The nation’s tax office has been accused of hiring psychiatrists to diagnose and even coerce complainants during legal disputes. Crikey’s freedom of information requests and interviews reveal a worrying culture.
The Australian Taxation Office has been accused of sending employees to “hired assassin” psychiatrists to silence dissent, discredit whistleblowers and terminate their employment. Taxation professionals say the ATO has not only ignored calls for tighter regulation of these powers but appears to have intensified its use of psychiatry to label taxpayers they are in legal dispute with as “high conflict people”.
Crikey has obtained information under freedom of information about psychiatric seminars rolled out last month to ATO legal and HR managers by psychiatrist Dr Kipling Walker from the National Health Group. An email exchange between Dom Sheil — a senior principal lawyer in the ATO, who oversees compensation for taxpayers — and Dr Walker reveals the arrangement. Sheil writes:
Here is a link to the website I mentioned on dealing with personality disorders in legal disputes — the High Conflict Institute
I have five of their books on high conflict people (HCPs for those of us in the know). I reckon the best is It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything.
I think you would like the first part of the book that identifies the 4 personality disorders at issue:
Somewhere in the material they also talk about the corpus callosum, amygdala and motor neurons of HCP’s. That’s very cerebral stuff (pardon the pun) might be of interest to you as a brain specialist!
Tony Greco, the senior tax advisor for the Institute of Public Accountants, tells Crikey it’s wrong to label taxpayers who challenge ATO decisions. “Under the self-assessment system the ATO have rights to challenge an assessment but so do taxpayers. The tax office doesn’t like losing but they should not label taxpayers who are merely exercising their rights under the law,” he said.
Steve Davies, the founder of OZloopwho is active in the open government sphere, says the actions of the ATO lawyer mirror the adversarial nature of the legal profession. “[It] provides a mechanism to label employees who object to the bullying as ‘high conflict people’ with personality disorders,” he told Crikey.
“The perspective being advocated medicalises conflict and in doing so provides a mechanism for ATO lawyers and HR staff to mandate psychiatric intervention where they lack the medical qualifications to make such judgments. This gives rise to a direct conflict of interest.”
In November 2012 the House Standing Committee on Education and Employment tabled a report into bullying, finding the reports of public sector cases “particularly concerning”. The committee accepted submissions from aggrieved public servants that the fitness for duty test or the mental health referral powers that enable the Commonwealth and its agencies to compel/direct employees to attend a medical examination with a psychiatrist is being used “against workers who are allegedly not performing their duties” and to “intimidate or further bully workers who made complaints about workplace bullying or other working conditions”.
The Committee was not persuaded by the claims of Annwyn Godwin, the Public Service Commission’s merit protection commissioner, that the review powers available to public servants provide “sufficient safeguards” and that the referral powers have been “exercised responsibly” or “in good faith”. And the committee was not convinced by the justifications of Stephen Sedgwick, the Australian Public Service commissioner, that the “referral powers provide agencies with a flexible tool that allows them to manage genuine cases of illness, including mental illness”.
Law and public policy expert JA James from APSbullying.com was the first to publicly articulate the Commonwealth’s use of compulsory psychiatric referrals against employees in 2011. She examined the literature behind “pathologising” determined litigants in the paper The Commonwealth’s Cry of ‘Vexatious Litigant’.
“There is a trend in the Commonwealth in misusing labels such as ‘vexatious’ or ‘querulous paranoia’ against genuine litigants and complainants to devalue and dismiss their claims with the intent of preventing the legitimate exercise of their legal and policy rights,” she told Crikey. “In some cases, such pathologising by Commonwealth lawyers is based on discredited literature from the late 1800s.”
Stephen Strelecky is a former Jewish ATO officer who won a very public compensation case last year against the ATO over anti-Semitic remarks made by a colleague in the ATO’s Box Hill branch. He complained to management about the abuse and requested a transfer out but managers refused. One day Strelecky told his manager the abuse was continuing and he was feeling stressed because they would not transfer him or the offender out of the area. The ATO responded by referring Strelecky to eight psychiatric assessments over a two-year period.
