ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND
CONDUCT – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS
– where the
applicant is a medical practitioner – where after complaints were made in
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS ANDCONDUCT – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS– where theapplicant is a medical practitioner – where after complaints were made inrelation to the applicant’sclinical care and conduct, the applicant hadconditions imposed on his registration by the second respondent – wherethe applicantappealed that decision to QCAT – where QCAT set aside theconditions imposed by the second respondent and imposed new conditions,including that the applicant must not practise in any position in a hospitalsetting, and must be supervised by another health practitioner– whereQCAT fixed a review period of two years, during which the applicant could notapply to change or remove the conditions– where the applicant applied tothe second respondent, after the review period, under s 125 of the HealthPractitioner Regulation National Law (Queensland), for the conditionprohibiting him from practising in a hospital setting to be removed –
where the second respondent refused
to grant the application, in September 2023
– where the applicant subsequently moved to New South Wales, and has had
his registration
suspended by the Medical Council of New South Wales –
where the applicant appealed the September 2023 decision to QCAT, but
his appeal
was dismissed because it was out of time, and an extension of time was refused
– where the applicant now applies
for a statutory order of review, under s
20 of the Judicial Review Act 1991 (Qld), in respect of the September
2023 decision – where the respondents contend the application should be
dismissed, under
s 13 of the Judicial Review Act, because another law,
namely the Health Practitioner Regulation National Law (Queensland),
provides for an avenue of review of the decision, the application lacks futility
because the applicant is not currently a registered
medical practitioner, the
application was commenced out of time and, in any event, lacks merit –
whether the application for
review should be dismissed
Health
Practitioner Regulation National Law (Queensland), ss 5, 125, 127A, 178,
199, 207
Judicial Review Act 1991 (Qld), ss 13, 20, 26, 30
Judgment (53 paragraphs)
[1]
[1] The applicant (the doctor) is a medical practitioner who is frustrated about the imposition of conditions on his registration. He applies under s 20 of the Judicial Review Act 1991 (Qld) for a statutory order of review of the decision of the second respondent, the Queensland Board of the Medical Board of Australia (the Board), made on 13 September 2023, which is part of a series of decisions relating to these conditions.
[2] The respondents say the application should be dismissed because:
[2]
(a) the applicant was entitled to seek review of the decision under another law, and in fact has done so;
(b) there is no point to the application, because even if the decision were set aside, and the matter referred back to the Board, it cannot make any fresh decision about the conditions on the doctor's registration because he is currently suspended;
(c) the application was brought out of time, and it is not appropriate to extend the time; and
(d) as a matter of substance, the application lacks merit.
[3]
[3] For the following reasons, I accept the respondents' arguments. It is appropriate that the application be dismissed.[1]
[4]
[4] The relevant chronology begins with a decision of the Queensland Notifications Committee 2 of the Medical Board of Australia, made on 17 January 2018. Complaints had been made about the clinical care provided by the doctor to two patients, and his behaviour towards them. There was also an issue about whether the doctor suffered from a health impairment affecting his capacity to practise. The Committee stated that it had formed the reasonable belief that the doctor's professional performance was unsatisfactory, and that he had an impairment,[2] and decided to impose conditions on his registration,[3] which included conditions requiring that the doctor:
[5]
(a) may practise only in a place of practice approved by the Board;
(b) could only work during the day (not outside the hours 6 am to 6 pm), not work more than 40 hours per week, and must not be the only medical practitioner on site;
(c) must be supervised by another registered health practitioner when practising as a medical practitioner; and
(d) must undertake treatment of a specified kind.
