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[2021] QCA 18
General information, not legal advice.
Court of Appeal (Qld)
2021-02-12
Sofronoff P and Fraser and Mullins JJA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Hanson & Ors v Walters [2021] QCA 18
PARTIES: JACKIE HANSON / (first appellant) / MICHELE GARDNER / (second appellant) / METRO NORTH HOSPITAL & HEALTH SERVICE / (third appellant) / v / DARREN LESTER WALTERS / (respondent)
FILE NO: Appeal No 8806 of 2020 / SC No 10396 of 2019
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 216 (Ryan J)
DELIVERED ON: 12 February 2021
DELIVERED AT: Brisbane
HEARING DATE: 10 November 2020
JUDGES: Sofronoff P and Fraser and Mullins JJA
ORDERS: Appeal dismissed with costs.The appeal record books filed on 4 November 2020 be placed into sealed envelopes and not be opened, except with the leave of the court or a judge.
CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OTHER MATTERS – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the letter notifying the respondent of his suspension stated that his suspension would remain in place until an investigation could be undertaken and the outcome had been considered – where the primary judge found that the failure to specify an end date in the suspension notice contravened the requirement under s 137(2)(a) of the Public Service Act 2008 (Qld) – where the primary judge erred in construing s 137 of the Public Service Act 2008 (Qld) – whether the suspension notice described the event on which the suspension would end in terms that made the end of the suspension ascertainable by reference to the event / ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – ORDERS TO QUASH DECISION – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the primary judge exercised discretion under s 30(1)(a) Judicial Review Act 1991 (Qld) to quash the suspension decision from the date it was made – whether the primary judge erred by considering inadmissible evidence – whether the primary judge erred in quashing the suspension decision from the date it was made / ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the decision to suspend the respondent was made under the Credentialing Procedure for practitioners in Metro North Hospital and Health Service – where the Credentialing Procedure was made pursuant to a statutory instrument that satisfied s 7(2) Statutory Instruments Act 1992 (Qld) – where the Credentialing Procedure results in practitioners being held out by the relevant Health Service as qualified to treat a patient in the area of clinical practice for which they are credentialed at the relevant public health facility – whether the Credentialing Procedure was a standard or a guideline of a public nature under s 7(3) Statutory Instruments Act 1992 (Qld) / Judicial Review Act 1991 (Qld), s 30 / Public Service Act 2008 (Qld), s 25, s 99, s 137, s 189 / Statutory Instruments Act 1992 (Qld), s 7 / Attorney-General (Qld) v Van Dessel [2007] 2 Qd R 1; [2006] QCA 285, considered / Boyy v Executive Director of Specialist Operations of Queensland Corrective Services [2019] QSC 283, considered / Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 94 ALJR 818; [2020] HCA 29, cited / Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48, cited / The Proprietors – Rosebank GTP3033 v Locke [2016] QCA 192, considered
COUNSEL: A L Wheatley QC, and A Psaltis, for the appellants / J E Murdoch QC, and S T Farrell, for the respondent
SOLICITORS: G R Cooper, Crown Solicitor for the appellants / Franklin Athanasellis Cullen for the respondent
SOFRONOFF P: I agree with the reasons of Mullins JA and with the orders proposed.
FRASER JA: I agree with the reasons for judgment of Mullins JA and the orders proposed by her Honour.
MULLINS JA: The appellants seek to overturn orders made on 20 July 2020 as a result of the judgment in Walters v Hanson & Ors [2020] QSC 216 (the reasons) which pursuant to the Judicial Review Act 1991 (Qld) (JRA) quashed two decisions from the dates on which they were respectively made. The first decision made by the first appellant on 28 August 2019 (the suspension decision) was to suspend the respondent Professor Walters from duty pursuant to s 137 of the Public Service Act 2008 (Qld) (the Act) and the second decision made by the second appellant on 3 September 2019 (the credentialing decision) was to suspend the respondent’s scope of clinical practice applicable to the third appellant, Metro North Hospital & Health Service (MNHHS), on the basis his employment with MNHHS was currently suspended.
In relation to the suspension decision, a key question before the primary judge was whether s 137 of the Act required the specification of an end date for the suspension in the notice of the suspension decision. The primary judge concluded (at [126] of the reasons) that s 137(2) of the Act required “the period of the suspension” to be “stated” by reference to dates or in terms of its duration and, on that basis, found the notice to Professor Walters did not comply with s 137(2).
The credentialing decision was made pursuant to the Credentialing Procedure issued by the MNHHS and entitled “Credentialing and Defining Scope of Clinical Practice for Medical Practitioners and Dentists in Metro North Hospital and Health Service Procedure PROC087”. A key question before the primary judge in relation to the credentialing decision was whether it was a decision under an enactment which enabled Professor Walters to apply for relief under the JRA. The primary judge concluded (at [159] of the reasons) that the Credentialing Procedure is a standard or guideline of a public nature and was probably also a rule, and was thus a relevant enactment for the purpose of the JRA. On the basis the credentialing decision was reviewable, the primary judge concluded (at [189] of the reasons) that the requirements for a suspension under s 5 of part 4 of the Credentialing Procedure were not fulfilled and the credentialing decision was therefore not authorised.
