HSK v Nursing and Midwifery Board of Australia (No.2)
[2020] QCAT 111
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- Unreported Judgment
- HSK v Nursing and Midwifery Board of Australia (No.2)[2020] QCAT 111
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HSK v Nursing and Midwifery Board of Australia (No.2)[2020] QCAT 111
HSK v Nursing and Midwifery Board of Australia (No.2)[2020] QCAT 111
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | HSK v Nursing and Midwifery Board of Australia (No.2) [2020] QCAT 111 |
PARTIES: | HSK (applicant) v NURSING AND MIDWIFERY BOARD OF AUSTRALIA (respondent) |
APPLICATION NO/S: | OCR200-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 30 April 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where Tribunal directed parties to prepare and file submissions on costs – where practitioner submitted Board should pay its costs or costs of application on and from particular nominated dates – where board submitted there should be no costs order – whether the interests of justice require the Tribunal to make order as to costs Health Practitioner Regulation National Law (Qld), s 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 100, s 102 Medical Board of Australia v Wong [2017] QCA 42, cited |
REPRESENTATION: | |
Applicant: | Hall Payne Lawyers |
Respondent: | C Wilson, instructed by Minter Ellison |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) |
REASONS FOR DECISION
Background
- [1]The Tribunal gave its substantive decision in this appeal on 19 December 2018. The appeal was against the decision of the Nursing and Midwifery Board of Australia (Board) made on 21 June 2018 that conditions imposed on the registration of HSK should remain. The conditions included a requirement that HSK practice subject to the supervision of a Board approved supervisor. The conditions were imposed by the Board (acting through the Queensland Notifications Committee of the Board (the Committee)) pursuant to s 178 of the Health Practitioner Regulation National Law (Qld) (National Law) on the ground that the Board reasonably believed HSK has an impairment, as that term is defined in s 5 of the National Law. The Tribunal upheld the appeal; finding that HSK was not impaired.
- [2]At the time of giving its decision on 19 December 2018, the Tribunal requested the parties make written submission on the question of costs. On behalf of HSK, it was submitted that the Board should be ordered to pay the costs of the proceedings, and in the alternative pay HSK’s costs of the application on and from particular nominated dates.
- [3]On behalf of the Board, it was submitted that there should be no order as to costs.
- [4]In addition to the costs of the hearing of the substantive review proceedings, there are the costs of two interim applications, the costs of which the Tribunal had reserved pending the determination of the substantive proceedings (reserved costs).
Applicable Law
- [5]With the introduction of the Health Ombudsman Act 2013 (Qld) (HO Act) in 2013, there were extensive changes to the law applicable to health practitioners, including many amendments to the National Law. The unfettered power of the Tribunal to award costs, both in referral and review proceedings, under the National Law was removed. The effect of this was to leave the issue as to costs to be decided under the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act); which provisions had been in existence from QCAT’s inception.
- [6]The starting point, contained in s 100 of the QCAT Act, is that each party bears its own costs unless “the interests of justice require the making of a costs order”.[1]
- [7]The discretion has been relevantly described as:
“[W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interest of justice’ points so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”[2]
- [8]The Court of Appeal in Medical Board of Australia v Wong[3] described the concluding phrase in s 100 as a basis for departing from the default position.
- [9]Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in determining whether it is in the interests of justice that a costs order be made, including the nature and complexity of the dispute, the relative strengths of the claim made by each of the parties, wherever the applicant in a review proceeding genuinely attempted to enable and help the decision maker, the financial circumstances of the parties and anything else the tribunal considers relevant.
