Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Hearing dates: 8 and 9 December 2014 Decision date: 23 December 2014 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member K Johnson, Psychologist Member J Haigh, Psychologist Member J Milne, Lay Member Decision: The Tribunal ordered that Dr Donnelly be reinstated to the register of Psychologists maintained by Australian Health Practitioner Regulation Agency in conjunction with the Psychology Board of Australia, subject to conditions. The Tribunal ordered that the prohibition order made in relation to Dr Donnelly on 2 February 2012 by the then NSW Psychology Tribunal be revoked. The Tribunal made no order as to costs. Catchwords: ADMINISTRATIVE LAW - Application for reinstatement of a psychologist - after deregistration for professional misconduct - COSTS - costs in relation to successful reinstatement applications by deregistered health practitioners. Legislation Cited: Health Practitioner Regulation National Law (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Sunjic v HCCC [2010] NSWNMT 13 Hardy v HCCC [2009] NSWNMT 21 Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 Re Lenehan [1948] HCA 45 Dawson v The Law Society of New South Wales [1989] NSWCA 58 Stanoevski v The Law Council of New South Wales [2008] NSWCA 93 Flynn v HCCC [2011] NSWNMT 6 HCCC v Philipiah [2013] NSWCA 342 Kazmierczak v NSW Medical Board (unreported, NSW Medical Tribunal, 6 May 2010) Litchfield v Medical Council of New South Wales [2012] NSWMT 8 NSW Medical Board v Dinaker [2009] NSWMT 9 Scully v HCCC [2013] NSWNMT 7 Flynn v HCCC [2011] NSWNMT 6 Coe v HCCC [2013] NSWNMT 12 Draper v Psychology Board of Australia [2013] NSWPST 3 Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Dr James Donnelly (Applicant) Health Care Complaints Commission (Respondent) Representation: Paul Crane Lawyer (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 1420272 Publication restriction: Neither the identity nor the address of any patient or client referred to in the proceedings that gave rise to the application in this matter nor the identity nor the address of any family member whose identity may lead to the identification of such patient or client shall be published to or by any person. reasons for decision Introduction 1This is an application by James Francis Donnelly PhD to be allowed to return to practice as a registered psychologist. What the tribunal decided 2The Tribunal ordered that Dr Donnelly be reinstated to the register of Psychologists maintained by Australian Health Practitioner Regulation Agency in conjunction with the Psychology Board of Australia. 3The Tribunal also ordered that the conditions set out below, in the formal orders, be imposed on the Dr Donnelly's registration; and made orders consequential to the imposition of those conditions. 4The Tribunal ordered that neither the identity nor the address of any patient or client referred to in the proceedings that gave rise to the application in this matter nor the identity nor the address of any family member whose identity may lead to the identification of such patient or client shall be published to or by any person. 5The Tribunal ordered that the prohibition order made in relation to Dr Donnelly on 2 February 2012 by the then NSW Psychology Tribunal be revoked. 6The Tribunal made no order as to costs. The process and what has to be proved 7In this case Dr Donnelly's registration as a psychologist was cancelled on 2 February 2012 by the then NSW Psychology Tribunal. That tribunal also ordered that a period of 18 months from the date of that order elapse before he could apply for a review of that order. At paragraph 185 of its reasons for decision, the tribunal stated: "The Tribunal is the body to decide any review of the orders herein or any application for reregistration". The tribunal also made a prohibition order in relation to Dr Donnelly on the same day. 8Nevertheless, after the relevant period of disqualification from applying for registration had elapsed, Dr Donnelly wrote a letter, dated 13 September 2013, applying to the Psychology Board of Australia (Board) to be reregistered as a psychologist and setting out some additional information in support of that application. The Australian Health Practitioner Regulation Agency (AHPRA), as the administrative agency for all the national health professions' boards undertook a process that culminated in the Board reregistering Dr Donnelly, subject to conditions that were imposed on that registration. However that process was void and of not legal effect. When that was realised by officers at AHPRA, they advised Dr Donnelly of that fact and provided him with information about the appropriate process for seeking reregistration and how to go about it. 9The proper formal legal process in this case was for him to apply to the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT) for a review of the order made on 2 February 2012. That process was begun when Dr Donnelly's application for review was filed at NCAT on 13 August 2014. When such an application is made, NCAT is required to review the order to determine its appropriateness at the time of the review. Having conducted the review, NCAT may make a reinstatement order. A reinstatement order is an order that a person may be registered as a health practitioner if they apply, through AHPRA, to the relevant National Board, here the Psychology Board of Australia (National Board), and that board decides to register the person. Where NCAT makes a reinstatement order it may, as part of that order, impose conditions on the person's registration. These matters are dealt with in ss 163 to 163C of the Health Practitioner Regulation National Law (NSW) (National Law). 10While such a review is not a review of the decision to make the order or any findings made in connection with the making of that decision, we were obliged by s 163C(3) of the National Law to take into account any complaint made or notified to the Psychology Council of New South Wales (Council) or the National Board. There were 3 matters of that kind in this case and they will be returned to. 11As has been noted in earlier cases, such as Sunjic v HCCC [2010] NSWNMT 13 at [9] to [12], what is now NCAT's jurisdiction to review the current appropriateness of an order to cancel the registration of a health practitioner is to be exercised for the protection of the public. This approach has been confirmed by s 3A of the National Law which requires NCAT to exercise of its functions under that Law so as to give paramount consideration to the safety and protection of the public. It is to be exercised in a way that ensures that any health practitioner who is the subject of a reinstatement order is of good character and both fit and competent to practise their profession - see also Hardy v HCCC [2009] NSWNMT 21 at [9] to [14]. 