VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	
VCAT REFERENCE NO. Z974/2019	
CATCHWORDS	
Health Practitioner Regulation National Law (Victoria) Act 2009 – s 196 – dual roles (as a psychologist and as a nutritionist) – inadequate record-keeping – failure to communicate with general practitioner – appropriate findings and determinations
	
APPLICANT	Psychology Board of Australia	
RESPONDENT	Dr Jacques Duff	
WHERE HELD	Melbourne	
BEFORE	Deputy President I Proctor
Member G Crawford
Member M Power	
HEARING TYPE	Hearing	
DATE OF HEARING	8 August 2023	
DATE ORDERS & written reasons	23 August 2023	
date of correction	28 September 2023	
citation	Psychology Board of Australia Board of Australia v Duff (Review and Regulation) (Corrected) [2023] VCAT 985	
OrderS
Findings and determinations
Under s 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal:
1	Under s 196(1) finds:
Allegations 1, 2, 4 and 5 in this proceeding proven (other allegations previously withdrawn) in that Dr Duff’s conduct constitutes:
(a)	Concerning Allegation 1 (dual roles), professional misconduct within the meaning of definitions (a) and (b) of the definition in section 5 of the National Law;
(b)	Concerning Allegation 2 (inadequate record-keeping), unprofessional conduct within the definition in section 5 of the National Law;
(c)	Concerning Allegation 4 (dual roles), professional misconduct within the meaning of definitions (a) and (b) of the definition in section 5 of the National Law;
(d)	Concerning Allegation 5 (failure to communicate with general practitioner), unprofessional conduct within the definition in section 5 of the National Law;
2	Under s 196(2) determines to:
(a)	Reprimand Dr Duff under section 196(2)(a) of the National Law; and
(b)	Place conditions on Dr Duff’s registration as set out at Appendix A to these orders.
3	Having place conditions on Dr Duff’s registration, under section 196(3) the Tribunal imposes a review date nine months from the date of these orders.
Notice of Proceeding Suppression Order
On 7 July 2020 VCAT made the following proceeding suppression order under the Open Courts Act 2013 (Vic).
1.	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subject of these proceedings, the notifiers, the applicant’s witnesses or their family members to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity or that of members of their families.
3.	This order operates until the later of the death of all of the people referred to in order 1.

I. Proctor
Deputy President and Presiding Member	G. Crawford
Health Practitioner Member	M. Power
Health Practitioner Member	

APPEARANCES:		
For Applicant:	Mr B W Jellis of Counsel	
For Respondent:	Mr B M Ihle KC with Ms R Singleton of Counsel
	
Appendix A - Schedule of Conditions
Attend for supervision 
1	The Practitioner must be supervised by another registered psychologist in relation to managing multiple relationships and record keeping. 
For the purposes of this condition, 'supervision' is defined as a professional relationship in which a skilled registered practitioner (the approved supervisor) helps to guide the professional development of another registered practitioner (the Practitioner) to integrate professional knowledge and skills into demonstrated competencies that meet the accepted standard of performance outlined in the Board adopted code of ethics. 
2	The supervision must occur monthly for a minimum of six months with each session being of 60 minutes' duration. The supervision must continue until these conditions are removed by the Board. 
3	Within 14 days of the notice of the imposition of these conditions, the Practitioner must: 
a)	provide to the Board acknowledgement, on the approved form (HP13), that reports will be sought from the supervisor(s) approved by the Board and what those reports must contain. 
b)	nominate to the Board, on the approved form (HPN13), the names of three suitability skilled registered psychologists to be considered for approval as supervisors (the nominated supervisors). 
c)	ensure the nominated supervisors meet all the requirements set out in the approved form. 
d)	ensure the nomination is accompanied by acknowledgement, on the approved form (HPNA13) from the nominated supervisors and by the information and documentation required on the form. 
4	Within 14 days of being advised of the supervisor approved by the Board the Practitioner is to: 
a)	commence supervision with the Board approved supervisor., and 
b)	provide to the Board, on the approved form (HPSP13) a supervision plan signed by the approved supervisor. The supervision plan must include the schedule, format, and details of how supervision will address the areas of managing multiple relationships and record keeping. 
5	The Practitioner is to ensure reports are provided to Ahpra as follows: 
a)	every month from the date of approval of the supervisor by the Board; 
b)	at the conclusion of the minimum period of supervision prescribed in the conditions on the Practitioner’s registration; 
c)	at any later time that the Practitioner requests the Board to consider reviewing the supervision condition; 
d)	whenever the supervisor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance; and 
e)	when requested either verbally or in writing by Ahpra. 
6	The Practitioner is to ensure reports provided in accordance with this condition include: 
a)	the format, date, time and length of each supervision session that has occurred since the previous report; 
b)	the supervisor’s opinion as to whether the Practitioner has satisfactorily participated in, and understood the focus of, the supervision; and 
c)	the Practitioner’s own reflections on the supervision to date (unless the report is for the purpose of the approved supervisor raising concerns about the Practitioner). 
7	The Practitioner is to continue with supervision until such time as the Board advises in writing that it is satisfied the reports demonstrate the Practitioner has reflected on and addressed the issues that gave rise to the supervision condition and how the Practitioner has incorporated the lessons learnt in the supervision. 
8	In the event the supervisor is no longer willing or able to provide the supervision required the Practitioner is to provide a new nomination to the Board in the same terms as previous nominations. Such nomination must be made by the Practitioner within 14 days of becoming aware of the termination of the supervision relationship. 
9	The Practitioner is not entitled to claim the hours spent with the supervisor or the time spent preparing reports for the Board in compliance with this condition as part of the Continuing Professional Development requirements for registration. 
