Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jiang v Psychology Council of NSW [2016] NSWCATOD 104 Hearing dates: 6 June 2016 Date of orders: 10 August 2016 Decision date: 10 August 2016 Jurisdiction: Occupational Division Before: R C Titterton, Senior Member D Mutton, Professional Member G Purkis, Professional Member F Taylor, General Member Decision: (1) The appeal is dismissed. (2) The suspension of Ms Jiang's registration as a psychologist is confirmed. Catchwords: Health Practitioner Regulation National Law - Suspension of health practitioner pursuant to s 150 of the National Law – Appeal pursuant to s 159 of the National Law PSYCHOLOGIST – appeal against decision of Psychology Council suspending registration – impairment Legislation Cited: Civil and Administrative Tribunal Act 2013. Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 Colquhoun R v Psychology Council of NSW [2011] NSWPST 3 Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 I v Medical Board of Australia [2011] SAHPT 18 Liddell v Medical Board of Australia [2012] WASAT 120 Lindsay v NSW Medical Board [2008] NSWSC 40 Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 Medical Board of Australia [2011] SAHPT 18 R v Medical Board of Australia [2013] WASAT 28 Sabet v Medical Practitioners Board [2008] VSC 346 Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 Category: Principal judgment Parties: Jennifer Jiang (Appellant) Psychology Council of NSW (Respondent) Representation: Counsel: Ms H Bennett (Respondent) Solicitors: Jennifer Jiang (Appellant in person, by telephone) File Number(s): 1620024 Publication restriction: Pursuant to Schedule 5D cl 7 of the Health Practitioner Regulation National Law publication of the name of any patient of the practitioner is prohibited REASONS FOR DECISION Introduction 1. By an Amended External Appeal Form filed on 29 April 2016, the appellant, Ms Jennifer Jiang, appeals in respect of the decision of the respondent, the Psychology Council of NSW (the Council), of 16 February 2016, to suspend her registration as a psychologist pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) No 86a (National Law). 2. For the reasons that follow, the Tribunal has decided to dismiss the appeal, and to confirm the suspension of Ms Jiang's registration as a psychologist. Background 1. Ms Jiang is registered with the Australian Health Practitioner Regulation Agency (APHRA) as a psychologist. 2. On 24 July 2015, AHPRA received a Notification (Complaint) dated 21 July 2015 from Dr Antonella Ventura, a psychiatrist. She had been asked to assess Ms Jiang in relation to a workers compensation claim. Dr Ventura relevantly stated that Ms Jiang was psychotic, thought disordered, demonstrated persecutory delusions and had a history of auditory hallucinations. 3. On 27 July 2015, the Council received the Notification (Complaint) and determined to hold proceedings under s 150 of the National Law. 4. On 5 August 2015, Council proceedings were held. The Council was satisfied that it was in the public interest to impose conditions on Ms Jiang's registration, effective that day, as her behaviour posed a significant risk to the health and safety of the public. Those conditions included being supervised, informing her employer/s of that condition, and to attend for assessment by a Council Appointed Practitioner (CAP). The Council was also of the opinion that it was likely that Ms Jiang suffered from impairment and, subject to the outcome of the assessment, considered that the matter should be referred to the Impaired Registrants Panel (the Panel). 5. The CAP was Dr Anthony Samuels, a consultant psychiatrist. He produced a report dated 18 September 2015. He concluded that there was a strong likelihood that Ms Jiang was suffering from a psychotic illness with paranoid features. He stated that Dr Ventura's assessment was in keeping with his clinical impressions. He considered that Ms Jiang suffered from an impairment within the meaning of the National Law, namely a psychotic illness with persecutory features, and possibly a post-traumatic syndrome which seemed largely resolved. He also considered that there was a possibility that her symptoms could worsen to the point that they could affect her mental capacity to practice psychology. He recommended that she enter the Council Health Program. 6. On 11 November 2015 the Panel held an enquiry, and published a report on or about 24 November 2015. Having reviewed various documents including the Notification (Complaint) of Dr Ventura, the expert report of Dr Samuels and then conducting a two-hour hearing with Ms Jiang, the Panel concluded that Ms Jiang suffered from impairment as defined in the National Law, which had detrimentally affected her mental capacity to practice and was likely to do so in the foreseeable future. On the basis of that assessment, the Panel recommended that Ms Jiang enter the Council's Health Program and agree to conditions being placed on her registration to practice. 7. Ms Jiang refused to do so. As a consequence of her refusal to agree with the conditions of the Panel, on 8 December 2015 the Council reviewed the conditions that it had placed on Ms Jiang's registration on 6 August 2015. Effective 11 December 2015, the Council imposed additional publicly-listed and non-publicly-listed conditions on her registration. 8. On 15 December 2015, Ms Jiang informed the Council that she would not comply with those conditions "due to the fact that the diagnosis is inaccurate". 9. On 1 February 2018, the Health Care Complaints Commission (the Commission), received a letter dated 28 January 2016 from Mr Trent Jennison. Mr Jennison is the Chief Executive of Valley Industries Ltd (t/as Intalink Therapy Solutions) (Intalink). That letter relevantly suggests that Ms Jiang, who had ceased employment with Intalink on 23 December 2015, was copying confidential client clinical and personal information, and had contacted several clients utilising confidential information. He also stated that Ms Jiang was currently practising as a sole practitioner in breach of her current registration conditions. 