Taylor v Medical Board of Australia

The conditions imposed by the Board

1. On 17 January 2018 the Board granted the practitioner general registration subject to the following conditions: Limitations on practice 1) The Practitioner must not practise in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. 2) Within 28 day of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: a) Seek reports from the Employer (the senior person) at each place of practice on at least a three (3) monthly basis or as otherwise required. 3) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 4) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these conditions. Prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. The Practitioner may practise only in positions and places of practice approved by the Board. For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a Medical in their profession It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a Medical in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the Medical industry. Prohibition on access to medication 7) The Practitioner must not prescnbe/ supply/ administer/ handle/ dispense/ check (hereafter referred to as access) including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Schedule 4 and Schedule 8 medication of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https//www.tga.gov.au/publication/poisons-standard-susmp and/or pharmaceutical items containing any active ingredient listed within Schedule 4 and Schedule 8 medication of the SUSMP. 8) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories Attend treating practitioner(s) The Practitioner must undertake treatment with a General practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner. Within one (1) month of receipt of the notice of the imposition of these conditions, the Practitioner must provide the Board with the name and contact details of the treating practitioner The treating practitioner must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the Practitioner. Within 1 month of the notice of the imposition of these conditions, the Practitioner must provide the Board with written confirmation from the treating practitioner that they have: a) Sighted a copy of these conditions; b) Agreed to notify the Board of any material change in health status which may affect the Practitioner's fitness to practise and of any period where the treating practitioner will be absent for any period of time requiring transfer of the care of the Practitioner to another treating practitioner; and c) Agreed to provide the Board reports at the nominated timeframes These reports are to address the Practitioner's attendance at treatment, compliance with treatment directions, current health status and any other matters, which may affect the Practitioner's fitness to practise. 12) The Practitioner must submit treating practitioner reports not later than 2 weeks after the nominated timeframes The nominated timeframes are reports at three (3), six (6) and 12 months following commencement of practice. 13) Within three days of the first consultation, the Practitioner must provide the name(s) and contact details of any new treating practitioner(s), together with written confirmation from the new practitioner(s) in the same terms as in conditions 10, 11 and 12. 14) All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
2. On 1 February 2018 the Board amended the conditions as follows: Limitations on practice The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact) The Practitioner may only use her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non­clinical research, advisory, regulatory or policy development roles. Prior to commencing practise the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. Within 14 days of Board approval of employment arrangement(s) the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services,, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form i) within seven days of the commencement of practice at each and everysubsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these .conditions. 4) Prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. Prohibition on access to medication 5) The Practitioner must not prescribe, supply, administer or handle(hereafter referred to as access), including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Four (4) and Eight(8) of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publications/poisons-standard-susmp other than in the following circumstances. a) Where the substances have been prescribed by a nominated treating practitioner and are for the use of the Practitioner or an assistance animal For the purposes of this condition (5) the treating practitioner must be a registered health practitioner or registered veterinarian and must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner. 6) Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA: a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. b) Declaration of current substances for the practitioner and assistance animal on the approved (HPF6) form c) The contact details, on the approved form (HPF3), of all treating practitioners. d) Acknowledgement, on the approved form (HPF3), from the Practitioner that AHPRA may seek reports from the treating practitioner(s) on a quarterly basis for the purposes of monitoring compliance with this condition. e) Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware AHPRA may contact them to seek reports. Attend treating practitioner(s) The Practitioner must undertake treatment with a General practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner. Within one (1) month of receipt of the notice of the imposition of these conditions, the Practitioner must provide the Board with the name and contact details of the treating practitioner The treating practitioner must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the Practitioner. Within 1 month of the notice of the imposition of these conditions, the Practitioner must provide the Board with written confirmation from the treating practitioner that they have: a) Sighted a copy of these conditions; b) Agreed to notify the Board of any material change in health status which may affect the Practitioner's fitness to practise and of any period where the treating practitioner will be absent for any period of time requiring transfer of the care of the Practitioner to another treating practitioner; and c) Agreed to provide the Board reports at the nominated timeframes. These reports are to address the Practitioner's attendance at treatment, compliance with treatment directions, current health status and any other matters, which may affect the Practitioner's fitness to practice. 10) The Practitioner must submit treating practitioner reports not later than 2 weeks after the nominated timeframes The nominated timeframes are reports at three (3), six (6) and 12 months following commencement of practice. Within three days of the first consultation, the Practitioner must provide the name(s) and contact details of any new treating practitioner(s), together with written confirmation from the new practitioner(s) in the same terms as in conditions 10, 11 and 12. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense 4. Noted, under section 225(k)(2) of the National Law, that the following restrictions will be published on the registers of practitioners: The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use his/her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non­clinical research, advisory, regulatory or policy development roles. Prior to commencing practice the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. Within 14 days of Board approval of employment arrangement(s) the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) Within seven days of each and every notice of any subsequent alteration of these conditions. Prior to commencing practice the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. 5) The Practitioner must not prescribe, supply, administer or handle (hereafter referred to as access), including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Four (4) and Eight(8) of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at other than in the approved circumstances. 6) Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA. a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense. This registration is subject to conditions that are not publically available due to privacy obligations. 5. Decided, under section 83(2) of the National Law that the review period for all imposed conditions be set at three (3) months from the date the conditions are imposed.