- [10]Under the QCAT Act, the Board does not have any favoured status in relation to costs. It has been accepted that the position of the Board, because it is largely funded by practitioners, may be a fact to be considered in the exercise of the Tribunal’s discretion as to costs.[4] In Medical Board of Australia v Wong, the fact that the Board was a statutory body was considered a relevant factor, given the obligations of the Board to bring proceedings in the event it formed a certain belief.[5] It was said, “Absent findings of unreasonableness, there could not have been a basis for departing from the default position…”[6]
Circumstances of this case
- [11]In seeking costs, on behalf of HSK it was submitted that from the outset it should have been apparent to the Board that there were no prospects of the Tribunal upholding the decision of the Board of 21 June 2018, as the Board had failed to consider and afford appropriate weight to the material that was before it in relation to whether or not HSK suffered an impairment.
- [12]Alternatively, it is submitted that on and from 10 October 2018 (or further or alternatively on and from 30 October 2018) the Board failed to act in accordance with its obligations under s 21(1) of the QCAT Act and took an unnecessarily litigious approach to the proceedings which resulted in additional costs to HSK.
Primary Costs Order sought
- [13]In support of the written submissions, reference was made to an affidavit filed by the solicitor acting for HSK dated 31 October 2018 and a further affidavit dated 18 January 2019, deposing to conversations with the solicitors for the Board and attaching correspondence between the solicitors for HSK and the solicitors for the Board and correspondence between the Board and HSK.
- [14]It is unfortunate that in the Board decision dated 21 June 2018 there is no reference at all to a report of Dr Chung dated 19 June 2018. The Board decision of 21 June 2018 was a review of the conditions imposed by the Board by its decision on 15 March 2018. Dr Chung was the psychiatrist appointed by HSK’s solicitors to review the report of Dr Prior. Dr Prior had provided a report dated 12 October 2017.
- [15]In giving his report, Dr Chung reviewed Dr Prior’s report and the reports of HSK’s treating practitioners but had not had a consultation with HSK. The report of Dr Prior followed the conduct of a health assessment on HSK pursuant to a direction from the Board requiring HSK to attend for one; the Board having formed a reasonable belief that HSK may be impaired. The consultation with Dr Prior was eight months prior to the meeting of the Board and it was contradicted by the reports provided on behalf of HSK.
- [16]The Board’s decision does, however, make reference to the communication between HSK, the solicitor acting for HSK and an employee of the Board on 5 January 2018, as contained in a file note made by the employee of the Board. The note refers to an important inaccuracy in the report of Dr Prior as to the existence of a relationship between HSK and HSK’s cousin. That same inaccuracy is referred to in the report of Dr Chung; it appears that, in the letter of instructions from HSK’s solicitors to Dr Chung, instructions were not provided to Dr Chung in relation to the inaccuracy.
- [17]Acting on the same factual scenario, Dr Prior and Dr Chung came to different conclusions; albeit unfortunately in the decision of the Board, as noted above, there is no reference at all to the report of Dr Chung.
- [18]In subsequent email communications between the solicitors for HSK and the Manager, Notifications (Queensland), the Manager confirmed that “the Board did indeed consider the report as part of their decision.”[7]
- [19]In submissions filed in support of costs, HSK maintains her challenge as to whether the report was considered and despite that continuing challenge, in making its submissions in reply, the Board has not put any sworn evidence before the Tribunal confirming that the report was in fact considered. None of that gives any confidence that the report of Dr Chung was considered.
- [20]The difficulty, however, is that in his first report Dr Chung adopted the same factual inaccuracy contained in Dr Prior’s report, but having done so, reached a different conclusion to Dr Prior, concluding that no conditions were required.
- [21]Given the conflicting conclusions of Dr Chung and Dr Prior, it cannot be said that the Board acted unreasonably and that the Board had failed to consider and afford appropriate weight to the material that was before it.
Alternative Costs order sought
- [22]In the alternative, HSK seeks an award of costs on and from 10 October 2018 (or alternatively on and from 31 October 2018). HSK relies on the Board’s behaviour in seeking to vary the timetable agreed between the parties as contained in the consent direction of the Tribunal dated 7 September 2018. Pursuant to those directions, the Health Ombudsman’s referral for misconduct and the review of the Board’s decision were to be heard concurrently and steps were agreed to ensure a one day hearing was held in the week commencing either 10 December or 17 December 2018.
