A current snapshot following an unsuccessful application to stay a decision in the Queensland Civil and Administrative Tribunal.

Introduction

Historically, a registrant (being health practitioners) was usually able to obtain a stay of a decision of a National Health Practitioner Board, enabling registrants to continue to practice without impositions or conditions as imposed by the decision during the course of any review proceedings.

However, the recent decision of Pluta v Medical Board of Australia (reasons yet to be published) delivered on 7 June 2021 the Queensland Civil and Administrative Tribunal adopted a more stringent approach to the ordering of a stay and refused to stay all but one of the conditions on a registrant’s registration. This raises uncertainty as to the operation of the review processes provided by the Health Practitioner Regulation National Law Queensland (‘the National Law’), the Health Ombudsman Act 2013, and the Queensland Civil and Administrative Tribunal Act 2009.

 On one view, the impact of the decision is that there will often be little utility in reviewing any decision by a National Health Practitioner Board to impose conditions on a registrant’s registration.

The stay application

The registrant (a GP) issued an application to review conditions imposed upon his registration by the Medical Board of Australia (‘the Board’). Ancillary to that application was the orthodox application to stay the conditions so as to preserve the effectiveness of the review proceedings. The Board opposed the stay application.

The Board’s decision to impose the conditions primarily arose out of a performance assessment whereby two assessors audited the registrant’s records and observed his consultations for a full day. Although adverse comments were made in respect of the registrant’s record keeping, no (or no meaningful) adverse comments were made in respect of the registrant’s communication and treatment of his patients (in fact many comments were made to the effect that the registrant demonstrated good rapport and provided appropriate treatment). The assessors concluded that the applicant’s record keeping was below standard, and that the practice’s policy of only offering single issue, ten minute appointments meant that patients with complex needs were at risk of not being managed appropriately. The Board relied upon the assessment report and imposed conditions upon the registrant’s registration that he undergo education, mentoring, and auditing in respect of record keeping, communication, and managing complex patients.

In support of the application, the registrant gave evidence that not staying the conditions would cause him to incur a substantial financial cost (estimated to be in excess of $20,000), would be disruptive to his practice, and would rob him of the utility of the review process envisioned by the National Law and the QCAT Act as he would have had complied with most of the conditions before the review was completed – for which there would be no recompense even if the review were successful. The registrant also gave evidence that he and the practice do not only offer single issue, ten minute appointments, but encourages patients to book longer appointments, the only difference is that longer appointments are not bulk billed. The registrant also gave evidence as to how he ensures patients who attend for bulk billed appointments are provided adequate care – evidence that was not disputed by the Board. On this basis, the registrant argued that there was a fundamental misunderstanding within the assessment report, which was relied upon by the Board, and that the misunderstanding gave the registrant an arguable case to review the decision.

The registrant submitted that the circumstances provided cogent reasons to stay the Board’s decision under s22(4) of the QCAT Act particularly in circumstances where the Board had not identified any risk to the public or other specific public interest that would outweigh the same and weigh against a stay being granted.

In response, the Board submitted that the financial impact upon the registrant is not of itself sufficient reason to warrant the granting of a stay and that, in any event, the conditions were not so onerous as to prevent the registrant from practising. The Board further submitted that its assessment, being that of an expert Board, should be given weight and should weigh against the granting of a stay. Finally, the Board relied upon its public interest function to argue that the public interest weighed against a stay being granted.

The Tribunal’s decision

The Tribunal refused to stay all but one of the conditions (being the condition to undertake an education course in respect of record keeping, because the registrant already had done so). In coming to its decision, the Tribunal noted that s22(1) of the QCAT Act provides that a review proceeding does not automatically stay a decision, and that therefore, a stay is not ‘simply for the asking’. The Tribunal stated that despite the assertion of some fundamental error in the assessment report, the Board’s decision was not ‘so clearly wrong’ so as to warrant the granting of a stay. The Tribunal further stated that although the registrant will likely incur great expense without recompense that alone is not sufficient to warrant the granting of a stay. The Tribunal agreed with the Board that its public interest function weighs in favour of the granting of a stay (despite submissions from the registrant that if that were to be accepted, no decision of the Board could be stayed as all decisions are made under its public interest function). The Tribunal did not appear to attribute any, or any meaningful, weight to the fact that by not granting the stay, the review process would be rendered nugatory but instead found that the registrant had failed to provide cogent reason for the granting of a stay.

Finally, the Tribunal indicated that review proceedings should all be completed with expedition bringing this style of reviewable decision into line with immediate action decisions which historically have been the only class of decision dealt with by expedition.

The Tribunal relied upon comments in Magill v Queensland Law Society Inc [2019] QCAT 392 and couched its decision in similar terms to the previous decision in Jones v Psychology Board of Australia [2019] QCAT 162.

Comments

Evidently, there has been a substantial paradigm shift in the Tribunal’s view on what warrants cogent reason to make it desirable to grant a stay of conditions during a review process – whether or not that extends beyond health practitioners remains unclear but it would be safer to assume so. The Tribunal’s reliance upon the Board’s inherent public function, and apparent indifference to the costs and imposition upon a registrant, as well as the futility of the review process if a stay is not granted, makes it difficult to envisage what would be required to satisfy the Tribunal that there is cogent reason to warrant a stay. Moreover, the indication that a registrant must establish that the Board’s decision is ‘so clearly wrong’ would appear to be a significant departure from previous authority, in which a registrant need only show ‘some prospects of success’ in the review proceedings.[1]

There is now a real risk that registrants will be unable to obtain a stay of conditions pending any review of a decision by a National Board. Moreover, it would appear that the Tribunal is minded to expedite all review proceedings to a prompt hearing, which can limit a registrant’s ability to obtain any further material in support of the review (which would of course be de novo). On this basis registrants, and their insurers, should proceed upon the basis that there may be limited opportunity to stay conditions during a review, and that there may also be limited opportunity to obtain further material prior to any hearing. Therefore, until the Tribunal has given contrary indication as to its position regarding stay applications, steps should be taken early and during any investigation or show cause process, to obtain any evidence in reply to the material being relied upon by a National Board. That way, a hearing date can be expedited so as to minimise the disruption and expense to a registrant before the review is finalised.

[1] See for example Reben v Medical Board of Australia [2014] QCAT 410 at [19].