12When a former psychologist, like Dr Donnelly, seeks reregistration, they must prove that they should be reinstated. The onus of proof lies with them. This means that they must provide or be able to point to the sources of evidence relevant to demonstrating why they should be reinstated. The standard of proof required that NCAT be "satisfied on the balance of probabilities" as to the relevant matters. 13We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan [1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales [1989] NSWCA 58 at [12] (Mahoney JA). In the same case at page 10, Kirby P, in dissent, noted a consideration that has also been applied in this jurisdiction, including since the creation of NCAT, namely that: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance... 14Since Kirby P's comment the situation has become more nuanced in NSW at least. The idea of "probable permanent unfitness" has probably been reduced to the idea of, "being likely to be unfit to practise for the indefinite future. In Stanoevski v The Law Council of New South Wales [2008] NSWCA 93 at [54] Campbell JA with whom Hodgson JA and Handley AJA agreed said: Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future. Some cases have recognised that shade of meaning explicitly.... If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under [the relevant] section. Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate. 15It has also been noted in previous cases, that the critical issue is the applicant's worthiness and reliability for the future. In assessing this, we can draw inferences from past conduct particularly the conduct which led to the cancellation of the health practitioner's registration. The role of the HCCC in relation to applications for reinstatement orders 16As has been noted elsewhere, in most applications to review cancellation of a health practitioner's registration or to suspend a practitioner's registration, the HCCC will have been involved with the matter as the Complainant at the inquiry at which NCAT made the cancellation or suspension order. However, the role of the HCCC in the review hearing is to test the evidence relied upon by the applicant, to provide any assistance it can by making submissions to the Tribunal as to the appropriate law and to provide the Tribunal with an analysis of the evidence and submissions as to the legal criteria the Tribunal should apply to the evidence when making its decision - see Flynn v HCCC [2011] NSWNMT 6 at [18]. Mr Griffin outlined these matters at the commencement of the hearing. He noted that the HCCC neither supported nor opposed Dr Donnelly's application and described the role of the HCCC in situations like this as that of a contradictor. The sources of the evidence 17Mr Crane, solicitor, of the firm Paul Crane Lawyer who represented Dr Donnelly tendered a series of documents on behalf of his client, without objection. Together with other documents he tendered during the hearing, they were marked Applicants Exhibits AE 1-9. Mr Griffin, counsel for the HCCC, tendered 2 volumes of documents which, together with the documents he tendered during the course of the hearing were marked Respondent's Exhibits RE 1-2, 3a, 4-35. Mr Griffin also provided a set of draft conditions which were marked for identification MFI 1. The following gave oral evidence to us over the telephone, Dr Seidler, a clinical and forensic psychologist and Associate Professor Morrissey of a School of Applied Psychology at an Australian university. Dr Donnelly gave oral evidence to us in person. The evidence 18As the National Law makes clear, this is not a review of the decision to make the order or of the findings relevant to that decision. As we are obliged to, we take into account other complaints or notifications made in relation to Dr Donnelly regardless of when they were made. However, in addition to meeting our statutory obligation just referred to we will consider evidence of matters since the tribunal's orders of 2 February 2012 as these matters are most relevant to our decision as to whether or not to make a reinstatement order and if so what the content of that order should be. In making that decision we will also take into account the opinions of the expert witnesses who have provided reports and the psychologist who provided a form of supervision of Dr Donnelly referred to below. 19It was clear from the evidence, and not in contention, that Dr Donnelly does not have any diagnosable psychiatric or psychological condition. In his report dated 8 January 2014, consultant psychiatrist Dr Samuels noted that he could find no evidence to suggest that Dr Donnelly was suffering from any form of mental impairment. He also noted that Dr Donnelly did not receive any formal treatment for his depression and anxiety in 2005, but that he did make a number of lifestyle changes including accessing social support, increasing exercise, putting in place strategies to balance his workload and responsibilities. Dr Samuels noted that these changes appeared to have been successful. 20Dr Seidler, a clinical and forensic psychologist, saw Dr Donnelly on 7 January 2014 for 2 hours in what was described as a "semi-structured interview" that formed the basis for Dr Seidler's assessment. Dr Seidler stated in her report of that interview that there was no evidence of psychopathology, including mood disturbance that there was no thought disorder and also that there was no evidence of cognitive disturbance or impairment at that interview with Dr Donnelly. 21It was also clear that Dr Donnelly had kept up his continuing professional development since his registration was cancelled. Also he has kept up with at least some significant elements of his profession by lecturing at a regional university, different from the one he was employed by at the time that the incidents that gave rise to the cancellation of his registration occurred. We note that Dr Donnelly taught professional ethics to psychology students for 2 years during the time he was precluded from practising psychology and that, at one stage at least, included the factual basis for the cancellation of this registration as a case study in his teaching. 22In the report referred to above, Dr Seidler summed up the then Psychologists Tribunal's cancellation of Dr Donnelly's registration as due to concerns about 3 matters namely: (1)Failure to notify the Department of Community Services (DOCS) of a matter related to child sexual assault; (2)Failure to provide adequate supervision of an intern clinical psychologist; and (3)Failure to undertake a proper risk assessment. We note that the 3 concerns attributed to the tribunal as being its reasons for cancelling Dr Donnelly's registration in paragraph 7 of Dr Seidler's report are effectively the same as those that Dr Donnelly is reported to have stated as being the concerns that the "Board" had about, "his practice in the aforementioned case" in paragraph 20 of the same report. 