The grounds of appeal
There are two aspects to ground 1 of the appeal that concerns the suspension decision. Ground 1(a) contends that the primary judge erred in construing s 137 of the Act, as on its proper construction the requirement to state when the suspension ends includes an event or particular circumstances. Ground 1(b) contends that the primary judge erred in holding the suspension decision failed to comply with the requirements of s 137 of the Act due to the inclusion of the phrase “unless otherwise determined”, as that phrase did not render the suspension decision invalid, because it was consistent with the statutory discretion in s 137(9) of the Act or not otherwise material.
If the appellants do not succeed on ground 1, ground 2 of the appeal relates to the date from which the suspension decision should have been quashed. On the basis the chief executive held the reasonable belief required by s 137 of the Act, the appellants assert the suspension decision should have been quashed as from the date of the judgment given by the primary judge and not as from the date of the suspension decision.
There are also two aspects to ground 3 of the appeal that relates to the credentialing decision. Ground 3(a) contends the primary judge erred in holding that the Credentialing Procedure was a statutory instrument pursuant to s 7 of the Statutory Instruments Act 1992 (Qld) (SIA), as the Credentialing Procedure does not satisfy s 7(3) of the SIA. Ground 3(b) contends that the primary judge erred in holding that the required circumstances pursuant to s 5 of part 4 of the Credentialing Procedure were cumulative, when on a proper construction a practitioner’s scope of clinical practice would be immediately suspended, if either of the required circumstances occurred, being the suspension of the practitioner’s registration by Australian Health Practitioner Regulation Agency (AHPRA) or the suspension of the practitioner’s employment with the public health facility.
Relevant legislation
“(1) The chief executive of a department may, by notice, suspend a public service officer from duty if the chief executive reasonably believes the proper and efficient management of the department might be prejudiced if the officer is not suspended.
(2)The notice must state—
(a)when the suspension starts and ends; and
(b)the remuneration to which the officer is entitled for the period of the suspension under subsection (5); and
(c)the effect that alternative employment may, under subsections (6) and (7), have on the entitlement.
(3)However, before suspending the officer, the chief executive must consider all alternative duties that may be available for the officer to perform.
(4)The period of the suspension can not be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice.
(5)During the period of the suspension the officer is entitled to normal remuneration, less any amount earned by the officer from alternative employment that the officer engages in during the period.
(6)For subsection (5), alternative employment does not include employment if—
(a)the employee was engaged in the employment at the time of the suspension; and
(b)the officer’s engaging in the employment was not in contravention of—
(i)this Act; or
(ii)a standard of conduct applying to the officer under an approved code of conduct under the Public Sector Ethics Act 1994; or
(c)a standard of conduct, if any, applying to the officer under an approved standard of practice under the Public Sector Ethics Act 1994.
(7)The deduction under subsection (5) must not be more than the amount of the officer’s normal remuneration during the period of the suspension.
(8)The continuity of the officer’s service as a public service officer is taken not to have been broken only because of the suspension.
(9)The chief executive may cancel the suspension at any time.
(10)This section does not limit or otherwise affect section 189.”
“Section 137(1) of the Public Service Act 2008 (the Act) provides that the Chief Executive may suspend a public service employee from duty if the Chief Executive reasonably believes the proper and efficient management of the department might be prejudiced if the officer is not suspended.
I reasonably believe that the proper and efficient management of MNHHS may be prejudiced if you are not suspended for the following reasons:
you are the Director of Cardiology at TPCH;
two of the Complainants are employees who work within the TPCH's Cardiology department;
the serious nature of the concerns, including that they relate to breaches of directions previously provided to you, the PID Act and reprisal action relating to Complaints made by the Complainants that you engaged in bullying, harassment and intimidation of employees creating an unsafe work environment;
MNHHS' obligations to the Complainants under the PID Act to provide protection from reprisal action.
Accordingly, pursuant to section 137(1) of the Act, I have decided to suspend you from duty, effective immediately. In accordance with section 137(2) and (5) of the Act, during the period of the suspension you are entitled to normal remuneration, less any amount you earn from alternative employment that you engage in during the period…
Before making a decision to suspend you I considered all alternative duties that may be available for you to perform. I do not consider that alternative duties are available for you to perform, because of the reasons outlined above, including the concerns that you have breached directions given to you in relation to a matter of which you are already suspended under section 137(1) of the Act.
You are therefore directed not to present yourself in the vicinity of TPCH or any other facility within the MNHHS other than to seek necessary medical treatment or to visit family or friends receiving medical treatment, without prior permission from Ms Bench or myself.
The decision to suspend you from duty under section 137 of the Act is not a predetermination of any outcome and it is very important that you comply with these directions.
