The appellant, a psychologist, successfully appealed a decision of two counts of unprofessional conduct on the basis that the reasons provided in the prior appeal decision were inadequate. Not only were the reasons void of any explanation for the findings of professional conduct, but there was no line of analysis within the reasons that could have reasonably led to the ultimate conclusion.

23. November 2010 0

Administrative law – Decisions of administrative tribunals – College of Psychologists – Psychologists – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Investigations – Evidence – Failure to provide reasons

Sussman v. College of Alberta Psychologists, [2010] A.J. No. 1157, 2010 ABCA 300, Alberta Court of Appeal, October 13, 2010, J.E.L. Côté, J. Watson and M.B. Bielby JJ.A.

During an acrimonious divorce, the husband made a formal complaint to the College of Alberta Psychologists (the “College”) that the psychologist, who was treating his estranged wife, failed to maintain: (a) adequate records and (b) an appropriate professional relationship with her. The patient was seeking therapy sessions from the psychologist. The patient herself never complained about the psychologist’s treatment or conduct. The Hearing Tribunal (“Tribunal”) dismissed the count that the psychologist failed to create and maintain adequate records but found the psychologist guilty of failing to maintain an appropriate professional relationship with his patient. Both the College and the psychologist appealed the Tribunals decision to the Appeal Panel. The Appeal Panel allowed the appeal and found the appellant guilty of inadequate record keeping but dismissed the psychologist’s appeal from the adverse finding on having an inappropriate relationship. The psychologist appealed the decision of the Appeal Panel to the Alberta Court of Appeal.

The parties agreed that the Appeal Panel owed deference to the Tribunal as to fact finding. The Court found that whether it applied the correctness or reasonableness standard to the Appeal Panel’s decision need not be answered directly since the Tribunal did “fact find” and the Appeal Panel accepted the evidence of the psychologist, which seemingly was accepted by the Tribunal.

Regarding whether the psychologist’s records were adequately maintained, the Appeal Panel relied on Standards of Practice 11, which outlines requirements concerning psychologist’s records. The Court of Appeal, while acknowledging that the interpretation of the Standards of Practice clearly falls within the expertise of both the Tribunal and Appeal Panel, allowed the appeal on the basis that the Appeal Panel did not provide any explanation for its finding of misconduct. The Court of Appeal held that by interpreting any departure from Standards 11 as unprofessional conduct, eliminates the Appeal Panel’s discretion to determine whether the conduct reached the point of being a contravention and was therefore inconsistent with College Guidelines. The Court of Appeal applied similar reasoning to the Appeal Panel’s finding that the psychologist had an inappropriate professional relationship with his patient. The Court of Appeal allowed the psychologist’s appeal and quashed the finding of the Appeal Panel on the two counts of unprofessional conduct.

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