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[2015] QCAT 142
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2015-04-23
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
[1] On 15 April 2015 the Tribunal published a decision that the parties may be legally represented in these proceedings. These are the Tribunal's reasons for that decision.
[2] On 27 January 2015 the Medical Board of Australia acting through the Queensland Registration Committee determined to grant Dr Vinay Gupta limited registration under the Health Practitioner Regulation National Law to fill an area of need in a specialist position in psychiatry at the Townsville Hospital and other secondary locations, subject to certain conditions. Dr Gupta has applied to the Tribunal for a review of that decision on the basis that certain of the conditions are unwarranted and unjustified.
[3] At a directions hearing on 27 March 2015 the Board indicated that it would seek leave to be represented by lawyers in the proceeding. It was directed to file its application for legal representation with any affidavit material in support and any submissions by 10 April 2015.
[4] Dr Gupta was directed to file any submissions in response by 17 April 2015.
[5] It will be noted that the decision of the Tribunal was made after the Board filed its application for leave to be represented; but before the time allowed to Dr Gupta to file submissions in response had expired.
[6] This occurred because this is a matter in which the parties are entitled as of right to be legally represented. The Tribunal's leave is not required.
[7] The Tribunal itself has identified that this is the correct position. It was not a matter raised by the Board. The Tribunal has given no consideration to the Board's substantive application or material filed in support of it.
[8] Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009 provides that the main purpose of s 43 is to have parties represent themselves unless the interests of justice require otherwise.
[9] Section 43(2)(b)(ii) provides that a party may be represented in a proceeding by someone else if the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person.
[10] Section 43(2)(b)(iv) provides that a party may be represented in the proceeding by someone if the party has been given leave by the Tribunal.
[11] No doubt, it was thought by the Board that this was a proceeding in which, in order to be represented, it required the Tribunal's leave because the proceeding involves a practitioner's application for the review of a decision concerning his registration, rather than it being a disciplinary matter having been referred by the Board to the Tribunal.
[12] Until recently, that was a sound distinction. Parties to reviews of registration decisions were not entitled to legal representation as of right. Parties to disciplinary referrals were, by operation of section 43(2)(b)(ii).
[13] However, since the commencement of the Health Ombudsman Act 2013 (Qld) on 1 July 2014, it is no longer of sound distinction.
[14] The QCAT Act does not define 'disciplinary action' for the purpose of s 43(2)(b)(ii). However, the Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009, in addressing the Bill's consistency with fundamental legislative principles as required by the Legislative Standards Act 1992, said in respect of clause 43 of the Bill, that:
The provision does recognise that there are certain types of matters and parties where natural justice would generally require an entitlement to representation. Consequently, the Bill provides that a party may be represented if the party is a ... party to a disciplinary proceeding. (Emphasis added)
[15] Part 12A of the Health Practitioner (Disciplinary Proceedings) Act 1999 governed proceedings in QCAT brought before the Tribunal relating to persons registered as health practitioners under the National Law.[1]
[16] An "NRAS disciplinary proceeding" was defined as a proceeding before the Tribunal for an "NRAS disciplinary matter".
[17] There were 3 matters which were defined as NRAS disciplinary matters.[2] First, were matters referred to the Tribunal under s 193 of the National Law. Section 193 required a National Board to refer to the Tribunal any matter in which it reasonably believed that a practitioner had behaved in a way that constituted professional misconduct, or that the practitioner's registration had been obtained because false or misleading information or documentation had been given to the Board. Section 193 also required a National Board to refer a matter to the Tribunal if a panel established by the Board required the matter to be so referred.
[18] Secondly, NRAS disciplinary matters were defined to include reviews of reviewable decisions under part 8, division 13 of the National Law. Part 8, division 13 includes section 199 which provides that a person who is subject to any of the decisions set out in that section (the appellable decisions) may appeal against the decision to the appropriate responsible Tribunal. Those decisions include decisions about registration, such as a refusal of registration or a refusal to renew registration, and a decision of a National Board to impose a condition on a person's registration.
[19] Therefore, such appellable decisions about registration matters were decisions under part 8, division 13. However, they were not "reviewable decisions" made under part 8, division 13 for the purposes of the definition of an NRAS disciplinary matter. A "reviewable decision" was defined, also by s 398B to mean a decision mentioned in s 199(1) of the National Law that is made under part 8 of that law.
