Ha v Nursing and Midwifery Board of Australia (No 2)

[2021] QCAT 327

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ha v Nursing and Midwifery Board of Australia (No 2) [2021] QCAT 327

PARTIES:

THI NHA THI HA

(applicant)

v

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR320-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 October 2021 (ex tempore)

HEARING DATE:

8 October 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

Pursuant to section 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the application to review a decision, filed 16 October 2020, is dismissed as misconceived and/or lacking in substance.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applies for a review of a decision of the Board to impose conditions on her nursing registration – where the Tribunal lacks jurisdiction to review the decisions and/or the relief sought would have no utility – whether the application should be dismissed as misconceived or lacking in substance

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – where the applicant applies for a review of a decision of the Board to impose conditions on her nursing registration – where the applicant’s registration has lapsed – whether the Tribunal can determine a matter regarding conditions on registration where the registration no longer exists

Health Practitioner Regulation National Law (Queensland), s 178, s 199

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 24, s 47

Rudge v Nursing and Midwifery Board of Australia [2014] QCAT 226

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Brooks instructed by Minter Ellison

REASONS FOR DECISION

1. On 24 September 2020, the Nursing and Midwifery Board of Australia (Board) formed a reasonable belief, pursuant to section 178(1)(a)(i) of the Health Practitioner Regulation National Law (Queensland) (National Law), that the way Ms Thi Ha (applicant) practises the nursing profession is or may be unsatisfactory and decided, pursuant to section 178(2)(c) of the National Law, to impose conditions on the applicant’s registration as a registered nurse. Those conditions required the applicant to undertake and successfully complete an approved re-entry to practice program and be supervised by another registered nurse when practising as a registered nurse.

2. On 16 October 2020, the applicant filed in the Tribunal an application to review that decision.

3. The decision of the Board is an appealable decision pursuant to section 199 of the National Law.

4. In hearing and determining such an application, the Tribunal exercises its review jurisdiction pursuant to the provisions of chapter 2, division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). In particular, section 24(1) of the QCAT Act provides that in a proceeding for a review of a reviewable decision, the Tribunal may:

   (a)   confirm or amend the decision; or

   (b)   set aside the decision and substitute its own decision; or

   (c)    set aside the decision and return the matter for reconsideration to the decision maker for the decision with the directions the Tribunal considers appropriate.

5. Section 19 of the QCAT Act provides that in exercising its review jurisdiction, the Tribunal:

   (a) must decide the review in accordance with the QCAT Act and the enabling act under which the reviewable decision being reviewed was made, and

   (b) may perform the functions conferred the Tribunal by the QCAT Act or the enabling act under which the reviewable decision being reviewed was made, and

   (c)    has all the functions of the decision maker for the reviewable decision being reviewed.

6. The effect of those provisions is that in hearing and determining the applicant’s application to review the decision of the Board, the Tribunal stands in the position of the Board in making a fresh decision on the merits whether such decision should be confirmed, amended or set aside and substituted. It can only exercise those powers available to the Board pursuant to the National Law.

7. The applicant’s registration as a registered nurse ceased on 2 July 2021, upon the applicant choosing not to renew her registration. The effect of that has been previously considered by the Tribunal in the matter Rudge v Nursing and Midwifery Board of Australia [2014] QCAT 226.

8. In Rudge, the factual circumstances were as follows:

   (a)On 27 March 2013, the Board imposed conditions on Ms Rudge’s registration as an endorsed enrolled nurse pursuant to section 178 of the National Law;

   (b)On 27 May 2013, Ms Rudge applied for a review of that decision; and

   (c)Ms Rudge’s registration lapsed on 30 June 2013 due to her not applying to renew it within the prescribed time or the extended period.

9. In dismissing Ms Rudge’s application for review, Judge Horneman-Wren SC, Deputy President, stated as follows (footnote added):

   [7]   In this case that means that the Tribunal must consider the fact that Ms Rudge no longer holds registration. By s 202 of the National Law[1], the Tribunal may confirm an appellable decision, amend the appellable decision or substitute another decision for the appellable decision. These are the limits of its power. In substituting another decision, the Tribunal has the same powers as the Board that made the decision. The Board’s only powers under s 178 are in respect of a person who holds registration under the National Law. Ms Rudge is no longer such a person.

   [8]   As a matter of jurisdiction, the Tribunal is unable to grant the relief which Ms Rudge seeks in the form of granting unconditional registration. Even if there was jurisdiction to grant the relied sought by way of a clearance of her record and registration, a matter which I doubt, there is no utility in such an order. The conditions no longer form part of the register required to be kept by the Board. Any findings by the Tribunal would not bind either Ms Rudge or the Board in the Board’s consideration of any future application for registration which Ms Rudge might bring. Indeed, if the Board was to adopt such reasons or findings, it would itself commit appellable error in respect of that decision.

   [9] In my view the proceedings have become misconceived since the cessation of Ms Rudge’s registration because they seek relief which the Tribunal is unable to grant or, as a matter of discretion, should not grant because there is no utility in doing so. The proceedings also, for the same reasons, now lack substance. They should be dismissed pursuant to s 47(1) of the QCAT Act.

   [1]Section 24(1) of the QCAT Act is cognate with section 202 of the National Law which applied at the time of the decision in Rudge.

10. The Board relies upon that decision of the Tribunal in applying for the applicant’s application to review a decision to be dismissed pursuant to section 47 of the QCAT Act on the basis that it is misconceived and/or lacking in substance.

11. I respectfully agree with, and adopt the reasoning of, Judge Horneman-Wren SC in Rudge.

12. That the applicant no longer holds registration as a registered nurse has the consequence that the Tribunal is unable to grant the relief which the applicant seeks in the form of granting unconditional registration. Even if there were jurisdiction to grant the relief sought, which is doubtful, there would be no utility in such an order.

13. The proceedings have become misconceived since the cessation of the applicant’s registration because they seek relief that the Tribunal is unable to grant or, as a matter of discretion, should not grant because there is no utility in doing so. The proceedings also, for the same reasons, now lack substance. They should be dismissed pursuant to section 47(1) of the QCAT Act.