HEALTH - applicant is medical practitioner - applicant gave notice seeking registration in Queensland - notice triggered deemed registration - registration was then denied - whether Tribunal has power to stay decision

PRACTICE AND PROCEDURE - whether Tribunal should exercise discretion to stay decision - stay order granted

Administrative Appeals Tribunal Act 1975

Medical Practitioners Registration Regulation 2002

Alexander and Migration Agents' Registration Board (1995) 40 ALD 99

Dr James Renton is a medical practitioner. He applied to the Medical Board of Queensland ("the Board") to be registered as an intensive care specialist in Queensland. His application relied in part on his registration as a medical practitioner in New South Wales. He says the provisions of the Mutual Recognition (Queensland) Act 1992 entitle him to register in this state as an intensive care specialist. The Board declined to register the applicant, and he has appealed that decision to the Tribunal.

The applicant has asked the Tribunal to order a stay of the Board's decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 until the Tribunal is able to conduct a proper review. The applicant filed written submissions and appeared on his own behalf in a telephone hearing. The respondent was represented by Mr McCowan.

Dr Renton obtained his qualifications from the University of London. He holds conditional registration as a medical practitioner in New South Wales, and he is registered as a general practitioner in Queensland. He is also registered in Queensland as a specialist in emergency medicine. The Health Insurance Commission has recognised the applicant as a specialist in intensive care and he is apparently permitted to operate in that capacity in New South Wales which does not maintain a formal register of specialists. (Only South Australia and Queensland maintain formal registers of specialists, it seems.)

There was some evidence the applicant would be able to practice as an intensive care specialist in Queensland public hospitals, but he works at private hospitals on the Gold Coast. He is employed by a company called Anaesthesia and Critical Care Services Pty Ltd, which provides intensive care services at the hospitals in question.

Private hospitals are regulated under the Private Health Facilities Act 1999. Section 12 permits the Chief Health Officer to set standards with respect to, inter alia, staffing of the facility. Standards have been laid down with respect to medical staff in intensive care facilities in the Queensland Health Guidelines for Clinical Services in Private Health Facilities 2002. I was not provided with a copy of the guidelines but I am told they require that specialists in intensive care must be registered as such by the Board.

Dr Renton has been told by Anaesthesia and Critical Care Services Pty Ltd that he will not be able to work in the intensive care unit after 30 June 2004 if he does not obtain registration with the Board as a specialist in intensive care. The letter from the company dated 21 May 2004 refers to the requirements imposed by the legislation.

Dr Renton wrote to the Board on 2 April 2004 enclosing a notice seeking registration as an intensive care specialist in Queensland. The notice referred to s 19 of the Mutual Recognition (Queensland) Act 1992. Section 19(1) provides:

A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.

Section 19(2) goes on to specify a number of matters that must be addressed in the notice. Dr Renton says the Board is required by s 20 to register him following lodgement of the notice under s 19.

In Queensland, the Schedule to the Medical Practitioners Registration Regulation 2002 recognises a range of specialists including "intensive care specialist". I understand the Board has a policy that it will only register interstate practitioners as a specialist pursuant to the Mutual Recognition (Queensland) Act 1992 if the practitioner is registered in that speciality in his home state or territory. But only South Australia registers specialists in that way. That means a specialist from, say, New South Wales - like Dr Renton - cannot automatically be registered as a specialist in that area in Queensland because the Medical Board in that state does not maintain a formal register of specialists equivalent to the one in Queensland.

The deputy registrar of the Board wrote to Dr Renton on 6 May 2004. The letter explained "specialist mutual recognition is available only between South Australia and Queensland." The letter said the notice included in the letter of application "does not comply with or meet the threshold requirements of section 19 of the Mutual Recognition Act" because Dr Renton is not registered as a specialist in New South Wales. The letter concluded by saying that Dr Renton was able to apply for accreditation if he could produce evidence that he possessed appropriate qualifications.

Dr Renton wants the Tribunal to review the Board's decision in due course. (Section 34 of the mutual recognition legislation authorises the Tribunal to review decisions of local registration authorities.) In the meantime, he wants the Tribunal to exercise its power under s 41(2) of the Administrative Appeals Tribunal Act 1975 to stay the Board's decision.

