MYERS and MEDICAL BOARD OF AUSTRALIA
[2014] WASAT 94
•8 AUGUST 2014
MYERS and MEDICAL BOARD OF AUSTRALIA [2014] WASAT 94
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 94 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:59/2013 | 7 MAY 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 8/08/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application VR 59 of 2013 dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN MYERS MEDICAL BOARD OF AUSTRALIA |
Catchwords: | Misconceived application Whether appellable decision under National Law |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, s 125, s 125(3), s 158, s 199, s 199(1), s 199(1)(f) State Administrative Tribunal Act 2004 (WA), s 47, s 60(2) |
Case References: | Drury v Medical Board of Australia [2011] VCAT 858 |
Orders | On the application heard on 7 May 2014 by President, Justice Curthoys, it is on 8 August 2014 ordered that: ,1. The application is dismissed. |
Summary | On 6 March 2013, DLA Piper, the solicitors for the Medical Board of Australia, wrote a letter to the solicitors for Dr John Myers (applicant).,In his application dated 20 March 2013, Dr Myers claimed that the letter amounted to an appellable decision that is subject to review by this Tribunal. The Board argues to the contrary.,The Tribunal finds that there was no relevant decision by the Board which could constitute an appellable decision for the purposes of s 199 of the Health Practitioner Regulation National Law (WA) Act 2010. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MYERS and MEDICAL BOARD OF AUSTRALIA [2014] WASAT 94 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 7 MAY 2014 DELIVERED : 8 AUGUST 2014 FILE NO/S : VR 59 of 2013 BETWEEN : JOHN MYERS
- Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Misconceived application - Whether appellable decision under National Law
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 125, s 125(3), s 158, s 199, s 199(1), s 199(1)(f)
State Administrative Tribunal Act 2004 (WA), s 47, s 60(2)
Result:
Application VR 59 of 2013 dismissed
Summary of Tribunal's decision:
On 6 March 2013, DLA Piper, the solicitors for the Medical Board of Australia, wrote a letter to the solicitors for Dr John Myers (applicant).
In his application dated 20 March 2013, Dr Myers claimed that the letter amounted to an appellable decision that is subject to review by this Tribunal. The Board argues to the contrary.
The Tribunal finds that there was no relevant decision by the Board which could constitute an appellable decision for the purposes of s 199 of the Health Practitioner Regulation National Law (WA) Act 2010.
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Ms F Stanton
Solicitors:
Applicant : N/A
Respondent : MDS Legal
Case(s) referred to in decision(s):
Drury v Medical Board of Australia [2011] VCAT 858
Introduction
1 On 6 March 2013, DLA Piper, the solicitors for the Medical Board of Australia (the Board), wrote a letter to the solicitors for Dr John Myers (the applicant).
2 In his application dated 20 March 2013, Dr Myers claimed that the letter amounted to an appellable decision that is subject to review by this Tribunal. The Board argues to the contrary.
3 The Tribunal finds that there was no relevant decision because the Board had not made a decision concerning Dr Myers at the relevant time.
The primary issue
4 The issue relevant to these proceedings is: does the letter of 6 March 2013 constitute an appellable decision within the meaning of the National Law?
Form of evidence
5 On 7 May 2014, at a directions hearing before the Tribunal, the parties agreed that the matter could be decided by the Tribunal solely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
Section 199(1) of the National Law
6 Section 199(1) of the National Law sets out what are appellable decisions under the National Law and provides:
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision
…
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
…
Section 125 of the National Law
8 Although s 199 of the National Law identifies an appellable decision, it does not provide the procedure for making an appeal. The relevant procedure is provided by s 125 of the National Law.
9 Section 125 of the National Law deals with changing or removing conditions or undertaking an application by a registered health practitioner. It provides:
(1) A registered health practitioner or student may apply to a National Board that registered the practitioner or student -
(a) for a registered health practitioner -
(i) to change or remove a condition imposed on the practitioner's registration or endorsement[.]
…
(a) be in the form approved by the National Board; and
(b) be accompanied by any other information reasonably required by the Board.
(4) For the purposes of deciding the application, the National Board may exercise a power under section 80 as if the application were an application for registration as a registered health practitioner.
(5) The National Board must decide to grant the application or refuse to grant the application.