10. The Council held a further hearing on 16 February 2016. The Council decided to suspend Ms Jiang's registration as a psychologist immediately. The Council informed her of her suspension by email that day. Grounds of Appeal 1. Ms Jiang has filed two External Appeal Forms. The first was filed on 16 January 2016. The grounds of appeal are stated as: GROUNDS FOR APPEAL Firstly, the diagnosis of psychosis from psychologist council of NSW's psychiatrist is inaccurate and it has lack of valid evidence to back up the diagnosis. Secondly, I have received on-going constructive positive feedback from my clients throughout my employment contracts as a registered psychologist since 2011. My clients have been supporting me for on-going psychology practice. There has no harm or potential harm to the public. Thirdly, I have economic loss due to their unjustified decision made by the psychologist council of NSW in regards to the conditions under my practice. The decision of the conditions imposed on my registration is the psychologist's council reaction towards their own fear of their own unjustified diagnosis. I seek compensation for my economic loss. 1. On 29 April 2016, pursuant to leave of the Tribunal, an Amended External Appeal Forms was filed. The grounds of appeal are stated as: GROUNDS FOR APPEAL This amended external appeal form is required due to the change in ground for appeal from conditions imposed on my psychologist registration to suspension of my registration. Psychologist Council of NSW suspended my registration on 16 February 2016 without valid reasons. The diagnostic review was conducted by the Impairment Panel from Psychologist Council of NSW was insufficient due to it was lack of detailed examination on the evidence. I have received positive constructive feedback from my clients since I started work as a registered psychologist. I claim economic loss has incurred due to the suspension of my psychologist registration. I request compensation from Psychologist Council of NSW (if NCAT is able to process this claim). Evidence filed 1. Prior to the hearing, the Council had filed more than 50 documents including but not limited to the Council's reasons for decision; files notes of the Council; correspondence with Ms Jiang; various submissions of the Council; relevant standards for health professionals; and the expert report of Dr Samuels dated 18 September 2015. 2. Ms Jiang also filed a bundle of materials. These included statements of various individuals stating that they had observed Ms Jiang working fulltime hours from 18 January 2016 to respectively 6 April and 7 April 2016, and a large bundle of references and statements of support of Ms Jiang in the form feedback forms of patients. The hearing 1. Both parties made brief opening oral submissions. 2. Ms Jiang submitted that she disagreed with the Council's decision to suspend her. She denied that she was sick, and said that the diagnosis that she was psychotic was not valid. She submitted that Dr Samuels had failed to take into account relevant matters, including a report or submission prepared by her relating to her experience with asylum seekers and trauma survivors. 3. The Council, through its counsel Ms Bennett, relied on what Ms Bennett described as the "key documents", being Dr Samuels' expert report, the decision of the Panel, and the new complaint of Valley Industries Ltd, together with the placing of conditions on Ms Jiang's registration, her non-compliance with those conditions, and the other evidence before the Tribunal. The Council submitted the evidence would amply satisfy the Tribunal that Ms Jiang's appeal should be dismissed, and her suspension confirmed. 4. At the hearing, the Council provided the Tribunal with written submissions. These submissions summarise the relevant law, provide a chronology of events based on the filed evidence, and address the substantive issues including costs. 5. Given the length of the submissions (20 pages), and the fact that Ms Jiang was not represented, the Tribunal allowed her four weeks in which to file written submissions. However, Ms Jiang later indicated that she would not be filing any submissions or other documents. Cross Examination of Dr Samuels 1. Ms Jiang required Dr Samuels to attend for cross-examination. She asked Dr Samuels whether or not he had received her report setting out the development of her illness. Dr Samuels indicated that if it was not referred to in his report that he would not have received it. She asked Dr Samuels how long he spent reviewing the documents referred to in his report. He said that he had prepared the report a long time ago so could not remember but probably two to three hours. She asked him whether he was aware that she was bullied at her workplace. He replied that he was. She noted that one of her colleagues had wanted to take her role, as did her manager. She then asked Dr Samuels how long her assessment was scheduled for. He replied approximately 75 minutes. She then asked him whether he was aware that she had received healthy and instructive feedback from her clients indicating a very good performance. Dr Samuels stated that he did not think that that was disputed. She asked him to indicate whether that temazepam was used for depression or psychosis, whether it was a depressant and whether it could be prescribed for sleep disturbances. Dr Samuels indicated it was not prescribed for sleep disturbances. 2. During the course of his oral evidence, Dr Samuels said that Ms Jiang had a long history of persecutory psychotic symptoms which have been prominent at various times. He said that this impacted on her performance as a psychologist and led to his conclusion that she was impaired and that some oversight in the form of supervision was important. He considered that she had had an underlying impairment for a number of years, which fluctuated when she perceived she was being bullied or harassed. Findings 1. The evidence of each party was tendered without objection. Accordingly, the Tribunal makes the following findings: 1. On 10 February 1977, Ms Jiang born in China and later moved to New Zealand. 