[20] Part 8 of the National Law deals with health, performance and conduct. Conditions might be imposed by a national board exercising powers under part 8.[3] However, a decision to grant, or renew, registration, or to impose conditions upon the granting or renewal of a practitioner's registration, are not decisions made under part 8 of the National Law. Those decisions are made under part 7.[4]
[21] The third category of matters which satisfied the definition of an "NRAS disciplinary matter" under s 398B were reviews of Tribunal review decisions under part 12A, division 3. Registration decisions of national boards did not satisfy that limb of the definition.
[22] Therefore, reviews of such decisions about registration matters were not NRAS disciplinary proceedings because they were not about NRAS disciplinary matters.
[23] The distinction was of some consequence.
[24] Under part 12A, division 4, section 398K required that for NRAS disciplinary proceedings the Tribunal be constituted by 1 Judicial Member. Under s 398L the Tribunal in conducting a hearing of an NRAS disciplinary matter was required to be assisted by 1 assessor chosen from the public panel of assessors and 2 assessors from the professional panel of assessors for the practitioner's profession.
[25] Whilst section 398C conferred jurisdiction upon the Tribunal to review reviewable (appellable) decisions under section 199 of the National Law, it was not required to be constituted by a Judicial Member, or to be assisted by assessors in conducting such reviews.
[26] For the purpose of s 43 of the QCAT Act, NRAS disciplinary proceedings were proceedings 'relating to the taking of disciplinary action against a person' in respect of which they were entitled to be represented under s 43(2)(b)(ii). Other review proceedings were not, and required leave to be obtained under s 43(2)(b)(iv) in order for the parties to be represented.
[27] Matters are treated differently under the Health Ombudsman Act 2013. The distinction between disciplinary proceedings and other review proceedings has been removed.
[28] The Health Ombudsman Act defines a "disciplinary proceeding" to mean a proceeding for which QCAT has jurisdiction under s 94(1) or (2) of that Act.
[29] Section 94(1) confers jurisdiction upon QCAT: to review decisions of the Health Ombudsman to take immediate registration action in relation to a practitioner; to review decisions of the Health Ombudsman to issue an interim prohibition order to a practitioner; to hear matters referred to QCAT by the director of proceedings on behalf of the Health Ombudsman under section 103 of the Health Ombudsman Act; and to hear applications under s 110 of the Health Ombudsman Act to change or remove a condition imposed upon a practitioner's registration by QCAT.
[30] Section 94(2) reflects the jurisdiction conferred upon QCAT under the National Law to hear matters referred to QCAT by a National Board under s 193B of the National Law, and to review appellable decisions under s 199 of the National Law.
[31] Thus all those matters, and most particularly for present purposes the review of all appellable decisions under s 199 of the National Law, are now defined to be disciplinary proceedings for the purposes of the Health Ombudsman Act.
[32] Section 97 of the Health Ombudsman Act requires QCAT to be constituted by 1 Judicial Member for a disciplinary proceeding.
[33] Section 126 of the Health Ombudsman Act requires QCAT in conducting a hearing of a disciplinary proceeding relating to a registered health practitioner to be assisted by assessors chosen from the public and professional panels of assessors established under that Act.
[34] Therefore, the Tribunal must now be constituted by a Judicial Member and be assisted by assessors when hearing reviews of appellable decisions identified in s 199 of the National Law because those matters are all now defined to be disciplinary proceedings.
[35] Another consequence of those matters all now being disciplinary proceedings is that, as the Explanatory Memorandum to the QCAT Bill makes clear, they are also matters of the type contemplated by s 43(2)(b)(ii) as being ones in which a party would be entitled to representation as of right.
[36] For these reasons, the Tribunal's leave is not required in order for a party to be represented by someone in proceedings concerning the review of and appellable decision identified in s 199 of the National Law.
[37] It is for these reasons that the Tribunal's decision of 15 March 2015 was that the parties may be represented; not that they have leave to be represented.
[1] Health Practitioner (Disciplinary Proceedings) Act 1999 s 398A. See also the definitions of "NRAS registrant" and "NRAS registered health practitioner" in the Schedule to the Act.
[3] For example imposing a condition by way of immediate action under s 156 or imposing a condition under s 178(2)(c).
[4] See sections 82 and 83 in respect of decisions concerning granting or refusal of registration and the imposition of conditions; and s 112 in respect of decisions concerning renewal of registration, with or without conditions.
Gupta
Medical Board of Australia [2015] QCAT 142