Hilton v Chinese Medicine Board of Australia
[2014] QCAT 543
•30 October 2014
| CITATION: | Hilton v Chinese Medicine Board of Australia [2014] QCAT 543 |
| PARTIES: | Nicholas Hilton (Applicant) |
| v | |
| Chinese Medicine Board of Autsralia (Respondent) |
| APPLICATION NUMBER: | OCR378-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 30 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Each party bear their own costs of the proceeding. |
| CATCHWORDS: | PROCEDURE – COSTS – JURISDICTION – OTHER CASES – where the applicant brought an application to review the decision of the respondent – where the respondent was invited to reconsider its decision under s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the respondent should pay the applicant’s costs of the proceeding Health Practitioner Regulation National Law (Queensland), s 52, s 200, s 303(1)(c) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 28 March 2012 Mr Nicholas Hilton applied to the Chinese Medicine Board of Australia for general registration in the division of Chinese herbal medicine. At the time he held limited, public interest registration.
On 30 October 2012 the Board decided to refuse Mr Hilton’s application. This was communicated to him in a letter from the Australian Health Practitioner Regulation Agency dated 6 November 2012. This letter informed Mr Hilton that he was refused registration on the basis that he was not eligible or qualified for general registration.
Mr Hilton filed an application for review of the Board’s decision in the Tribunal on 23 November 2012.
Section 52 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) contains the requirement for a person to be eligible for general registration and relevantly states:
(1) An individual is eligible for general registration in a health profession if -
(a)the individual is qualified for general registration in a health profession …
In Chinese Medicine transitional provisions may apply to the qualifications of applicants for registration, due to Chinese Medicine being a newly regulated profession. There was no system of national registration for the profession of Chinese Medicine until 1 July 2012. Prior to this only one state, Victoria, had a system of registration for this profession.
The transitional provisions, known colloquially as the grandparenting provisions, are contained in s 303 of the National Law. Mr Hilton sought to rely on s 303(1)(c) to establish his qualification for registration.[1] Relevantly s 303(1)(c) provides that a person is qualified for general registration if the individual –
has practised in the profession at any time between 1 July 2002 and 30 June 2012 for a consecutive period of 5 years from or for any periods which together amount to 5 years.
[1]Affidavit of Nicholas Hilton filed 26 March 2013, [10].
The Board in considering Mr Hilton’s qualification under s 303(1)(c) relied upon the Grandparenting and General Registration Eligibility Registration Standard (‘the Standard’). The Standard required applicants making an application under s 303(1)(c) to provide acceptable proof of practice in the relevant period. What the Board considered acceptable proof was set out in Schedule 1 to the Standard. The evidence provided by Mr Hilton in this respect was accepted by the Registration Committee to be sufficient evidence to demonstrate practice.
The Standard further required evidence of competence –
Required Competence Evidence (section 52(1)(b)(ii))
…
Chinese herbal medicine
To demonstrate competence an applicant must provide evidence that they are competent to provide the full range of administration methods and routes in Chinese herbal medicine to a member of the public who consults them for such a service. This would include a differential diagnosis of the person’s condition and the design of herbal formula specific to the person’s condition, and adequate knowledge to ensure the safe selection, combination and dispensing of herbs and proper instructions to the patient about dosage etc. The patient could also reasonably expect that a person who is registered as a Chinese medicine herbal service would understand the properties and application of the herbs individually as well as the formulae in various forms such as decoction, pills, capsules etc. The non decoction administration may involve use of raw herbal powders (traditional preparation of pills) and extracted granular that involve the appropriate use of solvents such as ethanol.
To demonstrate competence in accordance with the Standard, 20 de-identified patient records were required to be provided.[2]
[2]See the Standard, Schedule 2, ‘Forms of Evidence (must provide one of the following)’.
Mr Hilton was informed in a letter from AHPRA dated 25 September 2012 that the Committee proposed to refuse his application. After reciting the requirements to demonstrate competence in the Standard the letter stated:
In accordance with section 81(2)(a) of the National Law, the Committee’s reasons for proposal are:
·That the evidence you have provided was not sufficient to meet the Board’s competence evidence as required under the Grandparenting and General Registration Standard.
A competent Chinese Medicine practitioner has the knowledge to modify standard formulas or use individual herbs to construct a formula taking into account the indications and contra-indications of particular herbs and the effect of individual herbs singly or in combination. This is constructed specifically in accordance with the patient’s condition and could be provided as a primary treatment.