Your suspension will remain in place until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered, unless otherwise determined…
I note that in accordance with the Act, you are able to engage in alternative employment. If you do undertake alternative employment during your suspension you are required to advise MNHHS immediately so your pay can be deducted accordingly. Any deduction will not be more than the amount of your normal remuneration during the period of your suspension…
During the period of your suspension you are required to remain ready, willing and able to attend work if required.”
Was the primary judge’s construction of s 137 of the Act in error?
Section 137 of the Act was replaced by insertion of a new s 137 and s 137A by the Public Service and Other Legislation Amendment Act 2020 (Qld) that commenced on 14 September 2020, in order to address the primary judge’s decision as to the formalities of the notice. Despite the amendment of s 137, it remains relevant as between the appellants and the respondent to determine whether the primary judge’s construction of s 137 as it stood when notice was given of the suspension decision was correct.
The primary judge found assistance in Attorney-General (Qld) v Van Dessel [2007] 2 Qd R 1 in construing the Act: see [95]-107] and [126]-[127] of the reasons. Van Dessel concerned the construction of s 15 of the Dangerous Prisons (Sexual Offenders) Act 2003 (Qld) (DPSOA) which provided that a supervision order has effect in accordance with its terms on the order being made or at the end of the prisoner’s period of imprisonment, whichever is the later, and for the period stated in the order. At first instance, a supervision order was imposed “until further order of the Court”. It was held by all members of the court on appeal in Van Dessel that s 15 required a supervision order to operate for a finite period and an order which was expressed to operate until further order of the court did not state a period for the purpose of s 15 of the DPSOA. A period of 20 years was fixed in lieu of the words “until further order of the Court”.
Jerrard JA found, by reference to s 24 of the DPSOA which described the period of a supervision order as a finite period, that the expression “the period stated in the order” in s 15(b) had to be construed as a finite period. Holmes JA (as the Chief Justice then was) stated at [26] of Van Dessel:
“Dictionary definitions of the noun ‘period’ do not, in my view, resolve the construction question, because s. 15(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 contemplates a ‘period’ with a further qualification: that it is capable of being ‘stated’. I do not think one can ‘state’ a period other than by identifying its duration. There is, also, what I consider to be the telling point made by Mr Moynihan for the appellant: that if the legislature had wished to enable imposition of supervision orders for indefinite periods, it could readily have done so by saying as much; as, indeed, it did in respect of continuing detention orders, which, pursuant to s. 13(5)(a), are to be ‘for an indefinite term’. That distinction between the detention order and supervision order regimes is further illustrated by these features: continuing detention orders must be reviewed annually (s. 27) and, if, on such a review the court is not satisfied the prisoner continues to pose a serious danger, must be rescinded (s. 30(5)); in sharp contrast with supervision orders, in respect of which there is no review mechanism, nor provision for their rescission if they are no longer needed. That absence of review suggests that it is when a supervision order is made that the court must attempt to establish the duration for which it is likely to be needed.”
Mackenzie J noted at [44] of Van Dessel that there were competing considerations as to the construction of the reference to “the period stated in the order”, but “the existence of a review mechanism for detention orders and the absence of a review mechanism in respect of supervision orders … points to the conclusion … the court is required to do the best it can to fix a finite period, which must be stated in the order”.
The appellants submit that the text of s 137 of the Act must be considered within the context and purpose of the Act. The main purposes of the Act are set out in s 3 and include to “promote the effectiveness and efficiency of government entities” and “provide for the administration of the public service and the employment and management of public service employees”. One of the means for promoting the purposes of the Act is the articulation of general public service principles that are set out in part 3 of chapter 1 of the Act. Relevantly, management and employment principles are set out in s 25 of the Act. (Under s 99(1) of the Act, the chief executive, in discharging responsibilities under the Act, must observe the management and employment principles.)
The appellants contend the primary judge erred by focusing on s 137(2) of the Act without proper regard to s 137 as a whole. The substantive operative provision is s 137(1) by which the suspension is imposed for a period that cannot be longer than that described in s 137(4), whereas s 137(2) merely provides for the formal requirements for the notice. The appellants therefore submit the formal matters for the notice set out in s 137(2) should be read as subject to all provisions in s 137 which detail the substantive requirements that apply to the suspension. The appellants also submit that the language of s 137(1) and s 137(4) allows the chief executive to suspend an employee for a period necessary to avoid possible prejudice which can be determined by reference to an event or state of affairs and is not limited to a specified date as the end of the period. Had it been intended that the start and end of a suspension period had to be specified by reference to dates, s 137(2) could have easily required the notice to state the start date and the end date for the suspension.
The appellants also rely on the Act being an employment focused statute with an emphasis on fairness and flexibility in contrast to the purpose of the DPSOA considered in Van Dessel and, in particular, the purpose of defining the period of the supervision order that may be imposed under the DPSOA after a prisoner has completed the period of imprisonment. The appellants note that s 137 of the Act provides for suspension from duty of a public service officer in circumstances not involving disciplinary action and provides for a flexible and broad suspension process which can be contrasted with s 189 of the Act which governs disciplinary suspensions.