10	Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the Practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The Practitioner will be required to provide the same form: 
a)	within seven days of the commencement of practice at each subsequent place of practice, and 
b)	within seven days of each and every notice of any subsequent alteration of these conditions. 
11	All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense. 

	

Reasons
1	Dr Jacques Duff was first registered by the Psychology Board of Australia (the Board) in 2000 and reregistered in 2010. 
2	In December 2019, the Board, under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law) referred allegations against Dr Duff to VCAT.
3	A VCAT compulsory conference was held in July 2020, in the context of the beginning of the Covid pandemic. Long-running negotiations between the parties followed, until in December 2022, a two-day hearing was scheduled on 8 August 2023, the delay from December to August due to VCAT resource constraints.
4	By the 8 August 2023 VCAT hearing, the Board made four allegations (it had originally made six) that Dr Duff had engaged in professional misconduct. The four allegations are set out at Attachment 1.
5	Allegations 1 and 2 concern Dr Duff’s treatment of AP, an 11-year-old who presented with Tics (Allegations 1 and 2),
6	Allegations 4 and 5 concern Dr Duff’s treatment of EG who suffered depression in the circumstances that he had recently attempted suicide.
7	The Board described the heart of the allegations as being a failure by Dr Duff to appropriately manage his multiple treating relationships with the patients, as both a psychologist and nutritionist. It submitted this created a risk of harm to each patient and was reflected in deficiencies in the clinical notes concerning AP and communication with EG’s treating general practitioner. That said, no harm was caused to either patient.
8	The parties provided an agreed statement of facts concerning these allegations.
9	Dr Duff agreed that Allegations 1 and 4 were proven and that his conduct constituted professional misconduct. While he agreed allegations 2 and 5 were proven, he submitted his conduct constituted unprofessional conduct rather than professional misconduct. 
10	The parties agreed VCAT should reprimand Dr Duff and place supervision conditions on his registration. The Board submitted six months supervision was warranted. Dr Duff submitted three months was sufficient. The Board submitted that VCAT should suspend Dr Duff’s registration as a psychologist for three months. Dr Duff submitted suspension was not warranted.
11	We reserved our decision.
12	Having now decided all issues, our reasons for our findings and determinations follow.
Findings of Fact
13	The first step in this proceeding is to decide whether the allegations are proven.
14	In context of the Allegations, we considered the documentary evidence and the parties’ submissions. The evidence was an 821-page Tribunal Book and some evidence given by Dr Duff’s barrister at the hearing based on Dr Duff’s instructions to him. Dr Duff volunteered to answer questions from the Board and VCAT.
15	The Tribunal Book included copies of the notifications to Australian Health Practitioners Regulation Authority (Ahpra) that led to the Board taking action, correspondence between Ahpra and Dr Duff, Duff's clinical records in respect of AP and EG, a witness statement of a notifier, expert reports of clinical psychologist, Ms Margaret Foulds, copies of the APS Code of Ethics as in effect between September 2013 and April 2018, a Medicare Claims History in respect of AP, dated 3 December 2018 and an agreed statement of facts as between the Board and Dr Duff.
16	We have made the following findings of facts accepting the Agreed Statement, in context of the evidence in the proceeding. We have drawn the following for the Agreed Statement.
Background
17	Dr Duff is a qualified nutritionist and completed a post-graduate course in nutritional and environmental medicine with the Australasian College of Nutritional and Environmental Medicine in 2003. He first obtained general registration as a psychologist in February 2000 and reregistered in April 2010.
18	He is, and was at all material times, subject to the National Law.
19	Being a registered psychologist, Dr Duff was required to comply with the Australian Psychological Society (APS) Code of Ethics and act consistently with Guidelines for Managing Professional Boundaries and Multiple Relationships, Guidelines on record keeping; and Ethical Guidelines Relating to Clients at Risk of Suicide.
20	In May 2017, the Board received a mandatory notification from a confidential notifier. The notification related to Dr Duff's conduct in the course of his professional relationship with AP from on or about 5 February 2013 and 30 October 2016. It said in part:
[AP] was referred to [blank], his family provided [blank] with investigation documents that the patient has been going through for a long time and I believe these were not necessary. These medical investigations were ordered by the practitioner, which include blood test orders, scripts for antibiotics.
I believe the practitioner has been practicing beyond his scope of practice.
The patient has been seeing the practitioner since 2001, and I am not sure what the patient initially consulted him for and how he was referred to him. It may have been that the patient’s family was seeing the practitioner and that would have prompted consultation with the patient.
Documentation provided to [blank] by the patient’s family indicates the practitioner diagnosed the patient with PANDAS, which is a neuropsychiatric disorder, but [blank] findings show the patient does not have that condition. [blank] diagnosis of the patient’s condition is Tourette Syndrome.
[blank] only seen the patient once at the Royal Children’s Hospital in Melbourne, but spent a long time with him. They would have his complete medical records.
21	In July 2017, the Board decided, under section 160(1)(a) of the National Law, to start an investigation into the notification. Dr Duff was informed of the Board's decision in a letter from the Australian Health Practitioner Regulation Agency (Ahpra) dated 15 August 2017.