The issues to be determined on the stay application

1. I discern that the stay application raises the following issues: 1. Does the Tribunal have power under the National Law to grant a stay of conditions imposed by the Board? 2. If there is no power under the National Law is s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) an available source of power to grant the stay? 3. If there is power under either the National Law or s 43 of the NCAT Act is it appropriate to grant the stay of the conditions in whole or part? 4. Could the health and safety of the public be adversely affected if the stay ought is granted? 5. Should the health conditions or any of them be stayed? This involves consideration of the practitioner's assertion that the January conditions as amended in February 2018 do not provide for her to self-administer prescribed medication except if that medication is prescribed by a nominated treating practitioner. The practitioner asserts if she is prescribed medication in an emergency department by a registered medical practitioner she would be in breach of the condition if she took the prescribed medication because it will not have been prescribed by a "nominated treating practitioner". 6. Consideration of the general principles established in the authorities relevant to the grant of a stay in the circumstances of this case.

Relevant principles to be applied on a stay application

1. The relevant principles to be applied in determining a stay application in the context of a commercial dispute were set out in this Tribunal by Wright J in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. That decision refers to a number of authorities on the topic of stays including Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. Additional considerations apply to matters which may affect the public (see NSW Bar Association v Stevens [2003] NSWCA 95 at [91] and Kirbach v Health Care Complaints Commission [2015] NSWCATAD 195). In this and in all matters under the National Law the Tribunal is required to apply the objective and guiding principle set out in s 3A. Section 3A provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. The general principles to be applied in considering whether to grant or refuse a stay are summarised by the Full Court of the Family Court in Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106. While the Full Court refers to the taking into account the best interests of a child in parenting proceedings as a paramount consideration, similarly in applications under the National Law third party interests (the health and safety of the public) are the paramount consideration. The Full Court explained at [18]: The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following: the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances; a person who has obtained a judgment is entitled to the benefit of that judgment; a person who has obtained a judgment is entitled to presume the judgment is correct; the mere filing of an appeal is insufficient to grant a stay; the bona fides of the applicant; a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties; a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay; some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case; the desirability of limiting the frequency of any change in a child's living arrangements; the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and the best interests of the child the subject of the proceedings are a significant consideration.

