Davis v Australian Health Practitioner Regulation Agency [2015] QCAT 323

CITATION: Davis v Australian Health Practitioner Regulation Agency [2015] QCAT 323 PARTIES: Terry Davis (Applicant) v Australian Health Practitioner Regulation Agency (Respondent) APPLICATION NUMBER: OCR119-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Horneman-Wren SC, Deputy President DELIVERED ON: 21 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The proceedings are dismissed. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY – where referral made by Chiropractor seeking a review of the processes by which overseas qualified chiropractors are able to apply for registration in Australia – where the Health Practitioner Regulation National Law does not confer jurisdiction on the Tribunal to exercise jurisdiction – where the Health Ombudsman Act 2013 does not confer jurisdiction on the tribunal to exercise jurisdiction – where proceedings dismissed ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether tribunal’s review jurisdiction conferred by an enabling Act – where the Health Practitioner Regulation National Law does not confer jurisdiction on the tribunal to exercise -- 1 of 6 -- 2 jurisdiction – where the Health Ombudsman Act 2013 does not confer jurisdiction on the tribunal to exercise jurisdiction – where proceedings dismissed Freedom of Information Act 1982 (Cth) Health Ombudsman Act 2013 (Qld), s 94 Health Practitioner Regulation National Law Act 2009 (Qld), s 199 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 17, s 47 APPEARANCES and REPRESENTATION (if any): 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 [1] On 24 July 2015 the applicant, Mr Terry Davis filed, a referral of a matter in the Tribunal. The referral was filed in Form 35. Part C of the referral, the details of the matter referred to the Tribunal were stated as follows: “The matter I wish to refer to the Tribunal relates to me being given fair and equal treatment to undertake overseas skills recognition for my UK Chiropractic qualifications, thus enabling me to work and register as a chiropractor in Australia. The grounds of my complaint relate to the Health Practitioner Regulation National Law Act 2009, s 4, part 1, 3 objectives and guiding principles. More specifically my complaint is based on the grounds that the overseas Chiropractic skills recognition scheme is not operating in a transparent, accountable, efficient, effective and fair way. My complaints relate to how the scheme is being operated by an association, the Council on Chiropractic Australasia (CCEA). The CCEA has been made granted (sic) “monopoly status” to assess overseas qualified chiropractors via the Board of Chiropractic and the Australian Health Practitioner’s Regulation Authority. To date, all I had ever been asking for was to be treated on a fair and level playing field in terms of my overseas skills recognition and yet that has been consistently denied. The ongoing nature of the situation has been hugely frustrating, financially draining, massively stressful, prevented me working in my chosen profession and put a huge strain on my marriage. The situation has also meant that I have had to become a student again as a means of getting some sort of worthwhile career back, even if it means using other skills I have. I am now looking for the Tribunal to address the issues directly caused by this situation and enable me fair and equal access to the overseas chiropractic skills recognition process.” [2] Attached to the referral were 206 pages of annexures. Those annexures record the history of Mr Davis’s attempts to obtain what he describes in -- 2 of 6 -- 3 his application as fair and equal access to the overseas chiropractic skills recognition process. [3] Without setting out those matters in detail, they include requests for information from the Australian Competition and Consumer Commission under the Freedom of Information Act 1982; complaint to the ACCC about alleged anti-competitive practices and cartel behaviour affecting the chiropractic profession in Australia because of the activities of the CCEA and its members; complaint to the Chair of the Chiropractic Board of Australia about alleged biased examination processes concerning particular overseas trained chiropractors; correspondence between Mr Davis and the CCEA; complaint to the National Health Practitioner Ombudsman and Privacy Commissioner and complaint to the Australian Health Practitioner’s Regulation Agency. [4] At the heart of Mr Davis’s complaints are the processes by which overseas qualified chiropractors are able to apply for registration in Australia including recognition of their overseas qualifications. Mr Davis’s complaint is that those processes as applied by the CCEA are biased against McTimoney Chiropractors such as himself. [5] In a letter dated 23 March 2015 under the hand of Samantha Gavel, Ombudsman and Privacy Commissioner, the following is said: I refer to your complaint about the Australian Health Practitioner Regulation Agency (AHPRA), the Chiropractic Board of Australia (the Board) and the Council of Chiropractic Education in Australasia (CCEA) and their handling of your application for registration as a Chiropractor. In your most recent letter to my office, you have indicated that the main aspect of your complaint, that the CCEA is acting outside of the law, has not been investigated. I have reviewed your correspondence to my office and the information provided by AHRPA, including a copy of the letter provided to you by the Chair of the Chiropractic Board, on 13 June 2013. As you are aware, the roles, powers and functions of AHPRA, the Board and the accreditation authority are set out in the Health Practitioner Regulation National Law 2009 (the National Law). The first objective of the National Registration and Accreditation Scheme under s 3(2)(a) of the National Law is to provide for the protection of the public, by ensuring that only health practitioners that are suitably trained and qualified to practice in a competent and ethical manner are registered. Accordingly, under s 35 of the National Law, the National Boards of the 14 Health Care professions regulated under the National Law are required to register suitably qualified and competent persons. The Boards must decide the requirements for registration and develop standards, including accreditation standards in respect of registration. In addition, one of the objectives is the National Registration and Accreditation Scheme under s 3(2)(d) of the National Law is to facilitate the rigorous and responsive assessment of overseas trained health practitioners. Further, s 3A of the -- 3 of 6 -- 4 National Law states that the main principle for administering this Act is that the health and safety of the public are paramount. Given their obligations under the National Law, I am unable