Medical Board of Australia v Andersen
[2018] QCAT 101
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- Unreported Judgment
- Medical Board of Australia v Andersen[2018] QCAT 101
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Medical Board of Australia v Andersen[2018] QCAT 101
Medical Board of Australia v Andersen[2018] QCAT 101
CITATION: | Medical Board of Australia v Andersen [2018] QCAT 101 |
PARTIES: | Medical Board of Australia (applicant) v Peter Niels Andersen (respondent) |
APPLICATION NUMBER: | OCR048-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President |
DELIVERED ON: | 16 April 2018 |
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) the tribunal imposed conditions 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 – where the parties jointly sought the correction of the original order made – whether the tribunal should grant an extension of time to bring the application – whether the decision should be corrected under s 135 of the QCAT Act Medical Board of Australia v Andersen [2014] QCAT 374 Nursing & Midwifery Board of Australia v Jacobsen [2018] QCAT 93 Health Practitioner Regulation National Law (Queensland), s 127, s 222, s 224, s 196 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 135 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 90 |
REPRESENTATION: |
|
APPLICANT: | Australian Health Practitioner Regulation Agency (AHPRA) |
RESPONDENT: | Self-represented |
APPEARANCES: |
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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 30 July 2014.[1] Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law), the orders made by the tribunal included an order imposing conditions on the registration of Dr Andersen and orders authorising regulatory authorities to access certain information.
- [2]The order of the tribunal included, as required by s 196(3) of the National Law, a review period for the conditions. The review period was stated to be two years.
- [3]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.
Miscellaneous application
- [4]The conditions were said to be contained in order 3 of the decision of the tribunal dated 30 July 2014. In summary, order 3 required:
- (a)Dr Andersen to participate in a mentoring program for 12 months; and
- (b)Dr Andersen to provide evidence to the Board of successful completion of a prescribed tertiary course by 30 June 2015.
- (a)
- [5]Having regard to the terms of the order made, those conditions have clearly expired. If the application related to those conditions alone, an application to vary now the terms of the order would be of no utility.[2]
- [6]However, the other orders made by the tribunal, while not called conditions in the order, were really conditions and appear on the Register of Practitioners[3] as though they were conditions. Those orders or conditions permitted, amongst other things, “the Board (or its delegate) to access, inspect, take or copy the patient/practice records including patient and prescribing records, and appointment diaries at such time or times as determined by the Board (or its delegate)”.
- [7]Those orders, which are contained in orders 5, 6, 7, 8, 9 and 10 of the orders of the tribunal, currently remain operative and it is those orders that could be the subject of review.
- [8]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 that imposed the conditions, then the tribunal must make an order permitting the Board to conduct the review.[4] In giving its decision in the substantive proceedings, the tribunal did not make such an order.
- [9]Having regard to the wording of the order and in particular the various authorities given to the Board to both access or receive information, and not to the tribunal, the tribunal clearly intended that the Board would monitor the practitioner.
- [10]The intention of the tribunal in making the order was clearly that the Board would review the continuing need for access to and provision of information about the practitioner’s practice including patient and prescribing records. 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.
- [11]In those circumstances, consistent with the application for variation filed by the parties jointly, the original decision of the tribunal can be corrected pursuant to the ‘slip rule’ contained in s 135 of the QCAT Act.
- [12]The application correctly recognised that prior to making an order under s 135, it would be necessary for the tribunal to extend the time limit prescribed under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules). Rule 90 of the QCAT Rules requires the application to be made within 28 days after the day the parties were given the decision.
- [13]Section 61 of the QCAT Act gives the tribunal power to extend time limits. The application identifies the problem created by the current orders. The parties 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.
- [14]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 application as prescribed by r 90 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) be extended to 14 February 2018, being the date of the filing of the application 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 30 July 2014 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 application to extend time or the application for reopening, correction, renewal or amendment.