23What the tribunal did find however was that Dr Donnelly was guilty of unsatisfactory professional conduct that was of such a serious nature that it amounted to professional misconduct in that between June 2003 and November 2004 he provided therapy to Mr A and/or his daughter Miss B himself and/or through his supervision of Ms X, a provisionally registered psychologist providing treatment services under his supervision. He: (1)In October 2003, upon becoming aware that Mr A had disclosed to Ms X during a therapy session that he had been touching his daughter Miss B in an inappropriate manner for the last few years: (a)failed properly or at all to understand the legal and professional obligations upon him in cases of potential child abuse; (b)failed to make a report to the Department of Community Services of those disclosures as required by s 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW); (c)did not voluntarily report the disclosures to the Department of Community Services; (d)failed to take adequate steps to assess whether or not Miss B or her sister Miss C were at risk; (e)failed to appreciate the risk to Miss B and Miss C; (f)failed to take appropriate action to protect the safety and welfare of the Miss B and Miss C; (g)failed contrary to B5 of the Board's Code of Conduct to communicate the fact of Mr A's disclosures to appropriate professionals or organisations; and (h)caused or permitted Ms X (a trainee under the psychologist's supervision) to continue to provide treatment services to Mr A notwithstanding that this was beyond her competence and experience. (i)Caused or permitted Ms X to continue to provide treatment services to Mr A notwithstanding that she had disclosed her own past history of sexual abuse to Mr A. (2)Failed on or around November 2003, upon the occasion of making a referral to [a child psychologist]: (a)to provide all relevant information to [the child psychologist] in relation to the risk of harm to Miss B and Miss C; (b)adequately to reconsider the question of whether or not Miss B and Miss C were at risk; and (c)to make a referral to the Department of Community Services. (3)On 15 September 2004, encouraged and/or permitted Ms X to involve Miss B in the therapeutic process she was undertaking with Mr A notwithstanding that this was: (a)beyond her competence; (b)inappropriate in the circumstances; and (c)without any steps being taken to assess or to ensure Miss B's welfare in relation to this process. (4)Failed to exercise appropriate supervision of Ms X in her treatment of Mr A. (5)Failed to take steps to safeguard the welfare of Ms X in relation to her therapeutic relationship with Mr A. (6)From around January 2005 - August 2005, delayed making a report to the Department of Community Services. (7)Did not keep any appropriate and/or accurate clinical records in relation to the psychological treatment provided to Mr A. (8)Caused or permitted Ms X to provide 42 sessions of therapy to Mr A as an intern. 24The tribunal found all the particulars, including all the sub-particulars of particulars 1, 2 and 3, proved. These particulars covered a broader scope than Dr Seidler's 3 point summary or Dr Donnelly's reported view of the "Boards" concerns about his practice. 25In giving her opinion based on the 2 hour interview with Dr Donnelly, Dr Seidler stated that on the occasion of the interview, Dr Donnelly impressed with reasonable insight at the time and that he was able to articulate the appropriate steps that he should have taken. He did not seek to minimise his responsibility or blame others for his conduct and he expressed regret and remorse for his actions, not only because of the consequences these had for himself but also for the children involved and the intern. 26Dr Seidler continued: "This appeared genuine and insightful". Dr Seidler then noted that Dr Donnelly discussed a number of cases with which he has worked since 2005 where there were concerns in relation to child abuse and in which he was able to identify and assess risk appropriately and notify accordingly, as well as identifying a range of remediative steps he had engaged in. Dr Seidler stated that this included engaging in supervision, attending professional development activities and re-establishing a commitment to reflexive and reflective practise, including engaging in regular peer supervision. 27Dr Seidler then expressed the opinion that Dr Donnelly had demonstrated appropriate insight and understanding into the way in which he made poor decisions and engaged in misconduct in relation to this case. Dr Seidler's report concluded with the statement that; "I consider Dr Donnelly is a fit and proper person to practise the profession of psychology", but went on to recommend that Dr Donnelly continue to engage in regular peer supervision and maintain an individual supervisory relationship. Dr Donnelly has already complied with a third recommendation to attend a particular course. 28The individual supervisory relationship Dr Seidler referred to was provided by Associate Professor Morrissey who also provided us with a report dated 18 June 2014. That report noted that the supervision began 15 December 2012 and ended 24 August 2013. The supervision was conducted over 12 sessions all of no less than one hour, 10 by phone and 2 face to face. Associate Professor Morrissey reported that Dr Donnelly was always well prepared for supervision and consistently reliable in his attendance. There was a strong emphasis on ethics in the material dealt with during the supervision sessions, but reporting abuse, neglect and criminal activity as well as guidelines on record keeping were also were also covered. Associate Professor Morrissey also reported that Dr Donnelly had been able to reflect on the matters of his deregistration and was, "able to take a more objective analysis of the relevant ethical issues concerned". Further on, Associate Professor Morrissey noted being impressed by the regrets Dr Donnelly expressed about the fate of the children concerned and the experiences his former student, Ms X, had to endure. 29Later on the report stated that Dr Donnelly was up to date with current research literature on ethics as well as with professional practice standards and legislation in Australia. In the report, Associate Professor Morrissey expressed the view that Dr Donnelly had, "demonstrated competence in addressing the issues raised by the tribunal..." that cancelled his registration as a psychologist. 30When giving oral evidence to us, Associate Professor Morrissey was supportive of Dr Donnelly's reinstatement to the psychology profession and was willing to act as Dr Donnelly's supervisor if supervision was made a condition of reregistration. 