Martin v Australian Health Practitioner Regulation Agency
[2014] QCAT 52
•7 February 2014
| CITATION: | Martin v Australian Health Practitioner Regulation Agency [2014] QCAT 52 |
| PARTIES: | Dr Gary Martin (Applicant) |
| v | |
| Australian Health Practitioner Regulation Agency (Respondent) |
| APPLICATION NUMBER: | OCR024-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 7 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE TRIBUNAL THAT 1. The application for a stay is dismissed. THE TRIBUNAL DIRECTS THAT: 1. Dr Martin must serve the Application to review a decision, filed in the Tribunal on 7 February 2014, on the Medical Board of Australia, by 4:00pm on 12 February 2014; 2. The Medical Board must file five (5) copies in the Tribunal and give one (1) copy to Dr Martin of a written statement of reasons for the decisions and any documents in its possession or control relevant to the decision on review, by 4:00pm on 21 February 2014; 3. Dr Martin must file five (5) copies in the Tribunal and give one (1) copy to the Medical Board of his submissions and any statements of evidence on which he intends to rely, by 4.00pm on 5 March 2014; 4. The Medical Board must file five (5) copies in the Tribunal and give one (1) copy to Dr Martin of its submissions and any statements of evidence on which they intend to rely, by 4.00pm on 14 March 2014; and 5. The matter is listed for hearing for a half day commencing at 10.00am on 19 March 2014. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – the Committee took immediate action suspending the registrant’s registration – the registrant sought a stay of the Board’s decision – whether a stay of the Board’s decision should be granted Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 398B, s 398 C, s 398ZC Azam v Medical Board of Australia [2013] QCAT 588 |
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 7 February 2014 Dr Gary Martin filed in the Tribunal an application to review the decision of the Queensland Medical Interim Notifications Group (the Committee) of 9 January 2014 to take immediate action in relation to him. The immediate action taken was the suspension of Dr Martin’ registration.
The Committee decided to take immediate action following notifications in relation to Dr Martin having performed bilateral blepharoplasty procedures on a patient on 31 January 2012 and a revision procedure on 3 March 2012. The procedures are alleged to have been performed in contravention of conditions which were imposed on his registration on 25 October 2011.
Those conditions prohibited him from treating patients with regard to skin lesions requiring surgical or procedural treatment. The conditions also required that all other surgical procedures be performed under level 1 supervision by Dr Milivoje Tomasevic, his Board approved supervisor.
It is alleged that the procedures conducted in January and March 2012 were performed without Dr Tomasevic’s supervision.
Dr Martin seeks a stay of the Board’s decision. Pursuant to s 398ZC of the Health Practitioners (Disciplinary Proceedings) Act 1999 (‘Disciplinary Proceedings Act’) the Tribunal is not able to stay the Board’s decision.[1]
[1]See Chaudhry v Australian Health Practitioner Regulation Agency [2013] QCAT 305 and Azam v Medical Board of Australia [2013] QCAT 588.
The Tribunal has jurisdiction to review a decision to take immediate action under the Health Practitioner Regulation National Law (Queensland)[2] (‘National Law’) and Part 12A of the Disciplinary Proceedings Act.[3]
[2]Section 199 and Health Practitioner Regulation National Law Act 2009 (Qld), s 9.
[3]Disciplinary Proceedings Act s 398C.
Section 398B in Part 12A of the Disciplinary Proceedings Act defines a reviewable decision as a decision mentioned in s 199 of the National Law that was made under Part 8 of that law. A decision to take immediate action is a decision mentioned in s 199, specifically s 199(1)(e), and is also a decision made under Part 8 of the National Law. Therefore it is a reviewable decision.
Section 398ZC in Part 12A of the Disciplinary Proceedings Act provides that if a registrant applies for a review of a reviewable decision made under Part 8, Division 7 of the National Law the Tribunal must not grant a stay of the decision.
In taking immediate action the Board has acted under s 156 of the National Law, which appears in Part 8, Division 7.
For these reasons the application to stay the decision must be dismissed.
While s 398ZC prevents the Tribunal from staying the Board’s decision, it also requires the Tribunal to finalise the review as quickly as possible. For that reason I will make the following directions;
1. Dr Martin must serve the Application to review a decision, filed in the Tribunal on 7 February 2014, on the Medical Board, by 4:00pm on 12 February 2014;
2. The Medical Board must file five (5) copies in the Tribunal and give one (1) copy to Dr Martin of a written statement of reasons for the decisions and any documents in its possession or control relevant to the decision under review, by 4:00pm on 21 February 2014;
3. Dr Martin must file five (5) copies in the Tribunal and give one (1) copy to the Medical Board of his submissions and any statements of evidence on which he intends to rely, by 4.00pm on 5 March 2014;
4. The Medical Board must file five (5) copies in the Tribunal and give one (1) copy to Dr Martin of its submissions and any statements of evidence on which they intend to rely, by 4.00pm on 14 March 2014; and
5. The matter is listed for hearing for a half day commencing at 10.00 am on 19 March 2014.
The directions are directed to the Medical Board. This is because the proper parties to the proceeding are the person who is the subject of the decision and the National Board that made the decision,[4] in this instance the Medical Board of Australia. However, given the urgency attaching to the matter, I will have the registry of the Tribunal forward a copy of the application, this decision, and the orders, to the Australian Health Practitioner Regulation Agency as a matter of courtesy.
[4]National Law, s 200.
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