to conclude that AHPRA, the Board or the CCEA are acting outside the National Law in regard to this matter. I understand your concerns that you feel discriminated against, because of the requirements to undertake a skills assessment and then further study in order to obtain registration as a Chiropractor in Australia. I can assure you, however, that all overseas trained health practitioners across all 14 professions regulated under the National Law are subject to similar requirements and assessments. I also understand that Australian Health Practitioners are subject to new requirements when they seek registration to practice overseas. After reviewing all the material provided to this office, I am satisfied that AHPRA and the Board have followed due process and acted appropriately in considering your application for registration as a Chiropractor. I am also unable to conclude that AHPRA and the Board and the accreditation authority are acting outside of the National Law in regard to their requirements for overseas trained chiropractors. In her letter to you of November 2014, Helene Regan has explained that when someone applies to AHPRA for registration as a health practitioner, the onus is on that person to ensure that they meet all requirements for registration and to forward all relevant documents to AHPRA at the time of application, or when those documents are requested to by (sic) AHPRA on behalf of the Board. The Board can then make an informed decision as to whether to grant registration. As an accreditation authority appointed under the National Law, the CCEA has the functions of conducting assessments for overseas trained practitioners. In correspondence with you, both the CCEA and the Board have provided appropriate advice regarding the qualifications assessment process and the requirements to gain registration. The onus is on the applicant to undertake those steps. AHPRA has confirmed that the CCEA is happy to assess your qualification and having done so, will be in a position to provide you with definitive advice regarding where additional studies may be required. While I understand this is not the outcome you are seeking in regard to your concerns, I consider that your complaint has been addressed and the matter is closed.” [6] In a letter dated 7 August 2015,1 addressed to Ms Gavel, Mr Davis says: “I am writing to you regarding a complaint I made to the Ombudsman about the lack of action from the Australian Health Practitioner Regulation Agency (AHPRA) and the Chiropractic Board of Australia (Board) in 1 The date of the letter must be incorrect as it postdates the filing of the application in the Tribunal. -- 4 of 6 -- 5 relation to a complaint I made about an association; the Council of Chiropractic Education Australasia (CCEA). Your interim predecessor (Helene Regan) looked at my complaint and replied with the following: “After reviewing all the material provided to this office, I am satisfied that AHPRA and the Board have followed due process and acted appropriately in considering your application for registration as a chiropractor”. To date the reason for my complaint would appear to have been consistently overlooked by the Board, AHPRA and the Ombudsman. I have not applied or entered into the approved registration process with the CCEA as it is distinctly biased, discriminatory and non-transparent. This bias is aimed solely at McTimoney trained chiropractors and no other UK or other overseas trained chiropractors. If you take the time to review the correspondence between the CCEA and I you will find that I highlighted these concerns to the CCEA and they just reiterated the process they wish me to undertake. At no point have the CCEA addressed any of the concerns that I have raised and instead have just failed to respond or worse still lied.” [7] The reference to the quoted reply having come from Helene Regan seems to be inaccurate. It appears to be extracted from Ms Gavel’s letter of 23 March 2015 in which she referred to an explanation having been provided by Ms Regan at an earlier time. [8] However, what is apparent from that correspondence is that Mr Davis’s complaint, and the matter he wishes to refer to the Tribunal, concerns the processes of CCEA, the Board and AHPRA; but does not relate to any particular decision made by the Board, or any other body, in relation to his own application for registration. In his most recent correspondence to the Ombudsman, he makes the point that he has not engaged in that process. [9] The Tribunal has limited jurisdiction. Section 10(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Tribunal’s original jurisdiction is, relevantly, the jurisdiction conferred on the Tribunal under an enabling Act to decide a matter in the first instance. [10] Section 17(1) of the QCAT Act provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. [11] Section 34 applies when an enabling Act provides for the referral of a matter to the Tribunal. It requires the referral to be made within the period provided under the enabling Act and in a way complying with the rules. [12] The Health Practitioner Regulation National Law, which is a schedule to the Health Practitioner Regulation National Law Act 2009, permits, under s 199(1) a person who is the subject of various decisions to appeal against those decisions to the appropriate responsible Tribunal which, in -- 5 of 6 -- 6 Queensland, is QCAT. Those decisions include a decision by a National Board to refuse to register the person.2 [13] Section 94(2) of the Health Ombudsman Act 2013 (Qld) provides that, under the National Law, QCAT is given jurisdiction to hear matters referred to QCAT by a National Board under the National Law; and to review appellable decisions under the National Law, s 199. Both the National Law and the Health Ombudsman Act 2013 (Qld) are enabling Acts for the purposes of the QCAT Act.3 [14] Neither the National Law nor the Health Ombudsman Act 2013 (Qld), nor any other enabling Act, confers jurisdiction on QCAT to exercise jurisdiction in respect of the matters raised by Mr Davis in his referral. The Tribunal simply lacks jurisdiction to deal with this matter. [15] Section 47(1) provides that if the Tribunal considers a proceeding is frivolous, vexatious or misconceived, or lacking in substance, the Tribunal may order the proceeding to be dismissed or struck out.4 The Tribunal may act in that manner of its own initiative.5 [16] As genuine as Mr Davis may be in attempting to refer these matters to QCAT, the proceedings which he has brought are, in my view, misconceived and lacking in substance. It is, therefore, appropriate that they be dismissed, and I so order. 2 Section 199(1)(a) National Law. 3 Section 94(3) and (4) Health Ombudsman Act 2013 (Qld). 4 Section 47(2)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld). 5 Section 47(3). -- 6 of 6 --