2. In August 2009, Ms Jiang moved to Australia and commenced an intern program through Australian College of Applied Psychology. 3. In 2011, Ms Jiang was granted registration as a psychologist. 4. On 16 June 2014, Ms Jiang commenced employment with Valley Industries Ltd as a Registered Psychologist with Intalink. 5. On 24 July 2015, AHPRA received a Notification (Complaint) dated 21 July 2015 from Dr Antonella Ventura, a psychiatrist. She had been asked to assess Ms Jiang in relation to a workers compensation claim. Dr Ventura relevantly stated: During the course of my assessment it became evident that Ms Jiang was psychotic. She was: - thought disordered - heard evidence of persecutory delusions - Had a history of auditory hallucinations. Ms Jiang told me that she occasionally rang Life Line, but did not want to see a professional therapist face to face. She was aware that "someone said I had psychosis", but she disagrees with the diagnosis and does not want treatment for it. I have read documentation which confirm[s] the presence of psychosis. She had had one admission to the psychiatric unit in Darwin and one in NSW. 1. Attached to the Notification (Complaint) was Dr Ventura's assessment of Ms Jiang. The assessment concludes: MENTAL STATE EXAMINATION On mental status examination Ms Jiang present as a highly guarded woman who struggled with cooperating with the interview. She answered to most questions in a monosyllabic manner. She questioned the motive behind a number of my questions and was reluctant to answer open-ended questions such as "what was school like for you". She was suspicious and guarded throughout the interview her thought form showed evidence of tangentiality. Her thought content revealed evidence of persecutory delusions. She admitted to past auditory hallucinations, but I was unable to witness any evidence of her hallucinating during the interview. Her mood was reported to be "okay" and the affect was restricted. I was unable to test her cognition. SUMMARY AND ASSESSMENT Ms Jiang is a 38 year old woman who alleges a psychological injury on 22 March 2013 during her employment with International health & Medical services. It is my view that she was psychotic at the time of the alleged injury and that the alleged injury is in fact a symptom of a mental illness. She is currently psychotic and of concern she is working as a psychologist with children. As a consequence I have no choice but to make a mandatory reporting notification to AHPRA. 1. On 27 July 2015, the Council received the Notification (Complaint) and determined to hold proceedings under s 150 of the National Law. 2. On 31 July 2015, the Council informed Ms Jiang of the Notification (Complaint) and of Council decision to hold proceedings pursuant to s 150 of the National Law. 3. The Council was provided with various documents by Ms Jiang prior to the s 150 hearing. These documents included: 1. a two-page statement disagreeing with Dr Ventura's psychiatric evaluation of her current mental state; 2. a seven page statement titled "The Development of The Work Related Psychological Injury". This statement sets out Ms Jiang's account of assisting torture trauma survivors with the management of their psychological health in detention centres in the period December 2011 to June 2013. She states that she suffered significant vicarious trauma due to that work. She provides many examples of the trauma, torture and detention of asylum seekers. She states that she became extremely distressed, and that her mental health deteriorated, resulting in hospitalisation for five days from 29 April to 3 May 2013. In July 2013 she started having "intense nightmares" featuring "wars, violence, disabilities, serious killings and a detective's on going story". She reported these symptoms to the police, and was then involuntarily admitted to Westmead Hospital in March 2014. 3. A letter from Dr Frances Wilson to Dr Alan Laughlin dated 11 June 2014. Dr Wilson is a Senior Staff Specialist in the Department of Psychiatry of Westmead Hospital. The letter relevantly states: 4. As you know Jennifer Jiang has previously been an inpatient at Westmead Hospital. I have continued to see her after discharge. It appeared very clearly that she had a psychotic illness at the time of admission. She told us she had been under surveillance since 2008. She told us that a detective from New Zealand was following her. She had heard people commenting on her actions and heard people calling her a number of abusive names. She had become very fearful only leaving her room for very brief periods of time. When we saw her she was agitated and distressed, and preoccupied with persecutory ideas. 5. We made the diagnosis of schizophrenia warranted, I think, because of the duration and severity of her illness. Jennifer responded very well to Aripiprazole 10mg and was discharged free of active symptoms although not with the level of insight I would have liked. 6. On review today, Jennifer tells me she stopped the Aripiprazole two weeks after discharge. She says this makes no difference. She hasn't got florid psychotic symptoms back but she is dreaming a great deal and it may be some of the content of these dreams represent psychotic phenomena. ... 7. Correspondence from Ms Jiang to Dr Wilson dated 20 June and 27 July 2014. In summary, these letters state that Ms Jiang no longer took any prescribed medications and that she had not noticed any psychotic symptoms returning. 8. A two-page response to questions from the Council. That document included the following question and answer: What is your current health condition? My current health condition is healthy. No physical illness. No delusional thoughts, hallucination or other mental illness. 