Mitchelson v Medical Board of Australia - [2010] QCAT 571

CITATION:

Mitchelson v Medical Board of Australia [2010] QCAT 571

PARTIES:	Dr Mark Leslie Mitchelson (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR055-10

MATTER TYPE:

Occupational Regulation

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Judge Fleur Kingham
Deputy President

DELIVERED ON: 10 November 2010

DELIVERED AT: Brisbane

ORDERS MADE:

1. The Tribunal does not have jurisdiction to review conditions 4 to 11, imposed on Dr Mitchelson’s registration pursuant to the order of the Health Practitioners Tribunal on 31 October 2007.

2. The matter is listed for a compulsory conference in Brisbane at 1:30pm on 7 December 2010.

CATCHWORDS :

INTERIM APPLICATION – JURISDICTION – where Board contended that certain conditions of registration not susceptible to review – where conditions required to be imposed by order of HPT

JURISDICTION – where Board contended that Tribunal should not review other conditions because of change of registration status of applicant – where Tribunal properly seized of review application – whether subsequent administrative action can deprive the Tribunal of jurisdiction

Health Practitioners (Professional Standards) Act 1999 s241(2)(j)(ii)

Medical Practitioners Registration Act 2001 ss 59(1), (2), 73, 150AD, 237

Medical Practitioners Registration Regulation 2002 ss10B, s11

Re Bloomfield and Sub-Collector of Customs (ACT) (1981) 4 ALD 204

Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437

R v Moody; ex parte Mithen (1977) 17 ALR 219

REASONS FOR DECISION

On 15 May 2009, the Medical Board of Queensland granted Dr Mitchelson General Registration subject to 12 conditions. Dr Mitchelson applied to review that decision.
Some of the conditions (numbered 4 to 11) were imposed by the Board in compliance with an order made by the Health Practitioners Tribunal (HPT)[1] on 31 October 2007. On that date, the HPT cancelled Dr Mitchelson’s registration and specified conditions that the Board must impose on any future registration[2].
[1] The predecessor to QCAT
[2] Health Practitioners (Professional Standards) Act 1999 s241(2)(j)(ii)
QCAT does have power to review certain types of decisions of the Tribunal. They are specified in the Health Practitioners (Professional Standards) Act 1999 (s337). The decision to specify conditions the Board must impose on registration after cancellation is not one that s337[3] provides may be reviewed. Dr Mitchelson’s only option was to appeal that decision, which he did not do.
[3] Health Practitioners (Professional Standards) Act1999
To the extent that the application requests review of conditions imposed by the Board in compliance with the order of the HPT (Conditions 4 to 11), it is beyond QCAT’s jurisdiction.
The remaining conditions (1 to 3 & 12) were imposed by the Board in exercise of its powers under s59 of the Medical Practitioners Registration Act 2001[4]. Under that provision, the Board may decide to register an applicant as a general registrant on conditions the Board considers necessary or desirable for the applicant to competently and safely practise the profession[5]. If it does so, the Board must give the applicant an information notice about the decision[6]. A person given an information notice may apply to QCAT for a review of the decision[7].
[4] Since repealed by the Health and other Legislation Amendment Act 2009 (date of assent 3 November 2009 -ss 1–2 commenced on date of assent; remaining provisions commenced 1 January 2010 (2009 SL No. 290).
[5]Medical Practitioners Registration Act 2001 s59(1)
[6] Medical Practitioners Registration Act 2001 s59(2)
[7] Medical Practitioners Registration Act 2001 s237 Under the QCAT Act, Dr Mitchelson could apply to review within 28 days of being notified of the decision (s33). That time period can be extended (s61). No point has been taken by the Board that it is out of time.
Dr Mitchelson did so on 22 February 2010. His application is confusing. He nominated the decision maker as the Health Practitioner Tribunal and the date of the decision as 31 October 2007. However he described the decision he wanted to review as registration with 12 conditions imposed. It is clear enough that Dr Mitchelson wanted QCAT to review his registration subject to the 12 conditions.
On 22 May 2009, Dr Mitchelson had applied to renew his registration. He applied for full registration but sought a fee waiver on the basis that he held a Commonwealth Government pensioner’s concession card, being the recipient of a disability support pension.
The Board has the power to waive payment of a registration fee for retired practitioners, if satisfied the person does not earn any income from the practice of the profession and holds a pensioner concession card or seniors card[8]. The Board also has the power to waive the fee if payment would cause financial hardship[9]. The form completed by Dr Mitchelson did not reflect the distinction drawn in the Regulation between the two types of fee waivers. It provided the option of applying for “Non-practising Registration”. Dr Mitchelson did not choose that option; rather, he requested full registration. The form did not require the applicant to undertake not to earn income. On the evidence before QCAT it is not evident on what basis Dr Mitchelson sought a fee waiver or that he understood that it would change his registration status.
