed him of the 4+2 program. He expressed feeling "between a rock and a hard place"; needing to find a supervisor and a job, but unable to obtain a list of supervisors on the Atherton Tablelands or in Far North Queensland where he then resided. Mr West asked that his email not be seen as a complaint but as a cry for help.

[24] On 23 December 2010, AHPRA emailed Mr West informing him that an initial assessment of his application had been completed and that before further consideration could be given to it he was required to provide further information. The information sought included the country in which he completed his secondary education in English. It stated that if that country was not one of those identified in the English Language Skills Recognition Standard, he would need to undertake an International English Language Testing Scheme Examination. Mr West was given until 20 January 2011 to provide the further information.

[25] On 24 December 2010, Mr West responded. It is apparent that he had spoken with the relevant officer at AHPRA that day. He expressed offence at the prospect of having to undertake an English exam. He said that he had no intention of sitting such a test and that he intended to take legal action for discrimination. Mr West expressed reservation at being able to meet the 20 January 2011 deadline. He said that he had made arrangements to meet with a possible supervisor who was returning from holidays in mid January. He said that a more suitable date would be the end of February, but if that was not possible he sought the return of his application.

[26] From a further email from Mr West addressed to the manager of AHPRA dated 28 March 2011 it is apparent that he had been granted an extension of time within which to provide information relating to his application. Mr West's frustration at that stage was apparent. His saw himself as being unable to gain registration as a provisional psychologist without a job, but unable to gain a job without that registration. He said that, by then, he had applied for 154 positions.

[27] It appears from that letter that there had been some discussion about English language requirements and the suggestion that Mr West may need to undertake a test to establish his proficiency in English. Mr West, as an Australian citizen of 30 years who had completed a university degree, again expressed alarm at that prospect. He considered that it was discriminatory.

[28] With that letter Mr West provided a letter from a Ms Mavis Derman, a clinical psychologist, in which Ms Derman stated that she had offered to be Mr West's primary supervisor. Ms Derman practiced from a medical centre in Cairns. It did not appear that Mr West had been offered a work role within that practice. No information was provided as to how the supervision would be facilitated or what form it would take. No supervised practice plan was included.

[29] On 5 April 2011 the manager of Health Practitioner Registration for Queensland emailed Mr West acknowledging receipt of the further materials supplied. Mr West was asked to confirm where he had completed his secondary education. A telephone conversation followed that day in which Mr West informed the manager that his secondary education was completed in Poland, but that he refused to comply with the Board's English language policy.

[30] A further email followed on 5 April 2011 from AHPRA in which Mr West was informed of the requirement to comply with the Board's English language registration standard and that a notice would be issued pursuant to s 80 of the National Law requiring him to provide proof of his meeting the requirements of that standard. In a further email from AHPRA that day Mr West was informed that the Board would not further consider his application until he could satisfy the English language requirements set out in the standard.

[31] Mr West did take action against AHPRA. On 5 May 2011 he made a complaint to the Anti-Discrimination Commission Queensland which was accepted by the Commissioner as a complaint of racial discrimination in the area of work. After conciliation in the commission, Mr West and AHPRA settled the matter in September 2011, without any admission of liability on the part of AHPRA, on the basis that AHRPA would assess any application for registration by Mr West and in doing so would not require him to undertake an English language test in order to be assessed as suitable for registration. All other requirements applicable to the application under the National Law would continue to apply.

[32] On 20 September 2011 AHPRA issued a notice pursuant to s 80(1)(b) of the National Law requiring Mr West to provide, amongst other things, a supervised practice plan in the standard form setting out how the proposed work roles would enable him to obtain all the core capabilities of the internship program.

[33] On 13 December 2011 Mr West submitted a supervised practice plan in the approved form. The plan did not nominate a secondary supervisor. Mr West stated that the identity of the secondary supervisor would be advised in due course and as soon as possible after obtaining a fulltime or part time position.

[34] The form required Mr West to set out his proposed psychological work role or roles. In respect of the first proposed position Mr West stated:

I shall endeavour to conduct voluntary and temporary practice as a Provisional Psychologist on the Atherton Tablelands in Far North Queensland. I intend to occupy this position with various local organisations for two or three days a week (depending on availability). What is more, I shall continue my search to obtain a fulltime/part time position anywhere in Australia.

[35] In respect of the second proposed position, Mr West said:

I would like it to be noted that, between 31 January 2011 and 4 December 2011, I have put in a vigorous effort to obtain a fulltime/part time position in Australia. During looking for suitable position, I have put in 531 job applications and that includes 62 applications for the Queensland Government - that includes 27 applications in progress. I will amend this section of the supervised practice plan as soon as possible, after obtaining fulltime/part time position and form "A(i)" will be registered with the Board. Those amendments will be written by me and endorsed by my supervisor.

[36] It is apparent from those responses that Mr West did not have any psychological work role with any organisation.