The relevant provisions of the National Law and the NCAT Act

1. The appeal and the stay application purport to fall to be determined under the National Law and the NCAT Act. The legislation which led to the introduction of the National Law is fully set out in the reasons of Sackville AJA in Medical Council v Lee [2017] NSWCA 282 as are legislative developments which occurred some three years after the commencement of the National Law by reason of the passing of the NCAT Act and the establishment of the Tribunal. With respect, I adopt his Honour's exposition of the statutory enactments as set out in [40]-[54].
2. Only two provisions of the National Law deal with stays pending an appeal. Those provisions are s161B and s 165L(2).
3. Section 161B provides as follows: 161B Appeal does not stay decision [NSW] An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders.
4. Section 161B is found in Sub-Division 3 of Division 6 of Part 8 of the National Law. The appeal rights dealt with in Division 6 are appeals against a decision of a Committee or a Council or appeals on a point of law from such a decision making body. Appeals against a decision of a Board do not fall within this division. Therefore s 161B has no application to this matter.
5. The second provision is s 165L(2). It provides as follows 165L Interlocutory orders [NSW] (1) … (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
6. Like s 161B, this provision (s 165L), is limited to appeals on a point of law falling within the appeal rights in Division 6. Neither provision has application to an appeal under s 175.
7. It is then necessary to consider whether reliance can be placed on s 4(1) and s 43 of the NCAT Act to grant the stay sought. That consideration requires examination of the relevant provisions of the NCAT Act and the scheme set out in the National Law dealing with registration and appeals against decisions of the Board. Section 4 (1) defines an interlocutory decision to include the granting of a stay or an adjournment. Section 43 is as follows: 43 Effect of pending general applications and appeals (1) This section applies to the making or lodgment of any of the following (a pending general application or appeal): (a) a general application for the review or other re-examination of a decision made by an external decision-maker, (b) an external appeal, (c) an internal appeal. Note. See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
8. Section 43 falls with Division 4 of the NCAT Act. Division 4 deals with Practice and Procedure in the Tribunal. Of importance is s 35. That section provides that "Each provision of this Part is subject to the enabling legislation".
9. In Medical Council of NSW v Lee Sackville AJA explained at [86]-[88]: First, each provision in Part 4 of the NCAT Act, including s 43(3), is expressly made "subject to enabling legislation". This expression includes the National Law [NSW]. The words "subject to", like most common expressions found in legislation, has no fixed meaning but must be construed having regard to the context in which it appears. In some contexts, for example, the expression may mean that two pieces of legislation are to operate concurrently.[27] In others it may mean that one statute applies to the exclusion of another.[28] When used to defined the relationship between two statutes or provisions, "subject to" is a standard means of establishing which provisions are dominant and which are subservient.[29] The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions.[30] In C & J Clark Ltd v Inland Revenue Commissioners,[31] for example, the relevant subsection commenced with the words "subject to the provisions of this section". Megarry J said that:[32] "the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision." In my view, this is the meaning that should be given to s 35 of the NCAT Act. Thus to the extent that there is an inconsistency or repugnancy between a provision of Part 4 of the NCAT Act and the National Law [NSW] (or any other "enabling legislation), the National Law [NSW] governs. Whether there is an inconsistency or repugnancy depends on the proper interpretation of the relevant provisions of the National Law [NSW]. For present purposes it is necessary to consider whether there is any inconsistency or repugnancy between s 43(3) of the NCAT Act and the relevant provisions of the National Law [NSW]. The inconsistency might take the form of a direct conflict between two provisions (for example, where both cannot be obeyed simultaneously). There will also be an inconsistency in the relevant sense if, as a matter of construction, the National Law [NSW] is intended to operate in relation to a particular matter to the exclusion of s 43(3) of the NCAT Act.[33] [footnotes omitted]
10. It is therefore initially necessary to consider whether appeals under s 175 of the National Law, which are classified as external appeals to NCAT, are governed exclusively by that law or whether resort may be had to the NCAT Act to grant a stay pending the determination of an appeal. I pause to note that APHRA's solicitors advanced the position that s 43(3) of the NCAT is available to stay part of the conditions imposed by APHRA on the practitioner's registration, but not all the conditions.
11. Section 175 is found in a discrete Division (Division 14A) of the National Law dealing with appeals. Similar provisions are found in other states (see s 199 to 202 of the Schedule to the Health Practitioner Regulation National Law (Victoria) 2009 (Vic)).
12. I note that in Queensland the stay provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) have been relied on in respect of an application for a stay of conditions imposed by a Performance and Professional standards panel pending disciplinary proceedings (see Sharma v Medical Board of Australia [2014] QCAT 305 (25 June 2014)). I was not referred to any authority where a stay has been granted pending an appeal against a registration decision.
13. In considering whether the scheme in the National Law for registration of health practitioner is intended to operate to the exclusion of s 43(3) it is necessary to look at the relevant provisions of the National Law. As will become apparent, this examination discloses the issue of power to grant a stay is not as clear cut as the situation was in Medical Council v Lee. There the relevant division of the National Law contained two stay provisions. These provisions dealt exclusively with appeals against a Council's decision.
14. The starting point is s 52. This section deals with an individual's eligibility for general registration. The section provides as follows: 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if - (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed - (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
15. Section 77 enables an individual to apply to a National Board for registration. Section 80 empowers the relevant National Board to investigate the applicant and the Board may, amongst other matters, require an applicant to undertake an examination or assessment. That process occurred in respect of the practitioner.
16. Section 81 is important and relevant to this application. It provides as follows: 81 Applicant may make submissions about proposed refusal of application or imposition of condition (1) If, after considering an application for registration, a National Board is proposing to refuse to register the applicant or to register the applicant subject to a condition, the Board must give the applicant written notice of the proposal. (2) The notice must - (a) state the reasons for the proposal; and (b) invite the applicant to make a written or verbal submission to the Board by the date stated in the notice, being not less than 30 days after the day the notice is given to the applicant, about the proposal.
17. The Board must then make a determination under s 82 whether to grant or refuse registration. Section 83 enables a National Board to grant registration which is subject to a condition/s that the Board considers necessary, but such condition/s must contain a review period. Section 83 is in the following terms: 83 Conditions of registration (1) If a National Board decides to register a person in the health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Note. A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition.
18. Section 84 requires the National Board within 30 days of a decision under s 82 to provide written notice to the applicant of its decision.
19. Subject to s 125(2), s 125 of the National Law enables a registered health practitioner to have a condition changed or removed from the individual's registration. .As the ACT National Board deemed the practitioner's correspondence following the January 2018 conditions to be a review under s 125, I now set that section out in full. For completeness I also set out s 126.
