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HSK v Nursing and Midwifery Board of Australia QCAT 404
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK  QCAT 404
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Occupational regulation matters
7 December 2018
6 December 2018
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where proceedings to be heard on the same day – where the tribunal made an interlocutory decision in relation to an application made by the Nursing and Midwifery Board – where the Nursing and Midwifery Board have appealed that decision – where the Nursing and Midwifery Board subsequently filed an application seeking that the substantive hearing in relation to the current proceedings be adjourned pending the determination of that appeal – where the Health Ombudsman relies on and supports the Nursing and Midwifery Board’s application for adjournment – where the applicable legal principles are the same as the principles governing the grant of a stay – whether the case is an appropriate one for an adjournment – whether, if the substantive hearing was not adjourned, any orders which might ultimately be made by the appellate court would be fully effective
Queensland Civil and Administrative Tribunal Act 2009, s 19, s 20, s 62,
Health Practitioner Regulation National Law (Queensland), s 169
Attorney-General for the State of Queensland v Fardon  QCA 111
Cook’s Construction v Stork Food Systems Australasia Pty Ltd  2 Qd R 453
Day v Humphrey & Ors  QCA 104
APPEARANCES & REPRESENTATION:
J Allen QC instructed by Hall Payne Lawyers
M Price of the Office of the Health Ombudsman
C Wilson instructed by Minter Ellison
J Allen QC instructed by Hall Payne Lawyers
REASONS FOR DECISION
- There are currently two proceedings before the Tribunal involving the applicant nurse, HSK. In OCR029-18, the applicant Health Ombudsman has brought disciplinary proceedings against HSK (the referral proceedings). In OCR200-18, HSK seeks a review of a finding by the respondent Nursing and Midwifery Board of Australia (Board) that she is impaired and a review of the conditions imposed upon her registration (the review proceedings).
- Both proceedings have been set down for hearing before the tribunal on Wednesday, 12 December 2018. On Monday, 3 December 2018, the Board filed an application for the adjournment of the hearing of the review proceedings. On 4 December 2018, the Health Ombudsman filed an application seeking that the hearing of the referral proceedings be adjourned if the Board’s application for adjournment is successful.
- The applications for adjournment are opposed by HSK.
- The referral proceedings were commenced on 31 January 2018. In those proceedings, the parties had filed a statement of agreed facts on 22 June 2018 and joint submissions on 4 September 2018. In the joint submissions, the position agreed to by the parties was that the practitioner be reprimanded.
- The review proceedings were commenced on 19 July 2018, the Board having given its decision the subject of the review on 21 June 2018. At the time of making its decision, the Board had before it a report of Dr Nigel Prior, psychiatrist, dated 12 October 2017, and a report of Dr Alfred Chung, psychiatrist, dated 4 June 2018. The report of Dr Prior had been prepared following a consultation by him with HSK on 11 October 2017. The report of Dr Chung was given absent a consultation with HSK.
- On 7 September 2018, both proceedings came before the Tribunal for a directions hearing. It was agreed that there was merit in both proceedings being heard on the one day. The hearing date of 30 October 2018 in the referral proceedings was vacated and directions were made for the progression of the review proceedings. A direction was made for the matters to proceed to a hearing in the weeks of either 10 December or 17 December 2018. Following further discussion between the tribunal and the parties, the tribunal having confirmed the availability of assessors, a direction was made on 18 September 2018 for the matters to be set down for hearing on 12 December 2018.
- By a miscellaneous application dated 24 October 2018, the Board in the review proceedings sought the making of directions by the tribunal for the further attendance of HSK on Dr Nigel Prior for the purpose of obtaining an updated health assessment report on HSK.
- On 31 October 2018, the Tribunal convened a hearing to determine that application. The parties provided supplementary submissions to the Tribunal on 1 November 2018. The Tribunal dismissed the application on 2 November 2018, and reasons were provided to the parties on 5 November 2018.
- The dismissal of the application was on the grounds that neither s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) nor sections 19 and 20 of the QCAT Act in conjunction with the power given to the Board pursuant to s 169 of the Health Practitioner Regulation National Law (Queensland) (National Law) empowered the Tribunal to require the nurse to undergo an assessment. Further, the tribunal indicated that, apart from the absence of power, the nurse’s reluctance to see Dr Prior, for the reasons expressed in the affidavit of HSK’s solicitor dated 31 October 2018, would weigh against an order being made.