1. On 5 August 2015, the Council conducted the proceedings pursuant to s 150. The Council was satisfied it was appropriate to impose conditions under Ms Jiang's registration. The Council relevantly stated: Mandatory Notification by Dr Ventura and relevant psychiatric history Ms Jiang advised the delegates that she disagreed with Dr Ventura's psychiatric assessment and diagnosis of the current functioning. In particular, she said that she does not possess delusional thoughts and expressed the opinion that Dr Ventura lacked sufficient evidence to form this clinical opinion of her. She said that at the time of the assessment, she had been feeling unwell as result of travel sickness, and that this had caused her to present and respond to questions in a sub optimal manner. ... Ms Jiang was admitted to Westmead Hospital June 2014 as an inpatient, where she was diagnosed as suffering a possible Schizophreniform disorder. Referring to her symptoms during this period of time, Ms Jiang said that she was experiencing recurrent, vivid, sequential nightmares featuring auditory remarks/commentary. Ms Jiang compared the auditory elements of the nightmares to auditory hallucinations, but denied ever experiencing them when awake. Ms Jiang offered that although she was able to distinguish between reality and her nightmares, the nightmares caused her much stress, fear and anxiety during the day, primarily because she was uncertain of their meaning. Ms Jiang said that she trialled Abilify (an antipsychotic medication) for about one month and that she ceased the use of this medication and she was not experiencing a reduction in her nightmares. She said that around this time she commenced psychological intervention and that she attended seven sessions, which reportedly contributed to improvements in her symptoms. Ms Jiang said that she has not experienced nightmares since May 2014. She said that during May 2014, her general practitioner diagnosed her with acute anxiety disorder and reactive depression, although this reportedly was done retrospectively and for the purposes of assisting Ms Jiang's workers compensation claims. In regards to current psychological functioning, Ms Jiang opined that she is currently experiencing "mild depression" but that she is effectively managing her symptoms. She said that returning to work as been integral to improving her mental state and her overall general level of functioning. Insight Ms Jiang impressed as having limited insight into her previous experiences of psychotic symptoms and maintains that each of the previous diagnoses had been incorrect. Despite this, she did accept that her beliefs had been based on "impressions" rather than facts/evidence and she acknowledged that these thoughts tended to coincide with periods of heightened stress in her life. Summary of concerns The delegates expressed concerns about Ms Jiang's mental health status given that she possesses residual ideas of reference, that she has limited insight into her current and past mental health issues, and that she is socially isolated generally. Delegates accepted that at the present time she does not appear to present an immediate or acute risk of harm to public safety as it appears that Ms Jiang is currently managing her health and workload appropriately. However, the delegates are of the opinion that until such time as further information is available, some oversight of Ms Jiang practice and well-being is required to ensure she is practising safely and within appropriate professional standards. For these reasons the delegates believe that conditions should be imposed relating to professional supervision which allow the supervisor to report to the Council any concerns [that] are required. Ms Jiang's employer is also to be aware of the condition so that if any concerns arise in the workplace the Council can be made aware of these concerns as soon as possible. Ms Jiang is also required to attend a Council Approved Practitioner (CAP) for a detailed assessment. 1. The Council imposed the following conditions on Ms Jiang's registration: Information to be recorded on the Public National Register: 1. To nominate a supervisor within two weeks of the date of this decision, to be approved by the Council, to monitor and review her clinical practice and compliance with Public Conditions in accordance with Level 3 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice and health related conditions. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: (a) She and the supervisor meet on a fortnightly basis for at least one hour. (b) At each meeting they review her work progress and address any relevant work-related or professional matters. (c) At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (d) The supervisor forwards to the Council, initially on a monthly basis, a Supervision Report in a format prescribed or approved by the Council. (e) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. (f) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded to the Council for approval within 14 days of the cessation of the original supervisory relationship. 2. To notify your employer/s of these conditions. 3. To authorise the Council to notify your employer/s of these conditions. 4. To authorise the Council to notify your employer/s of any issues arising in relation to compliance with any of your conditions. Information to be recorded on the AHPRA Pivotal system (not publically available): 5. To attend for assessment by a Council Appointed Practitioner as directed by the Council, at the Council's expense. 