20. Section 125 provides: 125 Changing or removing conditions or undertaking on application by registered health practitioner or student (1) A registered health practitioner or student may apply to a National Board that registered the practitioner or student - (a) for a registered health practitioner - (i) to change or remove a condition imposed on the practitioner's registration or endorsement; or (ii) to change or revoke an undertaking given by the practitioner; or (b) for a student - (i) to change or remove a condition imposed on the student's registration; or (ii) to change or revoke an undertaking given by the student to the Board. (2) However, the registered health practitioner or student may not make an application - (a) during a review period applying to the condition or undertaking, unless the practitioner or student reasonably believes there has been a material change in the practitioner's or student's circumstances; or (b) for a condition imposed by an adjudication body for a co-regulatory jurisdiction, unless the adjudication body decided, when imposing the condition or at a later time, that this Subdivision applied to the condition. (3) An application under subsection (1) must - (a) be in the form approved by the National Board; and (b) be accompanied by any other information reasonably required by the Board. (4) For the purposes of deciding the application, the National Board may exercise a power under section 80 as if the application were an application for registration as a registered health practitioner. (5) The National Board must decide to grant the application or refuse to grant the application. (6) As soon as practicable after making the decision under subsection (5), the National Board must give the registered health practitioner or student written notice of the Board's decision. (7) If the National Board decides to refuse to grant the application, the notice must state - (a) the decision made by the Board; and (b) that the registered health practitioner or student may appeal against the decision; and (c) how an application for appeal may be made and the period within which the application must be made.
21. Section 126 empowers a National Board to change a condition. It provides as follows: 126 Changing conditions on Board's initiative (1) This section applies if a National Board reasonably believes it is necessary to change a condition imposed on the registration of a registered health practitioner or student registered by the Board. (2) The National Board must give the registered health practitioner or student a written notice stating - (a) that the Board proposes to change the condition; and (b) how the Board proposes to change the condition; and (c) the reason for the proposed change; and (d) that the practitioner or student may, within 30 days after receipt of the notice, make written or verbal submissions to the Board about why the condition should not be changed. (3) However, the condition may not be changed - (a) during a review period applying to the condition, unless the National Board reasonably believes there has been a material change in the registered health practitioner's or student's circumstances; or (b) if the condition was imposed by an adjudication body for a co-regulatory jurisdiction, unless the adjudication body decided, when imposing the condition or at a later time, that this Subdivision applied to the condition. (4) The registered health practitioner or student may make written or verbal submissions about the proposed change to the condition as stated in the notice. (5) The National Board must consider any submissions made under subsection (4) and decide whether or not to change the condition. (6) As soon as practicable after making its decision the National Board must give written notice of the decision to the registered health practitioner or student. (7) If the National Board decides to change the condition, the notice must state - (a) the decision made by the Board; and (b) that the registered health practitioner or student may appeal against the decision; and (c) how an application for appeal may be made and the period within which the application must be made.
22. Section 127 applies if the National Board reasonably believes a condition imposed on a registered health practitioner's registration is no longer necessary. However, s 127(3) provides that a condition or undertaking may not be removed or revoked during a review period unless the National Board determines there are similar circumstances to those set out in s 126(3).
23. The practitioner asserts that she was not afforded an opportunity to respond to the decision made by the National Board under s 125 on 1 February 2018. AHPRA's solicitors did not dispute that assertion. It appears to me the irregularity, if any, that occurred in respect of the 1 February 2018 conditions can be overcome in the further foreshadowed review.
24. In considering whether the National Law provides an exclusive scheme for dealing with registration of health practitioners it is relevant (as did the Court of Appeal in Medical Council of NSW v Lee) to have regard to the predecessor legislation, the Medical Practice Act 1992 (NSW) (repealed). The Medical Practice Act empowered the then Board under Part 2 to grant or refuse registration, or grant registration subject to conditions. Division 3 of Part 2 of the Medical Practice Act provided a right of appeal by a practitioner against the decision of the Board to the Medical Tribunal of NSW. The nature of the appeal was identical to that now provided in the National Law. Further, the powers exercisable on appeal were broadly similar to those now found in s 175C.
25. Significantly, s 20 of the Medical Practice Act provided as follows: 20 PENDING APPEAL DOES NOT AFFECT BOARD'S DETERMINATION An appeal does not affect any determination with respect to which it is made until the appeal is determined.
26. Thus it appears that, prior to the establishment of NCAT, the NSW Medical Tribunal had no power to grant a stay of conditions imposed by the Board in its registration function either under the Medical Practice Act or under National Law. The stay power was limited to an appeal on a point of law (see now s 159B of the National Law).
27. As earlier noted AHPRA's solicitors submit the Tribunal does have power to impose a stay of conditions by reliance on s 43 of the NCAT Act. However, as I will discuss shortly, the solicitors submit that if the conditions are stayed the practitioner's general registration "will fall away" it being dependent on the conditions.
28. In their written submissions the solicitors note at [26] the matter for determination is whether a stay is necessary to "to secure the effectiveness of the determination of the application or appeal". In support of this submission, AHPRA refer to a number of authorities where the NCAT Act was relied on as the relevant source of power to grant the stay. I note that Kay v Health Care Complaints Commission [2016] NSWCATOD 149 was an application for administrative review of a decision under the Health Complaints Act 1993 (NSW) relying on provisions in the Administrative Decisions Review Act 1997 (NSW) and that the decision has no relevance to the instant application. The other two authorities cited Hampshire v Medical Council of NSW [2017] NSWCATOD 140 and Wang v Dental Council of NSW [2016] NSWCATOD 90 no longer represent good law following the decision of the NSW Court of Appeal in Medical Council v Lee.
29. During the course of his oral submissions Mr Forbes, solicitor, on behalf of AHPRA, submitted that the construction of s 52 of the National Law referred to by Morrison JA with whom Gotteson JA and Boddice J agreed in Chinese Medical Board of Australia v Lee [2014] QCA 149 at [45] effectively prevents all conditions being stayed. In the context of an appeal by a practitioner relying on the "grandfathering" provisions in s 303 of the National Law (Qld) Morrison JA explained: [45] The use of the word "by" in s 52(2) is important. It signifies that it is the imposition of the conditions themselves which establishes eligibility. Put another way, it is the conditions which cause eligibility. Were it intended to be otherwise, the section could have said something like "may decide the individual is eligible for general registration in the profession and in doing so may impose conditions ...". [46] Further, it is plain from the opening phrase in s 52(2), namely "Without limiting subsection (1)", that s 52(2) applies to all parts of s 52(1). Thus, it applies to subsection 52(1)(a). It also applies to s 303(1) which operates for the purposes of s 52(1)(a).
30. Mr Forbes submitted that if the conditions were stayed, then as the conditions are integral to the practitioner's registration, she would not be entitled to general registration. Mr Forbes acknowledged there is a difficulty with the wording of the condition which refers to a "nominated" treating practitioner, but was unable to suggest how the stay power, if available, could be employed to stay part of a health condition pending the hearing of the appeals.

