Expert evidence deficiencies and disciplinary proceedings

Hicksons Health Law Blog recently highlighted a matter which came before the tribunal on two occasions.

In the first decision, the Psychology Board of Australia alleged that in two passages of her expert evidence before the Family Court of Australia, the psychologist engaged in conduct which constituted unsatisfactory professional conduct, in that it was conduct of a lesser standard than that which might reasonably be expected of her by the public or her professional peers: Psychology Board of Australia v Tubaro [2014] QCAT 303.

One aspect of the Board’s complaint was that when giving evidence the psychologist was asked questions about a complaint to the Board regarding her written report and answered (incorrectly) that the matter remained under investigation. However that was not pressed at the hearing and the tribunal found that her offer in evidence to provide the investigators report to the court demonstrated that she was prepared to expose the full range of the complaints against her: [32].

The second decision focused on costs: Psychology Board of Australia v Tubaro (No 2) [2015] QCAT 141.

Although neither decision dealt in detail with the content of the initial complaint, the first decision highlights the scope for disciplinary attention to aspects of expert evidence. The investigators report had commented adversely on a number of aspects of the expert’s report which the tribunal at [8] summarised as follows:

  • The report contained minor factual errors which should not have occurred when so much previous documentation had been provided to Ms Tubaro;
  • The referral question was not clearly stated, nor was it accurately addressed;
  • The assessment procedures were methodologically (sic) weak, narrow and poorly described;
  • The assessment conclusions and interpretations were not soundly based and lacked clear reference within the body of the report to evidence upon which they were based;
  • Ms Tubaro’s stated practice of drawing conclusions from a range of sources was professionally inappropriate and unethical and the report should contain an assessment of all relevant issues, include findings in a summation and conclusion and then make recommendations based upon what is contained in the report;
  • The report suffered from a lack of logical structure;
  • The report failed to address what appeared to have been the central reasons for the assessment and report, the majority of it appearing to be a revamp of information previously contained in court and other documents. As such, it was seriously lacking in utility and meaningfulness.