Nursing and Midwifery Board of Australia v HSK

The appellant appealed two separate decisions of the Queensland Civil and Administrative Tribunal. At issue was whether the QCAT erred in law in determining that there was no power under the Health Practitioner Regulation National Law 2009 to compel the respondent, a registered nurse, to undergo a further health assessment as part of a hearing of the review of a reviewable decision. The salient issue concerned the breadth of the Tribunal’s power under both s 62 of the Queensland Civil and Administrative Tribunal Act 2009 and s 169 of the Health Practitioner Regulation National Law 2009.

Morrison and McMurdo JJA and Boddice J

26 July 2019

The appellant, forming the view that the respondent had (or may have) an impairment within the definition of s 178(1)(a)(ii) of the Health Practitioner Regulation National Law 2009 (“National Law”), imposed conditions on her registration upon learning that she had engaged in “inappropriate behaviour” shortly after commencing employment at an Acute Mental Health Unit in regional Queensland. [6], [7], [8]. Section 199 of the National Law permits a registered practitioner to appeal a decision to impose a condition on their registration to QCAT. The respondent elected to do so, and thereafter the decision to impose conditions became a reviewable decision. The purpose of the review was to reach the “correct and preferable” decision, via a fresh hearing on the merits.

Section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 enables the Tribunal, in determining the review of a reviewable decision, to “give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding”. Citing that provision, the appellant argued that QCAT had the power to direct the respondent to attend a further health assessment. [27]. In the alternative, it submitted that s 169 of the National Law gives the Tribunal that capacity as part of the determination of a reviewable decision. [28].

In addressing the merits of those arguments, the court clarified that whilst it is the case that s 62 contains a broad power, that power is procedural. [29]. That was confirmed by Holmes JA (as the Chief Justice then was) in Rintoul v State of Queensland [2015] QCA 79, [10] wherein she explained that subsection (1) confers on the tribunal various powers, including the power to “give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding”. [30]. She clarified that that is “sufficiently broad to encompass an order which dismisses a proceeding in the event of non-compliance with a direction”. [30].

Critically, Boddice J (Morrison and McMurdo JA concurring) made the distinction between the example provided by her Honour – typically procedural in nature – and a direction forcing a registered practitioner to attend a mandatory health assessment. It was noted that compliance with the latter “involves an interference with the liberty of an individual litigant”. [31]. Plainly, such a power would not ordinarily be regarded as “a direction necessary for the speedy and fair conduct of a proceeding”. [32]. In the event a registered practitioner refused to voluntarily consent to a further health assessment, that could be addressed by other directions, procedural in nature, such as a stay of the proceeding until such time as the registered practitioner proffered their voluntarily attendance. [32].

In relation to the National Law, the court held that a reading of s 169, in context, lent support to the conclusion that the power given to the appellant to require a registered practitioner to undergo a health assessment is solely confined to the investigative phase – that is whether in its assessment a registered practitioner has, or may have, an impairment. [36]. It is erroneous to interpret the section as providing a power to order a further health assessment as an aspect of the determination of a reviewable decision. [36].

Ultimately the court endorsed the decisions of QCAT, noting that directions requiring an interference with the liberty of an individual litigant are generally accompanied by specific statutory authority: see S v S [1972] AC 24, 46–47. [34]–[35].

In the result, there being no error in the decisions below, Boddice J (Morrison and McMurdo JA concurring) ordered that the appeal be dismissed. [41].

A de Jersey