Laming v Medical Board of Australia
[2013] QCAT 102
| CITATION: | Laming v Medical Board of Australia [2013] QCAT 102 |
| PARTIES: | Dr Andrew Laming (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR115-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Dr John Phipps |
| DELIVERED ON: | 7 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review is dismissed. 2. The Board has sought to be heard on costs. The Tribunal directs that both parties are to file in the Tribunal submissions, in writing, on the issue of costs within 14 days of the date of this decision. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – LICENCES AND REGISTRATION – where the Registrant applied for specialist registration – where the Registrant failed to provide documents requested by the due date – where the Board refused the application for registration – where the Registrant submitted that the preferable decision was an extension of time be granted – where the Board submitted the Tribunal had no jurisdiction to review the decision – whether the Tribunal has jurisdiction to review the decision PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – LICENCES AND REGISTRATION – where the Registrant applied for specialist registration – where the Registrant had been provided with an extension of time – where the Registrant failed to provide documents requested by the due date – where the Board refused the application for registration – where the Registrant sought review of the Boards decision – where the Registrant sought reconsideration of the application with further supporting documents – whether the application for registration should be reconsidered Health Practitioner Regulation National Law (Queensland), ss 80, 80(1)(b), 82(1), 82(5), 199(1)(a) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr A Laming |
| RESPONDENT: | Ms C Houlston of Moray & Agnew Solicitors for the Medical Board of Australia |
REASONS FOR DECISION
Dr Andrew Laming is a member of the House of Representatives in the Parliament of the Commonwealth of Australia. He is also a non-practicing medical practitioner.
Dr Laming was engaged in ophthalmological clinical practice until 2001. Notwithstanding his parliamentary service he wishes to maintain registration as a medical practitioner to allow him to perform occasional voluntary visits to Aboriginal communities where he may engage in non-procedural work such as ocular examination, trachoma screening and fundal photography.
To facilitate that desire, in December 2010 Dr Laming applied for specialist registration as a medical practitioner.[1]
[1]Dr Laming also applied for general registration as a medical practitioner at that time. On 11 October 2011 he withdrew his application for general registration. It is no longer necessary for a registrant to hold general registration in order to hold specialist registration; See letter of the AHPRA of 22 September 2011 and Dr Laming’s email of 11 October 2011 at pages 41- 43 of the documents produced pursuant to s 21(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
On 14 February 2012 the Medical Board of Australia refused Dr Laming’s application. The Board’s reasons were set out in a letter to Dr Laming dated 5 March 2012.
Dr Laming has applied to the Tribunal for a review of the Board’s decision.
Provision of Information and Extension of Time
Prior to refusing Dr Laming’s application, the Australian Health Practitioner Regulation Agency (AHPRA) had sought to obtain further information from Dr Laming necessary for it to consider his application.[2]
[2]Such information can be sought pursuant to s 80(1) of the Health Practitioner Regulation National Law (Queensland) (“National Law”).
On 17 February 2011 APHRA requested that certain further information be provided by 16 March 2011. On 18 March 2011 Dr Laming wrote to AHPRA requesting that his application be assumed to be open even if the material sought in AHPRA’s letter of 17 February 2011 was not provided by 16 March 2011 because he was ‘travelling for much of the time’.
In response, on 21 March 2011, AHPRA notified Dr Laming that an extension had been granted until 15 April 2011. Dr Laming immediately responded stating that he would need a further extension as he would be overseas until 25 April 2011. On 22 March 2011, to accommodate Dr Laming's absence, AHPRA granted an extension until 13 May 2011.
On 19 May 2011 Dr Laming: provided some of the information sought; asked for guidance in respect of some further information; and, sought a further extension to allow for the provision of documents. Some documentation was provided by Dr Laming on 24 May 2011. On 27 May 2011 Dr Laming provided further information and sought a further extension of 14 days to provide the outstanding documents. Some further documentation was provided by him on 3 June 2011.
On 1 July 2011 AHPRA again sought certified proof of identification and an original curriculum vitae. It had originally sought these documents in February 2011. AHPRA also requested that Dr Laming provide a return to work plan and supporting documentation. It gave Dr Laming until 15 July 2011 to provide these documents. It stated if the documents were not provided by then, no further extensions would be granted and that the application would be taken to have been withdrawn.[3]
[3] See s 80(5) of the National Law.
Dr Laming provided further documents on 15, 18 and 20 July.
On 15 August 2011 AHPRA informed Dr Laming that it was giving consideration to refusing his (then) application for general and specialist registration. It invited Dr Laming to provide a written submission addressing the issues raised in its letter by 14 September 2011.
Dr Laming sought guidance from the Medical Board of Australia so that he could make a submission about the proposed refusal of his application. The Board provided that guidance in correspondence dated 22 September 2011 and gave Dr Laming until 4 October 2011 to make any submissions.
In an email on 11 October 2011 Dr Laming withdrew his application for general registration and provided some further information in support of his application for specialist registration. He also requested further time in which to complete a detailed plan for re-entry to practice. He indicated that he thought that he may require a further 30 days to do that. On 29 November 2011 the Board granted Dr Laming a further extension until 31 January 2012, but informed him that no further extension would be granted.
On 26 January 2012 Dr Laming informed AHPRA that there was considerable further work to be done in developing his return to practice plan and that it would not be completed in January 2012. He could not then offer a firm submission date but stated that he was keen to submit the plan as soon as possible.