(6) As soon as practicable after making the decision under subsection (5), the National Board must give the registered health practitioner … written notice of the Board's decision.
(7) If the National Board decides to refuse to grant the application, the notice must state -
(a) the decision made by the Board; and
(b) that the registered health practitioner or student may appeal against the decision; and
(c) how an application for appeal may be made and the period within which the application must be made.
Letter of 5 July 2012
11 On 5 July 2012, the Board gave notice (the 5 July 2012 letter) to Dr Myers, pursuant to s 158 of the National Law that it had resolved to impose the following condition, amongst others, on Dr Myers' registration:
You cannot [practise] as a medical practitioner until you have undergone a health assessment and the Medical Board of Australia has agreed that you are fit to return to practice. (the 5 July 2012 condition)
12 The 5 July 2012 letter gave notice of a right of appeal to this Tribunal under the National Law. The letter noted that an appeal should be made within 28 days of the date of the notice.
13 Dr Myers did not appeal the decision of 5 July 2012.
Decision of 22 October 2012
14 On 22 October 2012, the State Board reviewed a report by Dr Velakoulis.
15 The Board decided that the 5 July 2012 condition should remain in place.
16 Dr Myers was advised of this decision by letter dated 31 October 2012.
17 No application was made under s 125(1) of the National Law as a result of this decision.
The affidavit of Ms Amelia Farnworth
18 In an affidavit of 4 April 2014, Ms Amelia Farnworth deposed that she was a lawyer and employed by the Health Practitioner Regulation Agency who had the conduct of Dr Myers' file. She deposed that:
3. I have perused the file maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in relation to this matter (the relevant file). It is apparent from my perusal of that file that:
3.1 there are no documents on the relevant file which show that the Medical Board of Australia made any decision in relation to a condition on the registration of Dr Myers on 6 March 2013 or on any other date in March 2013; and
3.2 there is no document on the relevant file which shows that the Board delegated to any other person its decisionmaking power in relation to the condition imposed on Dr Myers' registration.
The 25 February and 5 March 2013 correspondence
20 On 25 February 2013, Dr Myers' then solicitors wrote to the Board referring to the 5 July 2012 letter. The letter stated:
The Notice [of 5 July 2012] was also to the effect that the State Board had resolved to refer our client for a health assessment to investigate the notification. Our client has subsequently complied with the requirements of the health assessment to be conducted and we have been furnished with reports prepared by Professor Michael Saling and Dr Dennis Velakoulis. In that regard please inform us of any additional reports there may be.
It is now incumbent upon the Board to determine the conditions (if any) upon which our client can practise as a medical practitioner. The delay in doing so is causing our client irreparable financial harm. Consequently, our client requires the Board to make a determination of the conditions it intends to impose upon our client and to do so without any further delay.
21 A further letter was written by Dr Myers' then solicitors on 5 March 2013, noting that there had been no response from the Board to the letter dated 25 February 2013.
The letter of 6 March 2013
22 As noted above, the solicitors for the Board wrote to Dr Myers on 6 March 2013:
The Medical Board of Australia has considered the condition imposed on your client's registration in the light of Professor Michael Saling's and Dr Dennis Velakoulis' reports. The Board's position as outlined in its letter to your client dated 5 July 2012 has not changed. It does not intend to remove the condition imposed on your client's registration.
The initial application to the Tribunal of 20 March 2013
23 On 20 March 2013, Dr Myers made an application seeking a 'Review of a decision to refuse to change or remove a condition'.
24 Dr Myers' application to this Tribunal states:
1 The [6] March 2013 decision is to the effect that:
The Medical Board of Australia has considered the condition imposed on Dr John Myers' registration in light of Professor Michael Saling's and Dr Dennis Velakoulis' reports. The Board's position as outlined in its letter to your client dated 5 July 2012 has not changed. It does not intend to remove the condition imposed on your client's registration.
2. Pursuant to the [Health Practitioner Regulation] National Law [WA] Act [2010], Schedule, s 202, Dr Myers seeks that the above decision be amended and that the following decision by substituted in terms of (a) alternatively (b) below, namely that:
(a) The condition imposed on Dr John Myers' registration be reconsidered in light of Professor Michael Saling's and Dr Dennis Velakoulis' reports and other relevant material. He is found to be fit to return to practice and the condition (that the Medical Board of Australia has to agree that he is fit to return to practice) be removed.