Evidence relied on in this application

1. Both parties provided an extensive volume of material going back over many years, including correspondence between them. It is not necessary that I set out this material in any detail. Suffice it to say that the practitioner's history discloses she has experienced serious health conditions, that she has been diagnosed with adult autism, and has made numerous serious suicide attempts.
2. The practitioner relies on a letter from Dr David Kelly in support of her position that she does not present a risk to the public, and therefore the conditions imposed on her registration are unnecessary.
3. Dr Kelly states in his letter dated 9 March 2018 as follows: Dr Taylor's interpretation of the conditions is such that it prevents her from being able to take medication prescribed for her, as well as a variety of other issues which cause her both considerable concern and considerable inconvenience and potentially could be harmful to her health. In view of this and the stability that she has demonstrated for most of the past two years it is my opinion that if she were to be currently practicing [sic] as a medical practitioner she would not be a potential harm to the health and well being of the general public. In view of this it is my opinion that I have no current concerns about there being a stay placed on the conditions until such time as it be reviewed and made into a form which would not be placing Dr Taylor in a conflict between her own health and wellbeing and being unable to comply with the conditions.
4. The practitioner also relies on a letter from Dr Erin Martin (Dr Martin) ED Staff Specialist, The Canberra Hospital to Dr Milian Deery (Dr Deery) dated 13 March 2018. Dr Martin states There was some understandable hesitancy by [the practitioner] to be "treated" by me because of some restrictions placed on her by AHPRA and indeed it was confusing glancing through her document, as to whether I could be a nominated treating doctor in ED.
5. The practitioner further relies on a letter dated 9 March 2018 addressed "To whom it may concern" from Dr Deery as well as an email dated 11 March 2018 which makes a correction to the earlier letter.
6. Dr Deery, who has been the practitioner's general practitioner since December 2014, opines (adopting the correction to the letter): I do believe Dr Taylor's conditions are not appropriate. If they were removed I do not believe this would cause any threat to the public. Her current conditions are confusing and have caused problems in obtaining emergency medical care.
7. It is not clear from Dr Deery's brief letter whether she is referring to all conditions or just the health conditions.
8. The Board relies on two reports from psychiatrists appointed, in one case by a state Board in 2014, and a report prepared by Dr John Saboisky (Dr Saboisky) dated 20 July 2017. Given the age of the earlier report, I have not placed any weight on it in this application.
9. Dr Saboisky, Consultant Psychiatrist, interviewed the practitioner on two occasions. In his report dated 20 July 2017 addressed to AHPRA Dr Saboisky answered questions posed to him as follows: 1. Does Dr Taylor have a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practice the profession? I think she suffers from a personality disorder with mixed features. She is quite adamant she has high functioning autism and I don't think that one could reasonably argue against this. She has marked obsessional traits which have been ongoing since childhood and she has multiple suicide attempts and engagements with the mental health services particularly in Adelaide. She has been diagnosed as having a borderline personality disorder based on her multiple suicide attempts and affective instability. She strenuously denies this label. She certainly has features of personality dysfunction and she has very high standards of interpersonal conduct. She has a high degree of interpersonal sensitivity, she is very critical and judgemental and projects blame onto others. When distressed, in the past, she has acted out in extraordinary lethal overdoses. Currently she does not display any acting out behaviours and she seems to be in a reasonable domestic circumstance and stable employment. 2. If Dr Taylor's capacity to practice is affected by her health. a. The nature, severity and history of her specific health concerns; Given her track record, it is more probable than not that she would have considerable difficulty coping with medical employment in an institutional setting. It is more probable than not that she would have difficulties coping in a large corporate medical practice for similar reasons. She wishes to pursue a career in pharmacogenomics and continue in the public service. I would have concerns about her working in clinical pharmacogenomics because she will no doubt see many examples where medical practitioners have failed to properly diagnose deficiencies of certain cytochrome P450 enzymes which would adequately explain patients' sensitivity to medication. I would have concerns given her highly critical and judgemental interpersonal style that she may be overly critical of the competence of other professionals. I would therefore have concerns about unrestricted registration. b. Dr Taylor's compliance with treatment and level of insight. She is not having any current psychiatric treatment but does have access to her former psychiatrist Dr David Kelly. In my view her insight is limited because she attributes blame to her problems to others in a consistent manner.