The appellants also rely on the observations made by Kiefel CJ and Bell and Nettle JJ in considering a different statute in the employment context, namely the 2009 (Cth) (the Commonwealth Act), in [2020] HCA 29 at [14]:
“The stated objects show that the Act is intended to provide fairness, flexibility, certainty and stability for employers and their employees. ‘Fairness’ necessarily has a number of aspects: fairness to employees, fairness between employees, fairness to employers, fairness between employers, and fairness between employees and employers.” (footnote omitted)
In contrast, it is submitted on behalf of Professor Walters that judicial statements concerning the intention of the stated objects of the Commonwealth Act which is not analogous to the Act are of no assistance in construing s 137 of the Act. Professor Walters submits that the power conferred by s 137 of the Act requires the specification of a date or period of duration of the suspension and the utility of s 137 is not compromised by the requirement to specify a date or period of duration. Professor Walters describes the power conferred under s 137 of the Act as extraordinary, as its exercise has the potential to cause significant prejudice to a public service employee against whom it is used and its potency is apparent from the low threshold of the belief required for its engagement. Professor Walters submits that s 137 seeks to strike a balance between the employee’s rights and the need to afford a measure of fairness with the need to ensure efficient management of the department.
Professor Walters submits that s 137(4) is consistent with the proposition that a finite period should be imposed. It is also submitted on behalf of Professor Walters that it is in the nature of a suspension that it has a temporary character which also supports it being for a specified period.
It is common ground that s 137 of the Act must be construed in the context of the provisions and the purposes of the Act. For that reason, the observation relied on by the appellants from Mondelez in respect of the objects of the Commonwealth Act does not assist in the construction of s 137(2)(a) of the Act.
In Van Dessel, the expression “the period stated in the order” which was applicable to a supervision order pursuant to s 15(b) of the DPSOA was construed in the context of the provisions of that Act and particularly the difference in the provisions governing a supervision order and a continuing detention order and the purposes of the regime set up under that Act. That regime is in stark contrast to regulation of the employment and management of public service employees under the Act. Van Dessel is a useful example of the process of statutory construction, but the outcome of the construction of the expression “the period stated in the order” was dependent on the context of the relevant provisions and the purpose of the DPSOA. I therefore consider the outcome of the construction of the particular words in context in Van Dessel does not assist in the construction of s 137(2)(a) of the Act.
As a matter of construction of s 137 of the Act, the notice is required to convey the period of the suspension by stating when the suspension starts and ends. That means the period of the suspension has to be specified in, or ascertainable from, the notice. That is consistent with the exercise required of the chief executive under s 137(4) to select as the period of the suspension that period which is not more than the period the chief executive reasonably believes is necessary to avoid the prejudice referred to in s 137(1), if the officer were not suspended. The commencement of the period was specified in the notice as “immediately” which must be taken as a reference to the date on which the notice was emailed to the respondent. As s 137 does not require specifically that the date of the end of the period of suspension be specified in the notice, there is no difficulty with the end of the period of the suspension being specified by reference to an event, provided the notice describes in clear terms the event that ends the period of the suspension that otherwise complies with the requirements of s 137(4).
What was the effect of the inclusion of “unless otherwise determined”?
“Your suspension will remain in place until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered, unless otherwise determined.”
“The inclusion of the phrase ‘unless otherwise determined’ meant that the applicant could not rely upon the investigation, or the consideration of its outcome, as the touchstone for the determination of the end of the suspension. I do not accept that the phrase ‘unless otherwise determined’ was intended merely to pick up on the power contained in section 137(9) for the chief executive to cancel the suspension at any time. Had the phrase been so intended, I would have expected the notice to have referred to the section (cf its reference to subsections (1), (2) and (5) of section 137). At the least, I would have expected the phrase to have used the word cancelled – echoing the language of section 137(9).”
The appellants contend that the word “determined” did not permit the chief executive to extend the suspension beyond the completion of the investigation referred to in the notice or, in other words, beyond the period necessary to avoid prejudice. The appellants therefore submit the phrase “unless otherwise determined” in the notice of suspension was consistent with the chief executive being able to cancel (or determine) the suspension prior to the completion of any investigation, as contemplated by s 137(9) of the Act.
The appellants’ alternative submission, if those words “unless otherwise determined” gave rise to ambiguity is that the notice of suspension should be read favourably to Professor Walters before it was invalidated as non-compliant. If that approach were adopted, that also supports the phrase “unless otherwise determined” being read by permitting the chief executive only to shorten the length of a suspension and not to extend it.
Because of the power conferred on the chief executive under s 137(9), it was unnecessary for the notice to include a reference to that power, if that were the purpose of the addition of the words “unless otherwise determined”. Because there was no power for the chief executive to extend the existing suspension, the words “unless otherwise determined” could refer only to a decision by the chief executive to bring the suspension to an end at a date earlier than the end of the period of the suspension pursuant to the power conferred by s 137(9). I therefore do not consider that the addition of the words “unless otherwise determined” would have negated the specification of the end of the period by reference to an event that was otherwise unambiguously described.