- [23]In the affidavit of Ms Bassingthwaighte (as the solicitor for HSK), dated 31 October 2018, reference is made to discussions between herself, Ms Smith, as the solicitor for the Board, and a Board representative as to the terms of the consent directions to be made by the Tribunal at the mention on 7 September 2018. As detailed by Ms Bassingthwaighte, on the day of the mention of the matter in the Tribunal, there were discussions as to the medical expert evidence which the parties intended to put before the Tribunal on the appeal. Ms Bassingthwaigthe commented that Dr Prior’s report was now ‘quite old’. In response, Ms Bassingthwaigthe was told by Ms Smith that the Board did not intend to file a further report from Dr Prior.
- [24]Ms Bassingthwaigthe stated that they intended to have HSK see Dr Chung and to request a further report from Dr Chung. Ms Bassingthwaigthe asked whether it was the Board’s intention to have competing expert testimony, and if so, raised a question as to the possibility of getting a joint report and suggested the Board nominate three names from which they could pick; suggesting that may be a way the hearing could be conducted efficiently.
- [25]Ms Bassingthwaigthe was told by Ms Smith that the Board would not be seeking to have a further independent expert. Ms Bassingthwaigthe asked Ms Smith whether they would like the mention adjourned to enable further instructions to be taken from the Board in relation to the medical evidence and the parties could confirm the timetable with the Tribunal within a couple of days. Ms Smith responded that an adjournment was not necessary. The position taken by the Board seems very surprising, particularly given the age of Dr Prior’s report and the statements in his report proposing a review in six months.
- [26]Ms Bassingthwaigthe’s record of that discussion, as detailed in her affidavit, is not challenged.
- [27]On 18 September 2018, a further direction was made by the Tribunal setting the matter down for hearing on 12 December 2018.
- [28]In her affidavit of 31 October 2018, Ms Bassingthwaigthe deposes to having informed Ms Smith (as solicitor for the Board), in a telephone conversation on 26 September 2018 that, “[HSK] was overseas at the time and that [HSK] would likely be reluctant to see Dr Prior again as she considered that Dr Prior did not accurately or fairly represent her condition in his report”.
- [29]It seems that discussion was ignored and, by email dated 10 October 2018, some two weeks later, the Board confirmed that it now wished to file an updated report from Dr Prior, wished HSK to attend for a further appointment and, that in order to do so, required a variation to the agreed timetable.
- [30]Pursuant to the terms of the agreed timetable, the Board’s material in the review proceedings was due to be filed by 19 October 2018.
- [31]In correspondence, the solicitors for HSK took objection to any variation to the timetable and to the need to now seek a further report from Dr Prior, referring to the fact that HSK was booked to attend upon Dr Chung and that his report would be available to be provided in accordance with the agreed timetable. Reference was made to the fact of the timetable having been agreed between the parties, the change in the Board’s instructions with no explanation as to the reason for the change and the delays which it would cause. The letter invited further submissions addressing the issues identified and said due consideration would be given to any such submissions.
- [32]Further correspondence was exchanged between the solicitors on 19 October 2018. In that correspondence, the solicitors for HSK confirmed their position, again stating that their client’s belated request to seek an updated report of Dr Prior will cause prejudice to their client, increase costs and complexity and delay the resolution of the proceedings.
- [33]On 24 October 2018, the Board filed an application seeking directions from the Tribunal requiring the attendance of HSK on Dr Prior and a variation of the agreed timetable.
- [34]That application was filed five days after the due date for the delivery of the Board’s material, in circumstances where the Board was aware of the truncated timetable in order to ensure the matters could proceed to a hearing on 12 December 2018.
