Nursing and Midwifery Board of Australia v Jacobsen
[2018] QCAT 93
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v Jacobsen[2018] QCAT 93
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Nursing and Midwifery Board of Australia v Jacobsen[2018] QCAT 93
Nursing and Midwifery Board of Australia v Jacobsen[2018] QCAT 93
CITATION: | Nursing and Midwifery Board of Australia v Jacobsen [2018] QCAT 93 |
PARTIES: | Nursing and Midwifery Board of Australia (Applicant) v Tammy Jacobsen (Respondent) |
APPLICATION NUMBER: | OCR273-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 10 November 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President |
DELIVERED ON: | 13 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
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 – whether the conditions had expired – whether the decision should be renewed under s 133 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, considered Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, considered Psevdos v Commonwealth Bank of Australia [2016] FCA 844, considered Health Practitioner Regulation National Law (Queensland), s 125, s 126, s 127, s 196, Health Practitioner Regulation Law and Other Legislation Amendment Act 2017 (Qld) Queensland Civil & Administrative Tribunal Act 2009 (Qld), s 133 |
APPEARANCES AND REPRESENTATION: | |
APPLICANT: | C T Houston, solicitor of Moray & Agnew Solicitors, for the applicant |
RESPONDENT: | S Robb, instructed by Roberts & Kane Solicitors, for the respondent |
REASONS FOR DECISION
Background
- [1]The tribunal gave its substantive decision in the referral application on 28 August 2015.[1] The decision included an order which placed conditions on the registration of Ms Jacobsen for a period of 12 months from the date upon which the suspension of her registration ended. The review period for the conditions imposed on her registration was 18 months from the date of the making of the order.
- [2]The Nursing and Midwifery Board of Australia (Board) now applies for a variation of the original order made by the tribunal. The Board’s application was made pursuant to s 133 of the Queensland Civil & Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [3]The respondent contends that the application for renewal is misconceived and has disputed the need for the Board to make an application to the tribunal.[2]
- [4]Relevantly, the substantive decision included the following orders:
- Ms Tammy Jacobsen’s registration as a registered health practitioner is suspended for a period of 6 months from the date of this order.
- The conditions currently imposed upon the registration of Ms Tammy Jacobsen will continue for a period of 12 months from the date upon which the suspension of her registration ends.
- The review period for conditions imposed by order 3 is 18 months from the date of this order.
- [5]The orders were made in consequence of a finding by the tribunal that Ms Jacobsen had engaged in professional misconduct within the meaning of the Health Practitioner Regulation National Law (Queensland) (National Law). The finding of professional misconduct was admitted to by Ms Jacobsen, as was the conduct giving rise to such a finding.[3]
- [6]The conditions currently imposed, being the conditions to which order 3 as imposed by the tribunal referred, were:
- The registrant must only practice in a position nominated by the Registrant and approved of in writing by the Board.
- The registrant is prohibited from working for a Nursing Agency.
- When providing clinical care, the registrant must work under the indirect supervision of a senior registered nurse nominated by the Registrant and approved in writing by the Board. This nomination must take place within five (5) business days of commencement of employment.
- The registrant is prohibited from administering any schedule 8 medications.
- The registrant authorises her employer/supervisor to provide reports to the Board in writing, addressing her fitness and competence to practice, at the following times:
- (a)Within three (3) months from the date these conditions take effect and every three (3) months thereafter (or as negotiated with the registrant’s monitoring officer);
- (b)Whenever the employer holds a concern about the registrant’s competence and fitness to practise as a registered nurse; and
- (c)On receipt of a request, whether written or verbal from the Board.
- (a)
- The Board or their representative will contact and exchange information with the registrant’s supervisor, at such times or times as the Board shall determine, for the purpose of monitoring the registrant’s compliance with these conditions.
- Within two (2) business days of gaining employment as a registered nurse, the registrant will notify all employers of the conditions.
- [7]It is not disputed that, in delivering its substantive decision, the tribunal did not make an order permitting the Board, as distinct from the tribunal, to conduct the review of the conditions imposed.
