Whitaker v Medical Board of Australia
[2013] QCAT 310
| CITATION: | Whitaker v Medical Board of Australia [2013] QCAT 310 |
| PARTIES: | Dr John Grieve Whitaker (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR234-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 28 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent is amended to the Medical Board of Australia. 2. The application to review a decision is struck out. 3. Mr Whitaker must pay the Medical Board’s costs of and incidental to the application to stay or strike out the proceedings, to be assessed on a standard basis on the District Court scale of fees by either QCIS or Hickey and Garrett costs assessors |
| CATCHWORDS: | HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – where the registrant was the subject of proceedings in the Medical Assessment Tribunal – where the registrant provided an undertaking to the Medical Board of Queensland – where the registrant sought review of the undertaking in the Tribunal – whether the Tribunal has jurisdiction Health Practitioners (Disciplinary Proceedings) Act 1999, s 241(2), s 403(1), s 403(4) |
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 (QCAT Act).
REASONS FOR DECISION
Mr Whitaker has filed an application in the Tribunal by which he seeks ‘…to withdraw the undertaking dated 16th March, 2000, to retire from medical practice, as per the attached Tribunal Order’.
The Medical Board of Australia contends that the application brought by Mr Whitaker is misconceived and should be struck out pursuant to s 47 of the QCAT Act.
The application is misconceived. The Tribunal does not have the jurisdiction to grant the relief which Mr Whitaker seeks.
In order to understand why the Tribunal lacks jurisdiction it is necessary to say something about the undertaking and order to which the application relates, and the circumstances in which they were, respectively, given and made.
By notice of referral of charge dated 4 October 1999 the Registrar of the then Medical Board of Queensland notified Mr Whitaker of the Board’s intention to refer a charge against him to the Medical Assessment Tribunal.[1] The charge was that he was guilty of misconduct in a professional respect.
[1]The Board had that power pursuant to s 37 of the now repealed Medical Act 1939. The Medical Assessment Tribunal was constituted under s 33 of the Medical Act 1939 and was given power and authority to hear and determine any charge made against a medical practitioner under the Act by s 34 of the Act.
The hearing of the referred charge commenced before the Medical Assessment Tribunal on 1 November 1999. The case had originally been listed for three days. At the end of the first day it was apparent that it would not conclude in the allocated time. It was adjourned to 13 March 2000 for a further three day hearing. When the hearing recommenced in March 2000[2] the Tribunal was informed that a resolution satisfactory to the parties had been reached.[3]
[2]It in fact recommenced on 16 March 2000 rather than 13 March.
[3]In the matter of the Medical Act 1939 (as amended) and in the matter of John Grieve Whitaker, transcript of proceedings 16 March 2000 at page 118 line 50.
The resolution involved Mr Whitaker providing undertakings to the effect that, as he had retired from practice, he would not practice medicine anywhere; that he would return any certificate of registration which he held; and that he would not pay the annual fee to renew his registration.
In return for those undertakings, the Board undertook to discontinue all charges pending against him in the Medical Assessment Tribunal upon his carrying out the terms of the confidential costs agreement.[4]
[4]Transcript of proceedings at page 122 line 32 to page 123 line 10.
The only formal orders made by the Tribunal were that costs had been agreed between the parties and that there was liberty to apply in the event that costs were not paid in accordance with the agreement. Those orders were made upon the mutual undertakings being given.
It is important to record that history because it demonstrates that there was no order of the former Medical Assessment Tribunal which removed or imposed any condition upon Mr Whitaker’s right to practice medicine. That right was removed by his undertakings freely given to the Board in return for the Board discontinuing the charges against him.
The Medical Act 1939 was repealed on 1 March 2002 by the Medical Practitioners Registration Act 2001. When enacted, the Medical Practitioners Registration Act 2001 formed part of the legislative scheme consisting of the health practitioner registration Acts, the Health Practitioner Registration Boards (Administration) Act 1999 and the Health Practitioner (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act).[5]
[5]The Disciplinary Proceedings Act was formerly the Health Practitioners (Professional Standards) Act 1999. The name was changed by s 21 of the Health Practitioner Registration and Other Legislation Amendment Act 2013; Act No. 13 of 2013.
