Mustill v Medical Radiation Practice Board of Australia
[2018] QCAT 121
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- Unreported Judgment
- Mustill v Medical Radiation Practice Board of Australia[2018] QCAT 121
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Mustill v Medical Radiation Practice Board of Australia[2018] QCAT 121
Mustill v Medical Radiation Practice Board of Australia[2018] QCAT 121
CITATION: | Mustill v Medical Radiation Practice Board of Australia [2018] QCAT 121 |
PARTIES: | BRYAN MUSTILL (Applicant) v MEDICAL RADIATION PRACTICE BOARD OF AUSTRALIA (Respondent) |
APPLICATION NUMBER: | OCR111-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
DECISION OF: | Horneman-Wren SC DCJ |
DELIVERED ON: | 09 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where proceedings were brought for review of decision by the Medical Radiation Practice Board of Australia to take immediate action against practitioner – where review proceedings resolved by way of settlement – where issue as to costs – where issue as to applicable statutory costs regime – where s 201 of the National Law displaces operation of ss 100, 102 QCAT Act – where each party is to bear their own costs |
LEGISLATION: | Health Practitioner Regulation National Law (Queensland) 2009, s 156, s 170, s 177, s 178, s 199, s 201 Queensland Civil and Administrative Tribunal Act 2009, s 100, s 102 |
CASES: | Asam v Medical Board of Australia [2013] QCAT 611 Ladhams v Medical Board of Australia (No. 2) [2014] QCAT 286 Moeinalsadat v Medical Board of Australia [2014] QCAT 544 Nursing v Midwifery Board of Australia v Tainton [2014] QCAT 161 Pearse v Medical Board of Australia [2013] QCAT 392 Shahinper v Psychology Board of Australia [2013] QCAT 593 |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 |
REASONS FOR DECISION.
- [1]On 17 June 2015, the Australian Health Practitioner Regulation Agency informed Mr Mustill that the Immediate Action Committee of the Medical Radiation Practice Board of Australia had decided to take immediate action against him pursuant to s 156 of the Health Practitioner Regulation National Law (the National Law). The form of the immediate action was the imposition of conditions upon his registration. The conditions to be imposed were set out in a schedule to the decision as follows:
- The practitioner must only use and operate computed tomography (CT) imaging and systems under the direct supervision of another health practitioner registered in the same profession (“the supervisor”).
- The practitioner must otherwise only practice as a medical radiation practitioner under the indirect supervision of the supervisor.
- The supervisor must:
- be senior to the practitioner either by years of experience or position;
- agree to the nomination;
- provide a detailed copy of their current curriculum vitae; and
- be approved of in writing and in advance by the board.
- Should the supervision relationship terminate (for any reason), or if the supervisor is absent from supervision for any period greater than two days, the practitioner must provide a new nomination to the Board in the same terms as condition 2. Such a nomination must be made by the practitioner within 48 hours of their becoming aware of such termination or absence.
- The practitioner must provide a report/reports written by the supervisor to the board, addressing the practitioners performance of diagnostic radiography, including but not limited to;
- the understanding, use and operation of computed tomography (CT) imaging and systems;
- understanding of scan protocols based on patient presentation;
- clinical record keeping;
- informed consent; and
- obtaining authority before undertaking any investigation.
- These reports will be provided on the following occasions;
- every three months;
- at the end of the supervision relationship (for whatever reason);
- whenever the supervisor (or any third party known to the supervisor, has a concern regarding the practitioner’s health, conduct, competency or fitness to practice the profession; or
- whenever requested, verbally or in writing, by the board.
- [2]By application filed in the tribunal on 15 July 2015 Mr Mustill sought review of the committee’s decision. The committee’s decision was an ‘appellable decision’ within the meaning of s 199 of the National Law. However, as was pointed out by the tribunal in Pearse v Medical Board of Australia,[1] when hearing an appeal under s 199, the tribunal is not conducting an appeal from the committee’s decision in the strict sense. In Pearse the tribunal observed:
“Although s 199(1)(e) of the National Law provides that a person subject to a decision to impose conditions on his or her registration may appeal against that decision to QCAT, it being the appropriate responsible tribunal under section 199(1) of the National Law…the nature of the appeal is governed by s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld). Section 9 provides the reference in the National Law to an appeal to QCAT, as the responsible tribunal, is a reference to a review of the decision as provided under the QCAT Act. Part 1, Division 3 of the QCAT Act governs the Tribunal’s review jurisdiction. Section 20(2) provides that the Tribunal is required to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”
- [3]On 24 July 2015 directions were issued for the filing of material by the parties and the application was listed for hearing on 2 September 2015. By further directions compulsory conferences were listed for 4 August 2015 and 28 August 2015.