As the appellants had to succeed on both grounds 1(a) and 1(b) in order to overturn the quashing of the suspension decision, there are no orders that flow from the success of the appellants’ argument in respect of ground 1(b).
Was an error made in quashing the suspension decision from the date it was made?
The date from which the quashing of the suspension decision took effect was a matter within the exercise of the primary judge’s discretion under s 30(1)(a) of the JRA. The appellants can succeed in setting aside the date on which the order setting aside the suspension decision took effect only if there were an error in the exercise of the primary judge’s decision in selecting that date.
For the purpose of the hearing before the primary judge, the parts of Professor Walters’ affidavit dealing with his assertions as to the consequences for him of the suspension were struck out. The primary judge noted (at [201] of the reasons) the submission on behalf of Professor Walters that he had suffered potential losses from the date of the suspension decision and the order made in setting aside the decision should not impede “any consequential claims”. On the basis that the primary judge had found non-compliance with procedures designed to achieve fairness to an employee, even though there was no finding of deliberate non-compliance, and where the decision to suspend Professor Walters had serious tangible and intangible consequences for him, the primary judge concluded (at [203] of the reasons), that the suspension decision ought be set aside from the date on which it was made.
The appellants attempt to argue that by referring to the consequences of the suspension decision for Professor Walters, the primary judge had taken into account evidence that had been struck from his affidavit. That is not a fair characterisation of the primary judge’s reasons. It is apparent from the effect of the suspension decision on Professor Walters’ capacity to perform his professional role, there were likely to have been serious tangible and intangible consequences, as referred to by the primary judge. The primary judge’s conclusion on the likelihood of consequences for the respondent was not based on any specific material, but was open due to the nature of the decision itself.
The appellants seek to draw an analogy between the reasonableness of Ms Hanson’s belief in making the suspension decision at the time it was made and the position of the officers who detained Mr Taylor in immigration detention as an unlawful non-citizen in Ruddock v Taylor (2005) 222 CLR 612. On the basis that s 137(1) of the Act required the chief executive to hold the reasonable belief specified in that provision, the appellants argue that the fact that the notice of the suspension decision based on that reasonable belief did not comply with s 137(2)(a) did not undermine the reasonable belief for the suspension decision at the time it was made.
First, the respondent has succeeded in the challenge to the notice not by impugning the reasonableness of Ms Hanson’s belief but by reliance on the lack of compliance with s 137(2)(a). That was a failure by Ms Hanson to follow the notice requirements that were mandated by s 137 of the Act. Second, the decision in turned on the analysis of s 189(1) of the 1958 (Cth) which required a relevant officer who “knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen” to detain the person. On each occasion that Mr Taylor was detained his visa had been cancelled and he fulfilled the description of an unlawful non-citizen. His award for damages for false imprisonment against the Commonwealth and each of the Ministers who had made the decision cancelling his visa that was subsequently quashed by the High Court was set aside by the majority (at [49]-[50]) on the basis that at the time each officer detained Mr Taylor, the officer was provided with what was, on its face, a regular and effective decision of the Minister to cancel Mr Taylor’s visa, checked that Mr Taylor held no other visa, and therefore reasonably suspected that Mr Taylor was an unlawful non-citizen. It was further held (at [51]) that the subsequent order quashing the relevant decision to cancel Mr Taylor’s visa did not alter the reasonableness of the officer’s suspicion that Mr Taylor was an unlawful non-citizen at the time he was detained.
Is the Credentialing Procedure a statutory instrument?
The respondent submits that it is not necessary on the appeal for this court to consider the substantive grounds of appeal in relation to the credentialing decision, as the quashing of the suspension decision should have automatically resulted in the quashing of the credentialing decision. That was the subject of a submission to the primary judge, but was not the basis of the primary judge’s disposal of the credentialing decision. The timing of the credentialing decision does suggest that it is likely it was based on the suspension decision. The appellants submit, however, that, at the time the credentialing decision was made, Professor Walters was then subject to at least one other suspension decision that was not set aside until 26 November 2019 in Walters v Drummond & Ors [2019] QSC 290 which may have also supported the credentialing decision. The credentialing decision does not identify any particular suspension decision as the basis for the credentialing decision, but merely refers to the fact that Professor Walters’ employment with MNHHS “is currently suspended”. In those circumstances, there may be utility in dealing with the substantive grounds relating to the credentialing decision.
A statutory instrument falls within the definition of “enactment” in s 3 of the JRA. Under s 7(1) of the SIA, the statutory instrument is an instrument that satisfies s 7(2) and s 7(3). The primary judge found (at [150] of the reasons) that the Credentialing Procedure has the flavour or nature of a public, rather than private, document and concluded (at [159] of the reasons) that it is a standard or guideline of a public nature and was probably also a rule. That was relevant for the purpose of ascertaining whether there was compliance with s 7(3) of the SIA.
