Background
Mr Dunne was first registered as a psychologist in 1992. In June 2015, a notification was made to the Health Ombudsman following an audit of Mr Dunne’s client files and an investigation of the matters raised in the notification was undertaken.
Following the investigation, the Board restricted where Mr Dunne could practice and imposed supervision requirements. The day after these restrictions were imposed, Mr Dunne surrendered his registration as a psychologist. At the time of this decision, Mr Dunne had not practiced as a psychologist for four years.
Allegations of professional misconduct
The Psychology Board commenced disciplinary proceedings against Mr Dunne relating to several clients. The alleged conduct was categorised into five separate grounds:
- use of non-evidence-based treatments including ‘Emotional Freedom Technique’ (EFT), ‘Applied Kinesiology’ (AK) and ‘Energy Psychology’ (EP) (Ground 1);
- failure to conduct risk assessments, consider differential diagnoses and/or document treatment plans (Ground 2);
- failure to maintain adequate clinical records (Ground 3);
- inappropriate physical contact and/or failing to obtain or record adequate or appropriate informed consent (Ground 4); and
- inappropriate communication with a specified client in circumstances which he knew, or ought to have known, were professionally inappropriate and a boundary violation (Ground 5).
The Board contended that for each ground, Mr Dunne had engaged in ‘unprofessional conduct’ that fell substantially below the standard reasonably expected of a registered psychologist, and together the conduct constituted ‘professional misconduct’.
Mr Dunne admitted to using the treatments the subject of Ground 1 on 10 specified clients. Because the treatments were contrary to established psychology practice and the Australian Psychological Society Code of Ethics 2007, Mr Dunne admitted that he had engaged in unprofessional conduct in respect of Ground 1, but he denied that the conduct amounted to professional misconduct.
Mr Dunne also denied that his conduct or the professional practices specified in the remaining four grounds amounted to unprofessional conduct or professional misconduct but accepted that in relation to Ground 3 and Ground 4, his conduct could be seen as ‘unsatisfactory professional performance’.
In his response, Mr Dunne sought to emphasise that his conduct never caused harm, nor had the potential to cause harm to his clients, and he contended that he always acted in the best interests of his clients and prioritised client well-being, safety and care. He also contended that he worked diligently towards the treatment of his clients, he never caused, or acted with the intention of causing harm to a client, and he always acted with the consent of his clients.
The Tribunal accepted the Mr Dunne’s professional practices were consistent with sincerely held beliefs and genuine concern for his client’s wellbeing. However, the issues for the Tribunal’s determination arose because those practices and treatments were contrary to the established practices and standards applicable to registered psychologists.
Mr Dunne conceded in oral evidence at the hearing that he should not have been a member of the psychology profession in respect of the period under consideration in the case. Mr Dunne also said during the hearing that he did not agree with the boundaries that he was expected to work within.
Mr Dunne stated in the hearing that although he used non-evidence-based treatments on his clients, the treatment was provided to his clients with full approval of Headspace’s management, and the treatment was provided in addition to, rather than in lieu of, evidence-based practices such as cognitive behaviour therapy and mindfulness-based cognitive therapy.
In relation to Grounds 2 and 3, Mr Dunne acknowledged these failures but sought to explain them by reference to the actions and inactions of others (e.g. that no issue was raised by Headspace) or by asserting that, while his notes were different to those that might be required by accepted clinical practice, his notes were formulated in a manner that was ‘readable’ to individuals at Headspace who were not practitioners.
In respect of Ground 4, Mr Dunne accepted that he did not record consent from his clients in his client notes but said that he always sought permission “before offering to demonstrate the workings of body language”. Mr Dunne also said that he always obtained adequate, informed consent from clients to engage in any treatment, and ensured they were always aware of the reason why he was undertaking physical contact.
Tribunal’s findings
The Tribunal commented that the fact that non-established practices and treatments were used in addition to accepted practices and treatments was not an answer to the allegations. The fact that Mr Dunne used unacceptable practices at all was the issue requiring consideration. Were it otherwise, even patently harmful practices would be excused, if provided with conventional treatment.
Whilst Mr Dunne sought to rely upon the fact that the treatment was provided with full approval from Headspace’s management, the Tribunal commented that ‘full approval’ from an organisation to which a psychologist provides services might raise questions about the nature and level of supervision by the organisation of its psychologists, but this does not bear upon whether the alleged conduct of a particular psychologist amounted to unprofessional conduct or professional misconduct. Their conduct requires adherence to the standards expected of registered psychologists and involves responsibilities and obligations individual to each psychologist, regardless of their employer’s attitude.
The Tribunal also commented that verbal consent was manifestly inadequate and contrary to a number of relevant Australian Psychological Society guidelines, and Mr Dunne’s consistent lack of record keeping about consent to physical contact was not careless, negligent or inadvertent, but rather a deliberate decision that the strictures of the psychology profession were not necessary, or could be ignored.
The Tribunal found that each ground raised by the Board gave rise to a finding of professional misconduct.
Sanctions imposed by Tribunal
When considering what sanctions to impose, the Tribunal noted that it must consider the well-established principle that the objective of appropriate sanctions is not punishment, but protection of the public and maintenance of professional standards.
Although Mr Dunne was no longer registered as a psychologist and he had informed the Tribunal that he had no intention of applying for registration or working as a psychologist again, the Tribunal commented that the objective of imposing sanctions (as noted above) remains centrally important even if the psychologist has ceased practice and has no intention to return to it in the future. Sanctions operate to enhance public trust by demonstrating the high standards expected of psychologists are upheld and enforced, notwithstanding an individual’s decision to no longer practice.
The Tribunal subsequently ordered that Mr Dunne be:
- reprimanded;
- disqualified from applying for registration as a registered health practitioner for a period of 24 months from the date of the order; and
- prohibited from providing, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, any health service involving the provision of mental health, psychological or counselling services until such time as he be returned to the register of health practitioners under the National Law.
The Tribunal was initially concerned with the breadth of the prohibition order sought by the Board. However, it noted that Mr Dunne’s website advertised his services as a counsellor and life coach. The website stated that he had surrendered his registration as a practicing psychologist after 27 years and made other references to his career as a psychologist. It was also noted that some of the clients he was seeing as a life coach were clients from his previous practise as a psychologist. The Tribunal therefore considered that on balance, a prohibition order should be made, prohibiting Mr Dunne from providing any health service involving the provision of mental health, psychological or counselling services.
Take Home
A registered health professional must demonstrate respect for and adherence to the standards and accepted practices of their profession in order to maintain their registration in the profession.
Mr Dunne accepted that his decision to depart from the standards and practices was deliberate, as his ethos did not agree or align with the practices required of his profession. His conduct involved the use of practices and therapies which he knew were not part of accepted psychology practice and not evidence based. It was the deliberate decision to go against the accepted practice of this profession which led to the Tribunal imposing the sanctions that it did.
To read the full decision in The Psychology Board of Australia v Dunne [2023] QCAT 242, click here.
https://www.queenslandjudgments.com.au/caselaw/qcat/2023/242
