HSK v Nursing and Midwifery Board of Australia
[2018] QCAT 355
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- HSK v Nursing and Midwifery Board of Australia[2018] QCAT 355
- Add to List
HSK v Nursing and Midwifery Board of Australia[2018] QCAT 355
HSK v Nursing and Midwifery Board of Australia[2018] QCAT 355
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | HSK v Nursing and Midwifery Board of Australia [2018] QCAT 355 |
PARTIES: | HSK (applicant) |
| v |
| NURSING AND MIDWIFERY BOARD OF AUSTRALIA (respondent) |
APPLICATION NO/S: | OCR200-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 5 November 2018 |
HEARING DATE: | 31 October 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President |
ORDERS: |
|
CATCHWORDS: | COURT PRACTICE & PROCEDURE – AUSTRALIA – QUEENSLAND CIVIL PRACTICE – QCAT LEGISLATION – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – where the applicant nurse seeks a review of a decision by the respondent Board to impose conditions on her registration – where the respondent Board brought an application for directions seeking that the tribunal direct the applicant nurse to attend a health assessment – whether the tribunal has power under the QCAT Act or otherwise to direct the applicant nurse to attend a health assessment Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 19(c), s 20(1), s 20(2), s 24, s 62 Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 218 Health Practitioner Regulation National Law (Queensland), s 169 Moosawi v Massey [2015] QSC 169 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | J Crawford, instructed by Hall Payne Lawyers |
Respondent: | C Wilson, instructed by Minter Ellison |
REASONS FOR DECISION
Background
- [1]In these proceedings, the applicant nurse seeks a review of a finding by the respondent Board that the nurse is impaired and a review of the conditions imposed upon the nurse’s registration.
- [2]The Board has brought an application for the making of a direction by the Tribunal for the attendance of the nurse on Dr Nigel Prior at a particular date and time. The direction is sought for the purposes of Dr Prior, a psychiatrist, providing an updated expert report on the nurse. The nurse was required to, and did, attend a first health assessment with Dr Prior in October of 2017 in relation to the Board’s investigation into the status of the nurse’s impairment.
The application
- [3]The making of the application arises from the refusal of the nurse to attend for a further assessment by Dr Prior.
- [4]The Board originally submitted that the Tribunal can make the direction sought in the exercise of its powers pursuant to s 62(1) of the Queensland Civil Administrative Tribunal Act 2009 (Qld) (QCAT Act).[1] Section 62(1) enables the tribunal to:
…give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
- [5]The Board said that the attendance of the nurse is necessary for the “fair conduct of the proceeding” and that the directions are consistent with the statutory objectives of the QCAT Act and the Tribunal’s related functions.[2] In particular, in its written submissions, reference was made to the Tribunal’s role in ensuring that the proceedings are conducted in a way that is “fair, just, economical and quick”.[3]
- [6]The Board referred to the importance of the Tribunal, in review proceedings, having before it an updated report of Dr Prior. Counsel for the Board noted that Dr Prior’s report, which was before the Board at the time of making its decision in June 2018, is now 12 months old; Dr Prior having last assessed the nurse in October 2017. As the Tribunal must make the correct and preferable decision based on the material before it at the time of making its decision, it was said that, in order to reach the correct and preferable decision, the Tribunal should have before it an updated report.
- [7]On behalf of the nurse, it was submitted that the power to order a practitioner to attend a health assessment is not a power expressly conferred or contemplated by the QCAT Act.[4]
- [8]In the alternative, even if such power was found to exist in the exercise of the tribunal’s discretion, on behalf of the nurse it was submitted the Tribunal should not be prepared to make such a direction. On behalf of the nurse, reference was made to the fact that the tribunal will have before it an updated medical report by Dr Chung, which assessment will be based on his assessment of the practitioner following a consultation on 29 October 2018.[5] It was said that there would be no utility in the nurse attending upon Dr Prior for a further review and the fact that he conducted the first assessment is not a matter supporting the making of the directions.[6] Reference was made to the fact that the nurse holds “genuine and well-founded”[7] concerns regarding both the manner in which the original assessment was conducted and the accuracy of Dr Prior’s previous report.
- [9]In making their oral submissions, the Board was unable to refer the Tribunal to any specific power of the tribunal to direct the attendance of a practitioner for a health assessment pursuant to the Health Practitioner Regulation National Law (Qld) (National Law). In an email subsequent to the conclusion of the oral hearing, the respondent Board confirmed that they were unable to find any such power in the National Law.
- [10]There was no suggestion that the Tribunal had any inherent power to make such an order.