Section 403(1) of the Disciplinary Proceedings Act provides that:
If, immediately before the commencement day, a registrant’s registration was subject to a final order, the order continues to have effect as if it were an order or decision by the tribunal under this Act.
By section 403(4) a final order includes an order of the Medical Assessment Tribunal. For present purposes, the Tribunal referred to in section 403(1) is QCAT.[6]
[6]See definition of ‘tribunal’ in the Schedule of the National Law.
But here, Mr Whitaker’s registration, for reasons I have already set out, was not subject to a final order of the Medical Assessment Tribunal. Section 403(1) of the Disciplinary Proceedings Act does not apply.
The Medical Act 1939 made no provision for the Medical Assessment Tribunal to accept undertakings.[7]
[7]Compare s 241(2)(c) of the Disciplinary Proceedings Act which permits the Tribunal to approve an undertaking entered into between the registrant and the registrant’s board about the registrant’s professional conduct or practice and s 241(2)(d) which permits the Tribunal to require the registrant to give the Tribunal an undertaking.
QCAT is a creature of statute. It only has the powers conferred upon it by either the QCAT Act or an enabling act.[8]
[8]Section 9(1) QCAT Act.
Section 199 of the Health Practitioner Regulation National Law (Queensland) (National Law) provides for a number of appealable decisions in respect of which a person the subject of the decision may appeal to the Tribunal. The appealable decisions include a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board.[9]
[9]Section 199(1)(g) of the National Law.
Here, however, there has been no undertaking given by Mr Whitaker to a National Board. Pursuant to s 291 of the National Law, if a person registered under a corresponding prior Act had given an undertaking to a local registration authority for a health profession which was in force as at 1 July 2010, that undertaking would have been taken to have been entered into under the National Law with the National Board. However, Mr Whitaker was not a person registered under a corresponding prior Act. A ‘corresponding prior act’ is defined by s 5 of the National Law as a law that was in force in a participating jurisdiction the day before the day on which the jurisdiction became a participating jurisdiction. Mr Whitaker was only ever registered under the Medical Act 1939 which is not an Act which satisfies that definition.
Mr Whitaker has not applied to the Medical Board of Australia for registration. Therefore, there has been no refusal of any such registration. Such a refusal would be an appealable decision under s 199(1)(a) of the National Law.
As matters stand, there is no decision or other matter reviewable within the Tribunal’s jurisdiction.
The application should be struck out.
The Board has asked for its costs. Under s 100 of the QCAT Act each party to a proceeding must bear their own costs other than as provided under the QCAT Act or an enabling act. Section 102(1) permits the Tribunal to order a party to pay the costs of another party to a proceeding if the Tribunal considers the interests of justice require it to make the order.
The Board is funded by the subscriptions of its members. Its resources are thus limited. It has had to expend some of those limited resources responding to an application which was misconceived. It has acted responsibly in applying to bring the matter to an early conclusion and thus limit the costs of the proceedings (to all parties). In my view, it is in the interests of justice in this case that the Board have its costs.
I will order that Mr Whitaker pay the Board’s costs of and incidental to the application to stay or strike out the proceedings, to be assessed on a standard basis on the District Court scale of fees by either QCIS or Hickey and Garrett costs assessors.
Mr Whitaker in his application has named the Medical Board of Queensland as the respondent. Although the Medical Board of Queensland was a party to the undertaking Mr Whitaker seeks to have reviewed, the Medical Board Queensland was abolished on 1 July 2010.[10] This occurred as part of the transitioning of the regulation of health professionals to a National Scheme.[11] The appropriate respondent for this application is the Medical Board of Australia. It is that Board that has participated in the proceedings.
[10]The Medical Registration Act 2001 which established the Medical Board of Queensland was repealed by the Health Legislation (Health Practitioner Regulation National Law ) Amendment Act 2001.
[11]See Explanatory Memoranda, Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010, pages 4 – 5.
The Medical Board of Australia is responsible for the registration of health practitioners[12] and would be the appropriate party for a review under s 199 of the National Law.[13] Additionally, any application of s 291 of the National Law would involve the assertion that the undertaking was now one taken to be made between a person and the National Board.
[12]Sections 35(1)(a),(b) & (q).
[13]Section 200(b).
I will make an order amending the respondent in these proceedings to the Medical Board of Australia.
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