31As already noted, we were obliged by s 163C(3) of the National Law to take into account any complaint made or notified to Council or the National Board. The first of these 3 complaints or notifications related to communications between Dr Donnelly and a teenaged female client between June 2008 and April 2010.These communications included at least 18 face to face and 33 telephone consultations as well as 365 text messages on 95 different dates. A reviewer, who was a professor of psychology and a consultant psychologist, considered this conduct as a significant departure from accepted standards and the complaint was sent to the HCCC for investigation. After further investigation, the HCCC declined to lay a formal Complaint against Dr Donnelly. 32The HCCC received 2 other complaints in relation to Dr Donnelly. The first related to an email from Dr Donnelly that the complainant considered suggested that Dr Donnelly did not take responsibility for the failures that led to his deregistration. The HCCC and the Council, in consultation, assessed this complaint and decided to take no further action in relation to it. The second related to Dr Donnelly offering to give a short talk, in a clinical psychology program, about his experiences and the management of his case that led to his deregistration. The HCCC and the Council, in consultation, assessed this complaint and decided to take no further action in relation to it. Both these complaints were made to the HCCC in July 2013. 33As already noted, Dr Donnelly gave oral evidence, in person, to us. He also had filed on his behalf with the papers for the review conducted by us a copy of the letter dated 13 September 2013 that he sent to the Board seeking reregistration that is referred to above. In that letter he referred to his decision not to make a report to the Department of Community Services as required by s 27 of the Children and Young Persons (Care and Protection) Act of disclosures by Mr A of inappropriate massaging of his daughter, Miss B. In that letter, Dr Donnelly stated in relation to that matter: "The fact that children involved were actually in an abusive household was a horrible realisation that I will never forget". He also referred to other failures in that letter, including the failure to read, before signing it, a discharge summary from his intern, Ms X, noting that his, "failure to read that summary properly and my failure to check on her progress notes in general was a serious failing on my part and I have accepted full responsibility for those errors". 34In the next paragraph he went on to state that he believed he had, "demonstrated since my deregistration as a psychologist that I have behaved professionally and with skill in addressing the issues that gave rise to the finding of misconduct". In the next sentence he continued: "There is no evidence of unprofessional conduct before or since this single, yet very consequential episode of poor professional behaviour". 35We note that the matters alleged against Dr Donnelly occurred between June 2003 and November 2004 and that the tribunal found that the conduct alleged against him over that substantial period included some instances of professional misconduct and when the instances of unsatisfactory professional conduct were considered together, they amounted to professional misconduct, not "poor professional behaviour", as described by Dr Donnelly. We also note that there was a period between June 2008 and April 2010 when his professional involvement with a teenaged female patient did come under criticism as unprofessional conduct. However we acknowledge that, as Mr Griffin pointed out, there were "no relevant disciplinary findings" arising from this or the other matters of complaint noted earlier in these reasons for decision. 36Dr Donnelly went on to refer to matters that are noted above, early in our setting out of the evidence, relating to the steps he has taken to maintain his continuing professional development obligations and undertake research. He then stated: "I have taken steps to ensure that I will conduct myself in line with the highest professional and personal standards if given the opportunity to return to clinical duties ..." 37When he gave oral evidence before us and was questioned by Mr Griffin, Dr Donnelly conceded that he had not paid the costs he was ordered to pay the HCCC by the then Psychology Tribunal as a result of proceedings before it in relation to him in 2010 and 2012. It was apparent from his reluctantly given evidence that he not taken any steps whatsoever to make any kind of arrangements with the HCCC in relation to payment of those costs. 38As already noted, Associate Professor Morrissey was willing to act as Dr Donnelly's supervisor if supervision was made a condition of reregistration. Associate Professor Morrissey was made aware of the draft conditions that the HCCC proposed before being asked about willingness to supervise. The draft conditions and associated orders, which were marked for identification at the commencement of proceedings on 9 December, were as follows. The Tribunal orders that the following conditions be imposed on the practitioner's registration as a psychologist: (1)That the practitioner must nominate a supervisor, prior to providing clinical psychology services and/or seeing patients/clients as a psychologist, to be approved by the Psychology Council of New South Wales (Council). (2)That the practitioner is to ensure that: (a)the supervisor is provided with a copy of these conditions; (b)the practitioner and the supervisor meet on a monthly basis for at least two hours , with at least 50 percent of that time face to face or by video link; (c)at each meeting the practitioner and the supervisor review his work progress and address any relevant work-related or professional matters; (d)at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed by the Psychology Council of New South Wales; (e)he provides written authorisation to his supervisor within 7 days of the supervisor being approved by the Psychology Council of NSW, to communicate any information or concerns to the Psychology Council of NSW; and (f)the supervisor forwards to the Psychology Council of New South Wales, initially on a six-monthly basis, a supervision report in a format prescribed by the Psychology Council of New South Wales. This report must include information on the practitioner's practice in respect of: (i)maintaining professional boundaries and his understanding of this issue; (ii)ethical issues; (iii)identification of children at risk; (iv)mandatory reporting; and (v)record keeping. (3)That the supervisor is authorised to inform the Psychology Council of New South Wales immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, or if the supervisor relationship ceases. The practitioner is to authorise the supervisor to provide such information to the Psychology Council of New South Wales. (4)In the event that the approved supervisor is no longer willing or able to provide the supervision required, that the details of a replacement supervisor are to be forwarded within 21 days of the cessation of the original supervisory relationship, by the practitioner to the Psychology Council of New South