- [11]The desirability of the Tribunal receiving an updated report of Dr Prior, as submitted by the Board, is irrelevant to the question of whether the tribunal has the power to make such a direction. It is also irrelevant to the existence of a power, or indeed the exercise of a discretion if a power existed, whether or not at the subsequent hearing an inference is capable of being made against the applicant for not wishing to attend again upon Dr Prior.
- [12]Section 62 gives to the Tribunal very broad powers to make directions. However, the breadth of those powers must be considered in the statutory context in which the section appears. Section 62 falls within Division 1 of Part 6 of the QCAT Act. Division 1 is headed “Procedural Powers” and Part 6 is headed “Other Provisions about a Proceeding”. The powers granted to the tribunal are procedural in nature, intended to facilitate the proper preparation of a matter for hearing. The powers include the making of interim orders, injunctions and declarations where the purpose of the proceeding may be impacted or rendered nugatory if such relief were not granted.
- [13]Requiring a person to attend for a medical examination is intrusive upon the common law liberties of a person. The use of clear language by the legislature is usually required before interference with common law liberties will occur.[8] Justice Dalton in Moosawi’s case, referring to NSW Food Authority v Nutricia Australia Pty Ltd,[9] said:
Generally there must be “a clear statement before legislation will be interpreted to abrogate ‘fundamental principles, infringe rights, or depart from the general system of law’.”[10]
- [14]The predecessor to the National Law, the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), did give to the Tribunal such a power. Pursuant to s 218 of that Act, the Tribunal could direct the Board to establish a health assessment committee and that a registrant undergo a health assessment by that committee. As that Act shows, if such a power were intended to exist, it would have been simple enough to grant it. The absence of a clear statement granting that power in the National Law suggests that such a power was not intended to be retained under the National Law.
- [15]Section 62 of the QCAT Act deals with procedural matters. In my view, it does not give to the Tribunal a power to direct a person to attend for a medical assessment.
- [16]Subsequent to the conclusion of the oral hearing, the Board made supplementary submissions that there was an alternative source of power which would allow the Tribunal to make the order sought. The Board submitted that applying s 19 and s 20 of the QCAT Act, in conjunction with the power given to the Board pursuant to s 169 of the National Law, empowered the Tribunal to require the nurse to undergo an assessment.[11]
- [17]Section 19(c) of the QCAT Act provides that, in exercising its review jurisdiction, the tribunal “has all the functions of the decision-maker for the reviewable decision being reviewed”. Section 20(2) provides that “the tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits”. The purpose of the review is to produce the correct and preferable decision.[12]
- [18]These provisions, however, as submitted on behalf of the nurse, are directed towards the making of a decision.[13] Section 19 does not empower the tribunal to make orders. The orders which the tribunal can make are set out in s 24. Section 24 allows the tribunal to confirm or amend the decision, set aside the decision and substitute its own decision or return the matter for reconsideration. None of these powers can be regarded as extended towards the making of the kind of order or directions sought by the Board.
- [19]Again, as submitted on behalf of the nurse,[14] if it was intended for the tribunal to be given such powers, for the reasons already stated, the use of clear language would be required.
- [20]In these circumstances, particularly when it was not fully argued, it is not necessary to determine the additional argument advanced on behalf of the nurse that the Board has no power to make multiple requests for health assessments, and hence, any power derived by the tribunal from the Board’s powers would not permit the making of this further request.
- [21]Apart from the absence of power, the reluctance to see Dr Prior, which was expressed in the affidavit evidence of the solicitor (to which no objection was taken) because the nurse considered Dr Prior did not accurately or fairly represent the nurse’s condition in his report is, however, a matter which would, in the circumstances, weigh against an order being made. Different considerations would apply in relation to the attendance upon a different independent assessor.
- [22]The application is dismissed.
- [23]As indicated during the course of the hearing of this application, the question of costs is reserved.
Footnotes
[1] Submissions in support of the respondent’s application for directions dated 5 November 2018, [19]-[23].
[2] Ibid, [21].
[3] Ibid, [23].
[4] Applicant’s submissions dated 31 October 2018, [22].
[5] Ibid, [30].
[6] Ibid, [31].
[7] Ibid, [37].
[8] Moosawi v Massey [2015] QSC 169 (Moosawi’s case).
[9] [2008] NSWCCA 252, [97], [98], [201] and [202].
[10] Moosawi v Massey [2015] QSC 169, [13].
[11] Respondent’s supplementary submissions dated 1 November 2018, [9].
[12] QCAT Act, s 20(1).
[13] Applicant’s supplementary submissions dated 1 November 2018, [2].
[14] Ibid, [13].