Hewett v Speech Pathologists Board of Queensland Office of Health Practitioner Registration Boards
[2010] QCAT 389
•13 August 2010
| CITATION: | Hewett v Speech Pathologists Board of Queensland Office of Health Practitioner Registration Boards [2010] QCAT 389 |
| PARTIES: | Mrs Wendy Leigh Hewett |
| v | |
| Speech Pathologists Board of Queensland Office of Health Practitioner Registration Boards |
| APPLICATION NUMBER: | OCR124-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 13 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Applicant and the Respondent have leave for legal representation in the proceeding. |
| CATCHWORDS : | Legal representation; where complex issues having regard to the respondents policy for registration and the applicants experience since first registration as a Speech Pathologist. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mrs Wendy Leigh Hewett self represented |
| RESPONDENT: | Speech Pathologists Board of Queensland Office of Health Practitioner Registration Boards represented by Rodgers Barnes & Green, Lawyers |
REASONS FOR DECISION
The Respondent has applied to the Tribunal for leave to be legally represented in this proceeding pursuant to section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). The application is opposed.
Background
The Applicant qualified as a Speech Pathologist in 1976, became registered and ceased practice to undertake family duties in December 1981.
In March 2010 she applied to the Speech Pathologist Board of Queensland (“the Board”) to become reregistered.
The Board considered that application and in a letter to the Applicant on 21 April 2010 refused to grant her registration. The Applicant has sought a review of that decision.
The basis for the refusal is that, in considering whether the Applicant is “fit to practice the profession”, pursuant to section 45 of the Speech Pathologist Registration Act 2001 the Board has said:
“You have not practised in the profession of Speech Pathology since 1981, and therefore do not meet the Boards current requirements for recency of practice to be considered for registration. (The Board requires a minimum of 1000 hours of practise in the profession in the last 5 years, 600 hours of which were to have occurred in the last 3 years).”
In addition, the Board had regard to section 45(1)(e) which provides:
“If the qualification relied on by the applicant to obtain registration was conferred or awarded on a day (the qualification day) that is more than 3 years before the date of application, the nature, extent and period of any practice of the profession by the applicant since the qualification day;”
The Applicant contends that the Board did not properly take into account her voluntary work with children with learning and speech difficulties, her tutoring students in ESL courses and work undertaken under the supervision of a Speech Pathologist, Guidance Consultant/Learning Extension and Assistance Coordinator, Early Childhood Teachers and TESOL trainer/assessor. The Applicant makes reference to her experience working as a Speech Pathologist since she returned to the workforce in 2000 which is detailed in curriculum vitae. In addition she has provided references which include a reference from Eleanor Skoien, a Speech Pathologist.
As well as the grounds set out in its correspondence, the Board, in an affidavit of Meredith Kilmister, also relied on a policy entitled Eligibility for Registration which has been adopted by the Board. The effect of the policy is that the Board should refuse an application for general registration where the Applicant has not practised in the profession for more than 12 years and whose qualifications were conferred more than 3 years before the date of the application.
The Boards Submission
The Board contends that legal representation would assist the Board due to its obligations under the Act to protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way, to uphold the standards of practice within the profession and to maintain public confidence in the profession. It is submitted that these objects can be best achieved if the Board is represented by a legal representative. In addition, pursuant to section 43(3) of the QCAT Act it is submitted that the Board is a state agency and there are complex issues of fact and law. It is true that the Board is a state agency and this is a factor to be taken into account.
10. It is contended that the application does have a degree of complexity which involves a determination whether the Respondent unduly fettered it’s discretion by relying on section 45(1) and the policy referred to above.
11. The Board relied on Bontchev v Medical Board of Queensland [1] and Reimers v Medical Board of Queensland[2].
[1] [2010] QCAT 61
[2] [2010] QCAT 241
The applicant’s submissions
12. The applicant sought to distinguish these decisions on the basis that both cases involved a consideration of previous disciplinary proceedings and interstate registration. I tend to agree they are of little assistance other than they are examples of where representation was granted.
13. Mrs Hewitt contends that there are no complex issues of fact or law and contends that the Board failed to have regard to section 57 which permits the board to grant conditional registration. The applicant sets out the condition that should apply. Therefore the matters for determination are not complex and the Board does not need legal representation. The relevant factual matters are set out in the applicant’s material which does not seem to be contested.
Discussion
14. Ironically the issues raised by the Applicant in her material and submissions does, in my view raise some issues of complexity. The Applicant, although not registered continued to work utilising here skills as a Speech Pathologist as she describes in her material. This evidence will need to be carefully considered by the tribunal if it is to displace the policy adopted by the Board. Also there will need to be a consideration of the legal effect of the policy and whether the Board does have a discretion to not adopt it. Furthermore, this evidence would have to be considered in the context of section 45(1)(e) to determine whether the Applicant is fit to practice having regard to the nature, extent, and period of any practice of the profession by the applicant, since her qualification day
15. It is apparent that the Board does not accept that the Applicant’s work and experience as set out in her correspondence and curriculum vitae satisfies this requirement, nor does she get the benefit of the policy. The determination of these issues does involve a consideration of the Board’s proper discharge of its obligations under the Act referred to above, particularly with respect to future applicants for registration and public confidence in the profession.
16. The further question for determination is the application of section 57 and whether conditional registration should be granted, and if so, whether the conditions proposed by the applicant should be imposed. This also involves a consideration of the application of the policy.
17. Although the main purpose of section 43 is to have the parties represent themselves, I am of the view that the interests of justice do require, in these circumstances of this case, that the Board have leave to be legally represented. For similar reasons leave is granted to the Applicant.
18. Therefore the Tribunal’s order will be that both the Applicant and the Respondent have leave for legal representation in the proceeding.
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