Health Service Directive QH-HSD-034:2014 (the directive) was issued by the chief executive pursuant to s 47 of the Hospital and Health Boards Act 2011 (Qld) (HHBA) which authorises the making of directives for a number of matters, including setting standards and policies for the safe and high quality delivery of health services and for improving the quality of health services. Pursuant to s 19(2)(c) of the HHBA, a Service (which includes MNHHS) must comply with health service directives. It is a mandatory requirement under the directive that a Service maintain a policy for credentialing and defining the scope of clinical practice for identified health professionals. The Credentialing Procedure was issued by MNHHS in response to the directive. It was not in issue that the directive is a statutory instrument and therefore the Credentialing Procedure satisfied s 7(2) of the SIA.
The primary judge had regard to the content of the Credentialing Procedure and, in particular, one of the opening statements (set out at [152] of the reasons) that the use of the Procedure by MNHHS “will contribute to the improvement of patient safety and health outcomes for Queenslanders”, the description (set out at [152]-[153] of the reasons) of its genesis from another guide (the Office of the Principal Medical Officer’s Guide to credentialing and defining scope of clinical practice for medical practitioners and dentists in Queensland) based on extensive consultation, and the explanation in the introduction (summarised at [157] of the reasons) that “the process of verifying credentials and defining SoCP within Queensland Health aims to protect patients, medical practitioners and dentists and hospital and healthcare public health facilities”. The primary judge noted (at [158] of the reasons) that its “public flavour” was also reflected in the provision in the Credentialing Procedure for “mutual recognition” of credentials across Services and Department of Health divisions and the potential for the granting of a state wide scope of clinical practice in appropriate cases.
“By-laws under the Act bind the body corporate, the proprietors, mortgagees, lessees and occupiers. By-laws under the plan do not have a public function, in that they are in place only to affect the relationships between private entities and not for any public purpose. In that sense, by-laws under the Act are not instruments of a public nature. An alternative view is that the quality of a ‘public nature’ would exist simply whenever the instrument is, or is intended to be, made public.”
Boyy concerned whether a decision to place on a prisoner’s file an “enhanced security offender” flag was a decision made under an enactment. The file was flagged pursuant to a “sentencing management – assessment and planning” document which was made under s 265 of the Corrective Services Act 2006 (Qld) as part of the administrative procedures required to be made under that provision for the effective and efficient management of corrective services. Under s 265(3), the administrative procedures document had to be published on the department’s website on the internet. There was an exception to publication under s 265(4) where the publication might pose a risk to the security or good order of the corrective services facility or compromised the safety or effective management of offenders. Some parts of the relevant document were published on the department’s website in a redacted form for information purposes, but the document had no public function, purpose or operation. Bowskill J concluded (at [39]-[41]) that the document was not a statutory instrument, as it was not a guideline of a public nature or an instrument of a public nature which unilaterally affects a right or liability of a person, but merely a record of administrative procedures.
The respondent submits that decisions made under the Credentialing Procedure directly affect the nature of health services and care provided to the Queensland public, as the provision for mutual recognition of credentials where a practitioner works across a number of Services or divisions and the potential for the granting of a state wide or multi Service/division scope of clinical practice by the home Service means that decisions made under the Credentialing Procedure may directly affect the health services and care provided to the Queensland public, rather than just within the area of the MNHHS. MNHHS and The Prince Charles Hospital are specified in the Credentialing Procedure as the entity/designation responsible for obtaining state wide scope of clinical practice approval for cardiology. The respondent also submits the Credentialing Procedure can be contrasted with the by-laws of a body corporate (as in Rosebank) or a document that was part of the administrative procedures for a correctional institution that was used in managing prisoners within the institution (as in Boyy).
The “scope of clinical practice” is defined in appendix 1 of the Credentialing Procedure as “follows on from credentialing and involves delineating the extent of an individual practitioner’s clinical practice within a particular public health facility”. A further explanation is added:
“This definition is based on the individual’s credentials, competence, performance and professional suitability, and the needs, capability and capacity of the public health facility to support the practitioner’s SoCP.”
It is apparent from the Credentialing Procedure that all medical practitioners who practise in Queensland public health facilities must be credentialed and have their scope of clinical practice prior to commencing duties. That gives any member of the public who receives treatment in the public health facility where the practitioner has been credentialed the assurance that the practitioner has been credentialed for the clinical practice in respect of which the practitioner is treating the member of the public at the relevant public health facility. The evidence before the primary judge was to the effect that the list of credentials is not publicly available as such, although a list of all the credentialed medical and dental officers within MNHHS under the Credentialing Procedure is available internally to all MNHHS and Queensland Health employees. The effect of the credentialing, however, is that a practitioner who is available to treat a patient at a public health facility for whom the credentialing has been undertaken pursuant to the Credentialing Procedure is held out as credentialed to provide that treatment. As the Credentialing Procedure regulates credentialing for the provision of health services to the public by practitioners in any facility administered by MNHHS (and any other Service or Department of Health division where the practitioners have been credentialed by MNHHS), the Credentialing Procedure is properly characterised as having a public function, purpose or operation.