Does the Tribunal have power under the National Law to grant a stay of conditions imposed by the Board?

If there is no power under the National Law can s 43 of the NCAT Act be relied on as a source of power to grant the stay?

1. It is convenient to address these two issues together.
2. In Medical Council v Lee the Court of Appeal determined that s 43 of the NCAT Act had no application because the National Law provided for the Tribunal to grant a stay only in the case of an appeal from a Council's decision on a question of law.
3. The hearing of the stay application on an urgent basis provided little opportunity for an extensive exploration of this issue. Ultimately, as I determined it was not necessary or appropriate to grant the stay sought of all the conditions imposed on the practitioner's registration, or some of the health conditions, it is unnecessary I determine the issue on this occasion but I note the following: 1. The National Law provides an investigative function to the Board in s 80, and mandates the provision of reasons for its decision and an opportunity to the practitioner to make submissions to the Board prior to its final decision (see s 81 and s 82). Section 83 (2) mandates that if the Board imposes conditions on a practitioner's registration, it must provide a review period for the condition. I pause to note that in the case of the practitioner the review period is relatively short, namely 3 months, albeit this has been extended slightly by the varied orders made 1 February 2018. 2. Section 125 of the National Law enables a practitioner to seek a review of conditions to which his or her registration is subject, and the practitioner may make an application for review during the currency of the conditions if there is a material change in the practitioner's circumstances. Sub-section 125(4) empowers the Board to exercise a power under s 80 as if the application was a fresh application for registration as a registered health practitioner. It is arguable in exercising the power under s 80 that the Board is required to follow the procedure in s 81,however, this is not without doubt given the express provisions of s 125(6). 3. The scheme in the National Law for granting registration or refusing registration, or granting registration by imposing conditions on a practitioner's registration and the powers exercised by a Council to ensure public safety and the public interest under s150 have some common features or similarities. Each regime is designed to ensure that only practitioners who do not pose a risk to the public are entitled to practice. The right of a practitioner to seek a review of the decision of a Board under s 125, or to appeal against a Board's decision under s 175, are similar rights to the review rights under s 150A, or an appeal under s 159. The conditions imposed to enable registration, and/or the suspension and conditions imposed under s 150 each have temporal limitations. 4. My examination of the statutory provisions dealing with registration support a preliminary conclusion that the provisions of the National Law provide an exhaustive regime to be exercised by the Board alone, subject to the appeal rights under s 175. If this is correct, particularly where there is no specific stay power, resort cannot be had to s 43 of the NCAT Act by reliance on s 36 of that Act. I am fortified in this preliminary but not determinative, conclusion by the reasoning of Sackville AJA in Medical Council v Lee at [94] and [95] where his Honour explains: Fourthly, the National Law [NSW] contains elaborate provisions relating to health practitioners, including medical practitioners. The legislation contains apparently comprehensive provisions dealing with accreditation and registration of health practitioners, complaint and disciplinary procedures and powers, performance assessment, investigation of impairment concerns and many other issues. It is true that the National Law [NSW] substantially modifies the national model legislation. But if anything the "NSW provisions" (as they are described in the legislation) support the proposition that the National Law [NSW] is intended to deal comprehensively with the matters it addresses. This point is reinforced by the provision in the NCAT Act requiring the Tribunal, when exercising a function allocated to the Occupational Division by the NCAT Act, to observe the principles stated in ss 3 and 3A of the National Law [NSW][34] (the latter of which is a "NSW provision"). Similarly, the Tribunal when exercising a "Division function" must be constituted in accordance with the requirements specified by or under the National Law [NSW].[35] The National Law [NSW] stipulates, among other things, that the Tribunal, when conducting an inquiry or hearing an appeal in the case of a medical practitioner must be constituted by a "senior judicial officer", two medical practitioners selected for appointment by the Council and a lay person.[36] Thus the Tribunal conducting a rehearing on an appeal by a medical practitioner, must be constituted to include two representatives nominated by the Council and must exercise its functions to give effect to the protection of the health and safety of the public as the paramount consideration. 1. Finally, in the circumstances of this case, adopting the interpretation of s 52 of Morrison JA in Chinese Medicine Board v Lee, I accept it is by the imposition of conditions that the practitioner is eligible for general registration. If the conditions were stayed, she would not be eligible for general registration.
4. Against the propositions set out above is the fact that s 165B (5A), which appears in Sub-Division 2 of Part 10 of the National Law, was introduced into the National Law by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW). Section 165 (5A) which deals with constitution of the Tribunal is in the following terms: (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a).
5. An interlocutory decision for the purposes of the NCAT Act includes the granting of a stay or adjournment. This suggests the legislature intended that the List Manager or a legally qualified member may, in appropriate circumstances, grant a stay of an order made under the National Law by the Board.