In the absence of this evidence, the Committee is unable to determine that you meet the requirements for registration in the division of Chinese herbal medicine.
Upon receipt of the letter Mr Hilton called AHPRA but there was no one able to assist him at the time. On 10 October 2012 he received a call from a person from AHPRA. Mr Hilton asked that person whether she could offer any insight into the reasons of the Board and how he could address the requirements. Mr Hilton was told she would have to look at the matter and would call him back. When she called him back she said that, whilst she was not a Chinese medicine practitioner, from looking at the correspondence she thought there appeared to be some discrepancies between the diagnoses and the prescriptions. Mr Hilton then informed the person that he had been away studying. She said to send through some case histories showing his new skills and to include everything that he could think of to support his case.[3]
[3]Affidavit of Nicholas Hilton filed 26 March 2013, [15] – [21].
Following the conversation with the AHPRA employee Mr Hilton wrote to AHPRA providing information on his most recent studies and continuing professional development.
Having considered the further information provided by Mr Hilton the Committee resolved to refuse his application.
The proceedings in the Tribunal
On 23 November 2012 when Mr Hilton applied for a review of the Board’s decision. He also sought a stay of the decision. By direction dated 10 December 2012 each party was required to file submissions on the stay application and the matter was to be determined on the papers. On 4 January 2013 Mr Hilton filed an application for miscellaneous matters seeking to withdraw his application for a stay. By order of 8 January 2013 Mr Hilton was granted leave to withdraw his application and the matter of costs was reserved.
At a directions hearing on 25 January 2013 the Tribunal directed that the Board file a statement of reasons for the Board’s decision and a list of documents relied upon in coming to that decision. Directions were made for the sequential filing of material by Mr Hilton and the Board, following which there was to be a compulsory conference.
Mr Hilton was unable to file his material by the required date and sought an extension of time. The extension was granted and the matter proceeded to a compulsory conference.
Following the compulsory conference the Tribunal made directions that Mr Hilton file any further affidavit material upon which he relied and then the Board was invited to reconsider its decision under s 23 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
The day before the matter was listed for a directions hearing, the Board, by email, requested the directions hearing be vacated and consent orders attached to the email be made.
The Tribunal made orders, in the terms of the consent order, granting Mr Hilton leave to withdraw his application for review and directing the parties to file submission on costs.
The submissions
Section 200 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceeding.
Mr Hilton seeks his costs of the proceeding. Mr Hilton submits that that order is appropriate for the following reasons:
a) The application had strong merits. This is evident, he says, from the granting of his registration upon reconsideration under s 23 of the QCAT Act;
b) The material filed in the review proceeding did not materially alter the nature of the information already held by the Board as to the merits of his application for registration;
c) The Board did not afford natural justice to him for the decision under review;
d) He is a ‘man of modest means’ and has incurred significant costs in engaging lawyers; and
e) He has conducted the review with all due diligence.
The Board submits that an order should be made that Mr Hilton pay its costs of the proceeding or in the alternative there be an order that each party bear their own costs. It says that at all times the onus was upon Mr Hilton to provide all relevant material. Sufficient evidence was always in his possession. The Board had indicated the evidence required to overcome the deficiency in his application in its correspondence of 4 September 2012. It submits that it acted reasonably and fulfilled its statutory function on the evidence before it.
Consideration
The Board’s reasons for refusal, as communicated in its letter from AHPRA dated 6 November 2012, were;
That you have not demonstrated that you hold an appropriate qualification for registration in accordance with Section 52(1)(a) of the National Law or that you meet the requirement within Section 303(1)(a), (b) or (c) or (sic) the National Law and the relevant Standard.
The Board admits that this letter ‘is unhelpful in understanding the reasons for decision’. However, it is submitted that the reasons in that letter must be considered in the context of the ongoing, open, consultative, decision-making process being undertaken.
The Board submits that it indicted to Mr Hilton what evidence he needed to overcome the evidential deficiency in his application in its letter of 4 September 2012. This letter is annexed to the Statement of Reasons for Decision filed in the Tribunal on 5 March 2013. It is identical to the letter identified in [10], above, as dated 25 September 2012 which is annexed to Mr Hilton’s affidavit filed on 25 March 2013. For ease of reference I will refer to these letters as the Notice of Proposed Refusal.