There was therefore no error in the primary judge’s conclusion that the Credentialing Procedure is a standard or guideline of a public nature. In view of that conclusion, it was not necessary for the primary judge to express an opinion on whether it was also a rule and it is therefore not necessary to consider the appellants’ arguments addressed on the appeal to that issue.
What is the proper construction of s 5 of part 4 of the Credentialing Procedure?
Part 4 of the Credentialing Procedure deals with termination, suspension or reduction of scope of clinical practice (which is abbreviated as SoCP). Its provisions are detailed and the primary judge extracted the relevant parts at [177]-[178] of the reasons. It is essential to a medical practitioner’s holding a scope of clinical practice under the Credentialing Procedure that the practitioner holds a current registration with AHPRA. Section 4 of part 4 deals with immediate termination of the scope of clinical practice where a practitioner’s AHPRA registration is cancelled or modified in a way that precludes the practitioner from practising. Section 5 of part 4 is the counterpart of s 4, but in relation to immediate suspension of the practitioner’s scope of clinical practice without procedural fairness afforded to the practitioner in the circumstances prescribed in s 5 that include that a practitioner’s registration is suspended by AHPRA. Section 6 of part 4 deals with other triggers for assessment for termination, suspension or reduction of the scope of clinical practice. Section 7 of part 4 sets out the process for assessment of termination, suspension or reduction of scope of clinical practice arising under s 6. Section 8 makes specific provision for managing the scope of clinical practice where s 7 has been invoked and it has emerged there is an immediate risk of patient harm. Under s 8 the Executive Director Medical Services or delegate “can immediately reduce or suspend a practitioner’s scope of clinical practice if there is reasonable belief that the practitioner presents a risk to the safety of patients”. Section 9 of part 4 deals with the process of a formal review of the scope of clinical practice, where there is no immediate risk to patient safety.
Section 5 of part 4 relevantly provides:
“When the following circumstances occur, the practitioner’s SoCP is immediately suspended and does not require discussion, investigation or specific action on the part of the decision maker:
a practitioner’s registration is suspended by AHPRA
a practitioner’s employment with the public health facility is suspended
Within 48 hours of becoming aware of the circumstances, the decision maker must advise the practitioner in writing, of the suspension of SoCP and the reasons for the suspension of SoCP.”
Where s 5 of part 4 has resulted in the immediate suspension of a practitioner’s scope of clinical practice, s 5 also provides for the relevant Executive Director Medical Services to “take the necessary action to ensure patient safety” and “investigate and document, any patient harm and take appropriate action”.
By the time Professor Walters’ application was heard by the primary judge, s 5 of part 4 had been amended to insert “or” between the two criteria, but it remained relevant between the parties to determine the proper construction of s 5 of part 4 as it stood when the credentialing decision was made.
The primary judge construed s 5 of part 4 in the context of the other provisions in the Credentialing Procedure, noting the anomalies between s 5 and s 6 (at [182]-[186] of the reasons). Section 6 sets out a list of 11 separate criteria that is expressly stated not to be exhaustive which may act as a trigger for assessment for termination, suspension or reduction of scope of clinical practice. The terms of s 6 suggest that the intention was any one of those criteria or circumstances or other relevant circumstances not specifically listed may trigger the assessment. In contrast, s 5 commenced with the introduction “When the following circumstances occur” and there was a reference to two circumstances only which each could be dealt with under s 6. On the basis that the primary judge inferred (at [188] of the reasons) from the actions required of the Executive Director Medical Services when immediate suspension was imposed under s 5 that s 5 was concerned primarily with suspensions involving clinical competence or risks to patient safety, the primary judge was of the view (set out at [180] of the reasons) that s 5 operated coherently within the whole of part 4 when the two circumstances specified in s 5 were read as two necessary prerequisites to justify immediate suspension of the practitioner’s scope of clinical practice.
The appellants submit that satisfaction of either criteria in s 5 is a serious matter and each should lead to suspension of a practitioner’s scope of clinical practice and would require immediate action. It is submitted that the primary judge’s construction would be unworkable in certain circumstances where a practitioner is not employed by MNHHS, but where AHPRA has suspended that practitioner’s registration. The appellants also dispute that it was not a proper construction to focus on patient safety and confine the application of s 5 on the basis that was the primary purpose of immediate suspension of the scope of clinical practice.
The respondent emphasises that the plain language of s 5 is consistent with both criteria being satisfied for an immediate suspension to apply. The respondent argues that the fact that there are credentialed practitioners who are not employees does not compel the view that the two criteria in s 5 must be read disjunctively, because s 7 and s 8 of part 4 also provide a mechanism for the immediate suspension of the scope of clinical practice where there is a risk of patient harm which is not contingent on there being a suspension from employment. It also makes no sense that a suspension of employment would lead to immediate suspension of the scope of clinical practice under s 5, but termination of employment is one of the criteria that is listed in s 6 which would engage the deliberative process under s 7.
Orders
As some of the material in the appeal record book contained information that was confidential, the parties agreed that it was appropriate for the court to make an order to protect that confidential information.
