The Power of QCAT to Order the Suspended Suspension of a Health Practitioner

In Pharmacy Board of Australia v. Tavakol [2014] QCAT 112 the Queensland Civil Administration Tribunal dealt with submissions by each of the Pharmacy Board and the Registrant that, to varying extents between them, a proposed suspension of the Registrant’s registration should be suspended in whole or in part. 

The Tribunal noted that neither party had made any submission identifying a source of power or even asserting explicitly that the Tribunal had the power when ordering the suspension of a Registrant under section 196 of the Health Practitioner Regulation National Law (Qld) to order that the suspension be suspended either in whole or in part.  In the absence of any authority determining the question, the Tribunal proceeded to examine the issue, without the benefit of such submissions.

The Tribunal noted that under the predecessor Act, the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld), there was an express power to order that a suspension of a practitioner’s registration be suspended, wholly or in part.  Further, as the Tribunal noted, the statutory provisions of that earlier Act provided a clear regime identifying what events might trigger the Tribunal revisiting the original suspension subsequent to making the order.  Indeed the power existed for the Tribunal to suspend the operation of a range of decisions made as disciplinary action with respect to a practitioner against whom a disciplinary ground had been established.

The Tribunal noted that under the earlier Act the suspension was only authorised if the Tribunal was persuaded that it was appropriate in the circumstances.  The Tribunal was required to specify the period during which, if the Registrant was subject to disciplinary action by the Tribunal, he or she might be further dealt with concerning the original disciplinary action.  Where the Tribunal had found a ground for disciplinary action within the specified time period, the Tribunal could impose the originally suspended decision or a part of it.  It could in the alternative decide to extend the period of the suspended decision by up to one year.

So, the Tribunal determined, the earlier Act not only expressly provided for the suspension of decisions, but provided a detailed mechanism for dealing with those matters.  In contrast, the National Law did not confer express authority upon the Tribunal to suspend the operation of the decision, nor provided any mechanism by which any further proceedings might be taken concerning the original decision the subject of the suspension order. 

The Tribunal, unsurprisingly in those circumstances, concluded that there was no power to order a “suspended suspension”.

The Tribunal’s attention was not drawn to section 198 of the National Law.  It provides:

‘198 Relationship with Act establishing responsible tribunal

This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.’

Reference to that provision brings one to section 114 of the Queensland Civil and Administrative Tribunal Act 2009.  It provides:

‘114 Conditions and ancillary orders and directions

The tribunal’s power to make a decision in a proceeding (the primary power) includes a power—

(a) to impose conditions on the decision; and

Example of a condition—

that something required to be done by the decision be done within a stated period

(b)    to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.

Examples of ancillary orders or directions—

• an order adjourning the proceeding
• an order or direction that a person give an undertaking to the tribunal.’

Section 3 of the National Law provides the objectives and guiding principles of the National Law, relevant to section 114(b) above.  It includes the provision of registration and accreditation schemes for the regulation of health practitioners. More specifically the scheme includes amongst its objectives to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, and to facilitate access to services provided by health practitioners in accordance with the public interest.  Amongst the guiding principles for the scheme, it is said that restrictions on the practice of a health professional are only to be imposed if it is necessary to ensure health services are provided safely and are of an appropriate quality.

Reference to all of these provisions shows that while there is no longer a provision that quite so definitively establishes the power of the Tribunal to order that a suspension, amongst other disciplinary action, be suspended, the terms of section 114 are, in the opinion of the author, broad enough to allow the Tribunal the make such an order and to fashion the order in a way that somewhat replicates the scheme provided for under the former legislation.  It is noted that neither of the proposals put before the Tribunal in Tavakol sought to do that.  They would have left it as a mystery as to what was to happen in the event that there was some disciplinary ground established to have occurred during the period of time in which the original suspension order was suspended. 

A power to order a suspension of a disciplinary order made by the Tribunal under the National Law is an important ‘tool in the kit’ for the Tribunal in achieving the objectives of the legislation in many cases, where the balance needs to be struck between ensuring adequate standards of performance by health practitioners by the exercise of a power to suspend registration and the advancement of the public interest by ensuring that health practitioners are not unduly restricted from practicing their profession.  It is by reference to those objectives and guiding principles specified in the National Law that the power to act under section 114 of the QCAT Act in this way can be identified, in an appropriate case, as was the position under the earlier Act.

The opportunity may well arise in the foreseeable future for the Tribunal to be invited to reconsider the matter by reference to these other statutory provisions and on the basis of a proposed order replicating the scheme provided for under the 1999 Act.

Geoffrey Diehm QC