22	On 14 September 2017, Dr Duff provided a preliminary response to the matters raised in the notification.
23	In October 2017, the Board received a notification from a notifier. The notification related to Dr Duff's conduct in the course of his professional relationship with EG, between on or about 10 October 2017 and 19 September 2018. It said in part:
Acutely suicidal man referred by psychiatrist from gambling service at Alfred Hospital for CATT care due to concern regarding suicidality. Psychiatrist had commenced [medication] … Seen by myself (consultant psychiatrist) and medication continued and dose increased due to on going depressive Sx and suicidality. Sort psychologist Dr Duff, who ran testing. I spoke with the psychologist, I discussed my concern regarding this man’s illness and suicidality. Dr Duff was prepared to follow-up, discussed the nutritional testing he was doing. The patient also made an appointment with another’s private psychiatrist … and saw him. The patient was also just starting to respond to escitalopram (2 weeks of Rx) later that week, Dr … contacted CATT concerned with correspondence that Dr Duff had suggested that escitalopram be ceased, and prescribed diet changes, nutritional supplements and exercise. The patient also informed the CATT that Dr Duff had sold him $500 worth of nutritional supplements and told him to cease his antidepressant medication. CATT followed up with the patient and encouraged him to continue to take the escitalopram and not continue to see Dr Duff. He agreed it is continued to see the psychiatrist … and is still a patient of CATT. …
24	In October 2017, the Board decided, under section 160(1)(a) of the National Law, to commence an investigation into that notification concerning Dr Duff's conduct in respect of EG. It also decided, under section 153 of the National Law, to deal with the notification concerning EG together with that concerning AP. 
25	On 8 December 2017, Dr Duff provided a preliminary response to the matters raised in the notification concerning EG by the notifier.
26	On 8 January 2019, Ahpra wrote to Dr Duff regarding the issues which had been identified as the focus of the investigation in respect of each of the notifications and inviting a response.
27	On 29 March 2019, Dr Duff provided a formal response to the notifications.
Patient AP
28	On 5 February 2013, Dr Duff first consulted with AP, who presented with Tics. Between 5 February 2013 and 30 October 2016, Dr Duff engaged, directly or indirectly, with AP on 12 occasions. Those engagements comprised:
a)	Three in-person consultations with AP and his parents, which occurred over 5 February and December 2013 and in July 2015, and
b)	Eight telephone consultations with AP’s parents, which occurred from February 2013 to October 2016.
29	On 5 February 2013, Dr Duff ordered that a Test of Variables of Attention (TOVA) and a quantitative electroencephalogram (QEEG) be administered on AP.
30	On 5 February 2013, 25 February 2013, 12 December 2013 and 6 July 2015, Dr Duff undertook psychological assessments of AP by administering psychological questionnaires:
a)	on 5 February 2013, he administered a PANDAS PANS screener, Generalized Anxiety Disorder 7-item (GAD-7) scale and Spence Children’s Anxiety Scale questionnaires;
b)	on 25 February 2013, he administered a Depression Scale for Children questionnaire;
c)	on 12 December 2013, he administered PANDAS PANS screener and GAD-7 scale questionnaires; and
d)	on 6 July 2015, he administered GAD-7 scale, Depression Scale for Children and Spence Children’s Anxiety Scale questionnaires.
31	On 5 February 2013 Dr Duff provided AP’s parents with information about Competing Response Treatment for Tics.
32	On 25 February 2013, 2 May 2013, 18 June 2013, 12 August 2013, 18 December 2013, 6 July 2015, 21 April 2016 Dr Duff prescribed nutritional supplements to AP and his parents;
33	On occasion, he sold, through his clinic, nutritional supplements to AP and his parents;
34	Dr Duff requested several investigations, including pathology testing, for the purpose of assessing AP's nutrition, including on or around 5 February 2013, 10 March 2013, 2 May 2013, 12 August 2013, 1 November 2013, 13 December 2013, 30 May 2015, 6 July 2015, 5 October 2015 and 11 June 2016.
Patient EG
35	On or about 10 October 2017, Dr Duff first consulted with EG. EG had in October 2017 attempted suicide and had been prescribed Escitalopram 20mg daily, Seroquel 25mg Nocte. His general practitioner provided him with a Mental Health Care Plan.
36	EG attended a further consultation with Dr Duff on or about 11 October 2017.
37	During these consultations Dr Duff on 10 October 2017 undertook a psychological assessment of EG by administering a SQUARE risk assessment, DASS 21 and GAD-7 questionnaires, carried out a risk assessment and ordered a TOVA and QEEG to be administered to EG, requested pathology testing for the purpose of assessing EG's nutrition, provided psychological counselling to EG, provided nutritional advice to EG.
38	On 11 October 2017 Dr Duff proposed an ongoing treatment plan for EG, prescribed nutritional supplements to EG, through his clinic, sold nutritional supplements to EG; and provided nutritional advice to EG.
39	During the consultations EG was under the care of a psychiatrist, Dr Blandthorn, and the Box Hill Hospital Crisis Assessment and Treatment Team. EG remained under the care of the Box Hill CATT until he was discharged on 26 October 2017.
40	EG did not consult with Mr Duff after 11 October 2017. On 16 October 2017, EG’s scheduled future appointments with Dr Duff on 18 October, 25 October and 9 November 2017 were cancelled.
41	On 19 September 2018, about 11 months after EG ceased treatment, Dr Duff sent a termination of services letter to EG's treating general practitioner.
Findings on the Allegations concerning Patient AP
42	With the alleged conduct proven, the second step is to decide whether the conduct falls within the definitions of “professional misconduct” and/or “unprofessional conduct” under the National Law, or whether it does not.
The Law/Code
43	Section 5 of the National Law defines professional misconduct as:
(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.
44	Section 5 of the National Law defines unprofessional conduct as professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
45	Codes or guidelines approved by a National Board are admissible in proceedings as evidence of what constitutes appropriate professional conduct or practice. The Code is a code of conduct approved by a National Board for the purposes of section 41 of the National Law.
46	They set high standards concerning providing contemporary effective treatment, obtaining informed consent, communicating effectively with patients and record keeping.