- [4]On the morning of the hearing, the proceeding was resolved by way of a settlement the terms of which were filed in the tribunal pursuant to s 86 of the Queensland Civil and Administrative Tribunal Act 2009. The settlement was in the following terms:
- The applicant’s application is dismissed.
- The respondent will take all reasonable steps to expedite a performance assessment of the applicant.
- The parties will file any written submissions on the issue of costs by 4pm on 11 September 2015.
- [5]The reference to a “performance assessment” is, no doubt, a reference to a performance assessment as provided for in Part 8 Division 9 of the National Law. Section 170 of the National Law provides:
“A National Board may require a registered health practitioner to undergo a performance assessment if the Board reasonably believes, because of a notification or for any other reason, that the way the practitioner practises the profession is or may be unsatisfactory.”
- [6]A National Board’s power to take immediate action is, relevantly, conferred by s 156(1) of the National Law. It provides:
“156(1) A National Board may take immediate action in relation to a registered health practitioner…if—
- (a)the National Board reasonably believes that—
- (i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
- (ii)it is necessary to take immediate action to protect public health or safety.”
The parties’ submissions
- [7]Mr Mustill submits that the relevant statutory provisions governing costs in this proceeding are ss 100 and 102 of the QCAT Act. Respectfully, he is mistaken in that regard. As the respondent Board’s submissions state, costs in an appeal proceeding brought under Part 8 Division 13 of the National Law are governed by s 201 of the National Law. It provides that the responsible tribunal may make any order about costs it considers appropriate for the proceedings. Therefore, as submitted by the Board, s 100 of the QCAT Act is displaced by s 201 and the Tribunal has a broad and unfettered discretion in respect of costs.
- [8]Notwithstanding the misunderstanding by the applicant as to the relevant statutory test for making an award of costs in this proceeding, the matters raised in the applicant’s submissions as to why there ought be no order as to costs remain relevant. Essentially, the applicant submits that the decision of the Board to take immediate action against him was based upon a complaint to the office of the health ombudsman from Michael Samuel, the Director of medical imaging at the Bundaberg hospital. That complaint related to four patient matters. The applicant submits, based upon the statement of agreed and disputed facts to have been relied on by the parties in the proceedings, that in respect of the first patient matter it was accepted that the allegation that the applicant had not followed a particular clinical protocol was unfounded and that he had, therefore, succeeded in resisting that allegation made against him.
- [9]In respect of the second patient matter, he submits that there was material filed by each of the parties addressing disputed questions of fact upon which no findings have been made by the tribunal. On that basis, he submits that no adverse finding in relation to the issue of costs can be made against him having regard to that contest.
- [10]In respect of the third patient matter, he again submits that there are matters which remained in dispute upon which no findings have been made by the tribunal prior to the dismissal of the application by consent.
- [11]In respect of the fourth patient matter which related to the non-completion of request and consent forms for the undertaking of an x-ray procedure, he submits that while he had never contested that issue, it may not be a matter which would support the taking of immediate action under s 156 on the basis that it would not establish that he posed a serious risk to persons requiring the taking of the particular immediate action.
- [12]The Board submits that its taking of immediate action against Mr Mustill was reasonable given its statutory duty to protect the public and the necessity to take such action quickly and with little material available to it. It submits that this was so even concerning the first patient matter notwithstanding that it later became known to the Board that that allegation was unsubstantiated. By contrast, it submits that further concerns were raised concerning Mr Mustill’s radiography practices with respect to the second patient matter. However, that submission would seem to support the applicant’s position that there were unresolved factual issues which remained in contest.
- [13]Having referred to earlier decisions of the tribunal[2] in which the Tribunal had referred to it being common for a professional board to be awarded costs when engaging in a public duty when the board is wholly funded by members of the profession through their payment of fees, it submits that the applicant ought pay its costs in these proceedings.