The parties did not seek in their written outlines or on the hearing of the appeal the opportunity to make submissions on costs after the giving of this judgment. The respondent has been largely successful in opposing the appeal. Costs should therefore follow the event.
It therefore follows that the following orders should be made:
Appeal dismissed with costs.
The appeal record books filed on 4 November 2020 be placed into sealed envelopes and not be opened, except with the leave of the court or a judge.
Hanson & Ors
Walters [2021] QCA 18
(2020) 94 ALJR 818
(2005) 222 CLR 612
Putting to one side the qualification “unless otherwise determined”, it is not apparent what event would bring the suspension to an end from the statement in the letter addressed to Professor Walters that the suspension will remain in place “until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered”. It is unclear whether this was suggesting that the suspension would remain in place until the chief executive had received the report of the investigation and considered it, whether it was referring to the expiry of a reasonable time for the chief executive to consider the outcome of the investigations, or whether it was intending to refer to the making of a decision by the chief executive as a result of the outcome of those investigations.
The difficulty with the uncertainty conveyed by the letter as to when the suspension would end was reflected by the submission made on behalf of the appellants during the hearing of the appeal that “the end, the event or circumstance that we say is identified, is the outcome of those investigations”, but the appellants then conceded that “the outcome of those investigations” was followed by the words “and has been considered” which would have to be read subject to the requirements of reasonableness. If the chief executive considered that it was reasonable for the suspension to remain in place until there was an opportunity for the chief executive to consider and act on the outcome of the investigations, the end of the period of suspension could have been specified in terms such as five days after the receipt by the chief executive of the report of the outcome of the investigations.
The statement in Ms Hanson’s letter to Professor Walters dated 28 August 2019 about when the suspension would end did not identify unambiguously an event that brought the period of suspension to an end which meant the notice did not comply with s 137(2)(a).
Even though my reasons for reaching the conclusion that the notice did not comply with s 137(2)(a) of the Act differ from those of the primary judge, I have reached the same conclusion as the primary judge about the invalidity of the notice and the appellants therefore do not succeed on ground 1(a).
Ruddock is of no assistance to the appellants, as the question of whether his detention was unlawful was decided by reference to the application of s 189(1) of the Migration Act 1958 in relation to the officers who were responsible for detaining Mr Taylor pursuant to that provision. No relevant analogy can be drawn between the position of Ms Hanson who failed to comply with the mandatory requirement of s 137(2)(a) of the Act in issuing the suspension notice and the position of the migration officers in Ruddock who acted in full compliance with the law at the time they detained Mr Taylor.
There is no error shown in relation to the primary judge’s choice of the date on which the order quashing the suspension decision took effect.
The appellants submit the Credentialing Procedure did not satisfy the public nature aspect under s 7(3), as it was not a document that was generally applicable to the public. The appellants characterised the Credentialing Procedure as an internal procedure within MNHHS for granting, reviewing, suspending or cancelling a practitioner’s scope of clinical practice applicable within MNHHS and the persons bound by the Credentialing Procedure were those engaged in clinical practice within MNHHS. The appellants accept that the Credentialing Procedure may result in a public benefit by way of public safety, but that did not make it a document of a public nature. Any notification function performed by the Credentialing Procedure was an internal function and not a public function.
The appellants point to authorities that distinguish between documents which were available to the public, but were in effect private documents, and those which were truly public documents with general and public application: The Proprietors – Rosebank GTP3033 v Locke [2016] QCA 192 and Boyy v Executive Director of Specialist Operations of Queensland Corrective Services [2019] QSC 283. In Rosebank which concerned the by-laws of a body corporate established under the Building Units and Group Titles Act 1980 (Qld), McMurdo JA observed at [133]:
The anomalies between s 5, s 6 and the other provisions of part 4 exist whether the two circumstances specified in s 5 are read conjunctively or disjunctively. Because a current registration with AHPRA is a condition precedent to the holding of a scope of clinical practice under the Credentialing Procedure, it seems redundant that if a practitioner’s AHPRA registration is suspended, that suspension from employment by MNHHS is also required for the immediate suspension under s 5 of part 4 to be invoked. It is not redundant, however, if the practitioner’s employment with the public health facility has been suspended (which could occur for non-clinical reasons) to make it an additional requirement before immediate suspension of the practitioner’s scope of clinical practice that the practitioner’s registration by AHPRA has also been suspended. The inference that the primary judge drew from s 5 that immediate suspensions under that provision were primarily concerned with clinical competence or risks to patient safety is supported by the focus in the other provisions in part 4 on the paramountcy of patient safety. Particularly as either circumstance that is specified in s 5 can be dealt with under s 6 and, where there is an immediate risk to the safety of patients, under s 8 of part 4, and having regard to the language used in s 5 of part 4 which is more consistent with both circumstances being a pre-condition to action under s 5 than not, there was no error in the primary judge’s conclusion that both circumstances specified in s 5 had to exist before the immediate suspension was invoked.