In the Board’s submissions on costs, under the heading ‘Background’, the following paragraph is quoted from the Notice of Proposed Refusal;
To demonstrate competence in the division of Chinese herbal medicine, an applicant must provide evidence that they are competent to provide the full range of administration methods and routes in Chinese medicine to a member of the public who consults them for such a service. This would be expected to include the differential diagnosis of the person’s condition and the design of a herbal formula specific to the person’s condition and adequate knowledge to ensure the safe selection, combination and dispensing of herbs and proper instructions to the patient about dosage. (underlining in original)
This paragraph preceded the reasons for refusal quoted in [10] above. This is merely a recitation of the requirements identified in [9] above. If this is the basis for the Board’s submission that the Notice of proposed refusal indicated what evidence Mr Hilton needed to address the evidential deficiency then that submission must fail. The paragraph which followed that quoted by the Board in its submissions was as follows:
The patient could also reasonably expect that a person who is registered as a Chinese medicine herbal service would understand the properties and application of the herbs individually as well as the formulae in various forms such as decoction, pills, capsules etc. The non decoction administration may involve use of raw herbal powders (traditional preparation of pills) and extracted granular that involve the appropriate use of solvents such as ethanol.
This is the further requirements of the Standard as identified in [9] above. It is difficult to see how the recitation of the requirements for competency in the Standard indicated to Mr Hilton how to overcome the evidentiary deficiencies in his application. Indeed it is on this basis that Mr Hilton makes the submission that he did not receive natural justice in the original consideration of his application.
The Board points to paragraph 18 of Mr Hilton’s affidavit of 26 March 2013 as evidence that he was alive to the issue of needing further training in differential diagnosis. This paragraph relates to Mr Hilton’s conversation with an employee of AHPRA and states:
I explained that I had been away studying, which was why there was a little delay in my response to the letter. I also said that the study I had been doing was further enhancing my skills in differential diagnosis, particularly, pulse diagnosis.
This is not so much evidence of Mr Hilton being alive to the issue his needing further training, as evidence of him simply informing AHPRA of his having undertaken recent further training.
It is not until one looks at the written reasons for decision[4] filed in this proceeding that the deficiencies in competence evidence perceived by the Board are identified:
It is observed that the patient records contain very limited information regarding main presenting complaints as well as very little to no evidence of differential diagnosis or individualised use of formulas which are specific to treat the presenting complaints.
…
Mr Hilton did not provide sufficient competence evidence within his Application to identify clear differential diagnosis of patient’s presenting conditions and specific treatment plans including the institution of individualised formulas specific to patient presenting complaints.
[4]Filed 5 March 2013.
On 25 March 2013 Mr Hilton filed in the proceeding an affidavit in support of his application for review. Mr Hilton attached to that affidavit a document which provided further explanation of patient treatments in each of the 20 cases provided to the Board. Mr Hilton also provided more detail in relation to his practice.
Following the filing of these documents by the parties the matter proceeded to a compulsory conference. Compulsory conferences are to be held in private and evidence of anything said or done in the compulsory conference is not admissible as evidence in this proceeding.[5] The outcome of the compulsory conference was an order requiring Mr Hilton to file further material and an order inviting the Board to reconsider its decision.
[5]QCAT Acts ss 70(2), 74.
The further material provided by Mr Hilton included case summaries for patients between September and October 2012, which had not been provided to the Board previously.
Upon reconsideration the Board decided to grant Mr Hilton registration.
Mr Hilton submits that the information provided in these proceedings did not materially alter the information before the Board as the records which were provided to the Board had already set out: the presenting condition/s; the prescription made; that they were classic Chinese Medicine formulas to address the presenting conditions, sometimes with alterations or additional ingredients; changes to the patients condition throughout attendances; and changes to the prescriptions made throughout. Mr Hilton further submits that the Board, being a specialist Board with Chinese Medicine expertise would able to determine from the records the Chinese Medicine formulae construction to each patient and the explanation in the affidavit of 25 March 2013 merely describe the detail of how the records meet the criteria.
In my view, the appropriate order is that each party bear their own costs.
The Board’s decision to grant registration to Mr Hilton upon a reconsideration was subsequent to his having provided further information. Whilst Mr Hilton describes his affidavit as having only expanded upon the materials originally filed in support of his application for registration, it was nonetheless further information relevant to the question of his competence for registration.
It is incorrect for Mr Hilton to submit that he has been successful in the review proceedings. He has not been. All that has happened is that the Board has made a decision granting his registration, when invited to reconsider the matter, but based upon the further material. There has been no determination on the merits.
I do not accept that he should have his costs. Neither, however, do I accept that he should pay the Board’s costs.
The order of the Tribunal will be that each party bear their own costs of the proceeding.
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