47	With the alleged conduct proven, the second step is to decide whether the conduct falls within the definitions of “professional misconduct” and/or “unprofessional conduct” under the National Law, or whether it does not.
Allegation 1 (dual roles)
48	We found Allegation 1 proven. Dr Duff’s conduct constituted professional misconduct under meanings (a) and (b) of the National Law.
49	Allegation 1 is now relevantly that Dr Duff engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law in that, between on or about 5 February 2013 and on or about 30 October 2016, he transgressed the boundaries that should, and ordinarily do, delineate the psychologist-client treating relationship and/or misused or failed to properly consider the power imbalances inherent in his treating relationship by engaging in multiple treating relationships with AP and/or his parents, and failing to manage those relationships effectively.
50	We do not here repeat the particulars to the allegation. On the basis of the Agreed Statement and the documentary evidence the particulars are sufficiently proven.
51	His conduct was unprofessional conduct, amounting to conduct that is substantially below the standard reasonably expected of a registered psychologist of an equivalent level of training or experience and (taken together with the similar Allegation 4 concerning EG) involved 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 psychologist of an equivalent level of training or experience.
52	Dr Duff failed to comply with Australian Psychological Society (APS) Code of Ethics (see schedules to Attachment 1).
53	The Code relevantly defines 'Multiple relationships' as relationships which 'occur when a psychologist, rendering a psychological service to a client, also is in a different professional relationship (here as a nutritionist) with the same client;
54	It requires psychologists to refrain from engaging in multiple relationships that may impair their competence, effectiveness, objectivity, or ability to render a psychological service, harm clients or other parties to a psychological service and/or lead to the exploitation of clients or other parties to a psychological service.
55	It speaks of pychologists being aware that the formation of dual relationships with any of the multiple clients may result in boundary crossings, violations, or conflicts of interest that may adversely affect clients.
56	Where multiple relationships arise, it is the psychologist's responsibility to consider the foreseeable consequences resulting from the dual relationship and to take the necessary steps to manage this situation professionally (e.g., consult with supervisors to maintain objectivity, develop a contract stipulating boundaries and precautions in consultation with the clients prior to services).
57	We accepted Ms Foulds’ unchallenged expert opinion. She said in part:
There is clear evidence in the file and in Dr Duff’s responses that he did work in various roles in this case. He states that he does. The Code states that working in more than one occupation with the same client should be avoided. Dr Duff took no steps to avoid such a situation, indeed he structured his practice around this. In this respect he may be said to have failed to manage the different relationships. … 
It is questionable as to whether Dr Duff undertook adequate psychological assessment of the client to be able to develop a treatment plan. Without such an assessment, decisions about treatment cannot be made. There is no evidence of a psychological treatment plan in the notes. … 
Taken all together, the integration of psychological and nutrition work in the same practice with one client, the lack of psychological assessment and a treatment plan, the limited emphasis on psychological interventions, the recommendation that psychological treatment be sought elsewhere demonstrate that Dr Duff did engage in multiple relationships, did fail to separate his different professions and did fail to manage these to the extent that psychological treatment was compromised.
…
In relation to the issue of whether Dr Duff entered into multiple relationships with both clients and failed to manage those relationships he could be seen to have engaged in unsatisfactory professional performance. 
Taken all together, the integration of psychological and nutrition work in the same practice with one client, the lack of psychological assessment and a treatment plan, the limited emphasis on psychological interventions, the recommendation that psychological treatment be sought elsewhere demonstrate that Dr Duff did engage in multiple relationships, did fail to separate his different professional roles and did fail to manage these to the extent that psychological treatment was compromised. 
While Dr Duff stated that he kept the nutrition consultation separate from the psychological consultation, this is not what his notes represent in either of the reviewed. In one case there was scant detail regarding psychological therapy compared with nutrition issues and in the other one session appropriately focused on assessment and treatment planning but also included multiple pathology tests and nutrition information appropriate to someone with a different diagnosis. The second session focused on results of the QEEG and TOVA. This would not be the usual focus for a second session with a man who was depressed, distressed and recently self-harmed. In the other case, the child was recommended to see a psychologist closer to home for psychological interventions, while seeing Dr Duff for nutrition monitoring and advice. 
These two notifications show a marked absence of appropriate assessment and/or intervention and an emphasis on interventions associated with another profession. This failure by a psychologist to deliver appropriate psychological treatment is substantially below the standards expected of psychologists, regardless of level of experience.
58	That said, we accept, as the Board submitted, that while his engaging in dual roles created risk for AP of negative consequences, no negative consequences eventuated. 
Allegation 2 (record keeping)
59	We found Allegation 2 proven. Dr Duff’s conduct constituted unprofessional conduct as defined under the National Law.
60	Allegation 2 is that Dr Duff engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law in that, between on or about 5 February 2013 and on or about 30 October 2016, he failed to maintain accurate, current and complete records of the psychological services provided, with sufficient detail to permit planning for continuity in the delivery of psychological services in respect of his client, AP.
61	Dr Duff failed to comply with Australian Psychological Society (APS) Code of Ethics concerning record keeping.
62	VCAT has unfortunately and regularly addressed the obvious critical role of record keeping in the provision of health services.
63	We accepted Ms Foulds’ unchallenged expert opinion:
Dr Duff’s notes do not contain sufficient detail regarding the psychological assessment and treatment he provided to comply with these guidelines. The information regarding the psychological treatments in most sessions is scant. The intervention is labelled but detail of it was applied or should be applied by the parents to the particular client was not recorded. There was no information about the progress of the parents’ implantation of strategies, necessary for further treatment planning. … 
Dr Duff states that his psychology sessions are for 50 minutes and the nutrition information is in addition to this time. This however is not reflected in the content of his file entries. Either this is not an accurate statement about how Dr Duff uses the consultation time or his notes do not accurately reflect the sessions he conducted with this client.
