Hermann v Medical Board of Australia
[2024] QCAT 480
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- Unreported Judgment
- Hermann v Medical Board of Australia[2024] QCAT 480
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Hermann v Medical Board of Australia[2024] QCAT 480
Hermann v Medical Board of Australia[2024] QCAT 480
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hermann v Medical Board of Australia [2024] QCAT 480 |
PARTIES: | Robert Hermann (applicant) v Medical Board of Australia (respondent) |
APPLICATION NO: | OCR 96 of 2024 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 16 December 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal exercises its review jurisdiction – where the applicant applies for the matter to be determined “on the papers” without an oral hearing – where the review involves significant factual disputes between the parties – application dismissed Health Ombudsman Act 2013 (Qld), ss 126 and 127 Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 110 and 111 ACJ v AD [2023] QDC 176 Hermann v Medical Board of Australia (No 2) [2023] QCAT 162 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The Medical Board of Australia (Board) filed an application on 22 November 2024 (Board Application) in which it seeks:
- an order pursuant to s 111(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and ss 126 and 127 of the Health Ombudsman Act 2013 (HO Act) that the Tribunal appoint assessors to sit with the Tribunal at the hearing of the review to advise about questions of fact; and
- pursuant to s 97(2) of the QCAT Act the Tribunal issue a notice requiring Dr Bertucen to:
- produce a copy or list of the documents with which he was briefed by the Applicant in or about August 2023; and
- attend to give evidence at the hearing of the review proceeding.
- [2]By email on 22 November 2024, Dr Herman (who resides in China) indicated he objected to the orders the Board seeks. The next day Dr Hermann filed an application on 23 November 2024 seeking an on-papers hearing in this review proceeding (Herman Application). The Tribunal apprehends that this application is further to his submissions that the doctor’s opinion is clearly demonstrated in his report and supporting email thread, and that Dr Hermann submits that requiring Dr Bertucen to appear at the hearing may delay proceedings and will not provide anything beyond the extant evidence.
- [3]A decision on the Board Application will necessarily also resolve the Herman Application.
- [4]In the underlying proceeding, Dr Herman seeks a review of the Board’s decision of 14 March 2024, refusing him provisional registration as a medical practitioner on the basis that he is not a fit and proper person for provisional registration in the profession pursuant to s 55(1)(h)(i) of the Health Practitioner Regulation National Law (Queensland) (National Law) and as a result he is not a suitable person to hold provisional registration as a medical practitioner.
- [5]In summary, the Board decided that on all the information before it, including the telehealth assessment and opinion conducted by Dr Bertucen dated 8 August 2023 and the earlier decision of this Tribunal refusing Dr Hermann’s application to review the Board’s earlier decision to refuse him provisional registration[1] (QCAT 2023 Decision) it did not have:
- sufficient evidence of Dr Hermann having taken active and remedial steps to address his unsuitability for registration; and
- any new evidence or material which demonstrated that Dr Hermann’s past behaviour had been sufficiently remediated to reconsider his suitability for registration as a medical practitioner.
- [6]Dr Hermann relies on Dr Bertucen’s opinion as evidence that he has obtained an independent psychiatric evaluation which he says the QCAT 2023 Decision required him to do to satisfy the Board of his suitability for registration. The Board had Dr Bertucen’s opinion before it and it (along with all the other material) did not satisfy the Board of Dr Hermann’s fitness for registration.
- [7]In those circumstances Dr Bertucen should be available to give oral evidence and to be cross-examined at the review hearing. Appreciating that Dr Hermann has itemised the material he says he provided to Dr Bertucen, given the hearing will be conducted with parties (and potentially witnesses) appearing via videoconferencing, it is appropriate that Dr Bertucen provide a copy or a list of the documents he was briefed with to the Tribunal, so that he can have reference to that material from his own files as may be necessary during his evidence.
- [8]Dr Hermann also opposes the appointment of assessors to assist the Tribunal on questions of fact. This is because an assessor was not required on the hearing of the QCAT 2023 Decision and because it is not a disciplinary hearing.
- [9]Whilst Dr Hermann is factually correct on both accounts, that is not the end of the issue. In the health practitioner jurisdiction, for many decisions, the Tribunal must be assisted by two professionally qualified persons and a member of the public panel, sitting to assist the Tribunal on questions of fact.[2] More generally, the Tribunal is permitted by statute to engage an assessor to help it in a matter, for example, to sit with it to give advice about the proceeding.[3] It is apparent that finely balanced questions may fall to be decided in this matter. There are expert medical opinions which need to be distilled. The Tribunal must decide in the review proceeding what is the “correct and preferable” decision.[4] It must do that on all the material which is before it. In doing so, the Tribunal must consider whether Dr Hermann is a fit and proper person to hold registration as a medical practitioner.[5]
- [10]It is apparent that a suitably medically qualified person sitting with the Tribunal for giving advice about the proceeding will assist the Tribunal in determining Dr Hermann’s fitness for provisional registration as a medical practitioner. The Tribunal does not consider it is necessary to appoint two assessors from the profession and an assessor from the public panel of assessors under the HO Act. The Tribunal is satisfied that a single assessor with qualifications as a medical practitioner will be sufficient.
- [11]The Tribunal will grant the Board Application on slightly different terms and dismiss the Hermann Application.
- [12]The parties have provided the Tribunal with availability for an estimated one day hearing. Consistent with that availability, the Tribunal will list the proceeding for a one day hearing on 1 April 2024. It gives leave to Dr Hermann to appear at the hearing by videoconference. A notice confirming the hearing date and relevant links for participation in the hearing by remote means will issue in due course.
Orders
- Pursuant to s 111(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal will engage a medical practitioner as an assessor to help the Tribunal in the proceeding.
- Pursuant to s 97(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Dr Jeff Bertucen of Suite 507, Level 5, 83 York Street Sydney in the State of New South Wales is required to attend the Tribunal at 259 Queen Street, Brisbane in the State of Queensland at 10:00am on 1 April 2025 to give evidence in this matter.
- Pursuant to s 97(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Dr Jeff Bertucen of Suite 507, Level 5, 83 York Street Sydney in the State of New South Wales is required to produce to the Tribunal a copy of each of the documents referred to in the second line of his report dated 8 August 2023 by 3 March 2025.
- The application for miscellaneous matters filed by Dr Hermann on 23 November 2024 is dismissed.
- The matter is listed for a one-day oral tribunal hearing on 1 April 2025.
- Pursuant to s 32(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Dr Hermann has leave to appear at the hearing by videoconferencing.
- Pursuant to s 32(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Dr Bertucen has leave to appear as a witness at the hearing by videoconferencing.