Keys v Medical Board of Australia (No 2)

[2012] QCAT 585

CITATION: Keys v Medical Board of Australia (No 2) [2012] QCAT 585

PARTIES:	Dr Matthew Keys (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER:            OCR148-11

MATTER TYPE: Occupational regulation matters

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON:   28 September 2012

DELIVERED AT:   Brisbane

ORDERS MADE:     

1.    The application by the Board to reopen, correct, renew or amend the decision made on 15 June 2012 is refused.

2.    The question of costs of the Board’s application are reserved until Dr Key’s application is determined.

CATCHWORDS:

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – RENEWED DECISION – APPLICATION TO REOPEN, CORRECT, RENEW OR AMEND – where the Tribunal renewed a decision of the former Health Practitioner Tribunal – where the Board asserted the renewed decision required correction because it did not give effect to the Tribunal’s intention or had an unintended consequence – whether the decision could or should be altered

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 134(4)

APPEARANCES and REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 15 June 2012, the Tribunal published my decision on Dr Keys’ application to correct the decision made by the former Health Practitioners Tribunal in D540 of 2002 on 29 November 2002.  While that application was refused, I did renew the decision by varying the order in the form set out in the schedule to its decision of 15 June 2012.

2. The Board then applied to reopen, correct, renew or amend that decision, because, it submitted, the form of the orders had the unintended consequence that Dr Keys was able to apply to review restrictions imposed on him three years after the order was made (ie 29 November 2002).

3. The Board asserted the Tribunal’s intention was to allow Dr Keys to apply to review those restrictions three years after he had been re-registered to practise as a medical practitioner.  Dr Keys was registered as a medical practitioner in March 2009.  It is common ground that he may, on either interpretation of the renewed orders, now apply to review the restrictions.

4. Counsel for Dr Keys submitted, correctly in my view, that the Tribunal cannot further renew a renewed decision.[1]

   [1] Queensland Civil and Administrative Tribunal Act 2009, s 134(4).

5. He also argued there was no error in the decision requiring correction, nor was there any unintended consequence or ambiguity in the orders.

6. That is so.

7. At [36] of my reasons, I stated my conclusion that the former Health Practitioner Tribunal had intended to provide a non-review period of 3 years.  That conclusion was based, in part, on the reasons of his Honour Judge O’Brien, who presided during the original proceedings, who said:  

   I accept the submission for the Board that the Registrant may not apply for a review of the Tribunal’s decision to impose the above conditions for a period of three years from the date of this decision.

8. The orders made by the Tribunal gave effect to his Honour’s original intention; that Dr Keys could apply to review the restrictions three years from the date of the original decision (29 November 2002).  That is made explicit by the terms of order 6.

9. The Board suggested Dr Keys may have been placed, unintentionally, in breach of order 4, which related to his medical treatment.  Counsel for Dr Keys submitted Dr Keys had complied with the order and was not at risk because of the order taking effect as and from 29 November 2002.

[10]The Board has not established a basis for the Tribunal to alter a decision, which accurately reflects my intention.  The Board’s application is dismissed.

[11]The costs of Dr Keys application to renew the Health Practitioner Tribunal’s decision have been reserved until the application to review the restrictions is determined.  It is appropriate to make the same order in relation to the costs of this application by the Board.