ALTERNATIVELY, that:
(b) The condition imposed on Dr John Myers' registration be reconsidered in light of Professor Michael Saling's and Dr Dennis Velakoulis' reports and other relevant material. He is found to be fit to return to practice and the condition (that the Medical Board of Australia has to agree that he is fit to return to practice) be removed, subject to further conditions as determined by this Tribunal. [The contents of such conditions may be further proposed and specified during the course of these proceedings.]
3. Pursuant to the [Health Practitioner Regulation] National Law [WA] Act [2010], Schedule, s 201, Dr Myers seeks an order that the Board pay his costs of these proceedings.
25 The application was stated to be under s 199(1)(f) of the National Law.
26 At the time the application was filed, Dr Myers clearly regarded the letter of 6 March 2013 as constituting a decision.
The decision of 2 May 2013
27 On 2 May 2013, the Board resolved to remove the 5 July 2012 condition. The reasons for the decision were in the following terms:
The condition imposed on the Practitioner's registration is no longer necessary, as the evidence does not support a finding that the Practitioner is suffering from an impairment.
Amended application 17 April 2014
28 On 17 April 2014, Dr Myers filed an amended statement of issues, facts and contentions. In its response, the Board admitted that the letter of 6 March 2013 was an appellable decision under s 199(1)(f) of the National Law. However, it subsequently resiled from that position and sought a determination from the Tribunal as to whether there was an appellable decision.
The Board's submissions
29 On 7 April 2014, pursuant to an order of the Tribunal, the Board filed submissions in relation to two questions:
(i) Was the decision of 6 March 2013 a reviewable decision within the meaning of the Act; and
(ii) What is the Tribunal's power to dismiss the application, the limitation on the practitioner's right to practise having been resolved by the lifting of the limitations on 2 May 2013[?]
30 The Board filed written submissions arguing that the letter of 6 March 2013 was not an appellable decision within the meaning of the National Law.
31 In substance, the Board argues that there was no reviewable decision and that an application should have been made under s 125 of the National Law:
…
4. Neither the letter dated 25 February 2013 nor the letter dated 5 March 2013 was an application under s 125(1) that the condition imposed on the applicant's registration by the Board on 5 July 2012 be removed. Both letters were, in substance, a mere statement of the applicant's view that it was incumbent on the Board to determine, promptly after the letters were written, the conditions upon which the applicant can practise as a medical practitioner.
5. Absent an application by the applicant for the removal of the condition on the applicant's registration further to s 125(1), the respondent was not required to make a decision further to s 125(5) of the National Law.
6. The respondent's decision on 5 July 2012 to impose a condition on the applicant's registration remains unchanged, unchallenged and in force on 6 March 2013.
Dr Myers' response
32 Dr Myers accepted that the letter of 6 March 2013 did not constitute a decision (16 April 2014). Dr Myers' further submissions in substance relate to the issue of costs.
Did the letter of 6 March 2013 constitute an appellable decision within the meaning of the National Law?
33 The evidence of Ms Farnworth establishes that no decision was made by the Board at the relevant time.
34 The letter of 6 March 2013 was poorly phrased. On one reading it might support a conclusion that a decision had been made by the Board. However, a letter from the Board's solicitors cannot constitute a decision by the Board, if in fact, no such decision has been made.
35 I am satisfied that there was no relevant decision that was appellable under the National Law.
36 Dr Myers should have made an application under s 125 of the National Law.
What is the Tribunal's power to dismiss the application, the limitation on the practitioner's right to practise having been resolved by the lifting of the limitation on 2 May 2013?
37 Section 47 of the SAT Act provides (emphasis added):
Frivolous etc. proceedings, dismissal of etc.
(1) This section applies if the Tribunal believes that a proceeding -
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
…
38 Given that I have found that there was no relevant decision under the National Law, the applicant's application dated 20 March 2013 was misconceived under s 47 of the SAT Act.
39 I dismiss Dr Myers' application pursuant to s 47 of the SAT Act.
40 I will hear the parties as to costs.
Order
41 The Tribunal makes the following order:
1. The application is dismissed.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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