64	We found that his conduct constituted unprofessional conduct, not professional misconduct (meaning (a)) as the Board submitted. We view Dr Duff’s conduct as of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
65	We repeat observations by VCAT recently made in Dental Board of Australia v Krishna (Review and Regulation) [2023] VCAT 498 [from 53]:

The finding of unprofessional conduct against any health practitioner concerning record keeping, is a most serious matter. Concerning medical records, where in our view the evidence does not establish that Dr Krishna acted dishonestly, with wilful disregard or recklessly in his record keeping, this is the appropriate finding.
Findings of professional misconduct concerning record keeping, will often be more appropriate in those instances where the evidence establishes that health practitioners have repeatedly, deceptively and/or misleadingly created records and/or destroyed or forged records.
Findings on the Allegations concerning Patient EG
Allegation 4 (dual roles)
66	We found Allegation 4 proven. Dr Duff’s conduct constituted professional misconduct under meanings (a) and (b) of the National Law.
67	Allegation 4 is now relevantly that Dr Duff engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law in that, between on or about 10 October 2017 and on or about 19 September 2018, he: transgressed the boundaries that should, and ordinarily do, delineate the psychologist-client treating relationship; and/or misused or failed to properly consider the power imbalances inherent in his treating relationship by engaging in multiple treating relationships with EG and failing to manage those relationship effectively.
68	In the context of the agreed statement with respect to Dr Duff’s treatment of EG, we repeat our observations above concerning Dr Duff’s failures with respect to engaging in dual roles, here concerning EG.
Allegation 5 (failure to communicate with EG’s general practitioner)
69	We found Allegation 5 proven. Dr Duff’s conduct constituted unprofessional conduct as defined under the National Law.
70	Allegation 5 is now relevantly that Dr Duff engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law in that, between on or about 10 October 2017 and on or about 19 September 2018, he failed to ensure timely communication with EG's treating general practitioner.
71	The particulars to Allegation 5 and the Agreed Statement make clear that this allegation is that when Dr Duff’s treating relationship with EG ended (at EG’s initiative), Dr Duff failed to inform EG’s treating practitioner for about 11 months.
72	On its face this failure appears alarming as EG had recently attempted suicide, was suffering depression was also under treatment of his treating psychiatrist and a CEGT Team.
73	Ms Foulds opined:
Given the adult client’s recent risk behaviour and Dr Duff’s own assessment, some follow up either with the client, the family or with the mental health service was indicated. Other care providers were aware of Dr Duff’s involvement and were therefore entitled to believe that this was ongoing until otherwise stated. Communication of changes in treaters in cases where there is high risk is appropriate. 
In this way Dr Duff did not meet a reasonable standard of documentation for a client at risk.
…
In relation to Dr Duff’s failure to communicate with [EG’s] treating practitioners until 19 September 2018, I confirmed my view that, given the circumstances in which [EG] presented on 10 October 2017, specifically, following a suicide attempt, Dr Duff’s conduct in that regard was substantially below the standard expected of a psychologist.
74	However, at the time treatment ended correspondence in evidence shows that psychiatrist and the CEGT Team were immediately well aware that Dr Duff was no longer treating EG.
75	Dr Duff saw EG twice. After the first appointment, on 10 October 2017, he wrote to the referring general practitioner advising he would use the initial six sessions for assessment and counselling as endorsed by Medicare.
76	On 13 October 2017, Dr Duff wrote to the treating psychiatrist, suggesting from a “neuropsychological perspective” that treatment for depression with Escitalopram be stopped and Seroquel be continued.
77	In the 13 October 2017 fax to the CATT Team, the treating psychiatrist advised that he did not support Dr Duff’s recommendation.
78	The CATT Team was alarmed. In their view, EG was just starting to respond to two weeks of treatment with Escitalopram. They encouraged EG to continue to take the medication and not to see Dr Duff again but continue to see the treating psychiatrist. EG agreed to and undertook that course of action.
79	This sequence of events in part led to the notifier making the notification to Ahpra concerning EG. Ahpra advised Dr Duff that he was not permitted to contact EG. It was submitted that this affected his decision as to whether he should make contact with others as well. Eventually, the need to comply with Medicare requirements led to his letter to the general practitioner.

80	What we draw from this relevant to Allegation 5 is that Dr Duff’s failure to in a timely fashion write to the general practitioner, while not acceptable, did not result in relevant treaters being unaware that his treatment of EG had quickly and abruptly come to an end.
81	Therefore, we find unprofessional conduct proven, not professional misconduct as the Board submitted.
Determinations
82	VCAT’s role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual from repeating the misconduct) and/or general deterrence (to warn others in the profession against such misconduct). VCAT’s role is also to uphold the medical profession’s reputation.
Reprimand
83	As the parties agreed, under s 196(2)(a) of the National Law we reprimanded Dr Duff, as was clearly appropriate following our findings of professional misconduct and unprofessional conduct. Reprimand is a serious form of censure and condemnation, combined with a finding of professional misconduct.
Suspension
84	The Board submitted that Dr Duff’s registration as a psychologist be suspended for three months in the cause of general deterrence. The Board acknowledged that with no further notifications concerning Dr Duff received, it could be regarded that specific deterrence was not required. We take it that the Board also regarded a short suspension as necessary to uphold the profession’s reputation.
85	Dr Duff submitted that he has accepted that it is not acceptable to undertake dual roles with respect to his patients. From late 2020, he focused on providing psychological services and no longer provides nutritional services to patients. Currently, his practice largely involves writing reports for the National Disability Insurance Scheme concerning children diagnosed with Autism and/or ADHD.
