Medical Board of Australia v Leggett
[2017] QCAT 312
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- Unreported Judgment
- Medical Board of Australia v Leggett[2017] QCAT 312
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Medical Board of Australia v Leggett[2017] QCAT 312
Medical Board of Australia v Leggett[2017] QCAT 312
CITATION: | Medical Board of Australia v Leggett [2017] QCAT 312 |
PARTIES: | Medical Board of Australia v Andrew Alfred George Leggett (Respondent/Applicant) |
APPLICATION NUMBER: | OCR283-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Acting President |
DELIVERED ON: | 26 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
“10. For the purposes of s 127(3)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies.”
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – OTHER MATTERS – where pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law) the Tribunal imposed a condition on the practitioner’s registration following the hearing of a disciplinary referral – where the Tribunal did not state whether Subdivision 2, Division 11, Part 7 of the National Law applied to the conditions – whether the decision should be corrected under s 135 of the QCAT Act or alternatively whether the decision should be renewed under s 135 of the QCAT Act. Health Practitioner Regulation National Law (Queensland), s 196 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s 135 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 88, s 89 Nursing and Midwifery Board of Australia v Evans (No 2) [2016] QCAT 292, cited Wakelin v Psychology Board of Australia [2017] QCAT 89, cited |
REPRESENTATION: | |
APPLICANT: | Australian Health Practitioner Regulation Agency (AHPRA) |
RESPONDENT: | G W Diehm QC, instructed by Quinlan, Miller & Treston Lawyers |
APPEARANCES: |
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
Background
- [1]The Tribunal gave its substantive decision in the matter on 19 May 2015.[1] Included in the orders of the Tribunal was an order imposing conditions on the registration of Dr Leggett pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [2]Both parties now apply for a variation of the original order made by the Tribunal. Both parties agree that the conditions imposed pursuant to the original order made by the Tribunal have been fulfilled and should be removed and that the previous order of the Tribunal needs to be varied so as to allow the Board to do so. The only point of difference between the parties is the means by which that should now be achieved.
Miscellaneous application
- [3]The orders made by the Tribunal on 19 May 2015 included an order imposing the following conditions on the registration of Dr Leggett:
- (a)Dr Leggett is required to complete a course of counselling with a psychiatrist who specialises in boundary violation issues.
- (b)The counselling is to continue for such a time and at such frequency and for such duration as the psychiatrist recommends but for a minimum period of 12 months with such counselling sessions to take place at a minimum frequency of once per month, the psychiatrist may determine that counselling is required for a period of longer than 12 months and at greater frequency.
- (c)Dr Leggett authorises the psychiatrist to provide a report to the Board about the outcomes from counselling on a quarterly basis or upon making a recommendation to change the duration and/or frequency of counselling sessions.
- (a)
- [4]The order of the Tribunal included, as required by s 196(3) of the National Law, a review period for the condition. The review period was stated to be one year.
- [5]In the submissions filed on behalf of Dr Leggett, it is said the only purpose of imposing a review period was to limit the circumstances in which the Board may act under ss 125, 126 or 127 of the National Law. In fact, as noted above, the National Law requires that where the Tribunal imposes any conditions, the Tribunal must also decide a review period for the condition.
- [6]Pursuant to the National Law, that review may be conducted either by the Tribunal or by the Board. If it is to be conducted by the Board, and it was the Tribunal which imposed the conditions, then the Tribunal must also make an order permitting the Board to conduct the review.[2] In giving its decision in the substantive proceedings, the Tribunal did not make such an order.
- [7]In his affidavit filed in support of the miscellaneous application, Dr Leggett has annexed the reports provided to the Board by Dr New, the psychiatrist appointed by the Board to conduct the counselling. In his reports dated 2 July and 14 October 2016, Dr New concluded that “mandatory ongoing counselling sessions and monitoring by the Board are no longer required.”
- [8]In a subsequent email dated 21 September 2016, the Compliance Officer at AHPRA told Dr Leggett that if he would like the conditions removed he would be required to apply to QCAT and that until the conditions are removed, he was required to continue to comply with the requirements.
- [9]Under cover of a letter from AHPRA to Dr Leggett dated 30 December 2016, Dr Leggett was told that the relevant committee of the Board had decided that he had satisfactorily completed the course of counselling required in the conditions and that, if the committee had been delegated the power, the committee would be satisfied to remove the conditions from his registration. Unfortunately, the letter made no recommendation to Dr Leggett as to the appropriate action for him to take.
- [10]The approach taken by the Board is unfortunate, particularly in circumstances where it is clear from the substantive decision of the Tribunal that the failure to include the relevant order was at least, in part, an oversight by the Board.
- [11]Having regard to the wording of the conditions and in particular the requirement for the reports by the treating psychiatrist to be provided to the Board, and not to the Tribunal, the Tribunal clearly intended that the Board would monitor the conditions. The Board was to receive the reports from the treating psychiatrist. Those reports were required to include the psychiatrist’s recommendation as to the required period of counselling.
- [12]The intention of the Tribunal was clearly that the Board would review the conditions. The failure to include a provision in the order enabling the Board to conduct the review was clearly an accidental omission in the original order.
- [13]In those circumstances, consistent with the miscellaneous application filed on behalf of Dr Leggett, the original decision of the Tribunal can be corrected pursuant to the ‘slip rule’ contained in s 135 of the QCAT Act.
- [14]In the submissions filed on behalf of the Board, the Board submitted that the Tribunal should exercise the power pursuant to s 133 of the QCAT Act which allows the Tribunal to ‘renew’ a decision if there are problems implementing that decision. The Board submitted that the Tribunal’s final decision should be renewed in accordance with the provisions of that section as distinct from correcting the decision under s 135.
- [15]The Board’s reliance on s 133 of the QCAT Act was consistent with the approach adopted by the Tribunal in Wakelin v Psychology Board of Australia[3] and Nursing and Midwifery Board of Australia v Evans (No 2).[4] In those cases, however, it was not simply a matter of including an order permitting the Board to review the conditions. In each case the Tribunal had failed to include a review period for the conditions and, in Evans, the Board had also requested an amendment to the wording of one of the conditions.
- [16]Given the Tribunal’s view that the decision on this occasion can be corrected pursuant to s 135, it is not necessary to determine the application seeking a renewal of the Tribunal’s original decision.
- [17]Both applications correctly recognised that prior to making an order under either ss 133 or 135, it would be necessary for the Tribunal to extend the time limit prescribed under the QCAT Act. Rules 88 and 89 of the QCAT Rules respectively require an application under either section to be made within 28 days after the day the parties were given the decision.
- [18]Section 61 of the QCAT Act gives to the Tribunal a power to extend time limits. Both applications identify the problem created by the current orders and both agree that the original orders of the Tribunal need to be varied. In those circumstances, it is appropriate that the Tribunal grant the extension of time required to enable the application to be made and the orders varied.
- [19]Given that the Tribunal considers that the application can be brought pursuant to s 135 of the QCAT Act, the orders which the Tribunal makes are:
- The time for bringing the Applications as prescribed by rr 89 and 90 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) be extended to 26 May 2017, being the date of the filing of the latest of the applications for reopening, correction, renewal or amendment.
- Pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the order of Judge Horneman-Wren SC of 19 May 2015 be corrected by adding a further order in the following terms:
“10. For the purposes of s 127(3)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies.”
- There be no order as to costs of the Applications to extend time or the Applications.