PSYCHOLOGIST APPLIES FOR INJUNCTION TO STAY THE HEARING IN ORDER TO OBTAIN EVIDENCE THAT WILL CORROBORATE HER CLAIM
Bolstad v Psychology Council of New South Wales [2020] NSWSC 1416 (14 October 2020)
Bolstad v Psychology Council of New South Wales (No 2) [2020] NSWSC 1417 (14 October 2020)
This case involves the applicant seeking for injunction to stay the hearing in order for her to obtain evidence corroborating her denial that she consumed alcohol which is contrary to the conditions that were imposed upon her continued practice as a psychologist.
Facts:
The applicant is a psychologist who has a history of alcoholism, with various periods of abstinence and relapses dating back to around 2010. The applicant has attended various meetings with the Council in order to assist the Council to determine whether to suspend or impose conditions on her registration pursuant to s.150 of the Health Practitioner Regulation National Law.
The applicant’s current conditions of practice require her to abstain completely from the consumption of alcohol and to undertake twice-weekly Urine Ethyl Glucuronide (EtG) tests, to monitor her abstinence.
The applicant maintains that she has not consumed alcohol since 7 April 2019 and she is unable to explain the positive EtG results. The Affidavit of Ms. Luppino sets out various steps the applicant is said to have undertaken in order to investigate the accuracy of the EtG testing results.
Before the Court is an application for an injunction seeking to stay a hearing under s.150 of the Health Practitioner Regulation National Law which is due to be held tomorrow, that is 3 September 2020, until a date not before 25 September 2020, by which time it is said the applicant will be able to obtain or may be able to obtain evidence corroborating her denial that she has consumed alcohol, contrary to conditions that were imposed upon her continued practice as a psychologist.
The Council opposed the adjournment of the section 150 hearing by way of injunctive relief. The Council submitted that section 150 hearings should be considered urgent interim proceedings, where matters are not determined on a final basis, but, rather, issues are referred to the Health Care Complaints Commission (by virtue of s.150D of the Act) and then to NCAT, to be determined on a final basis.
Issue: Should the court grant the injunction seeking to stay the hearing in order for the applicant to obtain evidence corroborating her denial that she consumed alcohol which is contrary to the conditions that were imposed upon her continued practice as a psychologist?
Law:
- Health Practitioner Regulation National Law s150
Analysis:
The court was satisfied that it was appropriate, having regard to the principles of procedural fairness, that the applicant should have a reasonable opportunity to obtain material to challenge that which was being relied upon by the Council for the purpose of the section 150 hearing.
The court accepts that the applicant has been provided with some opportunity to prepare and the Act provides for review and appeal rights. Although, having reviewed the relevant provisions of the Act, the court notes that there are some additional hurdles for the applicant to succeed on any review or appeal.
Ultimately, the court remains of the view that the dramatic effect on the capacity of the applicant to practice for a significant if not indefinite period into the future requires that the applicant be provided with the additional time she sought to prepare her case.
In order to attempt to satisfy those countervailing considerations, the Court made Orders which attempted to impose (what I referred to during the course of the proceedings as) a “holding regime”, whereby the Council could ensure that the public was not exposed to a risk to their safety by the imposition of an interim suspension, which suspension would not be for an indefinite period but, rather, for such a period as would reasonably enable the applicant to obtain the further material she wished to put before the Council.
Conclusion: The Psychology Council of NSW and or its nominees be restrained from proceeding to make final orders of suspension of registration under s 150 Health Practitioner Regulation National Law until the Applicant has been afforded a reasonable opportunity to prepare her case or until a date after 25 September 2020, whichever is earlier.