1. Dr Samuels, consultant psychiatrist, was subsequently appointed as the CAP. On 18 September 2015, Ms Jiang was assessed by Dr Samuels. He relevantly stated in his report that: ... OPINION Current Mental Health Status of Ms Jiang On the basis of my interview today in the material I reviewed, I think there is a strong likelihood that Ms Jiang is suffering from a psychotic illness with paranoid features. Currently she presents as being mildly thought disordered and explanation linking events in New Zealand and Darwin is very difficult to follow. ... There certainly is some evidence to suggest that she might become traumatised following her exposure to detainees in Darwin and does seem that in between 2013/2014 she was experiencing quite severe and disturbing nightmares. I note that she has now had two psychiatric admissions. On both occasions she was thought to have a psychosis and also noted was the impression of Dr Ventura who assist her in relation to her workers compensation claim that she was psychotic. These ideas certainly are in keeping with my current clinical impression of Ms Jiang. ... Whether Ms Jiang suffers from an impairment? It is my view that Ms Jiang suffers from an impairment within the meaning of the Act, namely a psychotic illness with persecutory features and possibly a post-traumatic syndrome seems to have largely resolved. Whether such an impairment is likely to detrimentally affect her physical and mental capacity to practice psychology? Ms Jiang did not work for a year after leaving Darwin and seemed to have some awareness that she was not well enough to work. I do have some concerns about her insight however and she still denies she was suffering from any psychotic symptoms at the time of those admissions at the time of her assessment by Dr Ventura. She is not actively seeking any psychological or psychiatric treatment at the present time I think there is a possibility that her symptoms could worsen to the point that they could affect her mental capacity to practice psychology. 1. In addition, Dr Samuels recommended that Ms Jiang enter the Council Health Program, subject to conditions including that she be under the care of a treating psychiatrist, a and have a regular general practitioner whose advice and treatment direction she should follow. 2. On 22 October 2015, Ms Jiang was referred to the Panel as a result of Dr Samuels' report. 3. On 11 November 2015, a Panel inquiry was held. The Panel found that Ms Jiang suffered from impairment as defined in s 5 of the National Law which had detrimentally affected her mental capacity to practice and was likely to do so in the foreseeable future. On the basis of this assessment, the Panel recommended that Ms Jiang enter the Council's Health Program and agree to some 13 conditions being placed on her registration. These conditions are set out in Attachment A and included: 1. six "practice related conditions" were to be placed on the Public National Register. These conditions related to supervision, employment and notification; 2. seven "health related conditions", which were not to be placed on the Public National Register. These conditions related to Ms Jiang's general health, her treatment, and attending for review by the CAP on a three monthly basis. 1. The Panel enquiry concluded when Ms Jiang stated that she disagreed with the findings and that she would not agree to the proposed conditions on her registration. She did not agree that she suffered impairment as defined in s 5 of the National Law. She informed the Panel that the matter would be taken to court. 2. On 25 November 2015, the matter was referred to the Commission as a complaint under s 152L of the National Law. 3. On 8 December 2015, the Council held proceedings pursuant to s 150C of the National Law to review the conditions placed on Ms Jiang's registration. The Council decided to impose additional conditions consistent with those recommended by the Panel. These conditions are set out in Attachment B. Relevantly, the conditions placed on the Public National Register included that: 1. Ms Jiang nominate a supervisor to monitor and review her clinical practice and compliance with Public Conditions in accordance with Level III Supervision as contained in the Council's protocol; hold fortnightly meetings with that supervisor at which they reviewed her work progress and address relevant work-related or professional matters; that the supervisor prepare Supervision Reports for the Council, and be authorised to inform the Council immediately if there is any concern in relation to Ms Jiang's compliance with the supervision requirements, her clinical performance, her health or if the supervisor relationship ceased; 2. Ms Jiang was to work only in a position approved by the Council, and to obtain its approval prior to change in the nature of Pratt Place of practice; 3. Ms Jiang was to work only in a group practice (defined as at least three practitioners), with one other practitioner always on site; and 4. Ms Jiang was to authorise the Council to notify her employer/s of any issues arising in relation to compliance with any of these conditions. 1. On 15 December 2015, Ms Jiang sent an email to the Council. That email stated that she would not comply with the conditions imposed on her "due to the fact that the diagnosis is inaccurate". She requested the Council to "review the case, [otherwise], it will result in further legal complications". 2. On 15 December 2015, the Council notified Ms Jiang's employer, Intalink, of the conditions that had been placed on her registration. 3. On 17 December 2015, the Council sent a letter to Ms Jiang asking on what basis she sought a review of its decision of 8 December 2015 and asks that she submit any material for the Council's consideration. 4. On 23 December 2015, Ms Jiang terminated her contract with Intalink Therapy Solutions. 5. On 11 January 2016, Ms Jiang emailed the Council to advise that, since the Council had given no indication that it would remove the conditions, she would appeal to the Tribunal. 6. On 15 January 2016, Ms Jiang filed her first External Appeal Form, seeking to appeal to the Tribunal against the imposition of the conditions on her registration. 7. On 20 January 2015, the Council wrote to Ms Jiang advising her that her three-month review with the CAP was approaching, and that an appointment had been made for her to see Dr Samuels on 25 February 2016. 8. On 27 January 2016 the Council contacted Mr Jiang's employer, Valley Industries Ltd. The Council was informed that Ms Jiang no longer worked for it, having resigned. The Council was informed that Ms Jiang intended to open her own practice. 9. On 28 January 2016, Mr Trent Jennison (CEO of Valley Industries Ltd, which incorporates Intalink Therapy Solutions) made a complaint in relation to Ms Jiang. The complaint was made to AHPRA and was received by the Council on 15 February 2016. That complaint asserts, amongst other things, that Ms Jiang was not complying with the conditions on her registration, and that she was currently working in private practice. 