- [14]However, it should be borne in mind that the observations in Tainton cited by the Board were not in the context of review proceedings in which an application to review an immediate action decision was resolved by consent terms of settlement, but rather disciplinary proceedings in which the Board was successful in establishing that the registered practitioner had behaved in a way that constituted professional misconduct.
- [15]In Moeinalsadat, the applicant sought review of the Medical Board of Australia’s decision refusing him limited registration. The applicant was ultimately given leave to withdraw his application for review. That too is a different case to the present.
- [16]The Board submits that it is appropriate for the applicant to pay its costs of the review application because:
- The application to review the Board’s decision has been dismissed by consent, with the consequence of the conditions which the Board imposed on 10 June 2015 remain in place;
- The Board properly exercised its power to take immediate action having regard to the appropriate statutory tests under s 156 of the National Law and the objectives in guiding principles of that legislation;
- The Board has consistently acted in good faith and identified how Mr Mustill is, by his conduct, a risk to public health and safety;
- The Board has been required to respond to Mr Mustill’s application and in doing so, has been put to considerable expense and circumstances where the application was abandoned by Mr Mustill on the morning of the hearing;
- The Board has not delayed or lengthened proceedings or conducted itself in any other way that has unsuccessfully increased the costs;
- The Board funds its regulatory functions from registration fees of other members of the profession.
Consideration
- [17]In my view, some observations should be made of the first four of the identified reasons in the Board’s submissions.
- [18]First, while it is true that the conditions of the Board remained in place under the terms of the settlement, it is not the case that what was agreed between the parties was that they would remain so in an unqualified way. The terms of settlement reached between the parties required the Board to take all reasonable steps to expedite a performance assessment of the applicant. The basis upon which such an assessment may be required is the Board’s belief that the way the practitioner practices the profession is or may be unsatisfactory. That is quite a different consideration to the practitioner’s conduct or performance posing a serious risk to persons such as it is necessary to take immediate action in the form of the conditions imposed by the Board to protect public health or safety.
- [19]Furthermore, once the performance assessment had been conducted, the assessor would be required to give the Board a report about the assessment as soon as practicable.[3] Based upon that report, the Board may then decide to take action that the Board considers necessary or appropriate under another provision of the National Law.[4] Such action may include the imposition of conditions if it believed, based on the report, that the way Mr Mustill practiced his profession, or his professional conduct, is or may be unsatisfactory.[5] However, the imposition of any such conditions would, itself, be appealable by Mr Mustill pursuant to s 199 of the National Law.
- [20]Secondly, there has been no finding that the Board properly exercised its power to take immediate action having regard to the appropriate statutory test under s 156 of the National Law and the objectives and guiding principles of that legislation. The parties having resolved the proceeding on the basis of the particular terms of settlement does not establish that. As has been pointed out in a number of earlier decisions of the Tribunal, one matter for consideration in a review of a decision to take immediate action under s 156 of the National Law is whether the conditions imposed specifically address the identified relevant serious risks to persons posed by the practitioner and whether those conditions are otherwise the least onerous possible.[6] There has been no consideration of those issues in this matter such as would establish the Board having properly exercised its powers as it submits.
- [21]Thirdly, whilst the Board submits that it has identified how Mr Mustill is, by his conduct, a risk to public health and safety, there has been no determination of that issue in these proceedings. Again, settlement having been reached on the basis agreed, does not establish that.
- [22]Fourthly, it is imprecise, in my view, to describe the applicant as having abandoned his application on the morning of the hearing. The matter was settled on terms which included the consent dismissal of his application, but which also included, as already observed, that future action would be taken which may or may not result in conditions remaining upon his registration. It cannot, in my view, be compared to the circumstances in Moeinalsadat whereby leave to withdraw the application was simply given.
Conclusion and disposition
- [23]For these reasons, I am of the view that this is not an appropriate matter in which to order the applicant to pay its costs. The order will be that each party is to bear their own costs of the proceedings.
Footnotes
[1][2013] QCAT 392 at [24].
[2]Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [39]; and Moeinalsadat v Medical Board of Australia [2014] QCAT 544 at [13].
[3]Section 175.
[4]Section 177(a).
[5]Section 178(1)(a)(i) and (ii)(c) National Law.
[6]See Shahinper v Psychology Board of Australia [2013] QCAT 593; Asam v Medical Board of Australia [2013] QCAT 611; and Ladhams v Medical Board of Australia (No.2) [2014] QCAT 286.