If there is power under either the National Law or s 43 of the NCAT Act is it appropriate to grant the stay of the conditions in whole or part?

Could the health and safety of the public be adversely affected if the stay ought is granted?

1. Again, it is appropriate that I deal contemporaneously with these two identified issues for determination.
2. Dr David Kelly (Dr Kelly) although resident in Adelaide, has been treating the practitioner since at least 2012. He opines in his report of 4 July 2014 that the practitioner has a diagnosis of autism spectrum disorder, and that he has not detected that the practitioner suffers borderline personality disorder or Bipolar Affective Disorder.
3. In his latest report Dr Kelly opines the practitioner does not present a risk of potential harm to the health and well-being of the public as she has been stable for the past two years. However, he also says that he has no current concerns if there is stay on the conditions "until such time as it be reviewed and placed in a form which would not be placing Dr Taylor in conflict between her own health and well-being and being unable to comply with the conditions". This evidence suggests Dr Kelly supports some health conditions on the practitioner's registration, but that those conditions should not impact adversely on the practitioner obtaining appropriate medical treatment.
4. By contrast, Dr Saboisky in his 20 July 2017 report says he thinks the practitioner has a personality disorder with fixed features. He expressed concerns about the practitioner having unrestricted registration in a number of scenarios. He opines: She is not having any current psychiatric treatment but does have access to her former psychiatrist Dr David Kelly. In my view her insight is limited because she attributes blame to her problems to others in a consistent manner
5. In the practitioner's present employment, an academic position, she is not engaged in the practice of medicine. It is therefore strongly arguable that the conditions presently have no application. I accept there is little or no risk to the health and safety of the public as she is not engaged in the practice of medicine. It may be that the panel determining the appeal, who should have the benefit of hearing from the treating specialist and the Board's expert, may conclude that there is no risk to the public if the practitioner is granted general registration without conditions. But if there is a change in her employment prior to the hearing and determination of the appeal Dr Saboisky's opinion about the practitioner's lack of insight and his view of her inability to practise safely in certain areas, militates against granting a stay of all conditions. In reaching this conclusion I have paid significant regard to s 3A of the National Law which requires me to have regard to the health and safety of the public as a paramount consideration.

Should the health conditions or any of them be stayed?