10. After resigning from employment with Intalink, Ms Jiang worked as a psychologist from about 18 January 2016 to (at least) 7 April 2016. 11. On 16 February 2016, the Council conducted s 150 proceedings. The Council suspended Ms Jiang's registration, and referred the complaint to the Commission. 1. In light of these findings, the Tribunal concludes and finds that: 1. Ms Jiang worked as a psychologist after her resignation from Intalink on 23 December 2015, in breach of the conditions that she: 1. advise the Council prior to changing the nature or place of practice. 2. work only in a position approved by the Council. 3. obtain Council approval prior to changing the nature or place of her practice. 1. Ms Jiang continued to work as a psychologist after the suspension of her registration on 16 February 2016 until, at least, 7 April 2016. Submissions 1. Ms Jiang's oral submissions are summarised above. 2. We summarise the written submissions of the Council as follows. 1. The evidence establishes a risk to the public requiring suspension of Ms Jiang's registration for protection of the public in relation to the serious allegation of impairment. 2. Ms Jiang's denial that she has an impairment or mental illness may further indicate a lack of insight, the lack of which could impact upon the safety of her practice. In keeping with her denial of any impairment or mental illness, there is no evidence she is receiving treatment or otherwise engaging supports or processes by which the impact of her impairment upon her practice might be minimised. 3. The evidence discloses that Ms Jiang is likely to undertake solo practice in the near future. Given this non-compliance with conditions previously placed on the practitioner's registration, it is submitted that the Tribunal will be satisfied that the evidence establishes a risk to the public requiring suspension of the practitioner's registration for protection of the public. 4. The risk to the public is further increased in that Ms Jiang does not accept she has an impairment, and thus does not accept she requires oversight, or health professional support, in order to practice her profession safely. 5. When Ms Jiang's registration was subject to conditions, she repeatedly breached those conditions. 6. Ms Jiang's failure to comply with the conditions imposed upon her registration at the time of the s 150 proceedings in February 2016 will give the Tribunal no confidence that she is prepared to work within the terms of the conditions. 7. The Tribunal will therefore be satisfied the evidence establishes a risk to the public requiring suspension of the practitioner's registration for protection of the public. 8. Relevant legislation 1. The following provisions of the National Law are relevant to this application. 2. Section 3, which relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and ... (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (3) The guiding principles of the national registration and accreditation scheme are as follows-- ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 150 of the National Law, which relevantly provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. 1. Section 159 of the National Law, which relevantly provides: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; ... (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. 1. Section 159C of the National Law, which relevantly provides: 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. Relevant principles 1. The Tribunal accepts the Council's submissions that the following principles should guide the Tribunal: 1. The effect of a suspension on a practitioner's reputation or employability must be subordinate to the protection of the health and safety of the public. 2. In determining whether to take action under s 150, it is not the role of the Council or Tribunal to make findings of fact or make a determination of the merits of any complaint: Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53. In other words, the Council (or Tribunal) does not determine whether the alleged conduct in fact took place, but rather, whether there is a basis for satisfaction under s 150 that it is "appropriate" to suspend the practitioner for the protection of the health or safety of any person or persons or because suspension is otherwise in the public interest. In considering this question, the nature of the allegations is of particular relevance: Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 at [8]. 3. The determination of whether to affirm an appellant's suspension under s 150 of the National Law does not require the Tribunal to make findings as to the complaint. Rather, the Tribunal must determine whether it is appropriate to suspend the appellant for the protection and safety of any person(s) or whether the suspension is otherwise in the public interest. 4. It has been held that the standard (of satisfaction) set out in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts, does not apply in proceedings such as those under s 150: R v Medical Board of Australia [2013] WASAT 28 at [105] - [106]. In Colquhoun R v Psychology Council of NSW [2011] NSWPST 3 the Tribunal stated at [9]: 5. As with the original decisions made by the Psychology Council, this Tribunal must make an interim order but its parameters are slightly different. It no longer has the same urgency which the Council had, both parties are represented and additional evidence has been tendered. However, these proceedings are not full adversarial proceedings and this Tribunal is not in a position nor is it required to make factual findings which can be used for any purpose other than exercising its authority under s150. To do so could possibly lead to a denial of natural justice. 