[6]
[5] The doctor appealed against that decision to the Queensland Civil and Administrative Tribunal (QCAT).[4] The doctor's appeal was started within time, but took a long time to be heard and determined. QCAT's decision was made on 9 February 2021. Following a review of all the material, QCAT also found that the doctor's professional conduct was unsatisfactory in a number of respects and that he had an impairment.[5] After giving the parties time to consider its reasons, QCAT made a decision, on 29 June 2021,[6] to set aside the earlier conditions and impose new ones. The conditions imposed by QCAT included conditions that the doctor must not practise in any position in a hospital setting, may practise only in place(s) of practice approved by the Board, must not be the only medical practitioner on site, and must be supervised by another health practitioner when practising as a medical practitioner. QCAT fixed a review period[7] of two years. A condition on registration may not be changed or removed during the review period, other than in limited circumstances.[8]
[6] The only condition contested by the doctor before QCAT was the one prohibiting him from working in a hospital setting. As recorded in QCAT's 29 June 2021 decision, the "basic problem with his working in a hospital" is that it requires team work and good communication, in respect of which the doctor was said to have "particular weaknesses" because of features of his personality.[9]
[7] In 2020, another complaint about the doctor's conduct was made. This complaint concerned the doctor's clinical performance in prescribing certain drugs. The complaint was dealt with by the Committee on 25 August 2021, and resulted in the Board imposing conditions requiring, essentially, that the doctor undertake education. The doctor appealed against that decision to QCAT. On 18 November 2022, QCAT confirmed the decision of the Board.[10] The doctor subsequently put together a plan for education, which was subsequently approved by the Board (including as part of its decision made on 13 September 2023). It is not necessary to say any more about this aspect of the chronology.
[7]
"125 Changing or removing conditions or undertaking on application by registered health practitioner or student
[8]
(1) A registered health practitioner ... may apply to a National Board established for the practitioner's ... health profession-
[9]
(a) for a registered health practitioner -
(i) to change or remove a condition imposed on the practitioner's registration or endorsement; ...
[10]
(2) However, the registered health practitioner ... may not make an application -
[11]
(a) during a review period applying to the condition or undertaking, unless the practitioner ... reasonably believes there has been a material change in the practitioner's ... circumstances; or
[12]
(4) For the purposes of deciding the application, the National Board may exercise a power under section 80[11] as if the application were an application for registration as a registered health practitioner.
[13]
(5) The National Board must decide to grant the application or refuse to grant the application.
[14]
(6) If the National Board's decision results in the registration or endorsement being subject to a condition, or an undertaking is still in place, the Board may decide a review period for the condition or undertaking.
[15]
(6A) As soon as practicable after making the decision under subsection (5), the National Board must give written notice to the registered health practitioner ... of -
[16]
(a) the decision; and
(b) if the Board has decided a review period for a condition or undertaking - details of the review period.
[17]
(7) If the National Board decides to refuse to grant the application, the notice must state -
[18]
(a) the decision made by the Board; and
(b) that the registered health practitioner ... 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."[12]
[19]
[9] On 13 September 2023, under s 125(5), the Board decided to refuse the doctor's application to remove the condition, saying:
[20]
"4. In considering the application, the Board is cognisant of the reasons the Tribunal imposed the restriction, where they had concerns for the Practitioner's ability to work effectively as part of a team and that teamwork is fundamental to hospital work.
[21]
5. Upon reviewing the Practitioner's section 125 review application, the Board noted that the Practitioner had not provided sufficient information about how he has addressed the concerns of the Tribunal relating to his ability to work effectively as part of a team, and more particularly in a hospital setting. Further the Board noted that the Practitioner's section 125 review application also contained several inappropriate and offensive statements towards several parties.
6. When deciding to take regulatory action, which includes granting or refusing a health practitioner's section 125 review application, the National Boards are guided by the regulatory principles for the National Scheme. These principles include having regard to the importance of maintaining standards of professional practice that support community confidence in regulated health professions.
7. To that end, the Board refused the Practitioner's section 125 application to remove the limitations on practice condition prohibiting him from practising in a hospital setting (clause 1)."
[22]
"8. ... in light of its concerns about the Practitioner's written communication in his section 125 review application, the Board decided to open an own motion notification to further investigate whether the Practitioner has engaged in conduct that accords with the standards of professional practice relating to registered medical practitioners in Australia."
[23]
[11] This decision, made on 13 September 2023, is the decision the subject of the doctor's present judicial review application.
[12] Before turning to that application, it is relevant to note some subsequent events.