[37] Notwithstanding the absence of any work role, Mr West acknowledged, at item 9, his agreement to undertake a minimum of 17.5 hours per week of work of a psychological nature in approved positions and that his proposed psychological work role was not predominantly case management. The form sought the supervisor's estimate of the percentage of duties defined as psychological practice. This was left blank. That is understandable given that no position or positions had been identified. Notwithstanding that, Mr West indicated that at least 40% of his psychological practice would be face to face client contact engaged in psychological assessment, intervention and or prevention.

[38] In the absence of any psychological work role, Mr West's agreement to those requirements could only be aspirational.

[39] At item 10 Mr West identified the areas of psychology as relevant to his work role as being clinical, health, counselling, educational and development, sport, organisational and community. The only areas not identified were neuropsychological and forensic. Again, in the absence of any psychological work role, the identification of those areas could only be aspirational.

[40] At item 11 he indicated his agreement to complete 3080 hours of training within a maximum of five years from the date of commencement of his provisional registration. Without then having a psychological work role to commence in, Mr West could not have known that this condition to which he was agreeing was achievable, as much as he may have hoped for it to be so.

[41] He stated that the expected date of completion of his supervision program was 1 December 2013. This estimate was to be based upon his work hours, the percentage of psychological duties in his proposed work role, and the minimum requirement of 3080 hours of supervised training. Whilst the minimum number of hours was fixed, the other two elements in this equation for this estimate were variable, and dependant upon the work role or roles attained. The time estimate was, by then, less than two years. Without knowledge of those variables, it could not on any basis have been a reasonable estimate.

[42] At item 12 Mr West said that his principle supervisor would be offsite and that he had submitted a request for the approval of an offsite supervisory arrangement that accorded with section 3.4 of the 4+2 internship guidelines. However, there appears to be no evidence of such requests having been made.

[43] At item 12 he also indicated that his secondary supervisor would be onsite. Whilst that might have been what he hoped, it was at that time completely uncertain.

[44] Where asked to indicate whether all of his supervision sessions would be face to face, he responded both "yes" and "no". As to the latter he indicated that he had attached a request for approval of alternative supervision that accorded with section 5.3 of the Guidelines. However, the part of the form where provision was made for such a request was left blank. There is no evidence of such request being otherwise made.

[45] Section H of the form addressed the eight core competencies. In respect of each he was required to describe, by reference to each proposed work role, how the various requirements would be met. He provided no responses. Other areas of section H which required responses by reference to work roles were unaddressed.

[46] Ms Derman signed the supervisor's declaration. However in doing so she noted that:

Richard is in a "catch 22", he cannot get work which will satisfy your requirements.

[47] Attached to the application was a supervised practise plan. At section 4, under the heading "professional practice", Mr West repeated his responses in respect of proposed position 1 and proposed position 2 as set out above.

[48] This again highlighted the absence of any psychological work role which could be considered in assessing Mr West's application for provisional registration or any proper basis upon which the plan could be considered or approved.

[49] Mr West's genuine attempts to secure a position which would facilitate his completion of supervised practice and thus secure his career as a psychologist cannot be doubted. However, his failure to obtain a work role or roles means that he has unable to satisfy the requirements for provisional registration. This is not to be confused with a requirement to have provisional registration in order to obtain a work role. A work role can be secured in prospect of it being the role which will facilitate the provisional registration. However, an offer of a work role remains a matter for any and each employer or agency.

[50] It is quite apparent that the supervised practice plan does not satisfy the requirements of the guidelines.

[51] On 27 March 2012 AHPRA on behalf of the Board notified Mr West that the Board was proposing to refuse his registration. It enclosed a notice dated 26 March 2012 given pursuant to s 81 of the National Law. It set out in detail the Board's reasons for proposing to refuse his registration. Without reciting those reasons in detail, it can be said that they reflected the deficiencies which I have set out above.

[52] Mr West responded on 30 April 2012. He responded to the reasons set out and the notice. In his responses he acknowledged the deficiencies in his application and the information provided, but explained his inability to provide the information in the absence of obtaining a position. He explained that he had by then conducted 740 job searches, expressions of interest, job enquiries and interviews.

[53] Again, his genuineness in trying to secure a position in which to embark upon his career cannot be doubted. His, quite understandable, frustration was evident. He expressed that he had simply done his best in preparing his application, not knowing what was expected of him.

[54] As a means of getting out of what he described as "this inconvenient predicament", he proposed a solution whereby he would be granted provisional registration with permission to work 50% of his time as a volunteer provisional psychologist and 50% of his time as a provisional psychologist in his own practice.

[55] His application was refused. The Board's reasons were set out in a notice given pursuant to s 82 of the National Law dated 11 July 2012. Its reasons reflected those previously notified when the refusal was proposed.

[56] In the hearing, Mr West gave further evidence of the attempts which he had made to establish himself in the profession of psychology. He has been told repeatedly by potential employers that they would give him a job as soon as he was registered, but who did not offer him a position in which he could seek provisional registration. He has been told that he is too eager and overqualified. He finds this frustrating.