Wales for approval. (5)That the practitioner submits to random audits of case files by an auditor appointed or approved by the Psychology Council of New South Wales. The auditor is to investigate the quality of the information contained in the practitioner's case notes, including evidence of appropriate judgment and decision making in regard to assessment, intervention planning, report writing and appropriate referral. (6)The practitioner must provide a copy of the conditions on his registration to all current and future employers and ensure that those employers provide the Psychology Council of NSW with written acknowledgement of the receipt of that notice. (7)The practitioner is to bear all costs incurred in meeting conditions one to six inclusive. (8)That the practitioner: (a)must not provide supervision to provisional psychologists for the purposes of the higher degree, 4 +2 or 5+1 pathways to registration; (b)must not provide clinical supervision to other psychologists; and (c)must restrict his supervision of others to peer supervision and supervision of research students. The Tribunal orders that: (1)Under section 163(1)(a) of the National Law, the Psychology Council of New South Wales is the appropriate review body for review of the practitioner's conditions on his registration. (2)If the practitioner resides anywhere else in Australia other than New South Wales, sections 125 to 127 inclusive of the National Law are to apply, so that a review of these conditions may be conducted by the Psychology Council of Australia. (3)Under section 163B(5) of the National Law, an application for a review of the above orders (including orders imposing conditions) may not be made for a period of 12 months following the date of the Tribunal's decision. 39In his oral evidence to us, Dr Donnelly indicated that he was happy to accept supervision and willing to accept all the draft conditions on his registration. He indicated to us that he appreciated Associate Professor Morrissey's generously provided supervision in the past, but would seek supervisors closer by if they were available. He then indicated that he wished to be in a position to supervise others, but when advised that this would require changes to draft condition 8 which precluded him from supervising higher degree students or from providing clinical supervision to other psychologists during the currency of that condition, he indicated that he was not going to purse the supervision of others nor seek to have the draft conditions amended. Submissions and the tribunal's decision 40In his submissions to us Mr Crane noted that Dr Samuels concluded that he could find no evidence that Dr Donnelly is currently suffering from diagnosable psychiatric or psychological condition and specifically that there was no evidence to suggest that he is clinically depressed or anxious. He also noted that Dr Seidler's report concluded: "taking into account all the information available to me, I consider Dr Donnelly is a fit and proper person to practise within the profession of psychology". That report recommended some conditions which could be placed on Dr Donnelly's registration. He also noted that Associate Professor Morrissey's letter dated 18 June 2014 to NCAT stated: "I fully support Dr Donnelly's application for registration with the Psychology Board of Australia". 41Mr Griffin advised us that while we were not bound by the evidence of the experts, we were required to consider what they said. In this case we accepted Dr Samuel's opinion about Dr Donnelly's mental health without hesitation. 42Mr Griffin drew our attention to a fact that we also noted, namely that during his oral evidence to us Dr Donnelly's evidence was not always responsive to the questions asked. However we also accepted his submission that there was "good general progress" on Dr Donnelly's part around the matters that led to his deregistration according to those with relevant expertise who saw him. In the light of the evidence available to us, we accepted Dr Seidler's opinion that Dr Donnelly had demonstrated appropriate insight and understanding in relation to the way he made poor decisions and engaged in misconduct in the circumstances that led to the cancellation of his registration as a psychologist. We also noted Associate Professor Morrissey's opinion that the risk of any recurrence of boundary transgression, avoidance of ethical duties, poor documentation and record-keeping and or inappropriate or inadequate supervision of junior psychologists on Dr Donnelly's part was minimal. Nevertheless, we considered it appropriate to impose a condition on Dr Donnelly's registration precluding him, for a period of a year at least, from supervising provisional psychologists seeking higher degrees for the purposes of registration as psychologists and from providing clinical supervision to other psychologists. 43While we note Mr Griffin made no submissions against reregistration, and pointed out that the conduct that led to Dr Donnelly's registration occurred 10 years ago, he referred to the complaint relating to the teenaged girl but also noted that there had been no disciplinary proceedings arising from that matter. 44Nevertheless, having considered the relevant evidence, the fact that conditions requiring Dr Donnelly to have a supervisor approved by the Council in place before he could resume clinical practice or even see patient/clients as a psychologist and severely restricting his capacity to supervise others were recommended by the HCCC and agreed to by Dr Donnelly, we were satisfied that the current order cancelling his registration was no longer appropriate and that it should be replaced by a reinstatement order providing for his general registration as a psychologist with the conditions set out in the formal orders below imposed on his registration. Comments on the reinstatement order 45We note in relation to the reinstatement order that Dr Donnelly's reregistration is to be general registration as a psychologist. In his evidence to us Dr Donnelly noted that he was qualified to be a neuropsychologist. We note that if Dr Donnelly wished to be endorsed or registered with registration other than general registration he will have to apply through AHPRA to the Board for that to happen. 46We also note that Dr Donnelly may not provide clinical psychology services or even see a patient/client in a clinical setting until there is in place a supervisor nominated by him and approved by the Council. In addition, while the Council is the appropriate body to review the conditions in the reinstatement order, this role does not commence until 12 months after our decision is published. This is in order to make it clear that the conditions on Dr Donnelly's reregistration are intended to remain in place for at least 12 months after our decision is published. After that Dr Donnelly may apply to the Council for any amendment, variation or revocation of the conditions. 