[13] At some stage during 2023, the doctor moved to, and started practising in, New South Wales. On 12 October 2023, a delegate of the Board decided, under s 127A of the National Law, that any (future) review of the conditions on the doctor's registration should be considered by the review body in New South Wales, namely the Medical Council of New South Wales (MCNSW). As contemplated by s 127A(2)(b), the Board also provided relevant documents to the MCNSW for that purpose, including its "own motion complaint" and the written communications from the doctor which gave rise to it.
[14] The MCNSW conducted a hearing on 7 November 2023, in relation to whether it was appropriate to take action under s 150 of the Health Practitioner Regulation National Law (NSW). The MCNSW found the written communications reflected the doctor's "significant narcissistic traits", "prominent persecutory beliefs" and "overly racist beliefs" about certain people, and used "intemperate language that evidences disinhibition and impaired judgment". These factors were said to raise significant concerns about the care that members of the public would receive from the doctor. The MCNSW was satisfied there were "very real risks to the health and safety of the public", which justified the doctor's registration being suspended.[13] Accordingly, an order was made on 7 November 2023, under s 150(1)(a) of the National Law (NSW), to suspend the doctor's registration. As required by s 150D, the matter was also referred to the Health Care Complaints Commission (NSW) to be dealt with as a complaint for investigation.
[15] The Court was informed that the doctor has appealed to the New South Wales Civil and Administrative Tribunal against MCNSW's decision to suspend his registration. No decision on this appeal had been made as at the date of the hearing before me. The doctor therefore remains suspended at this time.
[16] In September 2024, the doctor filed an "application to review a decision" in QCAT. The decision sought to be reviewed was somewhat unclear (from the application and an accompanying letter from the doctor). But after a directions hearing on 11 February 2025, it was confirmed that the decision sought to be reviewed was the decision of the Board made on 13 September 2023.
[24]
(a) it was commenced 11 months out of time; and
(b) QCAT refused to grant an extension of time for the application, on the basis that it was not in the interests of justice to do so, because:
(i) the delay was significant, and a substantial part of it unexplained;
(ii) the Board would be prejudiced if the review application were permitted to proceed, in circumstances where:
(A) the doctor's registration has been suspended by the MCNSW;
(B) while suspended, the doctor cannot make any application for review or removal of conditions;
(C) if the suspension of his registration is lifted, then he can make an application under s 125 for review of the conditions;
(D) responsibility for any change or removal of conditions on his registration has been transferred to the MCNSW - so any application under s 125 would need to be made to that entity;
(E) the appropriate time to consider a review of the conditions on the doctor's registration is when he is returned to the register of registered practitioners, not before; and
(iii) the proposed review application lacked merit in any event.
[25]
[18] The respondents say there are three fundamental reasons why the doctor's judicial review application should be dismissed regardless of the grounds he relies on.
[19] The first reason is that the application for review must be dismissed, under s 13 of the Judicial Review Act, because the National Law provides an avenue of review for the decision.
[20] The second reason is that, in any event, the application for review is futile and lacks any utility, and so should be dismissed under s 48 of the Judicial Review Act.
[21] The third reason is the substantial delay before bringing the application for review.
[26]
Application should be dismissed because another avenue of review is provided for
(a) an application for review under s 20 is made to the court in relation to a decision; and
(b) provision is made by another law, under which the applicant is entitled to seek a review of the decision by another court or tribunal,
[29]
the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.
[30]
[23] Here, provision is made by another law, under which the doctor was entitled to seek review of the decision of the Board made on 13 September 2023. That law is s 199 of the National Law, which expressly contemplates an appeal to QCAT against a decision of the Board to refuse to change or remove a condition imposed on the doctor's registration (s 199(1)(f)).