On 30 January 2012 AHPRA responded saying no further extensions would be granted. This was consistent with its letter of 29 November 2011. It offered Dr Laming the option of withdrawing his application and resubmitting it once he had complied with the Board’s requirements. AHPRA stated that if the application was not withdrawn by 1 February 2012 it would be considered by the Board on 14 February 2012.
It was in the context of these matters that the Board refused Dr Laming’s application.
Dr Laming’s Position
In his written submissions filed in the proceedings and in his oral submissions made on the hearing of the application, Dr Laming concedes that the decision of the Board was correct. He says, however, that the decision was not preferable because the specific hospital permissions sought by AHPRA could not be obtained by the 30 January 2012 deadline. He submits that a further extension would have allowed the complete application to be considered, and that it was unreasonable for the Board to determine that no further extensions would be granted.
Dr Laming says that his application was ‘obviously incomplete’ because he was yet to provide the information sought. However, that submission does not grapple with the fact that he had filed his application for consideration by the Board in December 2010 and that numerous extensions had been provided to him to allow the completion of the application by the provision of the supplementary information and documentation.
The only relief which Dr Laming seeks in the proceedings is to have the complete application considered by the Board.[4]
[4] See written submissions of Dr Laming 1 [2(a)], 3 [6].
A Jurisdictional Issue
The Board raises a preliminary jurisdictional point. It says that although couched as a request for a review of the decision of 14 February 2012, properly understood, it is clear that Dr Laming’s real grievance is in respect of the intermediate administrative processes adopted by the Board in refusing a further extension, rather than the final, substantive decision to refuse.
The Board’s jurisdictional point is rejected. Dr Laming has sought a review of the substantive decision of the Board to refuse his application. This is a decision to which s 199(1)(a) of the National Law applies. He did not, for example, seek to have reviewed, as a discrete matter, the decision of the Board, notified by its letter of 30 January 2012, that no further extension would be granted. The Tribunal has jurisdiction.
The Correct and Preferable Decision
Dr Laming’s contention that even though correct, the Board’s decision was not preferable, is no doubt made with s 20(1) of the QCAT Act in mind. Section 20(1) provides that the purpose of the review of a reviewable decision is to produce the correct and preferable decision. The Board submits that if the decision is correct, as Dr Laming concedes it is, then it must also, necessarily, have been the preferable one.[5]
[5] See written submissions of the respondent filed 16 January 2013, [12(b)]
This construction of s 20(1) is too narrow and restrictive. There may be circumstances in which a correct decision is not the preferable one. Section 20(1) contemplates that there may be a number of ways of deciding a matter which would be correct according to law. In such circumstances the Tribunal must determine which decision is preferable.[6]
[6]See Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009, clause 31.
What is the correct and preferable decision must be determined by QCAT on the basis of the material before it,[7] exercising all the functions of the Board.[8]
[7] QCAT Act, s 20(2).
[8] QCAT Act, 19(c).
On one view, by 14 February 2012 the matter had reached the point where it required a decision under s 82(1) of the National Law to either grant or refuse Dr Laming’s application for registration. On that view, Dr Laming’s concession that refusal was the correct decision would mean that the only correct decision had been made.
On another view, however, a third alternative was available. That alternative was the issuing, under s 80(1)(b) of the National Law, of a written notice requiring Dr Laming to give the Board further information or documentation reasonably required to decide the application. On that view, there would be more than one possible correct decision. Dr Laming’s concession as to the correctness of the refusal decision would not mean that the only correct decision had been made.[9]
[9] This is implicitly the submission made by Dr Laming.
It is not necessary to determine in these proceedings whether a decision to require the provision of further information or documentation under s 80(1)(b) is, potentially, an alternative (and thus potentially correct) decision to a decision to grant or refuse registration under s 82(1). It is unnecessary to do so because refusal of Dr Laming’s registration is also the preferable decision.
Refusal of the application is preferable because Dr Laming has now made a further application for registration as a medical specialist. That application was made on 5 November 2012. It is supported by all the information which Dr Laming had provided in support of his first application, including all that provided to the Board before its decision on 14 February 2012. It is also supported by further information and documentation which he has subsequently obtained and provided. The Board is yet to consider that subsequent application; but will do so in due course.
As the only relief which Dr Laming seeks in these proceedings is the consideration by the Board of his completed (first) application, there is no utility in the Tribunal making an order to that effect. Dr Laming will obtain the same outcome through the Board’s consideration of his completed (second) application.
Because of the way in which the decision was challenged and the limit to the relief sought by Dr Laming, no attempt has been made to place the Tribunal in a position whereby it could make a decision on the substantive merits of Dr Laming’s registration.
Although the Tribunal’s decision is to be made on the basis of the material before it on the review, because Dr Laming in challenging the Board’s decision not to grant him registration has asserted that its failure to permit him a further extension of time was unreasonable, the Tribunal should observe that that decision was entirely reasonable when it was made by the Board.
It was made in the context of the extensions referred to above. At the time at which the Board granted its final extension of time to Dr Laming on 29 November 2011, no issue was raised by Dr Laming, as he had done on earlier occasions, as to his ability to meet the timeframe. In seeking the further extension on 26 January 2012, Dr Laming was able to offer no timeframe in which he would be able to provide the outstanding information.
The Board is required to exercise its functions under the National Law having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Those guiding principles include that the scheme is to operate in a transparent, accountable, efficient, effective and fair way. The Board’s decision was in accord with those principles.
Decision
1. The application for review is dismissed.
2. The Board has sought the opportunity to be heard on costs. The Tribunal directs that both parties file in the Tribunal submissions, in writing, on the issue of costs within 14 days of the date of this decision.
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