Nobleta v Medical Board of Australia (No 2)
[2014] QCAT 77
•26 February 2014
| CITATION: | Nobleta v Medical Board of Australia (No 2) [2014] QCAT 077 |
| PARTIES: | Dr Ma Donna Joy Nobleta (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR246-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 26 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Medical Board to refuse Dr Nobleta’s registration is further stayed until 31 August 2014. 2. The hearing listed for 31 March 2014 is vacated. 3. The application will be listed for a one (1) day hearing at the QEII Courts of Law Complex, Brisbane commencing at 10.00am on 12 August 2014. |
| CATCHWORDS: | PROFESSIONS AND TRADES – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – application to vary a stay of a decision refusing registration – appellant passed an interview recommending she was suitable for a position of need – appellant requires registration to sit further exams – whether it is desirable to extend a stay after having regard to the interests of any person whose interests may be effected Health Practitioner National Law (Queensland), s 85 Nobleta v Medical Board of Australia [2013] QCAT 730 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
On 6 December 2013, the Tribunal refused to make orders in this matter which would have had the effect of varying the present stay of the decision under review and vacating the hearing which has been set for 31 March 2014. The decision under review is that of the Medical Board of Australia of 26 June 2012 refusing to renew Dr Nobleta’s limited registration as a medical practitioner in an area of need, for the period from 30 April 2012 to 19 April 2013.
In seeking the orders, which were refused, all that had been proffered to the Tribunal was a document which purported to be a consent order and a covering letter from the solicitors for the Board inviting the Tribunal to contact its author if it had any queries.
In reasons published on 6 December 2013[1] the Tribunal explained that the parties had wholly failed to identify any basis upon which it might exercise the discretion to grant a stay conferred by s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). As explained in those reasons, s 22(4) of the QCAT Act limits the exercise of that discretion to circumstances in which the Tribunal considers it desirable after having regard to the interests of any person whose interest may be effected by the making, or not making, of the order; any submissions made by the decision maker; and the public interest. Because no formal application had been made and no material filed in support directed to the issues to which regard must be had, the Tribunal had no basis upon which it could form a view as to the desirability of exercising its discretion to grant a further stay.
[1]Nobleta v Medical Board of Australia [2013] QCAT 730.
Furthermore, there was no attempt made by the parties to explain why the hearing date, which had been set a year in advance, should then be vacated.
The Tribunal listed the matter for directions and, on 13 December 2013, ordered any application to vary the current directions, including the listing of the hearing of the matter, or to vary the stay, be filed by 17 January 2014 together with material in support. Dr Nobleta has now applied for orders, including the vacating of the hearing date and extending the stay of the decision to 31 August 2014.
In an affidavit in support of her application, Dr Nobleta states that since the last stay of the decision, which was granted on 25 March 2013, she has successfully sat the RACGP-KFP examination on 20 April 2013. She also sat the RACGP-OSCE examination on 24 October 2013,[2] but was unsuccessful in that examination.
[2]Dr Nobleta states that she sat the OSCE on 24 October 2013, however, it appears that this date is incorrect. Exhibit DN-4 to her affidavit filed 17 January 2014 and exhibit PDM-01 to the affidavit of Paul McCowan filed 15 January 2014 are both the letter from the RACGP informing Dr Nobleta of her results. The letter is dated 14 June 2013.
Dr Nobleta also resat the Australian College of Rural and Remote Medicine Pre-Employment Structured Clinical Interview (PESCI) on 24 September 2013. She was rated as satisfactory in all areas of the interview. The overall recommendation of the interview panel was that Dr Nobleta is suitable for the position of need in general practice at the Riverway Medical Centre, Kirwan, Queensland, for which her limited registration was being sought.
This PESCI result is of some significance. Dr Nobleta had previously undertaken a PESCI on 22 February 2012 which had resulted in a recommendation that she was not suitable for the position of need at the Riverway Medical Centre. In the reasons for the Board’s decision under review, the Board stated that this earlier PESCI result raised concerns about Dr Nobleta’s ability to competently and safely practice medicine in the role. Further, because that PESCI found that she was not suitable for the position a new, further application for limited registration, which she had lodged on 20 March 2012, did not meet the registration standards.
The orders which the Tribunal made in this matter on 25 March 2013, by which the stay of the decision was extended, included, as order 6, that if Dr Nobleta did not obtain a pass mark in the RACGP-OSCE on 15 May 2013, she was to sit a PESCI by no later than 30 September 2013. This is what has now transpired.
Order 7 of the 25 March 2013 orders required that, in the event that Dr Nobleta was required to sit a PESCI in accordance with order 6, then the application was to be listed for directions on a date about 14 days after she had obtained the results of the PESCI. Regrettably, order 7 was not complied with. Had it been, the matters the subject of this decision, and the earlier decision of 6 December 2013, might have been much more efficiently dealt with.
The orders made on 25 March 2013 were jointly proposed by the parties in a draft signed by each of them. It is clear from the terms of orders 6 and 7 that it was contemplated by the parties that the outcome of the further PESCI, if it was required to be undertaken by Dr Nobleta because of a failure of the OSCE, might have some bearing on the course of the application for review.