- [8]The Board maintains that absent such a condition, the Board cannot review the conditions on Ms Jacobsen’s registration and the conditions must remain on her registration until reviewed. In support of its application for renewal, the Board maintained that the tribunal would have intended the Board to conduct any necessary review.
- [9]Counsel for Ms Jacobsen submitted that the term for which the conditions had been imposed by order of the tribunal had expired and that the respondent’s registration was not subject to any current conditions. As such, there are currently no conditions remaining on Ms Jacobsen’s registration that could be the subject of a review.
- [10]In response, the Board submitted that it was neither open to the tribunal, nor was it the tribunal’s intention at the time of imposing the conditions, to make an order imposing any conditions for a specified period.
Relevant law
- [11]Pursuant to s 196 of the National Law, after a hearing in a matter about a registered practitioner and the tribunal deciding the practitioner has behaved in a way that constitutes unsatisfactory professional conduct, unprofessional conduct or professional misconduct, the tribunal may decide to do one or more of a number of things, including imposing a condition on the practitioner’s registration.
- [12]Section 196(2)(b) provides examples of the types of conditions which the tribunal may impose. The examples listed include a condition requiring the health practitioner to complete specified further education or training, or to undergo counselling within a specified period, or a condition requiring the practitioner to undertake a specified period of supervised practice.[4]
- [13]Section 196(3) requires that if the tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
- [14]Sub-division 2 of Division 11 of Part 7 of the National Law deals with the review of conditions. The Board is permitted to change or remove a condition, either upon the application by the practitioner,[5] or at the Board’s own initiative,[6] in certain circumstances. When a condition has been imposed by the tribunal, the condition cannot be changed or removed by the Board, unless the tribunal has decided that this sub-division applied to the condition.
- [15]Absent an order, conditions imposed by the tribunal cannot be changed or removed by the Board, either upon application by the practitioner or at the Board’s own initiative.[7]
- [16]Amendments to the National Law assented to on 13 September 2017,[8] prior to the determination of the substantive application but subsequent to the filing of this application, permitted the tribunal to give to the Board the power to change or remove a condition, either when the condition was imposed by the tribunal or at a later time.
- [17]Curiously, that extended power in the amending Act is given to the tribunal for the purposes of s 125 and s 126 but not s 127 of the National Law. For applications by the practitioner pursuant to s 125 or by the Board pursuant to s 126 to change or remove a condition, the order permitting the Board to review the condition can be given to the Board by the tribunal either when the tribunal imposed the condition, or at a later time. However, where the Board wishes to exercise its power pursuant to s 127, having formed a reasonable belief that the condition is no longer necessary, the power to review must have been given to the Board by the tribunal when the condition was first imposed and not at some later time.
- [18]Given that distinction, the Board maintained that its application for renewal was necessary and an order should be made giving the Board power to review the conditions. The Board maintained the conditions imposed by the tribunal remained operative and could not be removed by the Board, absent a power to review.
- [19]Notwithstanding the amendments to s 125 and s 126, if the conditions are still operative, the tribunal accepts an order would be required to give the Board power to review the conditions imposed.
- [20]Ms Jacobsen disputes the Board’s characterisation of the conditions and effect of the law. On behalf of Ms Jacobson it was submitted there are no conditions remaining that could be the subject of review. It was said that the review period and the conditions had expired; the respondent’s registration having been suspended from 28 August 2015 for six months until 28 February 2016 and the conditions already imposed required to continue for 12 months from the end of the suspension on 28 February 2016 until 28 February 2017. The review period for the conditions was 18 months from the date of the order; namely 28 February 2017.
- [21]In the circumstances, it was said on behalf of Ms Jacobsen that the application to renew is “gratuitous and unnecessary”[9] and, given there is no utility in the application, the Board’s application for an extension of time should not be granted. The application should be dismissed.