- [35]The application was heard by the Tribunal on 31 October 2018, with a decision given on 5 November 2018. A tentative appointment had been booked with Dr Prior on 9 November 2018.
- [36]In submissions before the Tribunal on the hearing of that application, on behalf of HSK reference was made to the fact that HSK did not wish to attend on Dr Prior for a further health assessment. It was submitted that HSK had “genuine and well-founded” concerns regarding both the manner in which the original assessment was conducted and the accuracy of Dr Prior’s report. That position had been made known to the Board, through their solicitors, in the telephone conversation on 26 September 2018. In fact, concerns as to the accuracy of Dr Prior’s earlier report and the impact of the inaccuracy on the findings, had been made known in the conversation with the Board’s representative on 5 January 2018.
- [37]In subsequent correspondence between the solicitors, the focus of the correspondence became the need for compliance with the timetable and the fact that arrangements had already been made for HSK to attend upon Dr Chung, who would provide an updated report.
- [38]In giving its decision on 5 November 2018, on the basis of the concerns as to accuracy and fairness of the report, the Tribunal had commented that even if the Tribunal had the power to require HSK to attend upon Dr Prior, HSK’s reluctance to do so would have been a basis weighing against the making of an order requiring HSK to do so.
- [39]At the time of giving its decision, the Board had not filed any of its affidavit material as required pursuant to the terms of the consent directions. The Board remained focused on its insistence that HSK attend upon Dr Prior, notwithstanding the concerns that had been raised and notwithstanding the earlier offer to obtain a joint report and for the Board to nominate three names for HSK to choose from.
- [40]It is apparent that by the date of its solicitors’ correspondence on 10 October 2018, the Board had changed its position and formed the view that the Board now wished HSK to be reviewed by Dr Prior. It would seem the Board were not prepared to consider any other option and were simply adopting a litigious approach; irrespective of the consequences that position had on the agreed timetable and the hearing date.
- [41]The approach being adopted by the Board is apparent from the Board’s subsequent conduct. Following the Tribunal decision on 5 November 2018, the Board lodged an appeal against the Tribunal’s decision, and on 3 December 2018 filed an application for an adjournment of the proceedings pending determination of the appeal. That application was heard by the Tribunal on 6 December 2018.
- [42]In determining the adjournment application, the Tribunal had to further consider the likelihood of the Tribunal, in the exercise of its discretion, making an order requiring HSK to attend upon Dr Prior. On the hearing of that application, the Tribunal had the benefit of the affidavit evidence of HSK sworn 22 November 2018, which had been filed in the proceedings, in which she explicitly stated that she did not wish to attend upon Dr Prior and explained her reasons. Notwithstanding that affidavit evidence the Board persisted with their insistence that HSK attend upon Dr Prior.
- [43]That affidavit had also attached the further report of Dr Chung dated 7 November 2018. In his report, Dr Chung had addressed the inaccuracy in Dr Prior’s earlier report.
- [44]In giving my decision in refusing the Board’s request for an adjournment, it was stated:
“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.”[8]
- [45]The Board’s unreasonable attitude was further exemplified by the approach taken by the Board (through the Committee) in proceeding to review the conditions which it had imposed by its decision on 21 June 2018, being the decision the subject of the proceedings before the Tribunal. In that decision, the Board had set a review period for the conditions of three months; that is the conditions were eligible for review from 21 September 2018.
- [46]In addition to seeking to review that decision before the Tribunal, on 30 October 2018 HSK submitted an application to the Board for a review to be conducted by the Board of the conditions previously imposed. That application included the initial report of Dr Chung dated 4 June 2018 and reports from HSK’s treating psychologist and treating general practitioner and correspondence from the Facility Manager at the Aged Care Facility where HSK could potentially obtain employment.