Strelecky’s case also draws parallels with the Serene Teffaha case, the whistleblower that blew the lid off the ATO’s “tick and flick” culture of determining taxpayer objections. Teffaha, a senior lawyer engaged as a tax technical specialist, was also not granted a transfer out of her work area where she was being bullied. ATO officers referred her to a psychiatrist — as revealed by documents obtained by Crikey — within two weeks of lodging her complaint, without her knowledge. Both Strelecky and Teffaha complained to Assistant Treasurer David Bradbury, who has parliamentary responsibility for ATO administrative matters. Bradbury has never responded to them.
Strelecky would not respond to Crikey questions due to a confidentiality clause in his settlement agreement with the ATO. But a source who witnessed the ATO abuse of Strelecky told Crikey: “He was referred to five different psychiatrists who were nothing more than hired assassins.
“The system could work properly if the referral is done in good faith and a plan to get the employee back to work is negotiated successfully. But it doesn’t work like this and in reality there is collusion between the psychiatrist and the ATO. One of his original psychiatric assessments recommended he return to work. It was subsequently altered to suit the ATO view that he not return to work. This could only have been done after verbal communication between the parties.”Last year Strelecky finally received an apology from Shane Reardon, first assistant ATO commissioner. The letter obtained by Crikey states:
“Personally, I am very sorry that your employment with us got to this point. Let me be very clear in saying that anti-Semitism is never acceptable and I understand you as a Jewish person would be particularly sensitive to such behaviour.”
In a bizarre twist, the worker that abused Strelecky was provided with a generous taxpayer-funded redundancy package to exit his employment.
Three other senior ATO staff have spoken with Crikey but only on the condition of anonymity. Two of them described an experience of being referred to an ATO psychiatrist where they were verballed to make “confessions” that they are adulterous when, in fact, both are happily married. And despite not giving their informed consent, the psychiatrist still went ahead and did the intrusive assessment. One other is refusing to attend a psychiatric assessment and will be taking legal action against the ATO.
Teffaha is now using her legal skills to help others in her predicament. “A number of public servants have reached out for my help,” she said. “The mental health referral powers are being used against professionals such as auditors, economists and IT specialists to distort their reactions and drive them out of the organisation. Taxpayers would not be reassured to know the ATO is being run like a mental health facility, with its lawyers as its resident doctors and its employees as its admitted patients.”
Dr William Wilkie, a prominent psychiatrist and author, believes there are corrupt psychiatrists plying their trade with government agencies. “Enforced referral to a psychiatrist or psychologist may be used to intimidate and discredit whistleblowers by assigning negative diagnostic labels,” he said in a statement.
“A whistleblower may be wrongly described as someone with a personality disorder whose unwillingness to tolerate corruption originates in an intolerance for ambiguity. Or perhaps a whistleblower is said to have a form of paranoia. I advise whistleblowers wrongly labeled as paranoid not to tolerate this. Paranoia cannot be diagnosed unless delusions have been demonstrated.”
Dr Wilkie’s assessment is supported by Susie Rotch, a psychologist and psychotherapist with extensive experience in clinical practice and research. She told Crikey: “Whistleblowers are placed in a pernicious double bind. If they attend the psychiatric appointment they are likely to be diagnosed as mad; if they don’t attend then they are non-compliant and may be disciplined for being bad.
“The person who does have genuine psychological problems will often welcome a referral (through appropriate channels) to a helping professional. Of course the whilstleblower will not. The whistleblower knows that a referral under these circumstances to a psychiatrist is a double bind and a gross abuse of organisational and medical power.”
Garth Eaton, chairman of the Australian Justice Tribunal, says as long as the practice of paying expert witnesses for reports remains in force, government agencies like the ATO “will continue to foster miscarriages of justice that destroy innocent lives”. The AJT wants to incorporate a “public fund” to engage consultants to furnish genuinely independent expert reports which “would counter the reports emanating from highly paid government appointees”.
Steve Davies added: “The misuse of psychiatry and the willing participation of these ‘experts’ in the abuse reveals severe cultural and systemic issues not just within the Australian Public Service but in the bodies that regulate the conduct of medical practitioners and the silence of the Australian Human Right Commission on this issue. These practices strike at the heart of open government and decency in public administration.”
JA James has argued the mental health referral powers are incompatible with the common law requirement of ‘informed consent’, human rights standards and numerous legislative and regulatory requirements, including the Fair Work framework, whistleblower protections under the Public Service Act and privacy and administrative law benchmarks.
Comment was sought from the ATO on all aspects of this story. They declined the offer.