47The Council is also the body expected to monitor the conditions in the reinstatement order. 48If Dr Donnelly moves to another State or Territory of the Commonwealth, these review and monitoring responsibilities are transferred to the (National) Board. Costs 49In his written submissions to us, Mr Crane stated, in terms, that should his client be successful: "then the general rule espoused by the Court of Appeal in HCCC v Philipiah [2013] NSWCA 342 should apply and that compensatory principle should apply and costs should follow the event and I request on order that the HCCC pay the Applicant's costs, which costs I would suggest could be set off against the unassessed costs that the Applicant presently owes the HCCC". On the other hand Mr Griffin submitted that the position developed at the Medical Tribunal was that in cases in which a deregistered doctor sought reregistration, the NSW Medical Board would appear in the case as a contradictor and the applicant for reregistration would be ordered to pay the Medical Board's costs even when the applicant succeeded in obtaining reregistration. 50In support of his submission, he referred us to Kazmierczak v NSW Medical Board (unreported, NSW Medical Tribunal, 6 May 2010) and Litchfield v Medical Council of New South Wales [2012] NSWMT 8, a case in which Dr Litchfield succeeded in obtaining reregistration, but was ordered to pay the Medical Council's costs, without any discussion of the matter. However, in Kazmierczak v NSW Medical Board the Medical Tribunal stated at [54]: The other aspect that we need to deal with is the question of costs. The view that we have reached is that although the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without a sufficient investigation into what they have done since the deregistration. Sometimes the Board needs to be in a position to raise matters which could have been raised but which perhaps for good reason were not raised at the earlier hearing. Because it is entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application. 51Mr Griffin submitted that this was the role the HCCC played in relation to applications for reregistration by psychologists and nurses and midwives at least and so that NCAT had a consistent approach to this matter, we should follow the same approach. 52Unfortunately, the matter is not as straight forward as that. Recently in HCCC v Philipiah [2013] NSWCA 342 the Court of Appeal applied the compensatory principle, namely that costs were awarded to compensate the successful party and not to penalise the unsuccessful party. The Court of Appeal did so in order to overturn the decision of the then NSW Medical Tribunal not to award costs to the HCCC. However Emmett JA, who gave the leading judgment, also noted that the award of cost was a discretionary matter that was subject to principle, he continued: "While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it". In making that comment, Emmett JA relied upon a statement in a 1974 case in the NSW Supreme Court which in turn relied upon a statement made in the English Court of Appeal in 1920. However neither of those cases was dealing with circumstances like those facing us. 53As it was a suitable time to adjourn, the tribunal provided time for Mr Crane to find cases to support his argument for a costs order in favour of his client or otherwise relevant to counteract the submissions of the HCCC. Upon the resumption of the proceedings, Mr Crane advised that he had not been successful in finding any cases of assistance, but he submitted that it was open to us to make an order that each party bear their own costs. Mr Griffin advised that searches undertaken on behalf of the HCCC from 2010 onwards found no authorities of assistance. 54However a review of the cases from health professions tribunals in NSW from 2010 until their incorporation into NCAT upon its establishment on 1 January 2014 does reveal some cases of relevance and that the Court of Appeal has also had something to say on the matter. We will return to these cases; but before doing that we note that the statutory authority for NCAT to make costs orders in health professions cases is found in Sch 5D, cl 13 of the National Law. That clause gives NCAT a discretion to order any party or person entitled to appear in any inquiry or appeal to pay costs to another person. This is a wide discretion as to the awarding of costs but it has to be exercised according to principles that are not easy to state as Emmett JA has noted. 55There seem to us to be 3 possible approaches in this case that could be based on principles articulated elsewhere. First the compensatory principle applied in HCCC v Philipiah. Under that principle Dr Donnelly would be awarded costs as the successful party. However, the compensatory principle is designed for cases involving disputes between parties that are brought to the courts for resolution and where it has long been the position that costs follow the cause, unless the successful party has acted in ways that disentitles it from some or all of its costs. Nevertheless, the compensatory principle is applied in the health professions jurisdiction in relation to Complaints or similar matters being proven against health practitioners where the complainant or applicant is the HCCC or the Council of a health profession. For an example see NSW Medical Board v Dinaker [2009] NSWMT 9 at [134]-[136]. 56However that principle is not necessarily apposite to reinstatement cases. In those cases it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. 57These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. 58On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. That appears to have arisen out of a practice at the NSW Medical Tribunal. 59In Scully v HCCC [2013] NSWNMT 7, a case in which a deregistered nurse obtained a reinstatement order, the HCCC nevertheless sought an order that the reinstated nurse pay its costs. The HCCC did not base its submission for costs on Kazmierczak v NSW Medical Board, but on NSW Medical Board v Dinaker. The then Nursing and Midwifery Tribunal made an order that each party pay their own costs. Its reasons for doing so were summed up in paragraphs [135] and [136] of its reasons for decision as follows: Here the HCCC opposed at all times the applicant's re-instatement application, and only provided draft conditions on the specific request of the Tribunal following completion of the hearing. Further, a sitting day was lost by reason of the failure of the HCCC to be able to prove service of the documents on which it relied on the applicant, and which it appears were not served in the time provided in the orders made at the Directions Hearing. Balancing all relevant considerations we are satisfied in the circumstances of this case that the appropriate order is that each party pay their own costs of and incidental to the application. We note that it is unlikely that the applicant, who has at all times been unrepresented, has incurred any legal costs. 