- [47]In subsequent communications, the solicitors for HSK asked as to when the matter may go before the Board. By email dated 20 November 2018, the solicitors were told that it was not yet clear but that the solicitors would be advised “when they knew more”. By email sent the next day, on 21 November 2018, the solicitors for HSK forwarded to the Board the updated report of Dr Chung dated 7 November 2018; the report obtained and to be relied upon in the review proceedings. The solicitors for HSK did not receive an email in response, nor an email indicating when the matter may go before the Board.
- [48]The Committee, acting on behalf of the Board, knowing that the review application was to be heard by the Tribunal on 12 December 2018, met on 6 December 2018; the same date as the hearing of the application by the Board for an adjournment. The decision of the Tribunal on the adjournment application was given on 7 December 2018 and would have been available to the Board that day. That decision further detailed the reasons as to why the Tribunal would not exercise its discretion to require HSK to attend upon Dr Prior.
- [49]Notwithstanding the nature of the issues being considered by the Tribunal on 6 December 2018, and the upcoming hearing of the review proceedings by the Tribunal on 12 December 2018, at its meeting on 6 December 2018, the Board (acting through the Committee) determined that the practitioner must attend for an independent health assessment and appointed Dr Prior as the independent assessor. The Board concluded that it could not make any decision without the benefit of an independent health assessment on the practitioner’s health status so that it would have an “objective opinion as to whether the practitioner’s current restrictions remain appropriate.”
- [50]The Board notified HSK of its decision by an email sent to the solicitors for HSK on 13 December 2018, the day after the Tribunal hearing on 12 December 2018; in circumstances where the parties, including the Board, had been told the decision of the Tribunal would be given by 21 December 2018. The question for determination by the Tribunal was whether HSK was impaired.
Conclusion
- [51]The Board’s approach in proceeding to hold the meeting on 6 December 2018 and to require HSK to attend upon Dr Prior shows a complete disregard for the Tribunal process, the evidence before the Board and the Tribunal which showed HSK did not have an impairment and the limitations of the report of Dr Prior and confirms the litigious approach which had been adopted by the Board in the review proceedings. That approach was first evidenced by the attitude adopted at the first directions hearing in the matter on 7 September 2018, where the Board had insisted they would rely upon the existing report of Dr Prior, would not entertain taking further instructions and would not entertain the parties or the Board obtaining an independent report.
- [52]It could not be said that the Board was acting as a model litigant and, as required by s 21(1) of the QCAT Act, using its “best endeavours to help the tribunal so that it can make its decision on the review.” The Board was unreasonable in its persistence in relying on the report of Dr Prior despite its vintage and the challenge to its correctness by HSK, its persistence in referring HSK to Dr Prior after it knew the Tribunal had held that it would not require HSK to attend upon Dr Prior again and after the hearing before the Tribunal when evidence was given by HSK, Dr Chung and Dr Prior.
- [53]In all the circumstances, including the findings of fact and the decision of the Tribunal made on 12 December 2018, the interests of justice require the making of an order for costs in favour of HSK for the period from and including 7 September 2018, including reserved costs.
Orders
- [54]Accordingly, the Tribunal makes the following orders:
- The Nursing and Midwifery Board of Australia pay HSK’s costs of the proceedings from and including 7 September 2018, including reserved costs.
- The costs shall be as agreed and in default of agreement as assessed on the District Court scale.
- The costs shall be assessed by an assessor appointed by the parties and in default of agreement appointed by the Tribunal.
- The Nursing and Midwifery Board of Australia shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment.
Footnotes
[1]QCAT Act, s 102(1).
[2]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No.2) [2010] QCAT 412, [29].
[3][2017] QCA 42.
[4]Health Ombudsman v Antley [2016] QCAT 472; Lee v Medical Board of Australia (No.2) [2016] QCAT 321.
[5][2017] QCA 42, [13], [32].
[6]Ibid, [35].
[7]Email Manager, Notifications (Queensland), Australian Health Practitioners Regulation Agency to Hall Payne and others dated 29 June 2018.
[8]HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK [2018] QCAT 404, [27].