6. In this context, while Tribunals have continued to have regard to the fact an order of suspension will affect a practitioner's reputation and livelihood, they have however considered that the standard of satisfaction required of the Tribunal is to "to form a reasonable belief that the practitioner poses a serious risk to persons and that it is necessary to take immediate action to protect the public health and safety": R v Medical Board of Australia [2013] WASAT 28 at [106]; see Shahinper v Psychology Board of Australia [2013] QCAT 593 at [13]. 7. The material that the Council (or Tribunal) may rely upon in considering whether to impose orders under s 150 may "include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations": see Lindsay v NSW Medical Board [2008] NSWSC 40 at [77(c)]. See too Sabet v Medical Practitioners Board [2008] VSC 346 at [40]; Ord at [8]; Liddell v Medical Board of Australia [2012] WASAT 120 at [20]; Colquhoun at [42]; I v Medical Board of Australia [2011] SAHPT 18 at [27]. 1. In determining an appeal against s 150 orders, the Tribunal must consider afresh for itself whether or not it is satisfied that it is appropriate to suspend the appellant's registration for the protection of the health or safety of any person or persons or if satisfied the suspension is otherwise in the public interest. While the nature of an appeal pursuant to s 159 of the National Law is unsettled (see the discussion of the authorities in Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 at [14] to [22]), it is clear that, in doing so, the Tribunal may receive fresh evidence, and evidence in addition to or substitution for the evidence which was before the Council when it considered the matter. Consideration 1. The Tribunal's task is to reconsider Ms Jiang's suspension in the light of the evidence. As has been noted, upon review, pursuant to s 159C, the Tribunal may terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. 2. The Tribunal can order suspension of registration, pursuant to s 150(1) of the National Law, only if: 1. It is appropriate to suspend the practitioner for the protection of the health or safety of any person or persons. 2. The suspension of the practitioner is otherwise in the public interest. 1. As noted above, the Council submits that suspension of Ms Jiang's registration was, and is, appropriate. The Tribunal accepts that submission, particularly given: 1. The failure of Ms Jiang to file any evidence which might cause the Tribunal to reconsider and vary the Council's order of suspension of her registration. 2. The failure of Ms Jiang to file any evidence indicating that she is receiving treatment or otherwise engaging supports or processes by which the impact of her impairment upon her practice might be minimised. 3. The fact that Ms Jiang does not accept she has an impairment, and therefore does not accept she requires oversight, or health professional support, in order to practice her profession safely. 4. The fact that what evidence was filed by Ms Jiang (namely the evidence that she had been working full-time from 18 January to 7 April 2016) supports the Council's submissions that Ms Jiang was acting as a psychologist in breach of the order of suspension. This is a most serious matter. 1. The Tribunal has found: 1. Ms Jiang worked as a psychologist after her resignation from Intalink on 23 December 2015, in breach of her obligation to notify the Council that she: 1. advise the Council prior to changing the nature or place of practice. 2. work only in a position approved by the Council. 3. obtain Council approval prior to changing the nature or place of practice. 1. Ms Jiang continued to work as a psychologist after the suspension of her registration on 16 February 2016. 1. In the Tribunal's view, these matters cumulatively, and Ms Jiang's continuing to practise after the order of suspension in particular, justify the Tribunal in finding that it is appropriate to suspend Ms Jiang for the protection of the health or safety of any person or persons, and that such suspension is otherwise in the public interest. It follows that the order of Ms Jiang's registration should not be terminated or otherwise varied. Conclusion 1. The appeal should be dismissed. The order of suspension should stand. Costs 1. The Council seeks its costs. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40]. 2. As the Council has been successful, the Tribunal proposes to make an order that Ms Jiang pay its costs, as agreed or assessed. Ms Jiang has leave to file submissions if she seeks some other order, including that no order as to costs should be made. Such submissions should be made within 14 days after the publication of these reasons. The Council may reply within a further 14 days if necessary. Any further decision as to costs will be made on the papers. Orders 1. The Tribunal orders that: 1. The appeal is dismissed. 2. The suspension of Ms Jiang's registration as a psychologist is confirmed. ******** ATTACHMENT A PSYCHOLOGY COUNCIL OF NEW SOUTH WALES VOLUNTARY AGREEMENT TO CONDITIONS ON REGISTRATION Health Practitioner Regulation National Law (NSW) 11 November 2015 Jennifer Jiang – PSY0001644424 Jennifer Jiang hereby: (i) acknowledges that the conditions detailed in section (iii) of this agreement result from an Impaired Registrants Panel Inquiry, convened under the Health Practitioner Regulation National Law (NSW); (ii) voluntarily agrees to the conditions detailed in section (iii) of this agreement being placed upon his/her registration as a Psychologist on the above date; and (iii) agrees to the following: PRACTICE RELATED CONDITIONS – ON REGISTER Supervision Conditions 1. To nominate a supervisor, within four weeks from the date of this agreement, to be approved by the Council, to monitor and review your clinical practice and compliance with Public Conditions in accordance with Level 3 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice and health related conditions. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: (a) She and the supervisor meet face to face on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that her nominated supervisor has been approved. (b) At each meeting they review her work progress and address any relevant work-related or professional matters. (c) At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (d) The supervisor forwards to the Council, initially on a monthly basis, a Supervision Report in a format prescribed or approved by the Council. (e) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. (f) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. Employment Conditions 2. To advise the Council prior to changing the nature or place of practice. 3. To work only in a position approved by the Council. 4. To obtain Council approval prior to changing the nature or place of practice. 5. To work only in a group practice (group may be defined as at least 3 practitioners), with one other practitioner always on site. Notifying Conditions 6. To authorise the Council to notify your employer/s of any issues arising in relation to compliance with any of your conditions. HEALTH RELATED CONDITIONS – NOT ON REGISTER General Health Conditions 7.That the extent of her professional duties is to be guided by her health status and the advice of her treating practitioner/s and Council Appointed Practitioners. 8. To attend a Review Interview with the Impaired Registrants Panel at the Council in three months or as otherwise directed by the Council. 9. To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Review Interview reports and other information relevant to her impairment to the Council Appointed Practitioners, her treating practitioners and supervisor. She is to notify the Council immediately of any change so that copies of the report may be provided to them. Treatment Conditions 10. To attend for treatment by a general practitioner of her choice, at a frequency to be determined by her and the treating practitioner. She is to notify the Council of the name of her treating general practitioner within four weeks. She is to authorise her treating general practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 11. To attend for treatment by a psychiatrist of her choice, at a frequency to be determined by the treating psychiatrist. She is to notify the Council of the name of her treating psychiatrist within four weeks. To authorise her treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 12. To attend for treatment by a clinical psychologist of her choice, at a frequency to be determined by the treating practitioner. She is to notify the Council of the name of her treating practitioner within four weeks. She is to authorise her treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). Review Conditions 13. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Council, at the Council's expense. ATTACHMENT B Information to be recorded on the Public National Register: 1. The practitioner is to nominate a supervisor, within four weeks from the date of these conditions taking effect, to be approved by the Council, to monitor and review her clinical practice and compliance with Public Conditions in accordance with Level 3 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice and health related conditions. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: (a) She and the supervisor meet face to face on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that her nominated supervisor has been approved.(b) At each meeting they review her work progress and address any relevant work-related or professional matters.(c) At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council.(d) The supervisor forwards to the Council, initially on a monthly basis, a Supervision Report in a format prescribed or approved by the Council.(e) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council.(f) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. 2. The practitioner is to advise the Council prior to changing the nature or place of practice. 3. The practitioner is to work only in a position approved by the Council. 4. The practitioner is to obtain Council approval prior to changing the nature or place of practice. 5. The practitioner is to work only in a group practice (group may be defined as at least 3 practitioners), with one other practitioner always on site. 6. The practitioner is to authorise the Council to notify her employer/s of any issues arising in relation to compliance with any of her conditions. Information to be recorded on the AHPRA Pivotal system (not publically available): 7. The extent of the practitioner's professional duties is to be guided by her health status and the advice of her treating practitioner/s and Council Appointed Practitioners. 8. The practitioner is to attend a Review Interview with the Impaired Registrants Panel at the Council in three months or as otherwise directed by the Council. 9. The practitioner is to authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Review Interview reports and other information relevant to her impairment to the Council Appointed Practitioners, her treating practitioners and supervisor. She is to notify the Council immediately of any change so that copies of the report may be provided to them. 10. The practitioner is to attend for treatment by a general practitioner of her choice, at a frequency to be determined by her and the treating practitioner. She is to notify the Council of the name of her treating general practitioner within four weeks. She is to authorise her treating general practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 11. The practitioner is to attend for treatment by a psychiatrist of her choice, at a frequency to be determined by the treating psychiatrist. She is to notify the Council of the name of her treating psychiatrist within four weeks. To authorise her treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 12. The practitioner is to attend for treatment by a clinical psychologist of her choice, at a frequency to be determined by the treating practitioner. She is to notify the Council of the name of her treating practitioner within four weeks. She is to authorise her treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 13. The practitioner is to attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Council, at the Council's expense. 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: 10 August 2016