60In Flynn v HCCC [2011] NSWNMT 6, the then Nursing and Midwifery Tribunal made a reinstatement order in relation to a deregistered nurse, subject to substantial conditions. Nevertheless, counsel for the HCCC submitted that each party pay their own costs. In giving its reasons for making that order the tribunal stated at paragraph [55]: The Tribunal accepted [counsel for the HCCC's] submission that each party pay their own costs. There was no basis put forward in this case to justify Mr Flynn paying the costs of the HCCC related to its role in this application. 61In Coe v HCCC [2013] NSWNMT 12, the then Nursing and Midwifery Tribunal granted Ms Coe's application and removed a number of conditions imposed on her registration as a nurse. Ms Coe was represented by the Nurses and Midwives' Association which submitted on her behalf that if Ms Coe were successful with her application the "usual" or "traditional" rule should apply and that and order for costs should be made in her favour. In other words the compensatory principle should be applied in the awarding of costs in that matter. On the other hand, counsel for the HCCC argued that because of its position as a neutral contradictor, the HCCC should be awarded costs (to be paid by Ms Coe). Counsel for the HCCC relied on 2 reinstatement cases in which the deregistered nurses were unsuccessful in their applications to return to nursing - see paragraphs [69] to [71]. The solicitor for Ms Coe subsequently amended her submission to a request for an order that each party bear their own costs. The tribunal then continued at paragraphs [72] to [74] as follows: Without determining any general principle or guideline in respect of the HCCC having an entitlement to costs as a neutral contradictor, this Tribunal can envisage circumstances where such an order may be appropriate when the Tribunal exercises the discretion reposed in it by the statute. But we do not find this is such a case. The applicant has been successful in her application which was necessary to correct the register in respect of conditions 3, 4 and 5. We note the HCCC did not formally concede these conditions should be removed until during the hearing. She has also been successful in respect of condition 1. Significantly, her success in respect of this condition relied on the expert report of Dr Hinton whose evidence was not challenged in any respect by the HCCC. Further, no new, or contradicting, evidence was put before the Tribunal by the HCCC, and cross-examination of the applicant was appropriately extremely confined. Weighing these matters up, as we must in the exercise of our discretion, the Tribunal is satisfied that relevant factors are closely balanced. Ms Alexander's changed position in respect of costs is, we find, an appropriate one. It encompasses the technical omissions in the applicant's case drawn to the Association's attention by the HCCC, while recognising the applicant's overall success. Thus we are satisfied there is no justification in this case for either party obtaining a costs order in their favour, and the appropriate order is that each party pay their own costs of and incidental to the proceedings. 62In Draper v Psychology Board of Australia [2013] NSWPST 3 the then NSW Psychologists Tribunal considered Ms Draper's appeal against the decision of the Psychology Board to refuse her endorsement as a clinical psychologist and determined to confirm the Board's decision and dismiss the appeal. On the question of costs, the unsuccessful applicant stated that she had to prosecute a number of matters for which there was little or no precedent and other matters involving expense including dealing with arguments that HCCC raised and then abandoned. The HCCC relied on being the contradictor in the proceedings in the public interest. 63The tribunal ordered that the parties pay their own costs. The tribunal's reasons for doing so were put briefly as follows at paragraph [114]: There is merit in the arguments advanced by both Ms Draper and the Board and the Tribunal is satisfied, in the particular circumstances of this case, that it is appropriate that the parties pay their own costs. 64The NSW Court of Appeal gave its decision in September 2014 in a case, Health Care Complaints Commission v Do [2014] NSWCA 307, in which the HCCC appealed against an order made in 2013 by the then NSW Medical Tribunal. The Court of Appeal allowed the appeal, set aside the tribunal's orders and, in their place, made the orders which the HCCC had sought before the tribunal. Nevertheless, the Court of Appeal made no order as to the costs of the appeal. Basten, Meagher and Emmett JJA heard the appeal. Meagher JA gave a judgment with which his colleagues agreed. As the successful party, the HCCC sought its costs from the former doctor who had had his name removed from the register. Meagher JA dealt with the issue of costs in paragraphs [51] to [54] as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. There are, however, factors which suggest a different conclusion in the present case. First, as noted above, although the Commission is entitled to the order it sought, it may be doubted whether, in practical terms, the consequences for Dr Do are more severe than the order made by the Tribunal. Secondly, although Dr Do filed a written submission in opposition to the appeal, that submission did not give rise to the need for the present hearing which is likely to have been necessary in any case, even in the absence of formal opposition, given the nature of the jurisdiction and the order sought. Thirdly, in its argument to this Court the Commission emphasised that a reason for its seeking a disqualification order, rather than the orders made by the Tribunal, was that the respondent would have to apply for a reinstatement order should she wish to recommence the practice of medicine. As I have already observed, that is not the effect of ss 163A and 163B. In my view some allowance should be made in the order relating to the payment of the costs of the appeal for the fact that the Commission apparently laboured under this wrong view of the operation of the law. Taking these matters into account, the appropriate course is to make no order as to the costs of the appeal. 