Matsukis v Health Ombudsman
[2023] QCAT 202
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Matsukis v Health Ombudsman [2023] QCAT 202
PARTIES:
PAUL MATSUKIS (applicant)
v
HEALTH OMBUDSMAN (respondent)
APPLICATION NO/S:
OCR144-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
15 June 2023
HEARD AT:
Brisbane
DECISION OF:
Judge Dann, Deputy President
ORDERS:
1. The Stay Application is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – LICENCES AND REGISTRATION – IMMEDIATE ACTION – REVIEW OF IMMEDIATE ACTION – where the applicant psychologist applies to review a decision of the Health Ombudsman to impose conditions on his registration – whether the decision of the Ombudsman should be stayed pending the determination of the application
Health Ombudsman Act 2013 ss 57, 58, 100 and Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 s 47
Emechete v Medical Board of Australia [2022] QCAT 15
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
M McMillan of Legacy Legal
Respondent:
The respondent was not required to appear or be represented
REASONS FOR DECISION
By an ‘Application to stay a decision’ filed on 9 June 2023 (the Stay Application), the applicant practitioner seeks to stay the decision of the respondent Health Ombudsman dated 27 April 2023 to take immediate action pursuant to s 58(1)(a) of the Health Ombudsman Act 2013 (the Act) (the Decision).
The Stay Application was filed with an underlying application to review the Decision.
The Decision was communicated to the applicant in a letter to the applicant’s then solicitors dated 27 April 2023. In summary, the respondent’s decision was to impose conditions on the applicant’s registration including prohibiting the applicant from having contact with female patients and imposing requirements in relation to booking and employment.
Section 100 of the Act provides:
100 No stay of particular decisions
(1) This section applies if a health practitioner applies for a review of—
(a) a decision of the health ombudsman to take immediate action under part 7; or
(b) a decision of a National Board to take immediate action under the National Law, part 8, division 7; or
(c) a decision of the health ombudsman to issue a prohibition order under part 8A.
(2) QCAT must not grant a stay of the decision. (emphasis added)
“Immediate action” for a registered health practitioner means immediate registration action[1]. “Immediate registration action” is defined in division 1 of part 7 of the Act and means, in relation to a registered health practitioner, the suspension of, or imposition of a condition on, the practitioner’s registration[2]. (emphasis added)
[1]Schedule 1 to the Act containing the definition of immediate action.
[2]Section 57 of the Act.
The Decision was made pursuant to s 58 of the Act. Section 58 of the Act is contained within part 7 of the Act.
It is apparent, therefore, that the Tribunal cannot consider an application to stay the Decision.
On 15 June 2023, I directed my associate to email the applicant’s solicitors bringing their attention to s 100 of the Act and the decision of his Honour Judge Allen KC, then Deputy President of the Tribunal, in Emechete v Medical Board of Australia [2022] QCAT 15 (Emechete) and enquiring whether, in light of that information, the applicant intended to pursue the application. Surprisingly, a short time later, the applicant’s solicitor replied to my associate confirming that the applicant did indeed wish to pursue the application.
Having regard to s 100(2) of the Act and as articulated in Emechete[3] the Tribunal cannot grant the relief sought.
[3]Where a national board was the respondent, so that section 100(1)(b) of the Act was the operative provision.
The application must be dismissed.
Order
The order of the Tribunal is:
1.The Stay Application is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
0