[24] The respondents submit the doctor has already exercised that right, by making the application referred to above to QCAT in September 2024. The doctor argued that is not correct, because he only sought to challenge the "hospital condition" and the "educational condition", not the "supervision condition". That argument is not accepted. It is clear that the doctor sought to appeal the Board's decision made on 13 September 2023 to QCAT. That is the same decision in respect of which he now applies for judicial review under s 20 of the Judicial Review Act. The Board's decision of 13 September 2023 was concerned with the "hospital condition" and the "education condition" because those were the conditions the doctor applied under s 125 to remove or change. The fact that the doctor may have sought to broaden the scope of his argument, on the appeal to QCAT, to also challenge the "supervision condition" does not change the fact that he has already exercised a right to review the Board's decision (for the purposes of s 13 of the Judicial Review Act).
[25] The respondents submit that, given the doctor had another avenue of review, and exercised it, there is no reason having regard to the interests of justice why he should be permitted to have another go in this court, and the application should be dismissed under s 13. As the interests of justice are informed by the next matter to be discussed, I will address that before coming to my conclusion on this point.
[31]
[26] The decision of the Board made on 13 September 2023 was a decision made under s 125 to refuse to grant the doctor's application to remove a condition imposed on his registration (namely, the condition preventing him from practising in a hospital setting).
[27] Assuming for the purposes of this argument that the doctor could succeed in establishing a reviewable error, at best the practical outcome would be an order setting aside that decision, and referring the matter back to the Board for further consideration according to law.[16] Importantly, the present application for review to this Court has nothing to do with the MCNSW's decision to suspend the doctor's registration and would have no impact on that decision, even if successful.
[28] The point made by the respondents is that, while the doctor is suspended, neither the Board, nor the MCNSW, can deal with any application by the doctor to remove any condition(s).
[29] The effect of the doctor's registration being suspended is dealt with by s 207 of the National Law, which provides:
[32]
"If a person's registration as a health practitioner ... is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part."[17]
[33]
[30] "This Part" is part 8 (health, performance and conduct), which includes sections 138 to 207.
[31] Section 125 is in part 7, not part 8. Only a "registered health practitioner" can make an application under s 125. While suspended, the doctor is not a registered health practitioner.
[32] The doctor sought to rely on decisions which he said supported his argument that a practitioner did not need to be registered to apply for removal or change of conditions. Those cases do not support his argument. In Medical Board of Australia v Chandra[2014] QCAT 271, QCAT ordered that the practitioner's registration be suspended for two years and at the same time ordered that conditions be imposed on the practitioner's registration following the suspension. This does not support an argument that an unregistered practitioner can apply to change or remove conditions. EFQ v Medical Council of New South Wales[2021] NSWCA 167 involved an appeal by a registered medical practitioner against the imposition of an interim condition that she not practise medicine. Sivathasan v Medical Board of Australia[2024] WASAT 67 also involved a registered practitioner. The applicant Sivathasan held non-practising registration. A person who holds non-practising registration is a "registered health practitioner" as defined in s 5 of the National Law.
[33] Contrary to the doctor's submission, only a registered health practitioner may apply under s 125 to change or remove any conditions imposed on their registration.
[34]
[39] That conclusion is fortified further by the fact that the doctor brought this application substantially outside the 28 day time period allowed under the Judicial Review Act.[18] The decision was made on 13 September 2023. The proceedings in this Court were not commenced until 6 November 2024. For present purposes, I adopt that date as the date the application for review was first made, although what was first filed was a Claim seeking declaratory relief about the conditions. Various efforts were subsequently made to clarify what exactly the doctor was seeking by this proceeding. Those efforts crystallised in a review hearing before me on 25 July 2025, during which the doctor confirmed he sought judicial review of the decision of the Board made on 13 September 2023. Following that, on 28 July 2025, the doctor filed an application under s 20 of the Judicial Review Act, identifying the grounds he relies on, which formed the basis of the hearing before me on 6 August 2025. In any event, taking 6 November 2024 as the date of commencement of this proceeding, the doctor was more than twelve months out of time.
[40] His explanation for the delay is that he did not realise, until after his registration was suspended (in November 2024) that the "supervision condition" had no specified [time] period attached to it. The material before the Court suggests the doctor was probably aware of this in about September 2024, when he made his previous application to QCAT (because he refers to the point in the letter accompanying his application to QCAT). But this does not matter. In the face of both the lack of utility argument, and the s 13 argument, addressed above, and the lack of merit, discussed below, it would not be appropriate to extend the time to permit the doctor to bring this application.
