Attudawage v Medical Board of Australia [2011] QCAT 97

CITATION: Attudawage v Medical Board of Australia [2011] QCAT 97 PARTIES: Chamudri Sagarika Attudawage (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR010-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 8 March 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Medical Board of Australia made on 9 December 2010 with respect to Dr Attudawage’s registration is stayed pending the outcome of these proceedings or further order. 2. The matter is listed for a directions hearing in Brisbane at 10:00am on 1 April 2011. CATCHWORDS : PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where applicant overseas trained doctor – where transition to national Register of Practitioners – where details of registration amended - whether decision to amend should be stayed pending review of the decision. Queensland Civil and Administrative Act 2009, s 22(4) Health Practitioners Regulation National Law Act 2009 REASONS FOR DECISION -- 1 of 3 -- [1] On 1 July 2010, a national scheme commenced which regulates certain medical practitioners, such as Doctors, in participating states including Queensland. One aspect of the scheme is a national Register of Practitioners. In effecting the transition from a state based to a national registration system, the Board developed a transition plan with the objective of registering practitioners under national categories which reflected their former status and qualifications. [2] In Dr Attudawage’s case, it appears a number of decisions have been made about her registration details. She is dissatisfied with a decision made by the Board on 9 December 2010 and has applied to QCAT to review it. Pending that review being concluded, she has applied for a stay of the decision. [3] The Tribunal may stay a decision subject to review if it considers that it is desirable having regard to the following factors: (a) the interests of those who may be affected by the Tribunal’s decision to stay or not stay the decision; (b) any submission made by the decision-maker; and (c) the public interest1. [4] Under the former state schemes, Dr Attudawage was registered in New South Wales and Queensland. In New South Wales she held general registration. In Queensland she held general and special purpose registration to allow her to practice in an area of need position as a deemed specialist in medicine at Redland Hospital. Initially, the Register of Practitioners listed her for both general and specialist registration in the specialty of General Medicine. [5] Dr Attudawage has not yet completed her requirements for specialist recognition with the Royal Australasian College of Physicians and the Australian Medical Council. The Board’s position is that this renders her ineligible for registration as a specialist and that to transition her to specialist registration under the national scheme was an error. On 9 December 2010, it decided to void the registration as a specialist in the Register of Practitioners and impose a condition on her general registration2. [6] The Board did not consult Dr Attudawage before amending her registration. Dr Attudawage contends the Board failed to follow its own transition policy. The Board argues Dr Attudawage is not eligible for registration as a specialist, regardless of the transition policy. [7] The impact of the Board’s decision is that Dr Attudawage has ceased working as a specialist and now works as a senior medical officer. As well as earning less money this will interfere with her progress towards specialist recognition by the Royal Australasian College of Physicians. 1 Queensland Administrative Tribunal Act 2009, s 22(4). 2 The condition has since been removed and the decision to do that is not before the Tribunal. -- 2 of 3 -- [8] Dr Attudawage contends there would be no adverse outcome for the public or the patients if a stay is granted. The Board has not questioned Dr Attudawage’s competence. She has filled the position of Staff Specialist from 16 June 2007 until she ceased in that role because of the Board’s decision. Dr Attudawage was subject to the supervision of Dr Hayworth who speaks highly of her. If a stay is granted, Dr Hayworth will resume supervising her. There is no evidence to suggest Dr Attudawage has ever been the subject of complaint either in New South Wales or Queensland. The Board does not suggest that patients will be at risk if a stay is granted. [9] Dr Attudawage argues patients, who will be deprived of her services, will be adversely affected if the stay is not granted. The Director of Clinical Services at the small private hospital at which she works has written of the quality of her services and the contribution that Dr Attudawage can make to the services the hospital can offer the public. [10] The focus of the Board‘s submission is the merits of the case on review. The Board argues Dr Attudawage has very limited prospects of success and that she does not qualify for registration as a specialist. Whilst it acknowledges Dr Attudawage will lose some income, she is able to continue working in her current position. [11] It is not surprising there is some difficulty in transitioning from diverse State based categories to a national system of registration. This review will involve consideration of the status of the Board’s transition plan as well as the requirements that apply under the National Law.3 It could not be said that Dr Attudawage has no prospects of success on review. [12] Dr Attudawage’s interests are certainly affected if a stay is not granted. Where a decision is made in the context of a system of regulation designed to protect the public, the impact on the public of a stay being granted or not being granted is of more significance. [13] The Board has not suggested there would be any risk to patients or threat to public safety generally were Dr Attudawage to retain a registration status which would allow her to continue to work in the way in which she did prior to the decision under review. Dr Attudawage is clearly well regarded by her supervisor, Dr Heyworth, and has the support of the Director of Clinical Services at the hospital at which she works. In the absence of a concern for patients or the public the balance of convenience favours granting the stay. [14] It seems there are no facts in dispute and the review will involve only questions of interpretation. The matter will be listed for an early directions hearing. The parties are encouraged to seek to agree before hand about directions to bring the matter to a timely hearing, whether oral or on the papers. If directions are agreed they may be jointly proposed in writing without the need to attend the directions hearing. 3 Health Practitioners Regulation National Law Act 2009. -- 3 of 3 --