A Practitioner v Health Ombudsman (No 2) [2020] QCAT 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: A Practitioner v Health Ombudsman (No 2) [2020] QCAT 112 PARTIES: A PRACTITIONER (applicant) v HEALTH OMBUDSMAN (respondent) APPLICATION NO/S: OCR018-16 MATTER TYPE: Occupational regulation matters DELIVERED ON: 30 April 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Sheridan ORDERS: The parties must pay their own costs of these proceedings. 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 Health Ombudsman submitted practitioner should pay its costs – whether the interests of justice require the Tribunal to make order as to costs Health Ombudsman Act 2013 (Qld), s 68, s 74 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Medical Board of Australia v Wong [2017] QCA 42, cited Health Ombudsman v Antley [2016] QCAT 472, cited Health Ombudsman v Dalziel [2017] QCAT 442, cited REPRESENTATION: Applicant: D Burrell pursuant to order of the Tribunal dated 29 July 2016 Respondent: Ms Marshall instructed by the Office of the Health Ombudsman -- 1 of 4 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) REASONS FOR DECISION Background [1] The Tribunal gave its substantive decision in the appeal on 2 August 2016.1 The appeal was against the decision of the Health Ombudsman to take immediate action to issue an interim prohibition order (IPO) under s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act). The action taken prohibited the practitioner from engaging in any employment or providing any services (paid or otherwise) in a clinical or non- clinical capacity, which relates to the provision of any health service. Pursuant to s 74 of the HO Act, the practitioner sought to review that decision. The appeal was dismissed. At the time of giving its decision, the Tribunal requested the parties file written submissions on the question of costs. On behalf of the Health Ombudsman, it was submitted that the practitioner should pay the Health Ombudsman’s costs. In response, the practitioner requested that the Tribunal, in determining costs, consider her financial circumstances. Applicable Law [3] The HO Act is silent on the question of costs, leaving the question of costs to be determined pursuant to the provisions of the QCAT Act. The starting point in s 100 of the QCAT Act is that each party bears their own costs unless “the interests of justice require it to make the order”.2 [4] The question for the Tribunal has been formulated as: “[W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”3 [5] The Court of Appeal in Medical Board of Australia v Wong4 said the question for the Tribunal was whether there is a basis for departing from the default position. The issue to be considered has been described as to whether there are “countervailing considerations”.5 [6] Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in considering whether the interests of justice require a costs order. The particular matters listed include conduct by one party that unnecessarily disadvantages another party, the nature and complexity of the dispute, the relative strengths of the parties’ claims, in review proceedings whether the applicant genuinely 1 [2017] QCAT 265. 2 QCAT Act, s 102(1). 3 Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT 412, [29]. 4 [2017] QCA 42. 5 Judicial Member the Honourable James Thomas AM, QC in Health Ombudsman v Antley [2016] QCAT 472, [60]-[61], referring with approval to Keane JA in Tamawood Ltd & Anor v Paans [2005] QCA 111, [30]. -- 2 of 4 -- 3 attempted to help the decision-maker and the financial circumstances of the parties. The discretion given is a broad one and extends to “anything else the Tribunal considers relevant”.6 [7] Under the QCAT Act, the Health Ombudsman, as the regulator, is not given any favoured status in relation to costs. In Health Ombudsman v Antley,7 Judicial Member Thomas, in refusing to make a costs order in favour of the Health Ombudsman in referral proceedings, identified the circumstances which he considered weighed against the making of a costs order in favour of the Health Ombudsman (and professional boards). It has been recognised that the fact that professional boards were funded from fees from their practitioner members and the Health Ombudsman was at least partly funded, may be a factor weighing in their favour, but only one of many factors that may need to be considered.8 Analysis [8] In the present case, the proceedings involved an appeal against the decision of the Health Ombudsman. It was, as noted by the Health Ombudsman, the first immediate review application concerning a non-registered practitioner in Queensland. That brought for both the practitioner and the Health Ombudsman particular challenges. [9] At the outset, a question arose as to whether the practitioner was entitled to be represented by someone else who was not an Australian legal practitioner. It was accepted that as the proceedings were disciplinary proceedings under the HO Act, that a party may be represented by someone else. The issue in dispute was whether the person nominated was an appropriate person. [10] The Tribunal granted the application, against opposition from the Health Ombudsman. In doing so, the Tribunal noted its obligations to deal with matters “in a way that is accessible, fair, just, economical, informal and quick” and to ensure “as far as practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts.” [11] The unchallenged evidence before the Tribunal at the time was that the practitioner was suffering from “anxiety and depression”. At the hearing of the application, the Tribunal had observed that, absent having granted to the “friend” a right to speak on the practitioner’s behalf, the practitioner was not able to properly articulate her position. [12] Unfortunately, as the proceedings progressed, it became apparent that the “friend” was not necessarily giving to the practitioner the most appropriate advice. In part, that may have been the result of a lack of understanding of the nature of the order being challenged. It was a challenge against the interim order; not the final order. [13] Notwithstanding, the interim nature of the order the subject of the challenge, given the issue in dispute, the practitioner was required to give oral evidence and be cross- examined, as were the practitioner’s treating general practitioner and treating psychologist. [14] The questioning by the Health Ombudsman of the practitioner was directed to challenging the truthfulness of the practitioner, including the acceptance by her of 6 QCAT Act, s 102(3)(f). 7 [2016] QCAT 472. 8 Ibid, [48]-[49]; see also Health Ombudsman v Dalziel [2017] QCAT 442, [109]. -- 3 of 4 -- 4 responsibility and her genuineness of remorse. The Tribunal rejected the case presented by the Health Ombudsman in these respects. [15] While ultimately the Tribunal determined that immediate action was necessary by way of an IPO, the Tribunal found the practitioner to be a very honest and reflective witness, who herself had suffered a period of depression as a result of these events but had taken steps to participate in counselling and undertaken self-education. [16] By the time of the hearing, the Tribunal accepted that the practitioner had developed greater understanding. Unfortunately, however, the practitioner still had her own vulnerabilities and the Tribunal could not be satisfied that the practitioner had completed sufficient structured counselling, particularly in the handling of highly vulnerable clients. [17] Unfortunately, it was a question of timing as the Tribunal expressed the view there was every reason to be very optimistic about the practitioners future. [18] It would have been better if the interim order had not been so vigorously challenged and the practitioner had been given time to deal with her issues. Better advised the matter would probably have proceeded differently. It would not be reasonable or fair, however, to reach any view against the practitioner, particularly as to costs, based upon the behaviour or attitude of her adviser; particularly when it is clear that the practitioner was vulnerable and unable to properly deal with her situation. Indeed, whilst the practitioner had clearly improved by the time of the hearing, it was these characteristics that ultimately led to the appeal being dismissed. [19] A further factor weighing against an order for costs, is that much of the hearing time was spent cross examining the practitioner and the practitioner’s treating practitioners. The Tribunal accepted the evidence of those witnesses. [20] Finally, the practitioner has provided to the Tribunal evidence of her current financial position. The practitioner has not worked in providing health services since and has struggled to obtain employment. It is clear the practitioner is struggling financially. [21] In all the circumstances, the Tribunal does not consider it is in the interests of justice to make any order as to costs. [22] Although no positive order is necessary, it is appropriate that an order be made to signify that the issue of costs has been separately considered by the Tribunal and dealt with. Orders Accordingly, the Tribunal makes the following order: 1. The parties must pay their own costs of these proceedings. -- 4 of 4 --