[35]
[41] For completeness, having also heard argument from the parties about the grounds of review the doctor seeks to rely on (under s 20(2) of the Judicial Review Act), I am also satisfied that, even if there were not the fundamental hurdles already addressed, the application for review lacks any merit.
[42] There is an overarching problem with all of grounds one to five, which is that the Board did not, in the decision the subject of the present application for review, impose conditions on the doctor's registration (under s 178(2) of the National Law). What the Board did was refuse to grant the doctor's application under s 125 of the National Law for one of the conditions - the condition prohibiting him from practising in a hospital setting - to be removed. A misconception about the scope of the Board's decision of 13 September 2023 permeates each of grounds one to five.
[43] Ground one argues there was no evidence to justify the decision (s 20(2)(h)) and the decision was not authorised by the National Law(s 20(2)(d)), because the condition prohibiting him from practising in a hospital setting was imposed on the basis of misconceived grounds. The doctor argues that teamwork is not fundamental solely to hospital practice, but is fundamental to the practice of medicine in general - therefore this does not support the imposition of the condition. In addition, he argues that it was unreasonable for the Board to require him to provide information as to how he had addressed this concern, because he has been unable to work in a hospital. In so far as this ground addresses the Board's decision of 13 September 2023, as opposed to the earlier decision to impose the condition, it does not raise a reviewable error. It seeks to challenge the merits of the Board's decision not to remove the condition, based on insufficient information being provided by the doctor, which is not within the scope of judicial review.
[36]
[49] I am satisfied that s 13 of the Judicial Review Act applies. I am also satisfied that, having regard to the interests of justice, the Court should dismiss the application. The interests of justice in this case are informed by the following, all of which favour dismissal:
[37]
(a) the doctor had another avenue to seek review of the decision, namely, an appeal to QCAT under s 199 of the National Law, and has already exercised that right;
(b) there is no utility to the present application, because even if the doctor succeeded in setting the decision aside, the Board could not consider the matter further as it presently has no power to do so;
(c) the applicant is not prevented from applying again under s 125 of the National Law, to the MCNSW, to change or remove any conditions, once he restores his registration as a medical practitioner;
(d) the application is substantially out of time; and
(e) the application lacks merit.
[38]
[50] Neither party sought to be heard further in relation to the question of costs, essentially accepting that costs would follow the event. Since the proceeding is to be dismissed, it is therefore appropriate to also order that the applicant pay the respondents' costs of the proceeding.
[39]
[1] This decision is anonymised, consistent with the approach taken in previous decisions involving the doctor, which were anonymised to protect the identity of the patients concerned.
[40]
[2] See s 178(1)(a)(i) and (ii) of the Health Practitioner Regulation National Law (Queensland) (National Law).
[11] Section 80 confers powers on the Board to investigate, require the practitioner to provide further information, to answer questions, undergo an examination or assessment, or undergo a health assessment.
[49]
[13] Exhibit 1, decision of the MCNSW made on 7 November 2023, reasons given on 15 December 2023.
Australian Health Practitioner Regulation Agency Queensland [2025] QSC 189
Legislation Cited (1)
Review Act 1991
[8] In July 2023, once the two year review period had ended, the doctor applied to the Board under s 125(1) of the National Law for the condition on his registration which prohibited him from practising in any position in a hospital setting to be removed. Section 125 relevantly provides:
[17] A hearing of this application took place on 11 April 2025 and the application was dismissed,[15] because:
[34] Therefore, any order made by this Court in relation to the application for review - even if the doctor's arguments were accepted - would be of no effect at all.
[35] If the doctor succeeds in future in having the suspension of his registration removed, he will be free to make an application under s 125 in relation to the condition(s) on his registration. The appropriate body to which such an application would be made is the MCNSW. The doctor is not prevented from doing so by the Board's earlier decision of 13 September 2023.
[36] Accordingly, the respondents submit there is no point to the present application, because nothing can be done about the conditions while the doctor's registration is suspended and, if the suspension is removed, he can make a fresh application under s 125 to the MCNSW.