86	In September 2020, Ms Rachel Stevens, Clinical Nutritionist, joined Dr Duff’s practice. In a letter to VCAT dated 2 August 2023 she described her role as a bachelor qualified and registered clinical nutritionist to provide nutritional advice, request and review pathology testing and prescribe supplementation where needed. She described herself as practising completely autonomously and independent of other practitioners at the clinic, providing her own treatment plans and supplementation prescriptions to patients.
87	In response to a question from Deputy President Proctor during the hearing, Dr Duff advised that when he sees patients to provide psychological services, if he regards them as in need of nutritional advice, he advises that Ms Stevens is available at the clinic to provide that service.
88	He said:
Almost all of the clients that I see are in some need of nutritional support, mainly because through all my research and large studies that I have published is a lack of certain nutrients in our food chain. When I see a correlation between that and the behaviours that they are reporting I suggest that they talk to the nutritionist.
89	Dr Duff submitted that the five and a half years of delay since the second notification to Ahpra in 2017 is in itself a powerful factor to mitigate disciplinary sanctions. The uncertainty of an ability to continue to practice psychology and the stress and anxiety over the years in themselves constitute a form of punishment. He cited Stirling v Legal Services Commissioner [2013] VSCA 374, R v Merrett (2007) 14 VR 392 at 400 and Medical Board of Australia v Proctor (Review and Regulation List) [2018] VCAT 576 in support of this submission.
90	We have determined that Dr Duff should not be suspended.
91	In our view, general deterrence and the maintenance of the profession’s reputation after all these years, with, as was submitted on Dr Duff’s behalf with him aged 79 years, him much closer to the end of his career than to the beginning, is sufficiently achieved by any reader of this decision absorbing the already significant negative consequences for Dr Duff as a result of the professional misconduct and unprofessional conduct in which he engaged.
92	This will be in the context of the supervision which Dr Duff will be subject to as a result of conditions placed on his registration, to which we now turn.
Conditions on registration
93	We have accepted the conditions proposed by the Board are appropriate with respect to Dr Duff’s registration. Dr Duff submitted that the period of supervision should be somewhat shorter, with a closer review.
94	In our view, it is difficult to see how less than six meetings with a supervisor would provide an adequate opportunity for Dr Duff to reflect and learn.
95	We bring one issue to the attention of the parties, which we suggest, we do not require, be addressed during supervision. While we are not experts in the field, we are surprised at Dr Duff’s statement during the hearing that most children he sees suffer from some form of nutritional deficiency.
96	Patients seeing a psychologist attend because of psychological needs, not any sense of nutritional deficiency. 
97	If he had his time again at the hearing, Deputy President Proctor would have asked what is the proportion of Dr Duff’s patients that he refers to Ms Stevens.
98	In our view, Dr Duff should reflect on the evidential basis on which he refers patients. He also needs to take care with respect to any contractual relationships between him and Ms Stevens, such that there is no basis that an independent bystander may perceive that in referring he places himself in any financial, or other, conflict of interest situation.
Review of conditions
99	The National Law requires that where conditions are placed on registration, a review period is set providing the date by which the Board must review the situation. 
100	In our view, with a six-month supervision., a nine-month review date, giving time for the start of supervision and then assessment of the supervision, is appropriate.

I. Proctor
Deputy President and Presiding Member	G. Craword
Health Practitioner Member	M. Power
Health Practitioner Member	

Attachment 1
allegations
The allegations in respect of Dr Jacques Duff referred to the Victorian Civil and Administrative Tribunal by the Psychology Board of Australia under section 193(1)(a) of the National Law are:
Allegation 1
That Dr Duff engaged in:
(a) 	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law;
and/or
(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
and/or
(c)	 unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in section 5 of the National Law;
in that, between on or about 5 February 2013 and on or about 30 October 2016, he:
(a)	 transgressed the boundaries that should, and ordinarily do, delineate the psychologist-client treating relationship; and/or
(b) 	misused or failed to properly consider the power imbalances inherent in his treating relationship,
by engaging in multiple treating relationships with AP and/or AP's parents, and failing to manage those relationships effectively.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Duff was a registered psychologist;
(ii)	Dr Duff first consulted with AP, a minor, on or about 5 February 2013, when AP presented with a Tics Disorder;
(iii)	between on or about 5 February 2013 and on or about 29 June 2016, AP attended approximately 12 consultations with Dr Duff;
(iv)	on or about 30 October 2016, AP's parent/s and Dr Duff had a conversation regarding AP;
(v)	during the period set out at particulars (iii) and (iv) above, during the period of his treating relationship with AP as AP's psychologist, Dr Duff provided nutritional consultations and/or advice to AP and/or his parents in relation to AP, in that he:
(A) 	prescribed and/or sold nutritional supplements to AP / his parents;
(B)	provided nutritional advice and/or nutritional treatment; and/or
(C) 	requested several investigations, including pathology testing, for the purpose of assessing AP's nutrition;
(vi)	during the period set out at particulars (iii) and (iv) above, during the period of his treating relationship with AP as AP's psychologist, Dr Duff performed and/or oversaw the performance of cognitive testing for the purpose of assessing WL's brain function, in that he:
(A)	on or about 5 February 2013, administered a Test of Variables of Attention (TOVA) to WL; and/or
(B) 	on or about 2 May 2013, performed and/or oversaw the performance of a quantitative electroencephalogram (QEEG) on WL;
(vii)	during the period set out at particulars (iii) and (iv) above, during the period of his treating relationship with AP as AP's psychologist, Dr Duff, by reason of his emphasis on provision of nutritional consultations and/or advice and/or cognitive testing, provided inadequate psychological services and/or treatment to AP and/or his parents;
(viii)	the conduct of Dr Duff described in particulars (v) and/or (vi) and/or (vii) above is inconsistent with the Australian Psychological Society (APS) Code of Ethics (2007) and APS Guidelines for managing professional boundaries and multiple relationships, specifically the extracts set out in Schedule 1 and Schedule 3 to this Notice.
Allegation 2
That Dr Duff engaged in:
(a) 	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law;
and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
and/or
(c) 	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in section 5 of the National Law;
in that, between on or about 5 February 2013 and on or about 30 October 2016, he failed to maintain accurate, current and complete records of the psychological services provided, with sufficient detail to permit planning for continuity in the delivery of psychological services in respect of his client, AP.
PARTICULARS
The particulars include, but are not limited to:
(i)	Particulars (i), (iii) and (iv) to Allegation 1 in this Notice;
(ii)	Dr Duff's clinical records with respect to the consultations in the period outlined at particular (i) above do not contain sufficient documentation of:
(A)	relevant history;
(B)	clinical presentation;
(C)	psychological assessments undertaken;
(D)	interventions;
(E)	treatment plans;
(F)	the content of the psychological consultations; and/or
(G)	AP's progress;
(iii)	the conduct of Dr Duff described in particular (ii) above is inconsistent with the APS Code of Ethics and APS Guidelines on record keeping, specifically the extracts set out in Schedule 2 to this Notice.
Allegation 4
That Dr Duff engaged in:
(a)	 professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
and/or
(c)	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in section 5 of the National Law;
in that, between on or about 10 October 2017 and on or about 19 September 2018, he:
(a)	transgressed the boundaries that should, and ordinarily do, delineate the psychologist-client treating relationship; and/or
(b)	misused or failed to properly consider the power imbalances inherent in his treating relationship,
by engaging in multiple treating relationships with EG and failing to manage those relationship effectively.
Particulars
The particulars include, but are not limited to:
(i)	 at all material times, Dr Duff was a registered psychologist;
(ii)	Dr Duff consulted with EG on or about 10 October 2017 and on or about 11 October 2017, in circumstances where EG:
(A)	on or about 2 October 2017, unsuccessfully attempted suicide; and
(B)	had subsequently been:
(I)		prescribed Escitalopram 20mg daily;
(II)	prescribed Seroquel 25mg Nocte; and
(III)	prepared a Mental Health Care Plan, 
by his general practitioner;
(iii)	during the period set out at particular (ii) above, whilst acting as EG's psychologist, Dr Duff provided nutritional consultations and/or treatment to EG, in that he:
(A)	prescribed and/or sold nutritional supplements to EG;
(B)	provided nutritional advice and/or nutritional treatment to EG; and/or
(C)	requested pathology testing for the purpose of assessing EG's nutrition;
(iv)	during the period set out at particular (ii) above, whilst acting as EG's psychologist, Dr Duff performed and/or oversaw the performance of cognitive testing for the purpose of assessing EG's brain function, in that he:
(A)	on or about 10 October 2017, administered a TOVA to EG; and/or
(B)	on or about 2 May 2013, performed and/or oversaw the performance of a QEEG on WL;
(v)	during the period set out at particulars (iii) and (iv) above, during the period of his treating relationship with AP as AP's psychologist, Dr Duff, by reason of his emphasis on provision of nutritional consultations and/or advice and/or cognitive testing, provided inadequate psychological services and/or treatment to EG;
(vi)	the conduct of Dr Duff described in particulars (iii) and/or (iv) and/or (v) above is inconsistent with the Australian Psychological Society (APS) Code of Ethics (2007), APS Guidelines for managing professional boundaries and multiple relationships and/or APS Ethical guidelines relating to clients at risk of suicide specifically the extracts set out in Schedule 1, Schedule 3 and Schedule 4 to this Notice. 
Allegation 5
That Dr Duff engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
	and/or
(c)	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in section 5 of the National Law;
	in that, between on or about 10 October 2017 and on or about 19 September 2018, he failed to ensure timely communication with EG's treating practitioner/s.
Particulars
The particulars include, but are not limited to:
(i)	Particulars (i) and (ii) to Allegation 4 in this Notice;
(ii)	on or about 19 September 2018, Dr Duff sent a termination of services letter to EG's treating practitioner, in circumstances where Dr Duff last consulted with EG on or about 11 October 2017, and given EG's risk behaviour and Dr Duff's own assessment of EG, a more timely communication was required;
(iii)	the conduct of Dr Duff described in particular (ii) and (iii) above is inconsistent with the APS Code of Ethics, APS Guidelines on record keeping and/or APS Ethical guidelines relating to clients at risk of suicide, specifically the extracts set out in Schedule 2 and Schedule 4 to this Notice.

Schedule 1
1. 	The Australian Psychological Society (APS) Code of Ethics:
(a)	defines 'Multiple relationships' as relationships which 'occur when a psychologist, rendering a psychological service to a client, also is or has been:
(i)		in a non-professional relationship with the same client;
(ii)	in a different professional relationship with the same client;
(iii)	in a non-professional relationship with an associated party; or
(iv)	a recipient of a service provided by the same client'; and
(b) 	provides:
(i)	B.3. - Psychologists provide psychological services in a responsible manner.
Having regard to the nature of the psychological services they are providing, psychologists:
(a)	act with the care and skill expected of a competent psychologist;
(b)	take responsibility for the reasonably foreseeable consequences of their conduct;
(c)	take reasonable steps to prevent harm occurring as a result of their conduct;
(d)	provide a psychological service only for the period when those services are necessary to the client;
(e) 	are personally responsible for the professional decisions they make;
(f)	 take reasonable steps to ensure that their services and products are used appropriately and responsibly;
(g) 	are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues; and
(h) 	regularly review the contractual arrangements with clients and, where circumstances change, make relevant modifications as necessary with the informed consent of the client;
(ii)	General Principle C: Integrity - Psychologists recognise that their knowledge of the discipline of psychology, their professional standing, and the information they gather place them in a position of power and trust. They exercise their power appropriately and honour this position of trust;
(iii)	C.3.1. - Psychologists refrain from engaging in multiple relationships that may:
(a)	impair their competence, effectiveness, objectivity, or ability to render a psychological service;
(b)	harm clients or other parties to a psychological service; or
(c) 	lead to the exploitation of clients or other parties to a psychological service; and
(iv)	C.4.1. - Psychologists do not exploit people with whom they have or had a professional relationship.
2.	 The APS Guidelines for psychological services involving multiple clients (2008) provides that:
(a) 	B.1.2 - Psychologists only provide psychological services within the boundaries of their professional competence. This includes, but is not restricted to:
(i) 	working within the limits of their education, training, supervised experience and appropriate professional experience;
(ii) 	basing their service on the established knowledge of the discipline and profession of psychology;
(iii) 	adhering to the Code and the Guidelines;
(iv) 	complying with the law of the jurisdiction in which they provide psychological services; and
(v) 	ensuring that their emotional, mental, and physical state does not impair their ability to provide a competent psychological service.
(b) 	C.3.1. Psychologists refrain from engaging in multiple relationships that may:
(i)	impair their competence, effectiveness, objectivity, or ability to render a psychological service;
(ii)	harm clients or other parties to a psychological service; or
(iii)	lead to the exploitation of clients or other parties to a psychological service.
(c)	5.1 - Psychologists are aware that the formation of dual relationships with any of the multiple clients may result in boundary crossings, violations, or conflicts of interest that may adversely affect clients or associated parties (this could apply in the sense that organisations or community groups may be affected - e.g., tarnishes reputation).
(d)	5.3 - Where multiple relationships arise, it is the psychologist's responsibility to consider the foreseeable consequences resulting from the dual relationship and to take the necessary steps to manage this situation professionally (e.g., consult with supervisors to maintain objectivity, develop a contract stipulating boundaries and precautions in consultation with the clients prior to services).

Schedule 2
1. 	The APS Code of Ethics (2007) provides that:
(a)	B.2.1. – Psychologists make and keep adequate records.
2. 	The APS Guidelines on record keeping provides that:
(a)	1.1 - Psychologists maintain accurate, current, and complete records of psychological services. Client psychological records include information that identifies the client and documents the nature, delivery, progress, results, or recommendations of psychological services, and includes appointment diary entries, working notes, assessment material, information stored in a computer, and "post-it" notes';
(b)	8.3 - Psychologists maintain accurate, current, and complete records of psychological services. There should be sufficient detail to permit planning for continuity in the delivery of psychological services in the event that another psychologist takes over that responsibility, including in the event of death, disability, or retirement. In addition, psychologists need to maintain records in sufficient detail to allow for review of psychological service delivery.

Schedule 3
1.		The APS Code of Ethics provides:
(a) 	General Principle B: Propriety - Psychologists practise within the limits of their competence and know and understand the legal, professional, ethical and, where applicable, organisational rules that regulate the psychological services they provide.
They undertake continuing professional development and take steps to ensure that they remain competent to practise, and strive to be aware of the possible effect of their own physical and mental health on their ability to practise competently. Psychologists anticipate the foreseeable consequences of their professional decisions, provide services that are beneficial to people and do not harm them. Psychologists take responsibility for their professional decisions.
(b)	B.1.2. - Psychologists only provide psychological services within the boundaries of their professional competence. This includes, but is not restricted to:
(a)	working within the limits of their education, training, supervised experience and appropriate professional experience;
(b)	basing their service on the established knowledge of the discipline and profession of psychology;
(c)	adhering to the Code and the Guidelines;
….
(c)	B.3. - Psychologists provide psychological services in a responsible manner. Having regard to the nature of the psychological services they are providing, psychologists:
(a)	act with the care and skill expected of a competent psychologist;
(b)	 take responsibility for the reasonably foreseeable consequences of their conduct;
(c) 	take reasonable steps to prevent harm occurring as a result of their conduct;
(d) 	provide a psychological service only for the period when those services are necessary to the client;
(e)	 are personally responsible for the professional decisions they make;
(f) 	take reasonable steps to ensure that their services and products are used appropriately and responsibly;
(g) 	are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues; and
(h)	 regularly review the contractual arrangements with clients and, where circumstances change, make relevant modifications as necessary with the informed consent of the client;
2. 	The APS Guidelines for psychological services involving multiple clients (2008) provides that:
(a)	 B.1.2 - Psychologists only provide psychological services within the boundaries of their professional competence. This includes, but is not restricted to:
(i)	 working within the limits of their education, training, supervised experience and appropriate professional experience;
(ii) 	basing their service on the established knowledge of the discipline and profession of psychology;
(iii)	 adhering to the Code and the Guidelines;
(iv)	 complying with the law of the jurisdiction in which they provide psychological services; and
(iv)	ensuring that their emotional, mental, and physical state does not impair their ability to provide a competent psychological service.

Schedule 4
1. 	The APS Ethical guidelines relating to clients at risk of suicide (2014) provides that:
(a) 	4.5 – Psychologists maintain responsibility for their clients at risk of suicide at least until an appropriate management plan has been developed and implemented and, if necessary, responsibility has been passed on by mutual agreement to an appropriate professional or agency. Psychologists ensure such an approach is performed in a supportive way that strengthens community of care.