65We appreciate that Health Care Complaints Commission v Do was a case in which the HCCC was the appellant not a contradictor. However, it shows the compensatory principle being dissipated by a number of disparate considerations including the view that the orders sought and obtained by the HCCC had, in practical terms, no more severe consequences for Dr Do than the order appealed against, that although Dr Do filed a written submission in opposition to the appeal, that submission did not give rise to the need for the appeal hearing which was likely to have been necessary in any case, even in the absence of formal opposition, and further some allowance should be made in in the costs order because the HCCC; "apparently laboured under this wrong view of the operation of the law". (It should be noted that the loophole Mr Do took advantage of has now been closed - see s 149E of the National Law.) However, the case shows how flexible the applicable "principles" are and that the unfettered nature of the discretion in relation to costs is perhaps the primary principle. In any event this review of the cases shows the regularity in which decisions were made by the former health professions tribunals not to award costs to parties so that each party had to bear its own costs. This was the case when parties, particularly the HCCC, sought costs orders in its favour and sometimes when it didn't seek such an order. Now we have a similar watering down of the compensatory principle in circumstances in which the fact that the use of the jurisdiction was unavoidable was used as an argument by the NSW Court of Appeal for not awarding costs to any parties to a health professions matter. 66In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application. Prohibition order revoked 67As a prohibition order can be made, under s 149c of the National Law, only in relation to a health practitioner whose registration has either been suspended or cancelled, it follows that if a reinstatement order is made in relation to a former practitioner whose registration had been cancelled, the prohibition order in relation to them becomes void or at least ineffective. However, for the avoidance of doubt, we formally revoked the prohibition order made in relation to Dr Donnelly on 2 February 2012 by the then NSW Psychology Tribunal. Non-publication order 68At the commencement of the hearing, Mr Griffin requested that we make a non-publication order in this matter and Mr Crane supported that application. We made a non-publication order in the following terms: Neither the identity nor the address of any patient or client referred to in the proceedings that gave rise to the application in this matter nor the identity nor the address of any family member whose identity may lead to the identification of such patient or client shall be published to or by any person. 69We made our orders accordingly. Formal orders 70Pursuant to s163B(1)(c) of the Health Practitioner Regulation National Law James Francis Donnelly ("the practitioner") shall be reinstated to the register of Psychologists maintained by Australian Health Practitioner Regulation Agency in conjunction with the Psychology Board of Australia. 71Pursuant to s 163B(4) the following conditions are imposed on the practitioner's registration: (1)That the practitioner must nominate a supervisor, prior to providing clinical psychology services and/or seeing patients/clients as a psychologist, to be approved by the Psychology Council of New South Wales (Council). (2)That the practitioner is to ensure that: (a)the supervisor is provided with a copy of these conditions; (b)the practitioner and the supervisor meet on a monthly basis for at least two hours , with at least 50 percent of that time face to face or by video link; (c)at each meeting the practitioner and the supervisor review his work progress and address any relevant work-related or professional matters; (d)at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed by the Psychology Council of New South Wales; (e)he provides written authorisation to his supervisor within 7 days of the supervisor being approved by the Psychology Council of NSW, to communicate any information or concerns to the Psychology Council of NSW; and (f)the supervisor forwards to the Psychology Council of New South Wales, initially on a six-monthly basis, a supervision report in a format prescribed by the Psychology Council of New South Wales. This report must include information on the practitioner's practice in respect of: (i)maintaining professional boundaries and his understanding of this issue; (ii)ethical issues; (iii)identification of children at risk; (iv)mandatory reporting; and (v)record keeping. (3)That the supervisor is authorised to inform the Psychology Council of New South Wales immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, or if the supervisor relationship ceases. The practitioner is to authorise the supervisor to provide such information to the Psychology Council of New South Wales. (4)In the event that the approved supervisor is no longer willing or able to provide the supervision required, that the details of a replacement supervisor are to be forwarded within 21 days of the cessation of the original supervisory relationship, by the practitioner to the Psychology Council of New South Wales for approval. (5)That the practitioner submits to random audits of case files by an auditor appointed or approved by the Psychology Council of New South Wales. The auditor is to investigate the quality of the information contained in the practitioner's case notes, including evidence of appropriate judgment and decision making in regard to assessment, intervention planning, report writing and appropriate referral. (6)The practitioner must provide a copy of the conditions on his registration to all current and future employers and ensure that those employers provide the Psychology Council of NSW with written acknowledgement of the receipt of that notice. (7)The practitioner is to bear all costs incurred in meeting conditions one to six inclusive. (8)That the practitioner: (a)must not provide supervision to provisional psychologists for the purposes of the higher degree, 4 +2 or 5+1 pathways to registration; (b)must not provide clinical supervision to other psychologists; and (c)must restrict his supervision of others to peer supervision and supervision of research students. The Tribunal also orders that: (1)Under section 163(1)(a) of the National Law, the Psychology Council of New South Wales is the appropriate review body for review of the practitioner's conditions on his registration. (2)If the practitioner resides anywhere else in Australia other than New South Wales, sections 125 to 127 inclusive of the National Law are to apply, so that a review of these conditions may be conducted by the Psychology Council of Australia. (3)Under section 163B(5) of the National Law, an application for a review of the above orders (including orders imposing conditions) may not be made for a period of 12 months following the date of the Tribunal's decision. (4)Neither the identity nor the address of any patient or client referred to in the proceedings that gave rise to the application in this matter nor the identity nor the address of any family member whose identity may lead to the identification of such patient or client shall be published to or by any person. (5)The prohibition order made in relation to the practitioner on 2 February 2012 by the then NSW Psychology Tribunal be revoked. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2014