Reimers v Medical Board of Queensland
[2010] QCAT 241
•26 May 2010
| CITATION: | Reimers v Medical Board of Queensland [2010] QCAT 241 |
| PARTIES: | Mr Gerrit Joris Reimers |
| v | |
| Medical Board of Queensland |
| APPLICATION NUMBER: | OCR031-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R Oliver – Senior Member |
| DELIVERED ON: | 26 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent be given leave to have legal representation in the proceeding |
| CATCHWORDS : | Application for legal representation, section 43 of the QCAT Act; complex issues of law and public interest considered. |
APPEARANCES and REPRESENTATION (if any):
| Hearing on the papers. |
REASONS FOR DECISION
In this proceeding the Applicant seeks to review a decision by the respondent to refuse his application for registration as a general registrant pursuant to section 51 of the Medical Practitioners Registration Act 2001.
The respondent has filed an application seeking leave to be legally represented in this proceeding.
The applicant opposes the respondent’s application for legal representation and chooses to be self represented in the review application.
The application is made pursuant to section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) the main purpose of which is to have parties represent themselves “unless the interests of justice require otherwise”.
Background.
The applicant was the subject of disciplinary proceedings in New South Wales in November 2003 after which his name was removed from the Registrar of Medical Practitioners. The Certificate of Registration Status[1] dated 4 November 2003 provides that the applicant not make any application for registration for ten (10) years from the date of the decision.
[1] Included in the filed material
The Certificate of Registration Status goes on to provide:
“As a result of order 2, Mr Reimers is precluded from filing an application for a review of the Medical Tribunal De-Registration Order until 4 November 2013. The preclusion period refers to the amount of time in years from the date of the order, that a de-registered person must wait before applying to be re-registered as a Medical Practitioner. The application for a review of a de-registration order is made to the Medical Tribunal”.
On 7 December 2009 the Applicant applied to the Medical Board of Queensland for general registration. The respondent considered that application together with the material provided in support of it, and made the decision to refuse to register the applicant. In its statement of reasons the respondent said:
“The New South Wales Medical Board provided the Respondent with a Certificate of Registration Status for the Applicant, dated 17 December 2009. That certificate stated that on 4 November 2003, the Medical Tribunal of New South Wales made the following findings and orders with respect to the Applicant’s registration as a medical practitioner in New South Wales:
(a) the Applicant is guilty of professional misconduct;
(b) the Applicant’s name be removed from the Register of Medical Practitioners; and
(c) there be no application for review for 10 years from that day.
Due to the operation of section 33 of the Mutual Recognition (Queensland) Act 1992, the Registration Advisory Committee of the Medical Board of Queensland considered it appropriate to refuse the Applicant’s application for registration with the Respondent.
The Respondent considered that the refusal to register was appropriate in order to fulfil its statutory duty to:
(a)protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way;
(b)to uphold the standards of practice within the profession, and
(c)to maintain public confidence in the profession”
Submissions
The respondent submits that there is a need for legal representation in this application because the interests of justice require it[2]. It is submitted that the respondent should have every opportunity to properly present its case and have representation to do so in the interests of the public and the medical profession. The processes of registration by the respondent has significant importance to protect the public by ensuring healthcare is delivered by registrants in a professional, safe and competent way and to uphold standards of practice within the profession and maintain public confidence. It is therefore submitted that this places a burden on the respondent to ensure that, both the factual and legal basis for its decision are presented to this Tribunal as efficiently and thoroughly as is possible.
[2] Section 43(1)
In addition, the respondent likens these proceedings to a disciplinary proceeding and as such, legal representation is necessary. This is undoubtedly correct, although not strictly a disciplinary proceeding within section 43(2)(b)(2) it does have similarities because by refusing registration, it is upholding the decision of the New South Wales Medical Board made in November 2003.
As a corollary, if the Applicant sought legal representation on this basis, it would be difficult to resist the application because of the serious consequences for him his application is dismissed.
The respondent also identifies complex issues of law involving the application of the Mutual Recognition (Queensland) Act 1992 and the Medical Practitioners Registration Act 2001. It relies on the Applicant’s assertion that review of registration is ultra vires, in that the respondent is acting outside its protective jurisdiction. Questions of the power of the respondent in administering both the Medical Practitioners Registration Act and the application of the Mutual Recognition Act are being challenged. Should these submissions find favour, then there will be implications beyond this application.
The applicant opposes the application and points out, quite rightly that the application is not, in fact, a disciplinary hearing. He points out that granting legal representation to the respondent would potentially disadvantage the applicant. In respect of the questions of law raised in the application, the applicant submits that this is in “very general terms” and the Tribunal should not take these to be “submissions of specific points of law”. It’s unclear what this actually means but if points are relied upon in the application, no doubt one can reasonably expect that they will be agitated at the hearing.
Discussion
The applicant was de-registered in New South Wales in November 2003 for a period of ten (10) years. He has sought registration in Queensland and the Medical Board of Queensland have relied on, as one of the criteria, the previous de-registration by the New South Wales Board. It also took into account the basis upon which the de-registration occurred.
I am not satisfied that the applicant will be disadvantaged because it is incumbent on the respondent to present its case in an objective manner in the interests of the public.
I accept the submissions of the respondent that the review application does raise serious issues of public interest and confidence in the medical profession. I also accept that the proceedings, although not disciplinary, have a disciplinary flavour to them and therefore a degree of importance not only to the applicant but also to the respondent in supporting its decision. There are potentially complex issues of law involved with the application of the Mutual Recognition (Queensland) Act and whether under that Act whether it was appropriate for the respondent to refuse to register the applicant in reliance of the previous de-registration.
In the circumstances the Tribunal considers that this is a case where it would be in the interests of justice that the respondent be legally represented.
Therefore, the Tribunal will direct that the respondent be granted leave for legal representation.
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