Although the Health Ombudsman was successful in Health Ombudsman v Antley,1 the Queensland Civil and Administrative Tribunal (QCAT) was not satisfied that it was in the "interests of justice", as prescribed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to require Ms Antley to pay costs.
The consequence of this decision may mean a very different approach to the award of costs will be taken by QCAT in its disciplinary jurisdiction moving forward.
This eBulletin looks at the findings in this case and its implications for regulators, practitioners, and others involved in disciplinary proceedings before QCAT.
The basis of the Health Ombudsman's case concerned Ms Antley's acts of stealing, forgery and obtaining illicit drugs. A police investigation established that, while employed as a registered nurse, she had taken a prescription pad from her place of employment, forged prescriptions and presented them to various pharmacies.
Ms Antley was charged with one count of fraud and one count of stealing under the Criminal Code Act 1899 (Qld). She pleaded guilty and was fined $500. No conviction was recorded.
Among other health concerns, Ms Antley suffers chronic pain. She explained that her conduct was as a result of an intention to self-medicate in order to manage this pain.
Judgment was given in favour of the Health Ombudsman but the Tribunal declined to award costs. A number of matters persuaded the Tribunal to make an order that each party bear their own costs. One consideration was the repeal of s195 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).
The disciplinary proceedings
The Health Ombudsman referred the matter to QCAT under the Health Ombudsman Act 2013 (HO Act). The Health Ombudsman alleged that Ms Antley:
- stole at least two blank authority prescriptions from the premises of her employer;
- forged an authority prescription;
- attempted to obtain a drug of dependence using a forged prescription;
- forged a further authority prescription and obtained the drug;
- failed to notify the National Board that she had been charged with criminal offences punishable by 12 months imprisonment or more; and
- failed to disclose to the Queensland Police Service, her employer, the Australian Health Practitioner Regulation Agency, and a number of registered health practitioners that she had forged an authority prescription and obtained the drug using that prescription.
With the exception of charge 5, each of the allegations alleged the conduct amounted to professional misconduct.2
In relation to charges 1 to 4, the conduct was found to be "totally unacceptable for any practising nurse, and it plainly satisfies the definition of professional misconduct with which she had been charged".3
Costs of the proceedings
Having successfully established Ms Antley's conduct, the Health Ombudsman sought its costs of the proceeding. However, QCAT made an order that each party must bear its own costs.
One reason for this was historical and legislative changes. QCAT observed that previously, as in civil cases, an "erring practitioner would be ordered to pay the professional authority's costs".4 QCAT acknowledged that this attitude had continued as Tribunals undertook similar functions to the courts in disciplinary proceedings. QCAT observed that the objective of disciplinary proceedings is to preserve the protection, health, and safety of the public.5 In this way, the factors that could result in an order of costs against the losing party being in the interests of justice would be different to those in commercial litigation.6
When the National Law commenced, it gave the Tribunal power under s 195 to "make any order about costs it considers appropriate". However, the commencement of the HO Act in 2013 amended many provisions of the National Law, including the repeal of s 195. Relevantly, the HO Act does not give the Tribunal this power. Instead, the costs provisions of the QCAT Act prevail. Under the QCAT Act, unless the interests of justice require a costs order to be made against a party, each party must bear its own costs.7
QCAT considered these changes to health regulation in Queensland justified a different approach to the question of costs.
A further reason QCAT declined to award costs was the disproportionate and punitive effect of making a costs order. QCAT acknowledged the escalating costs in the disciplinary jurisdiction and observed this may be attributable to the complexity of the legislation governing health regulation and added bureaucratic involvement.
QCAT noted it is not uncommon for costs assessments to exceed $40,000,8 and that the majority of people who are now subject to disciplinary proceedings would find such an award "quite crippling".9 Having regard to the purpose of the QCAT Act, QCAT observed the effect of such a costs order, combined with the imposition of an appropriate disciplinary sanction, may be disproportionate to the overall conduct and not in the interests of justice.10
QCAT also noted that disciplinary proceedings are "not typical examples of adversarial litigation"11 and in many cases the practitioner understands their conduct will lead to a disciplinary consequence. QCAT observed that "[e]ven in a relatively simple uncontentious matter like the present, costs tend to escalate to such an extent that the overall result of a costs order may seem plainly unjust".12
It may be that QCAT's approach to the award of costs is challenged in due course. However, until such time, and in light of the Court of Appeal's recent decision in Medical Board of Australia v Wong,13 it is plain the default position is that stated in the QCAT Act — "[o]ther than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding".