We are so excited to share some news about a second win regarding substantial equivalence for clinical endorsement. I briefly describe the pivotal issues and how our first test case, Dr Marian Kolta, was awarded costs in her favour. I urge everyone to read the whole judgment which has been published by VCAT due to the public interest and implications.
Congratulations Marian, your legal counsel and all of us who supported you along this path!
Background:
Three pathways under the National Law are open to psychologists to be considered by the Psychology Board of Australia (the Board) to meet endorsement criteria. These are:
- An accredited Doctorate in one of the approved areas of practice and at least one year of approved, supervised, full-time equivalent practice with a Board-approved supervisor; or
- An accredited Masters degree in one of the approved areas of practice and a minimum of two years of approved, supervised, full-time equivalent practice with a Board-approved supervisor; or
- Another qualification, that, in the Board’s opinion, is substantially equivalent to (a) or (b) (the substantial equivalence pathway).
As we have written about previously, one of the legal avenues AAPi has been pursuing is option 3, substantial equivalence, as a viable pathway for AAPi members. Until Marian and AAPi challenged this, we were unaware of substantial equivalence being granted.
Dr Marian Kolta applied to the Board, firstly in 2010 and then again in 2020, to have her qualifications and experience for endorsement as a clinical psychologist considered.
When the Board rejected Marian’s second application in 2020, she considered, together with AAPi, applying to the Victorian Civil and Administrative Tribunal (VCAT). Part of her considerations included seeking support and legal advice. We cannot stress the enormity of this step enough. Legal representation can be very expensive. It can be a significant barrier for practitioners seeking legal review of the decisions made by regulatory bodies. This point was specifically noted and addressed in the VCAT decision made on 2 February 2023, where they spoke about Marian’s legal representation and compared them with the Board’s five-member senior lawyer team from a major law firm. Although Marian’s legal representation was small, it was clearly more than up to the task.
The AAPi has been working on legal approaches to the issues of the two-tier problem and its implications. As you will all be aware, we had a legal fundraiser and have since made decisions along the way to expend some of these funds to advance the cause for all our members, and by extension, for all psychologists. Some of the money was used to support the test case of Marian’s application for endorsement to be considered under the substantive equivalence pathway, as we understood the wide-reaching benefits a successful result could have.
Marian’s excellent case for her qualifications and experience to be considered substantially equivalent under the National Law, and for clinical endorsement to be granted to her, was successful at VCAT in 2022, and the Board was ordered to issue her endorsed registration as a clinical psychologist.
Costs Awarded in favour of Dr Kolta (and AAPi):
VCAT’s decision about costs was made on 2 February 2023 with their reasons available in this published decision. The reasons are very detailed, and they specifically address the public interest value of the case, saying that this decision may open the alternative pathway of substantial equivalence recognition to many other psychologists. This is a significant step forward for us and for all of you to consider whether there are other cases whereby qualifications and experience could be substantially equivalent for the purposes of endorsement. You can find out more about how you can be involved here.
AAPi has used some of the funds we had available to take a calculated risk, with advice from our lawyers, about the likelihood of success in this test case. The costs incurred will now be reimbursed by the Board and reinvested into our other legal avenues.
Why did we win costs?
There were many reasons, as VCAT articulates in its findings. I will speak to some of them.
Under both the National Law and the VCAT Act, there are powers for costs to be awarded against the other party, rather than for each party to pay their own costs.
In setting out their reasons, VCAT state “There is no question that Dr Kolta was wholly successful in her appeal against the Board’s decision” and that there is a decided law that this point is relevant when awarding costs. VCAT outlined the reasons that Marian won her appeal against the Board’s decision not to grant her endorsement as a clinical psychologist. In doing so, VCAT found that the Board relied "upon a narrow application of the registration and endorsement criteria". In hearing the case for costs, VCAT considered that the Board’s decisions of 2010 and 2020 not to grant Dr Kolta's endorsement were not reasonable when they were made.
There is an expectation generally in tribunals and courts that people with cases being heard and costs matters, will negotiate and be reasonable to try to reach an agreement before there are costly hearings. This is to save the parties further costs and the stress of ultimately having to appear in court or a tribunal, and it saves the further expenses of the publicly funded courts and tribunals.
VCAT has detailed the reasonableness of Marian’s approach when applying for costs to be paid by the Board. They report an offer from Marian to the Board for a reduced costs payment to be made, which was less than her actual costs. The offer for reduced costs was made on 17 August 2022 with a fourteen-day expiry date. The Board reportedly made no specific response to the offer. It is clear from the judgement that Marian had made every attempt possible to negotiate a costs agreement.
In contrast, VCAT was critical of the Board as a “model litigant”. Governments, their departments and agencies have an obligation when involved in legal matters to act as a model litigant. That means they must uphold the highest ethical and professional standards by acting honestly and fairly, to resolve the dispute as quickly as possible. In reading the whole judgement of both decisions made by VCAT, there are significant issues raised by the Tribunal about the Board’s behaviours both when considering the original applications by Marian and throughout the recent proceedings.
VCAT, in their reasons, explain that Marian’s application for costs to be paid by the Board was, in large part, because she pursued the matter to the tribunal in the public interest, and the tribunal agreed that a decision by VCAT was in the public interest.
There have been significant learnings from this case for the AAPi legal team and the Board. We will be considering all the details of the VCAT judgments over the coming weeks and what the next steps will be for us to take to advance the equity of access for all Australians to all psychologists.
Substantial equivalence is just one facet of our legal work, and now this matter is settled, we look forward to providing you with a promising legal update very soon.
Again, it is with much gratitude to Marian for her persistence under ongoing stressful proceedings, that we have been able to share with you this outstanding good news in this long battle.