Stanley-Clarke v Medical Board of Australia
[2012] QCAT 29
•18 January 2012
| CITATION: | Stanley-Clarke v Medical Board of Australia [2012] QCAT 29 | |
| PARTIES: | Heven Leigh (Helen) Stanley-Clarke (Applicant) | |
| v | ||
| Medical Board of Australia (Respondent) | ||
| APPLICATION NUMBER: | OCR180-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Acting President |
| DELIVERED ON: | 18 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application to review the Board’s decision is struck out. 2. All other applications made in the proceedings are dismissed. 3. Ms Stanley-Clarke must pay the Board’s costs of and incidental to these proceedings, assessed on the standard basis against the District Court scale. |
| CATCHWORDS: | PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – where patient complained about a doctor who performed surgery on her face – where Board investigated complaint and decided to take no further action – where patient sought to review the Board’s decision – whether the Tribunal has jurisdiction to consider such a review – whether application should be transferred to another forum – whether the patient should be required to meet the Board’s costs of these proceedings Health Practitioners Regulation National Law Act 2009, s 9 Colgate-Palmolive v Cussons (1993) 118 ALR 248 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009.
REASONS FOR DECISION
Ms Stanley-Clarke is most dissatisfied with the outcomes from face-lift surgery she underwent in August 2008. She has provided photographs showing visible facial scars. She has complained of dimpling under the chin and a crooked mouth. She says she has experienced difficulty in speaking, soreness around her eyes and difficulties with her eyelids.
Initially she complained to the Health Quality Complaints Commission. Later she complained to the Australian Health Practitioner Regulation Agency (AHPRA), a body established under the national scheme for regulation of medical practitioners,[1] which provides administrative support and assistance to the professional Boards, in this case the Medical Board of Australia.
[1] Health Practitioners Regulation National Law (Queensland), s 23(1).
In November 2010, the Queensland Notifications Assessment Committee of the Medical Board of Australia resolved to take no further action on Ms Stanley-Clarke’s complaint, because it concluded the complaint lacked substance.[2] Officers of AHPRA continued to answer Ms Stanley-Clarke’s queries, apparently in an effort to explain why the Board considered her complaint lacked substance.
[2]Health Practitioners Regulation National Law (Queensland), s 151(1)(a) provides this is a ground upon which a Board may decide to take no further action in relation to a notification.
At her request, in May 2011, the Board reconsidered the matter, taking into account further material provided by Ms Stanley-Clarke and a response from the doctor who performed the surgery. In June 2011, the Board advised Ms Stanley-Clarke she had not provided any new information or evidence that warranted the Board amending its decision. It also advised that the treatment outcomes she complained of were not outside the normal range of expected outcomes for this type of surgery.
Ms Stanley-Clarke commenced proceedings in QCAT to review the Board’s decision. The Board applied to strike out her application. It argued the decision is not one that QCAT may review.
Because it informed Ms Stanley-Clarke that she could not review the decision through QCAT early in their correspondence, the Board also sought an order that Ms Stanley-Clarke pay its costs of these proceedings.
Before dealing with the Board’s application, it is necessary to discuss other applications recently filed by Ms Stanley-Clarke.
The applications made by Ms Stanley-Clarke
Ms Stanley Clarke has filed a number of applications:
(a)An application to extend time to appeal against the Board’s decision and to complain against AHPRA to the Office of the National Health Profession Ombudsman (filed on 29 July 2011);
(b)An application to apply to review the Board’s decision (filed on 15 August 2011 – this is the one the Board has asked to be struck out);
(c)An application to dismiss the Board’s application to strike out the proceedings (filed on 3 December 2011); and
(d)An application to transfer her application to a more appropriate forum (filed on 9 December 2011).
The history of the proceedings demonstrates that Ms Stanley-Clarke, a litigant in person, has had difficulty navigating the legal landscape. That is understandable. There are a number of potential actions she might take and a number of different agencies involved. It seems that she equates or has connected the question of compensation for negligence by the practitioner to disciplinary proceedings against him by the Board.