- On 3 December 2018, the Board filed a notice of appeal against the interlocutory decision of the tribunal. The grounds of appeal are that:
- (a)the Tribunal erred in deciding that section 19 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) does not empower the Tribunal to make an order compelling a health practitioner to undergo a health assessment pursuant to section 169 of the Health Practitioner Regulation National Law (Queensland) (National Law), when the Tribunal is undertaking a review pursuant to Chapter 2 Part 1 Division 3 of the QCAT Act of a decision of a National Board to take action against a registered health practitioner pursuant to section 178 of the National Law;
- (b)alternatively, that the Tribunal erred in deciding that section 62 of the QCAT Act does not empower the Tribunal to make an order compelling a health practitioner to undergo a medical examination, when the Tribunal is undertaking a review as set out in paragraph (a) herein.
- The Board did not seek that the determination of the appeal be expedited. On the same day as filing the notice of appeal, the Board filed the application before this Tribunal for an adjournment of the hearing. An application to similar effect was also brought by the Health Ombudsman.
- In the submissions filed on behalf of the Board, it was submitted that the applicable principle in considering whether to adjourn the hearing, pending the determination of the appeal, is the same as the principle governing the grant of a stay of the decision under appeal. That submission was accepted by HSK.
- It was accepted that the tribunal has a wide discretion in considering whether a stay is appropriate. The test has been simply expressed as whether the case is an appropriate one for a stay. In its submissions, the Board referred to the statement by Keane JA in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:
The fundamental justification for staying judicial orders pending an appeal is to ensure that the orders which might ultimately be made by the appellate court are fully effective.
- In oral submissions, counsel for the Board said the overriding factor was whether the appeal would be considered nugatory. Counsel for the Board referred in particular to the comments of Chesterman J in Attorney-General for the State of Queensland v Fardon,referring to Cook’s Construction, where he said:
 Two principles commonly resorted to on stay applications are also relevant:
“The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them ... making some preliminary assessment about whether the appellant has an arguable case.”
The passage is from Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695.
- Morrison JA in Day v Humphrey & Ors, in referring to the wide discretion reposed in the court, commented that authority established that there are some “traditional” factors to be taken into account in considering such an application being, namely, whether:
- (a)there is a good arguable case;
- (b)the applicant will be disadvantaged if the stay is not granted; and
- (c)there is some compelling disadvantage to the respondent if a stay is granted, which outweighs the disadvantage suffered by the applicant.
- In referring to Cook’s Construction, Morrison JA said the court had identified in that case that the relevant factors were “the prospects of success, the question whether the appeal would be rendered nugatory, and whether there was irremediable harm if that should occur.”
- His Honour continued:
The principle that poor prospects would favour the refusal of a stay is because “if there is obviously little prospect of ultimate reversal of existing orders, the concern to ensure that the existing orders can be overturned without residual injustice will have less claim on the discretion than might otherwise be the case”.
- The Tribunal accepts that one of the factors is the prospects of success of the appeal. Consideration of that issue is difficult where I am being asked to assess the prospects of the Court of Appeal overturning my own judgment, particularly in circumstances where one party is saying the prospects are good and the other party is saying the prospects are poor.
- The more relevant question is whether any order made by the appellate court would not be fully effective if a stay were not granted. In this case, if the Board is successful in its appeal, the order sought by it is that the proceedings be remitted to the tribunal to reconsider the application. The issue then is really the prospects of the tribunal making the ultimate order sought by the Board, namely, an order that HSK attend upon Dr Prior for a further health assessment.
- In giving my reasons for decision on 5 November 2018, I had commented that:
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.
- That comment was made following submissions on behalf of HSK on the subject. It was based on the evidence before the Tribunal at that time. The Tribunal now has before it further evidence.
- HSK filed an affidavit dated 22 November 2018 in which she explicitly states that she does not wish to attend upon Dr Prior and explains her reasons. HSK says that she spoke with Dr Prior for about 45 minutes. She says she felt that Dr Prior was rushing through the answers to the questions. She says she felt this because Dr Prior occasionally interrupted her before she finished providing her answers and did not give her the opportunity to elaborate on her answers. HSK also explains her disappointment that Dr Prior did not appear to consider the positive reports she had obtained from her treating medical practitioners or the reflective essay she had penned.
