PROCEDURE - OCCUPATIONAL REGULATION - MEDICAL - REGISTRATION - REVIEW OF BOARD DECISION - FRESH EVIDENCE - where hearing on papers has concluded - where applicant's qualifications for registration have changed since the hearing - whether the Tribunal should reopen the hearing

Health Practitioners Regulation National Law Act 2009, ss 57, 58

Queensland Civil and Administrative Act 2009, ss 4, 19, 20, 24, 32

Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128

[1] Dr Attudawage qualified as a medical practitioner in Sri Lanka in 1993. In January 2004, she registered to practice in Australia. Shortly after that, the Post Graduate Institute of Medicine of the University of Colombo awarded her specialist qualifications to practice in General Medicine. She has worked in area of need positions in New South Wales and Queensland since June 2007.

[2] On 1 July 2010, a national scheme commenced which regulates medical practitioners in participating states including Queensland. One aspect of the scheme is a national Register of Practitioners. In effecting the transition from a state based to a national registration system, the Board developed a transition plan with the objective of registering practitioners under national categories that reflected their former status and qualifications.

[3] When that scheme commenced, Dr Attudawage held registration in both New South Wales and Queensland under the former state schemes. In New South Wales, she held general registration. In Queensland she held general and special purpose registration to allow her to practice in an area of need position as a deemed specialist in medicine at Redland Hospital. Initially, the Board applied the transition plan to record Dr Attudawage in the Register of Practitioners for both general and specialist registration in the specialty of General Medicine.

1. At that time, Dr Attudawage had not yet completed her requirements for specialist recognition with the Royal Australasian College of Physicians (RACP) and the Australian Medical Council. The Board's position is that this rendered her ineligible for registration as a specialist and that to transition her to specialist registration under the national scheme was an error. On 9 December 2010, it decided to void the registration as a specialist in the Register of Practitioners and impose a condition on her general registration[1].

[5] In March 2011, the Tribunal stayed that decision, pending the outcome of these proceedings. The effect of the stay was to restore her registration as a specialist.

[6] In August the Tribunal panel convened an on the papers hearing[2] to consider Dr Attudawage's application to review the Board's decision. Before the Tribunal had made its decision, the Royal Australasian College of Physicians assessed Dr Attudawage as eligible for recognition as a specialist in General Medicine and as eligible to apply for Fellowship of the RACP.

[7] Dr Attudawage has now applied to the Board for specialist registration. The Board has indicated that her application is complete and can be finalised quickly. Apparently, it accepts she is eligible[3] to make this fresh application and that her qualifications meet the requirements for specialist registration.[4] However, it says that it cannot process the application until these proceedings have concluded. Dr Attudawage is concerned about suffering some disadvantage between the Tribunal publishing its decision (if it is against her) and the Board processing the fresh application.

[8] Dr Attudawage has been caught in a catch 22. The Board says that it cannot process her fresh application for specialist registration because she already holds specialist registration. She holds that registration because the Tribunal stayed the Board's decision to cancel it. The Board appears to accept that she now qualifies for specialist registration.

[9] The Tribunal had not yet delivered its decision. After Dr Attudawage provided this further evidence to the Tribunal, her representatives asked the Tribunal to stay the review pending the Board finalising the fresh application. The Board urged the Tribunal to give its decision, presumably without reference to the new evidence, because the issues raised by Dr Attudawage's case are of relevance to other registration decisions made applying the transition plan. Apparently, neither party adverted to the possibility that the Tribunal could take into account Dr Attudawage's change of circumstances in making its decision.

[10] In reviewing the Board's decision to cancel Dr Attudawage's registration as a specialist, the Tribunal must decide the review in accordance with the Health Practitioner National Law, under which the Board made the decision. It has all the functions of the Board for the decision under review.[5] The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide it by way of a fresh hearing on the merits.[6] It may confirm the Board's decision or set it aside and either substitute its own decision or return it for reconsideration by the Board with any directions it considers appropriate.[7] It is a new determination of the rights of Dr Attudawage applying the law at the time of the rehearing and according to the evidence offered at the time of the rehearing.

[11] Although there has been a hearing on the papers, the Tribunal has not yet made its decision. The Tribunal can reconvene the panel at short notice for further hearing, whether oral or on the papers. Given the Tribunal is seized of the matter and the central importance of Dr Attudawage's change of circumstances, the proper course is to reopen the case, to formally receive and consider evidence of her current qualifications, before the Tribunal makes its decision. The Tribunal may do so if it is necessary to attain justice.[8]

[12] This would allow the Board to indicate its position in relation to Dr Attudawage's registration as a specialist in light of her change of circumstances and to make submissions about what, if any, conditions might be appropriate to impose on her registration.

[13] An object of the QCAT Act is to enhance the quality and consistency of decisions made by decision makers, such as the Board.[9] It will further that objective if, in making its decision, the Tribunal canvasses the issues raised by Dr Attudawage's case both at the time of the original decision and after her change of circumstances.

[14] The parties will have the opportunity to make further submissions, whether written or oral. They are invited to propose agreed directions for this to occur. If the parties do not file agreed directions within 7 days, the Tribunal will make directions for the further conduct of the review.

1. [1] The condition has since been removed and the decision to do that is not before the Tribunal.

[2] Queensland Civil and Administrative Tribunal Act 2009, s 32(2).

[3] Health Practitioners Regulation National Law Act 2009, s 57.

[4] Health Practitioners Regulation National Law Act 2009_,_ s 58.

[5] Queensland Civil and Administrative Tribunal Act 2009, s 19.

[6] Queensland Civil and Administrative Tribunal Act 2009, s 20.

[7] Queensland Civil and Administrative Tribunal Act 2009, s 24.

[8] _Londish v Gulf Pacific Pty L_td [1993] FCA 470; (1993) 45 FCR 128 at 139. As the Tribunal has not made its decision, the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Part 7 Division 7), which provide for reopening a proceeding after decision, do not apply.

[9] Queensland Civil and Administrative Tribunal Act 2009 s 4 (d).