[10] The Board has pointed out to Ms Stanley-Clarke the distinction between the two types of proceedings and provided her with some guidance about the laws that apply to disciplinary proceedings. Ms Stanley-Clarke appears to be suspicious about the information the Board has provided. The Board, appropriately and on more than one occasion, recommended she obtain independent legal advice about the information it provided.
[11] Although she told the Board she had done so, that is not reflected in the course of these proceedings. It would be wise for Ms Stanley-Clarke to do so immediately if she does wish to make a claim for compensation for the outcomes from the surgery, a matter over which QCAT has no jurisdiction. Relevant to this matter, QCAT’s jurisdiction is confined to matters of registration and discipline of health practitioners.
The application to extend time to appeal against the Board’s decision and to complain to the Ombudsman
[12] The Board opposed Ms Stanley-Clarke’s application to extend time, if its application to strike out the proceedings failed. For reasons that follow, I have decided the proper course is to strike out Ms Stanley-Clarke’s review application. As a result, the question of extending time in relation to the Board’s decision is irrelevant. As for extending time to allow Ms Stanley-Clarke to complain to the Ombudsman, if there is a time in which Ms Stanley-Clarke must make that complaint, QCAT does not have any role to play in extending it.
The application to strike out the Board’s application
[13] Ms Stanley-Clarke’s application to strike out the Board’s application to strike out the proceedings indicates her opposition to the orders sought by the Board, and is treated as a submission to that effect.
The application to transfer her application to a more appropriate forum
[14] Ms Stanley-Clarke has also requested an alternative order to striking out her application; to transfer the application to a more appropriate forum.[3]
[3] Queensland Civil and Administrative Tribunal Act 2009, s 52.
[15] Ms Stanley-Clarke may well have other rights of action about the Board’s decision. However, she has not suggested what they might be. She has not specified which forum is more appropriate. She has not established the nature of the proceedings that she could bring in another forum. Although QCAT must assist parties in proceedings before it, it does not have the function of investigating Ms Stanley-Clarke’s situation or providing her with legal advice about her options. That is inconsistent with QCAT’s role as an impartial decision maker on applications brought before it.
[16] In the absence of a clear right of action before a specified Court or Tribunal, it is not appropriate to make an order to transfer these proceedings. If Ms Stanley-Clarke does have rights elsewhere, this decision will not preclude her pursuing them. She should seek advice about her options, should she wish to take the matter to another forum.
The Board’s application to strike out the proceedings
[17] QCAT does not have the power to deal with any type of application a party wishes to make. It can only deal with those applications for which it has jurisdiction. Its jurisdiction is determined by the Queensland Civil and Administrative Tribunal Act 2009 and by enabling Acts.[4]
[4]Queensland Civil and Administrative Tribunal Act 2009, s 9(1); an enabling Act is another Act or subordinate legislation that confers jurisdiction on the Tribunal.
[18] The QCAT Act does not confer review jurisdiction at large. QCAT may only review decisions where an enabling Act has specifically conferred jurisdiction on QCAT to do so.[5]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 17(1).
[19] The relevant enabling Act for decisions of the Medical Board of Australia is the Health Practitioner Regulation National Law Act 2009. It does confer jurisdiction on QCAT to review certain decisions. They are specified exhaustively in s 199 of Health Practitioner Regulation National Law (Queensland).[6] A decision not to take further action on a notification or complaint is not included in the list of decisions that QCAT can review.
[6]The Health Practitioner Regulation National Law (Queensland) is the law set out in the schedule to the Health Practitioner Regulation National Law Act 2009, as amended by that Act. Although the terms appeal and appellable decision are used in s 199, the matter proceeds by way of a review in QCAT; Health Practitioner Regulation National Law Act 2009, s 9.
