The outcome, along with a formal reprimand under section 196(2)(a) of the Heath Practitioner Regulation National Law (Victoria) Act 2009, is suspension of practice for three months.
Ms Rigley is a psychologist, registered with the Psychology Board of Australia (Board). Between March 2011 and March 2015 she did not hold appropriate PII but completed six online applications to renew her registration as a psychologist and declared that she had the appropriate PII at the relevant time. In the course of a random audit she provided a PII certificate on which she altered the dates so that it purported to cover the period March 2014 to March 2015.
The Board referred Rigley to VCAT to consider her conduct and decide what, if any, findings or determinations ought to be made about her professional registration. The allegations referred to the Tribunal concerned Ms Rigley’s failure to hold PII, falsely declaring in the renewals of her registration that she held PII and altering a PII certificate.
By the time the matter came before VCAT for hearing, the parties had prepared an agreed statement of facts and agreed on proposed findings and determinations to be made under the Health Practitioner Regulation National Law (Victoria) Act 2009. Rigley sensibly did not deny any of the conduct described in the allegations, admitted the conduct amounted to professional misconduct and agreed she should be reprimanded for her conduct. She also agreed her registration as a psychologist be suspended for a period of three months and that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and the Australian Health Practitioner Regulation Agency (AHPRA), immediately after renewing her professional indemnity insurance coverage, for a five year period.
VCAT notes that Rigley was first registered as a psychologist on 21 July 2003. At all relevant times when practising as a psychologist she was required to hold appropriate PII. Section 129(1) of the National Law provides that a registered health practitioner must not practise unless appropriate professional indemnity insurance arrangements are in force.
The declarations made by Rigley as to her past compliance with PII standards and her intention to practise in compliance with them in future were false. On 8 July 2016, she received an Audit Notice from AHPRA notifying her of her selection for a random audit of compliance with the Board's registration standards. On 10 August 2016, Rigley submitted a completed audit checklist. At Part 8 of the checklist, she declared that she had practised in accordance with the requirements of the PII standards during the Audit Period. On 18 October 2016 she sent an email to AHPRA, in which she stated that she was not covered for a period of time during the Audit Period, specifically between December 2014 and April 2015. The following day she emailed, stating 'I have found a certificate of currency from March 2014 to March 2015 however when I scanned it was too light so I will have to forward that to you tomorrow'. On or about 20 October 2016, Rigley amended the PII Certificate of Currency for the period March 2016-2017 which she had already sent to AHPRA by altering the dates by hand so that it purported to cover her from 11 March 2014 to 11 March 2015. On 20 October 2016 she sent the falsified PII Certificate of Currency to AHPRA by email, asserting that she had been unable to find the certificate because it had been filed away during the period it was current.
Oops, on 24 October AHPRA responded by email noting that the dates on the certificate she had provided appeared to have been altered. She was asked to arrange for an original certificate to be emailed directly from the insurer. On 28 October Rigley advised 'it appears as though I was only insured from March 2009 – March 2011 and then March 2015 – March 2017. I honestly thought I was insured for those years in between and I know that I wrote over the numbers on a piece of paper that I found in my papers that was very faint and I thought was for the 2014 – 2015.'
VCAT comments that at the time she altered and sent the certificate she was aware that: the correct dates on the certificate she had altered were 2016 to 2017 and that the dates of 2014 and 2015 which she inserted were false; and that her assertion that she had found the document amongst her papers and altered it believing the dates to be accurate was also false.
VCAT goes on to comment
. The National Law defines ‘professional misconduct’[1], in the context of a registered health practitioner, as including:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law.
Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven. The Tribunal’s primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences – the latter is known as general deterrence.
Further
We were satisfied that the conduct that formed the basis for all three allegations amounted to professional misconduct within paragraph (a) of the definition of that term, because it was substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience.
The honesty and reliability of health practitioners is essential to ensuring that clients receive proper care and that patients and other practitioners may place trust in the expertise of those providing health care. It also impacts on the trust that the public places in psychologists and may have an impact on the willingness of persons to seek out appropriate and necessary treatments, or to recommend them to others in need. It is also essential when practitioners are dealing with the Board and other regulatory agencies – those bodies rely on practitioners honestly providing information which is important to decisions regarding registration and other matters. Making false declarations and falsifying documents in the course of professional registration and deliberately attempting to mislead APHRA and the Board is substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience to Ms Rigley. Further the public should be confident that practitioners have the appropriate PII and they will be able to have recourse to that PII if something goes amiss. Clients of psychologists are often in an especially vulnerable state when they attend for treatment, and therefore knowledge of this recourse may be important in providing them with confidence in the profession.VCAT notes that
The Tribunal also had regard to Ms Rigley’s personal circumstances. In her evidence to the Tribunal she described some protracted and distressing family court proceedings that she was involved in between 2011 and 2015 regarding her son who is now aged nine years. In her evidence she described being stressed and anxious during this time. It appears that Ms Rigley was overwhelmed by what was happening in her personal life to the detriment of her professional obligations. These court proceedings also created financial difficulties for her, Ms Rigley had to sell her home to pay back her parents who had been funding the legal proceedings.
We had the opportunity of observing Ms Rigley in the witness box. It was apparent to us that this has been a very distressing and salutary experience for her. Ms Rigley was remorseful and understood the gravity of her conduct and described the effect that it could have on her patients. She showed insight into her conduct. She was aware that her conduct could bring the reputation of the profession into question. She noted that the three months suspension would affect her clients and would also impact on her financially.
We were satisfied that the period of suspension is meaningful without being punitive. Being unable to practice one’s profession for that period has personal, financial and reputational consequences. Those are relevant to general deterrence and the maintenance of the standard and reputation of the profession. It sent a clear message to Ms Rigley that her conduct was unacceptable and would also serve as a deterrent to other psychologists.
We regarded the condition that it was proposed to impose on Ms Rigley’s registration as appropriate given the nature of her conduct and so ordered that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and AHPRA, immediately after renewing her professional indemnity insurance coverage, for a five year period. Although we assessed that the degree of ongoing risk posed by Ms Rigley was low, it will ensure that for the next five years she holds the appropriate PII.
We were also satisfied that the period of suspension and subsequent conditions would assist to maintain proper ethical and professional standards to protect the public and to protect the stature and integrity of the profession.