1. I have already noted that, given the conflicting evidence of the specialists, it would be unsafe pending the hearing of the appeal, or reconsideration by the Board to stay all the conditions. Further, I have accepted that the practitioner gained her general registration because of her qualifications and by the imposition of the conditions. I have concluded without the conditions she is not entitled to general registration.
2. I turn then to consider whether the health conditions, or some of them, could be stayed in whole or part, particularly Condition 5. This involves consideration of the practitioner's assertion that the January conditions, as amended on 1 February 2018, do not provide for her to self-administer prescribed medication except if that medication is prescribed by a nominated treating practitioner. The practitioner asserts if she is prescribed medication in an emergency department by a registered medical practitioner she would be in breach of the condition if she took the prescribed medication because it will not have been prescribed by a "nominated treating practitioner".
3. Condition 5 of the conditions imposed on 1 February 2018 prohibits the practitioner from prescribing, supplying, administering or handling (including emergency treatment supplies or doctor's bag stock) any Schedule 4 or Schedule 8 drug other than "where the substances have been prescribed by a nominated treating practitioner and are for the use of the practitioner or an assistance animal". Condition 5 is further qualified by the following: For the purposes of this condition (5) the treating practitioner must be a registered health practitioner or registered veterinarian and must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.
4. The practitioner has pointed out, that the use of the word "nominated" in respect of the treating practitioner is ambiguous, confusing and misleading. Although the word "nominated" is not defined in the conditions, on a plain reading it appears to relate to the practitioner's treating practitioners referred to in Conditions 7 to 12 which appear under the heading "Attend treating practitioner(s)". It appears that if the word "nominated" is deleted from Condition 5 then any registered medical practitioner could treat the practitioner in an emergency situation. As the practitioner is not required to "nominate" a veterinarian as the treating practitioner for her assistance animal the expression "nominated treating practitioner" is otiose insofar as it deals with prescribing by a veterinarian for that animal.
5. The practitioner also asserts that the requirement her treating practitioners provide reports is ambiguous as it is not clear whether this condition applies "at large" regardless of the type of her employment, or only if she is engaged in exercising her general registration as a practising medical practitioner. It appear to me that the conditions appearing under "treating medical practitioner" must be read in the context of the practitioner engaged in the practice of medicine, subject to the limitations in Condition 1, but as it causes confusion to the practitioner any confusion may be easily rectified by the Board providing that Conditions 7 to 12 are operative only when the practitioner is exercising her general registration as a medical practitioner as provided in Condition 1 if that is what is intended by the Board.
6. It was not submitted to me by the practitioner, who carries the onus of proof in this application, how part of the health conditions could be stayed without affecting her right to general registration. She did submit that the health conditions could be stayed in their entirety because Condition 1 limits her ability to have direct or indirect patient contact eliminating risk to patient safety, for example by her inappropriately prescribing Schedule 4 or Schedule 8 drugs for a patient.
7. This argument has some cogency. But it overlooks the concerns expressed by Dr Saboisky about the practitioner's lack of insight into her health generally. If the practitioner obtains employment which is permitted under Condition 1, it is only by receipt of medical reports that the Board can reassess, during the three month currency of the conditions, whether they should be removed or the medical opinions are fully explored and tested during the course of the practitioner's appeals.
8. As noted earlier, there was acknowledgment by the solicitors for AHPRA that at least the wording of the exception in Condition 5 which refers to a "nominated" treating practitioner, is ambiguous. The solicitors pointed out correspondence to the practitioner from AHPRA disclosed it was not intended to preclude the practitioner from seeking and obtaining emergency medical treatment. I was advised by the solicitors that this issue would be considered at a Board meeting to be held within a week of this hearing and that the practitioner would be able to make any submissions on proposed amendments to the conditions. This was an important consideration in my determination not to endeavour to stay one of the health conditions in whole or part. Since I reserved my decision, the practitioner has sent to the Tribunal further correspondence between herself and AHPRA. I have not had regard to that correspondence as no order was made for filing further material, nor has an application been made to re-open the stay hearing.

Consideration of the general principles established in the authorities relevant to the grant of a stay

1. For completeness, I turn to the general principles to be exercised in determining a stay. The practitioner carries the onus to satisfy the Tribunal that the stay should be granted. I am not satisfied in the face of the conflicting medical evidence that she has satisfied that onus.
2. I take into account that the practitioner has a remedy which is being put into place by AHPRA to have the conditions placed before a suitable Board to review the wording of the conditions on her registration. I am satisfied that if she was practising and required emergency treatment, and was prescribed and took medication prescribed by a registered medical practitioner it would be highly unlikely she could be found to have breach Condition 5 because of its ambiguous language (see HCCC v Iskander [2015] NSWCATOD 30 at [195]-[198]). This fact militates against granting a stay in part of Condition 5. Further, I take into account there is doubt that any amendment to the Board's condition, except at the conclusion of an appeal, would be valid.
3. I accept that the practitioner is bona fide in bringing her appeal. I have concluded that the appeal could be expedited to minimise any adverse impacts on the practitioner's health or employment opportunities, but she has rejected this proposal. I accept she has done so on a basis which she legitimately advances.
4. I find the balance of convenience does not favour the granting the stay. Failure to grant a stay does not render the practitioner's appeal nugatory. A stay is not necessary to "secure the effectiveness of the appeal". This, in part, is because she is not currently practising and even if she was, she is highly unlikely to be found to have breached her health conditions if she needs emergency treatment given AHPRA's position set out in its correspondence. Her rights to practice with or without conditions can be fully ventilated at the appeal hearing. The practitioner will have the conditions reviewed very shortly, and may make submissions about the proper form of the conditions. Her appeal will be heard at a date in accordance with a time-table to which she has consented.

Future Board Meeting and Expedition of the Appeal

1. In determining not to grant the stay, I have taken into consideration that the practitioner's concerns may best be dealt with by the appeal being determined on its merits by a full panel of the Tribunal. Her eligibility for general registration with or without conditions can be properly considered at that time. I have already noted that the practitioner does not seek to have her appeals expedited.
2. In reaching my decision, I have taken into account the email from Ms Jayne Covey Manager, Registration, AHPRA who informed the practitioner on 15 February 2018 that AHPRA was "pursuing suitable availabilities for another state or territory jurisdiction's Medical Board to consider your registration and imposed conditions, and that confirmed details of the scheduled meeting will be communicated to you once available". On 2 March Ms Covey forwarded an email to the practitioner explaining that "I am awaiting confirmed arrangements regarding scheduling and consideration of your registration conditions with a Board in a jurisdiction outside of Tasmania, ACT and South Australian based on previous issues of bias as previously discussed with you". The oral advice of AHPRA's solicitors to me by the date of the hearing was that the NSW Board are now available to hear a review application.

orders 1. The application for a stay is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2018