[57] He explained that his suggestion that he be allowed to spend 50% of his time in private practice was to enable him to get some income. This may have allowed him to perform the supervised work in an unpaid capacity.

[58] For all of this, though, he frankly acknowledges that the information missing from, and the matters left unaddressed in, his application form were missing and unaddressed because he did not have a job. They remain unaddressed.

[59] Professor Robert Shweitzer gave evidence for the Board in which he highlighted the deficiencies in Mr West's application. Professor Shweitzer is the chair of the Queensland Board of the Psychology Board of Australia and was formerly the Deputy Chair of the Queensland Psychologists Board from 2004 to 2010. He identified that there were six potential supervisors in Atherton who he would have expected to have been contacted by Mr West as potential supervisors. He also expected that there would have been a secondary supervisor. Of Mr West's nominated primary supervisor, Professor Shweitzer identified that she was based in Cairns and did not do offsite supervision.

[60] If the primary supervision was not in the provisional psychologist's workplace, he would expect that the nominated secondary supervisor would be so that contingencies, such as suicidal bipolar patients, could be dealt with. He considered that the availability of a supervisor was a matter of proximity and he found it difficult to imagine a remote supervisor.

[61] Professor Shweitzer highlighted a number of the deficiencies in the supervised practice plan which Mr West had submitted in support of his application. Those deficiencies included that he had not identified how the professional practice requirements of the areas of psychological assessment and measurement and intervention strategies would be met. In respect of the latter, the interventions have not been identified. These deficiencies stem from Mr West not having a work role or roles.

[62] One of the core capabilities for the 4+2 internship requires the provisional psychologist to demonstrate the core capabilities across the lifespan. For those purposes the lifespan is divided into four stages. The provisional psychologist will, therefore, have to work in work roles which provide exposure to client populations in each of the four stages.[7] The policy for 4+2 internship program: limited work role, recognises that there may be some work roles where the lifespan stage of the clients is defined by the nature of the service. For example, it may be a children's service, or a geriatric service. In such cases a variation of the across the lifespan capabilities requirement is permitted which would allow the provisional psychologist to undertake a maximum 2310 hours of the 3080 hours of required supervised practice in the stage applicable to the service. However, at least 770 hours of supervised practice must be undertaken in other work roles with exposure to the other lifespan stages. At section 14.8.1 of the supervised practice plan Mr West identified that he would have approximately 10% of contact with adolescence and 45% contact with each of adults and those in late adulthood. It was apparent from his evidence that he does not want to practice with children, thus explaining why he had not allocated any part of his contact with them. That may be his ultimate intention and desire, however, for the purposes of his internship, it ignores a requirement of the program.

[63] Professor Shweitzer did not consider that the further supervised practice plan submitted by Mr West addressed those deficiencies. For example, there was still no secondary supervisor identified. He said that it was of major concern that Mr West had only identified 48 hours of supervision with his supervisor when the requirement was for a minimum of 170 hours.

[64] As to Mr West's proposal that he spend 50% of his time in private practice, Professor Shweitzer identified this as one which caused him considerable concern.

[65] The purpose of the review is to produce the correct and preferable decision. Whilst one may have some sympathy for Mr West, and understand the frustration which he feels as a consequence of his situation, the correct and preferable decision is that his application for registration as a provisional psychologist should be rejected.

[66] Compliance with the guidelines for 4+2 internship programs for provisional psychologists and supervisors is required by the provisional registration standard. Section 62(1)(d) of the National Law makes eligibility dependant upon meeting any requirements for registration stated in an approved standard. Therefore, in order to be eligible for provisional registration, Mr West must have complied with the guidelines as required by the standard.

[67] For the reasons set out above, Mr West has not complied with the guidelines, and thus the provisional registration standard. Consequently, he does not satisfy the eligibility requirement of s 62(1)(d).

[68] Section 62(2) of the National Law permits a national board to decide that a person is eligible for provisional registration by imposing conditions on the registration under s 83. By this means, compliance with the eligibility requirement of s 62(1) may be achieved.[8] However, in this case, I am not satisfied that the eligibility requirements could be met by the imposition of conditions. Mr West did not contend for such a course.

[69] Section 82(1)(c)(i)(E) mandates that a national board must decide to refuse to grant registration to an applicant if he or she is ineligible for registration because he or she does not meet a requirement for registration stated in an approved standard.

[70] In those circumstances, the only decision which the Tribunal can make, sitting as it does in the position of the Board, is a refusal of Mr West's application for provisional registration.

[71] Mr West, of course, may again make application for provisional registration when he is able to demonstrate compliance with the guidelines and the standard. This would require, as a first step, finding a work role or roles of a psychological nature which enable him to complete the minimum of 17.5 hours of internship each week and to accrue the required 3080 hours of supervised practice.

[2] See s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld), by which Act the National Law became part of the law of Queensland.

[3] Pearse v Medical Board of Australia [2013] QCAT 392 at [36].

[7] See the guidelines at section 6.3.8.

[8] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [55].