- Finally, but importantly, HSK explains that she was very upset to read Dr Prior’s characterisation of her interaction with her cousin. Dr Prior says that after the boundary violation HSK was “manipulated into relationship by an older male cousin” and that this showed “some ongoing emotional vulnerabilities”. He then goes on to support the conditions imposed by the Health Ombudsman. In fact, HSK says she did not have a relationship with the older male cousin, but she had been sexually assaulted by him and that is what she told Dr Prior.
- Despite indications by both the Board and the Health Ombudsman to the contrary at the time the application the subject of the appeal was heard by the Tribunal, both the Board and the Health Ombudsman knew that HSK considered that Dr Prior had not accurately portrayed in his report the situation regarding her cousin. She advised, at a meeting between HSK and AHPRA on 5 January 2018, that she was never in a relationship with her cousin, but rather, that he had sexually assaulted her. There is no evidence before the Tribunal of AHPRA having raised with Dr Prior the statements made by HSK.
- The notes of the meeting on 5 January 2018 which were made by AHPRA were subsequently provided to the Health Ombudsman. The extract of the notes were only recently provided to the Tribunal for the purpose of an application for the production of documents, which was also being dealt with by the Tribunal at this hearing.
- Despite the Board being aware of the age of the report of Dr Prior, for the purposes of the current review proceedings, the Board waited until the matter had been set down for hearing to request that HSK attend upon Dr Prior for a further assessment.
- Given these matters, even if the Tribunal was found to have the power to make the order sought, on the present evidence in the exercise of its discretion the Tribunal would not require HSK to attend a second appointment before a psychiatrist with whom she had no confidence would accurately report her history.
- Taking this view, the Board is not disadvantaged by the refusal of the adjournment. There is a further consideration relevant in this respect. In its submissions, the Board contended that one of the objects of the appeal was to establish the legal position regarding the power of the tribunal to make an order for a medical assessment. The refusal of the adjournment does not affect that object.
- The final factor to be considered is the potential impact on HSK of not being able to have her review application heard until the appeal has been determined. HSK is currently 23 years of age. The boundary violation occurred when she was 21 years of age, in the year following her graduation from her nursing degree in December 2015. Conditions have been imposed on her registration since 22 May 2017. Since resigning from her employment in August 2017, following an investigation by her employer, she has not been able to find employment as a registered nurse. HSK says this is because of the nature of the conditions imposed by the Board.
- Without a full hearing, it is impossible to judge whether HSK will be successful in her application to have the conditions removed (or otherwise changed). Irrelevant of the outcome of the review, given the evidence before the Tribunal as to the impact of the conditions on the ability of HSK to find work as a registered nurse, the Tribunal should proceed in a timely manner to conduct the review.
- In the circumstances as outlined above, in the exercise of the tribunal’s discretion, the tribunal is not prepared to adjourn the hearing.
- It is appropriate that any application for costs of the applications for adjournment be made at the time of the making of any application for costs of the substantive proceedings.
- Accordingly, the Tribunal orders that:
- The applications for the hearing to be adjourned pending the determination of the appeal are refused.
- The costs of the applications are reserved.
Day v Humphrey & Ors  QCA 104,  (Day); Williams v Chesterman  QCA 198; Crony v Nand  2 Qd R 342;  QCA 367.
Board’s submissions filed 5 December 2018, , citing Cook’s Construction v Stork Food Systems Australasia Pty Ltd  2 Qd R 453,  (Cook’s Construction).
 QCA 111.
 QCA 104.
Morrison JA in Day v Humphrey & Ors  QCA 104, citing Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd  2 Qd R 453; Raschilla v Westpac Banking Corporation  QCA 255.
 QCA 104, .
 QCA 104, , citing Cook’s Construction at .
HSK v Nursing and Midwifery Board of Australia  QCAT 355, .
Australian Health Practitioner Regulation Agency.
- Published Case Name:
HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK
- Shortened Case Name:
HSK v Nursing and Midwifery Board of Australia
 QCAT 404
07 Dec 2018