That this was contemplated by those earlier orders is also evident from the events which followed the publication of Dr Nobleta’s September PESCI result.
On 5 November 2013 the solicitors for the Board wrote to Dr Nobleta.[3] It appears that there had been discussions directly between the Australian Health Practitioner Regulation Agency (AHPRA) and Dr Nobleta in October 2013 which preceded the solicitor’s letter.[4] In their letter, the Board’s solicitors referred to Dr Nobleta having passed the PESCI. On that basis, the Board had instructed that Dr Nobleta was eligible to make a fresh application for registration. The solicitors confirmed advice previously provided by AHPRA to Dr Nobleta that any fresh application would take up to three months to process.
[3]Exhibit DN-6 to Dr Nobleta’s affidavit filed 17 January 2014.
[4]Paragraph 3 of the Board’s supplementary submissions filed 20 January 2014.
The solicitors then said:
In light of the above, and in order that the matter be appropriately resolved as efficiently as possible, we enclose a consent order for your client’s consideration. If the terms are acceptable to your client we ask that you please return the signed consent order to us so that we may countersign. We will then lodge the document at the Tribunal registry.
This was the ‘consent order’ which was then provided to the Tribunal but which was refused because none of the history since March 2013 which I have set out above were disclosed.
The Board, having been the proponent of the ‘consent order’ in November 2013, now takes a somewhat ambiguous position in relation to Dr Nobleta’s present application. In an outline of submissions filed on 15 January 2014 the Board said that it ‘presently does not seek to make application to vary any of the current orders’. After noting that Dr Nobleta had made a fresh application for limited registration in an area of need on 6 December 2013, and that it had sought further information from Dr Nobleta in support of that application, initially by 16 January but now by 30 January, it submitted that it ‘would not be expected to be able to make a decision one way or the other in respect of the fresh application for limited registration at least possibly 3 – 4 weeks after receipt of all materials sought from (Dr Nobleta)’.
The Board’s submissions conclude:
In any event if the application for fresh registration were to be either refused or taken to be withdrawn, the Board would in the present circumstances, seek for the listed hearing date to remain on foot.[5]
[5]The Board’s submissions do not identify any circumstances in which Dr Nobleta’s recent application for registration might be taken to be withdrawn.
In supplementary submissions filed on 21 January 2014, the Board pointed out that, pursuant to s 85 of the Health Practitioner Regulation National Law 2009, if it failed to decide an application for registration within 90 days after its receipt, or longer period as agreed between the Board and the applicant, it is taken to have refused the application. It emphasised that the period for deciding the application could be extended by agreement.
The Board submitted that at the time of writing to Dr Nobleta on 5 November 2013, it was entitled to expect a timely and diligent fresh application for registration. The Board then submits:
However given the delays in the applicant making her application and the apparent delays in provision of the further materials requested, the Board now does not wish to interfere with the hearing date as listed, until the fresh application is decided one way or the other.
Implicit in this submission is a suggestion that Dr Nobleta’s lodging a further application on 6 December 2013 was not timely or diligent. That criticism has not previously been raised. The Board’s reference to ‘apparent delays in provision of the further materials requested’, pays little regard to the fact that the extension was for only 14 days, and it was granted by the Board.
Apart from the consideration of her further application for limited registration, Dr Nobleta has now also enrolled to resit the RACGP-OSCE on 17 May 2014 and the Australian Medical College Clinical Examination on 1 March 2014. She has paid fees associated with those examinations totalling $3,580.
Dr Nobleta will be unable to sit the RACGP-OSCE in May if she is not then registered. If the stay of the decision is not extended, she is unlikely to be registered at the time. Therefore, not extending the stay will have a major effect upon her.
If Dr Nobleta is successful in those examinations, or if the Board approves her further application, she will be entitled to practice.
I accept that if the stay is not extended, it will also affect her family for whom she is the sole breadwinner. However, for reasons developed in Tabanas v Medical Board of Australia,[6] those impacts are not of the same order as those upon patients who may be affected. Dr Nobleta has said little about the potential effects upon her patients. She deposes to working six days per week. She says that she is often required to extend her regular hours due to the lack of medical practitioners. But the circumstances which lead to their being a lack of practitioners is not exposed in the material.
[6][2013] QCAT 522 at [44].
Dr Kaushal, who operates the practice in which Dr Nobleta works, in an affidavit filed on 17 January 2014, says nothing of what impact there may be on patients if the stay is not extended. Notwithstanding this, I accept that there would be some impact; at least in the short term.
In all the circumstances, particularly Dr Nobleta having passed the PESCI and made fresh application for registration, and her having enrolled in examinations for which she requires current registration, I consider that it is desirable that the stay decision refusing her registration be further extended. I am also satisfied that the hearing set down for 31 March 2014 should be vacated to allow those other matters to run their course.
The matter will be listed for hearing on 12 August 2014. The stay will be further extended to 31 August 2014.
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