- [22]The respondent maintained that the Board was obliged to ensure that the Register of Nurses was kept up-to-date and accurate.[10] The details pertaining to the expired conditions, it was submitted, should have been removed from the Register on the expiry of the conditions as a matter of administrative course.[11]
- [23]In the oral submissions on behalf of the Board it was accepted that, if the tribunal found the conditions had been imposed for a specified period of time and that that time had come to an end, the Board would be required to give effect to that finding and remove the conditions from the register.[12]
- [24]The Board maintained its position, as stated in its written submissions, that the conditions cannot be said to have been imposed for a specified period as:
- (a)such a decision was not open to the tribunal; and
- (b)it was the tribunal’s intention for there to be a review of the conditions 18 months from the date of the order.[13]
- (a)
Analysis
- [25]As submitted by the Board, the intention of the Parliament is to be found through an examination of the ordinary and natural meaning of the language used within the statute. Further, as correctly submitted, a literal interpretation may be departed from if such a reading would result in an operation that, upon review of the statute as a whole, would not conform with the intent and objectives of the statute but would instead be “absurd” or “irrational”.[14]
- [26]The language of s 196 of the National Law is clear and unambiguous. There can be no dispute, and indeed it would be contrary to the approach so often taken by the tribunal and previously supported by the Board, that pursuant to s 196(2) of the National Law the tribunal can impose conditions for a specified period.
- [27]It is equally clear that when it does impose a condition, it must impose a review period for the condition. It is not disputed that the requirements of s 196(3) are mandatory.
- [28]The imposition of the review period, however, does not have the consequence of rendering nugatory a review period specified for a condition imposed by the tribunal. The relevance of the review period is for the purposes of s 125, s 126 and s 127 of the National Law and limits the ability of either the practitioner or the Board to bring an application to change or remove a condition during the review period.
- [29]In terms of ensuring the protection of the public, if the Board reasonably believes it is necessary to change a condition, for example by extending the specified period during which a condition may continue to operate, the Board has clear powers pursuant to the National Law to act, either on its own initiative or by bringing an application to the tribunal.
- [30]If the Board reasonably believed that, in the circumstances of this case where Ms Jacobsen has not worked since the end of her period of suspension, and therefore the supervision conditions should have been maintained for a period beyond that specified by the tribunal, the Board ought to have taken the necessary steps to change the conditions.
- [31]The conditions imposed by the tribunal on the registration of Ms Jacobsen by the order of 28 August 2015 have clearly expired. The wording of the conditions as imposed by the tribunal is clear and unambiguous. The provisions of the National Law cannot be interpreted so as to require a departure from the ordinary meaning of the words of the conditions.
- [32]In accordance with its obligations under Division 3 of Part 10 of the National Law[15] and as the solicitor representing the Board indicated it would, the Board should take the necessary steps to ensure the register is up to date and accurate.
Orders
- [33]The application for renewal is of no utility. In those circumstances, it is not appropriate to grant an extension of time for the bringing of the application. The application for an extension of time for the filing of the application to renew is refused.
Footnotes
[1]Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549.
[2]Respondent’s outline of submissions dated 14 July 2017, [23].
[3]Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549 at [7], [35].
[4]National Law, s 196(2)(b)(i), s 196(2)(b)(ii).
[5]National Law, s 125.
[6]National Law, s 126.
[7]National Law, s 125(2)(b), s 126(3)(b), s 127(3)(b).
[8]Health Practitioner Regulation National Law Act 2009 (Qld), reprinted as in force on 13 September 2017; Health Practitioner Regulation Law and Other Legislation Amendment Act 2017 (Qld).
[9]Respondent’s outline of submissions dated 14 July 2017, [23].
[10]Respondent’s outline of submissions dated 14 July 2017, [11].
[11]Respondent’s outline of submissions dated 14 July 2017, [19].
[12]Transcript of Proceedings, Nursing & Midwifery Board of Australia v Tammy Jacobsen (QCAT, OCR273-13, Sheridan DCJ, 10 November 2017), p 1-9, ll 40.
[13]Applicant’s outline of submissions dated 28 July 2017, [15]; Transcript of Proceedings, Nursing & Midwifery Board of Australia v Tammy Jacobsen (QCAT, OCR273-13, Sheridan DCJ, 10 November 2017) p 1-8, ll 11-20.
[14]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320-321 (Mason and Wilson JJ), cited in Psevdos v Commonwealth Bank of Australia [2016] FCA 844, [12] (Charlesworth J), and Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, [48] (French CJ, Hayne, Crennan and Kiefel JJ).
[15]In particular, s 224(a) of the National Law.