[20] Although the Board’s submissions address other points, it is not necessary to deal with them. The Board’s strike out application must succeed on the argument addressed in paragraphs [17]-[19] above. Ms Stanley-Clarke’s application to QCAT is misconceived[7] and will be struck out.
[7] Queensland Civil and Administrative Tribunal Act 2009, s 47(1), (2)(a).
The Board’s application for an order for costs assessed on an indemnity basis
[21] The Board informed Ms Stanley-Clarke that QCAT could not review its decision well before she commenced proceedings. As early as April 2011, the Board told her this by email and suggested she obtain independent legal advice.
[22] After she commenced proceedings, in which she named the surgeon as the respondent, the Board’s solicitors provided more specific information to Ms Stanley-Clarke, including reference to the relevant provisions (on 2 and 22 November 2011). On both occasions, the Board’s solicitors reiterated the Board’s advice to Ms Stanley-Clarke to obtain independent legal advice. It also gave her notice that, if the Board had to take steps to join the proceedings and successfully applied to have them dismissed, it would seek costs against her, on an indemnity basis.
[23] On 22 November 2011, Ms Stanley-Clarke informed the Board that she had obtained independent legal advice, although what advice she received is not apparent. In any case, she maintained an application that was doomed to fail.
[24] The Board submitted that the usual position with respect to costs should not apply in this case. That is a reference to QCAT Act, s 100, which provides that, other than as provided under that Act or an enabling Act, each party must bear their own costs.
[25] The Health Practitioner Regulation National Law (Queensland) 2009 does otherwise provide. Section 201 of that Act provides that the responsible Tribunal, in this case QCAT, may make any order about costs it considers appropriate for the proceedings.
[26] That provision excludes the operation of s 100 of the QCAT Act. QCAT’s discretion to award costs in this case is unfettered.[8]
[8]A similar provision was found to exclude the operation of s 100 in Lyons v Dreamstarters Pty Ltd [2011] QCATA 142.
[27] Through AHPRA and its solicitors, the Board repeatedly and accurately informed Ms Stanley-Clarke her application was misconceived. It urged her to obtain independent legal advice. It gave notice that if it had to join the proceedings to dispose of them it would seek its costs, on an indemnity basis.
[28] Although she said she did obtain advice, that is not apparent in Ms Stanley-Clarke’s decision to continue with her application. It seems improbable that a lawyer provided with correspondence from the Board and its solicitors would have advised Ms Stanley-Clarke to continue with these proceedings.
[29] The Board has a strong case for costs. The more difficult question is whether they should be assessed on the standard (party/party) or indemnity (solicitor/client) basis.
[30] An order for indemnity costs may be made against a person who has commenced or unduly prolonged a case with disregard for the clear law, in circumstances, where, properly advised, they should have known there was no chance of success.[9]
[9] Colgate-Palmolive v Cussons (1993) 118 ALR 248, 256, 257.
[31] A consideration is that limited public funds should not be wasted on a case that has no prospect of succeeding. In this case, it is also worth noting that the Board derives its resources, at least in part, from the registration fees paid by members of the profession. They, too, should not be thrown away.
[32] Ms Stanley-Clarke feels greatly aggrieved by the results of her surgery. Perhaps this has clouded her judgment and prevented her from heeding the warnings the Board gave her about the course of action she adopted. It is hard to imagine what further steps the Board could have taken to divert Ms Stanley-Clarke from her misconceived application. On that basis, an award on an indemnity basis is certainly open.
[33] Nevertheless, in this case, I have decided to make the award only on the standard basis. Ms Stanley-Clarke is not legally represented. It seems she genuinely believed the Board’s information was wrong. Apparently, she took some comfort from the very general description of QCAT’s jurisdiction on the QCAT website, that she had the right to review the Board’s decision. In the absence of evidence of wilfulness or improper motive, I will exercise discretion in Ms Stanley-Clarke’s favour and the costs will be assessed on the standard basis.
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