[8] Medical Practitioners Registration Regulation 2002 s10B (since repealed)
[9] Medical Practitioners Registration Regulation 2002 s11
The material filed by the Board does not reveal what happened with the renewal application. The effect of an application to renew is that the current registration continues in force until the renewal decision is made[10]. That would mean that, until the decision was made on his application to renew, his registration in the terms approved on 15 May 2009 continued. That is, he maintained his general registration.
[10] Medical Practitioners Registration Act 2001s73
It might be inferred that rather than renew his current registration, the Board decided to grant Dr Mitchelson a different type of registration. There is some evidence to that effect. In a letter to Dr Mitchelson dated 22 April 2010 the Chair of the Board stated:
“Our records show you are a retired practitioner who received a fee waiver for the 2009-2010 registration period. This fee-waver was granted on the basis that you hold a Commonwealth Pensioner Concession Card or Queensland Seniors Card and that you undertook not to earn an income from the practise of the profession for the duration of the registration year.”
That undertaking is not before QCAT. The only certificates of registration produced by the Board are those issued on 15 May 2009 (effective to 30 June 2009) which was for general registration subject to 12 conditions and one issued on 22 April 2010, which was for limited registration and subject to different conditions. Had his registration been renewed on a different basis for the 2009-10 year, it could be expected that a certificate would have issued.
That later certificate was issued pursuant to a provision of the Medical Practitioners Registration Act 2001 which commenced on 1 January 2010 and which created a new category of registration with mandatory conditions[11]. It provided that a general registrant whose fee had been waived under a regulation was a limited registrant and is subject to conditions which prevent him from practising his profession, except in the most limited way.
[11]Medical Practitioners Registration Act 2001 s150AD
The Board contends that the effect of that change to Dr Mitchelson’s registration status is that the decision made on 15 May 2009 has no further operation and that Dr Mitchelson’s application to review that decision is futile. None of the 12 conditions of which he complains are, now, conditions of his current limited registration. On the evidence before QCAT, I am not satisfied that is the case.
In my view the intervening administrative action by the Board does not deprive QCAT of jurisdiction on this application. QCAT is properly seized of the matter, an application to review having been properly brought, at least in relation to the imposition of conditions 1 to 3 & 12.
In the absence of a specific statutory provision, it is not open to a decision-maker to alter or otherwise tamper with a decision once it has become the subject of an application for review by the tribunal[12].
[12] R v Moody; ex parte Mithen (1977) 17 ALR 219; Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437 at 438-439; Re Bloomfield and Sub-Collector of Customs (ACT) (1981) 4 ALD 204 at 211
The grant of limited registration occurred after these proceedings were commenced and in response to a request for a fee waiver on a renewal application. On the evidence before QCAT, Dr Mitchelson did not consider he was a retired practitioner and did not seek registration on that basis. Indeed, he had already commenced a review, the purpose of which was to challenge conditions he argued effectively prevented him from re-entering the profession
Regardless of the subsequent events prompted by his request for a fee waiver, Dr Mitchelson’s application to review the imposition of conditions 1, 2, 3 & 12 of his general registration remains a matter to be resolved by QCAT.
The effect of this decision is that Dr Mitchelson’s application to review conditions 4 to 11, imposed pursuant to the order of the HPT, cannot proceed. His application is confined to review conditions 1 to 3 & 12. That greatly curtails the scope of Dr Mitchelson’s review. His submissions suggest his primary complaint is about conditions 4 to 11, which QCAT cannot review. Given that, Dr Mitchelson should have the opportunity to consider whether he wishes to continue with these proceedings.
The matter will be listed for a compulsory conference so the parties may discuss the implications of this decision for the current proceedings and for Dr Mitchelson’s future registration.