[37] I accept the respondents' argument. It is correct as a matter of law. There is no utility to this application because, even if it succeeded, the Board presently has no ability to deal with any application by the doctor to change or remove any conditions on his registration. He will not be able to make such an application until the suspension of his registration is removed. Once that occurs, the appropriate body to make that application to is the MCNSW. Importantly, there is no impediment to the doctor making another application under s 125, to the MCNSW, once the suspension of his registration is removed. The decision of the Board the subject of this review application does not prevent him from doing that.
[38] Taken with the s 13 argument, the lack of utility supports the conclusion that the application for review should be dismissed.
[44] Ground two argues there was a breach of the rules of natural justice (s 20(2)(a)), the decision was not authorised by the National Law(s 20(2)(d)) and involved an improper exercise of the power conferred (s 20(2)(e)) because the imposition of a condition prohibiting practising in a hospital setting was "based on reasons not grounded in the National Law". The argument under this ground is that it is illogical for the Board to "block" hospital practice alone. If community protection, or confidence, was the Board's concern, "entire practice must be blocked". Since this was not done, it follows, the doctor submits, that there was no basis for the imposition of the condition. This is also a merits argument, but also fails to grapple with the fact that the Board's decision was not one made under s 178(2).
[45] Ground three argues there was no jurisdiction to make the decision (s 20(2)(c)), the decision was not authorised by the National Law(s 20(2)(d)), it involved an improper exercise of power (s 20(2)(e)) and an error of law (s 20(2)(f)), because the condition was not a "relevant action" within the contemplation of s 178(2) of the National Law. The doctor's argument under this ground is that there is no specific clause in s 178(2) that enables the Board to impose a condition "blocking a particular type of healthcare setting, totally, such as hospitals". Rather, he submits, the Board can only prohibit a practitioner from undertaking a specific procedure. Even putting to one side the fact that the decision under review was made under s 125, not s 178, there is no support for the doctor's argument in the words of s 178 of the National Law. The types of conditions listed in s 178(2) are examples of what may be imposed. The examples are not exhaustive, and in any event are broad enough to include a condition of the type imposed on the doctor here - preventing him from practising in a hospital setting.
[46] Ground four also relies upon the grounds in s 20(2)(c), (d), (e) and (f), arguing that it was impermissible for the Board to impose conditions for an indefinite period. The difficulty with this argument is, again, that the Board did not, in its decision made on 13 September 2023, impose conditions (under s 178). Rather, the Board refused, under s 125, to grant the doctor's application to remove one of the conditions previously imposed. When the condition was imposed by QCAT, a review period (of two years) was stated. The doctor seemed to argue that when the Board made its decision in September 2023, under s 125, it was also required to state a "review period". That is not supported by the legislation - as s 125(6) makes clear, the Board may state a review period, but does not need to. And in fact not stating a review period is more favourable to the doctor - it means that, if he is able to remove the suspension on his registration, he can make another application under s 125 at any time.
[47] Ground five relies upon the same grounds in s 20(2), arguing that the decision involved reviewable error because it did not provide for a "specified period" for supervised practice (referring to s 178(2)(c)(ii)). There are two problems with this ground. First, as already noted, the Board did not impose the condition; second, the examples given in s 178(2) are exactly that - examples - there is nothing in the words of the section which permits such a condition only to be imposed for a specified period.
[48] Ground six seeks to challenge the part of the decision of the Board made on 13 September 2023, in which the Board states that it has decided "to open an own motion notification to assess whether the Practitioner has engaged in conduct that accords with the standards of professional practice", on the basis that there is no authority under the National Law for the Board to do that. I accept the respondent's submission that this aspect of the Board's decision made on 13 September 2023 is not a decision to which the Judicial Review Act applies. It is simply a statement that the Board has decided, of its own volition, to look into, or investigate, the doctor's conduct further. This involves no decision as such, in the sense of a substantive determination. In any event, and contrary to the doctor's submission, the Board is authorised, by s 160 of the National Law, to do this.