Section 41(2) says the Tribunal may make an order staying the operation or implementation of a decision if the Tribunal:

"is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review...for the purpose of securing the effectiveness of the hearing and determination of the application for review."

The power is ordinarily exercised with a view to preserving the status quo. As Deputy President McMahon explained in Alexander and Migration Agents' Registration Board (1995) 40 ALD 99 (at 103):

Sub-section 41(2) is not positive in its effects but merely negative. The content of the power is limited by its legislative intendment. It is intended to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision.

That case had some similarities to the facts under consideration here. Mr Alexander had applied to the Migration Agents' Registration Board for accreditation. The Board refused his application, and he sought a stay pending a review by the Tribunal. But there are differences in the legislation that must be taken into account.

Dr Renton points out that a notice lodged under s 19 triggers an obligation to register him in Queensland. That obligation is found in s 20(1), which provides:

A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

Section 21(1) says the registration authority must register the applicant within one month of lodgement of the s 19 notice unless the authority decides to postpone (under s 22) or refuse (under s 23) registration. Section 25 says the applicant is deemed to be registered after lodging the notice under s 19 pending the grant or refusal of registration. Section 26(3) says the deemed registration ceases if the local registration authority refuses to grant registration. The grounds upon which an application may be rejected are set out in s 23. The Board says the application was rejected under s 23(1)(c). That subsection says a local registration authority may refuse the grant of registration, if

(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

It is the existence of a category of deemed registration that may distinguish this case from the facts in Alexander. Dr Renton argues the Board should be restrained from deciding to change his position (ie, cancelling his deemed registration). He says he is not asking the Tribunal to put him in a better position than he would otherwise be in, as the applicant was doing in Alexander.

Mr McCowan (on behalf of the Board) says one must have regard to s 23(2). That provision says:

A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.

The meaning of the section is clear. It provides an applicant with at least two weeks to make an application to the Tribunal for relief before the cancellation of the deemed registration (which commenced upon lodgement of the notice pursuant to s 19) takes effect. The precise length of time is to be set out in the letter notifying the applicant of the decision. Mr McCowan says the section limits the applicant's ability to seek a stay outside of the time allowed pursuant to the section.

Mr McCowan's analysis might be right, but for one thing: the Board's letter of 6 May 2004 advising Dr Renton of the decision does not specify when the decision is to take effect. It follows that Dr Renton is entitled under s 23(2) to ask "the Tribunal to make whatever orders it considers appropriate" - which potentially includes a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975. He has done so.

I am satisfied the Tribunal has the power to stay the Board's decision to refuse registration where the decision is in practice a cancellation of (deemed) registration.

Before I proceed to consider whether I should exercise the discretion conferred by s 41(2), I note one further matter raised by the Board. Mr McCowan said the Board relied on s 17(2) of the Mutual Recognition (Queensland) Act 1992. Section 17(1) sets out the "mutual recognition principle" which provides, in essence, that a person registered to carry on an occupation in one state is entitled to be registered to carry on the same occupation in another state. Section 17(2) qualifies the principle, saying:

...the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

I do not see how this provision assists the Board in this case since its decision proceeds on the basis that Queensland law recognises specialties to which individuals may be accredited if they possess some qualification or experience.

SHOULD THE DISCRETION UNDER S 41(2) BE EXERCISED IN FAVOUR OF DR RENTON?

I am satisfied the Tribunal should order a stay of the Board's decision. Dr Renton's material (including in particular the letter from Anaesthesia and Critical Care Services Pty Ltd) makes it clear he will not be able to continue to serve as an intensive care specialist if he is not registered - although he can continue if his deemed registration is not disturbed. The letter from Anaesthesia and Critical Care Services Pty Ltd anticipates that Dr Renton will be forced to leave the practice if he cannot continue to act as an intensive care specialist. If Dr Renton were to lose his place in the practice in the short term, his application for review might become moot.

The Board has not demonstrated any prejudice. There is no danger to public safety; the applicant has been doing the job for some time, apparently without incident. He previously did the same job in New South Wales.

I am satisfied in all the circumstances that the stay should be granted until further order.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed: .....................................................................................

Associate: Thomas Ritchie

Date/s of Hearing: 4 June 2004

Date of Decision: 10 June 2004

The applicant represented himself.

The respondent was represented by Mr McCowan