Recent developments from the Queensland Civil and Administrative Tribunal (QCAT) have provided further guidance for National Health Boards on how to ensure that immediate action decisions are upheld upon review.
The Queensland Boards of the National Health Boards1 (National Board) operate 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.2 However, once registered, health practitioners’ conduct, performance or health continues to be monitored and immediate action can be taken by a National Board if there is a serious risk to persons (usually a practitioner’s patients) and it is necessary to take such action to protect them.3
There have been a number of recent judgments in which the immediate action decisions of the National Boards have been overturned by QCAT. In order to ensure that their immediate action decisions are upheld, a National Board should consider the following principles when making their decisions, as well as conduct further internal reviews of the decision when new evidence is advanced by the health practitioner.
Taking Immediate Action – Be Conservative
QCAT has stated that the following principles should be considered by a National Board before deciding to take immediate action4:
- An immediate action order does not entail a detailed enquiry;
- It requires action on an urgent basis because of the need to protect public health and safety;
- The taking of immediate action does not require proof of the conduct, but rather [a consideration of] whether there is a reasonable belief that the registrant poses a serious risk;
- An immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and [notifications];
- The mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
- The material available should be carefully scrutinised in order to determine the weight to be attached to it;
- A complaint that is trivial or misconceived on its face will clearly not be given weight;
- The nature of the allegations will be highly relevant to the issue of whether the order is justified.
On review, QCAT considers the immediate action decision in accordance with these principles and in conjunction with any evidence that has been presented after the National Board’s decision.5 Further to these principles, a National Board should:
Focus on the perception of serious risk either to a group of persons, or people generally, enlivened by the contents of the notification;8
Thoroughly scrutinise, identify and particularise the factors that make the risk serious;
Identify the persons to whom a practitioner poses a serious risk; and
Demonstrate the appropriateness of individual conditions to protect the identified persons from the serious risk.9
Reasonable Conditions to Address the Identified Risks
When the National Board takes immediate action the conditions imposed should only address the relevant risks and affected persons specifically, and otherwise be the least onerous possible.10
Two practical principles arise out of this:
A National Board should not impose conditions which do more than protect from the risks identified in the notification to which they relate; and
- In cases where the risk is specific to a certain class of persons, it is important that the National Board only take such action as will restrain the risk, not the practitioner.
Responding to Review – Consider Further Internal Review
Immediate action decisions that restrict, suspend or place conditions upon a health practitioner’s registration can have onerous consequences for the health practitioner. The professional and/or financially detrimental effect to the health practitioner means that these decisions are being fast-tracked to a hearing by QCAT.
National Boards must abide by QCAT’s obligation to hear these matters expeditiously, whilst acting in accordance with the Model Litigant Principles and allow the Applicant to put forward all evidence it deems necessary to pursue its Application.
These matters are constituted by the evidence from the National Board which will further outline the basis for the notification upon which it relied, followed by the practitioner’s evidence which will generally seek to refute the basis of the National Board’s action. The matter will then progress to hearing.
To minimise matters being overturned at a hearing, the National Board should review its decisions in light of the health practitioner’s evidence as it is filed in QCAT as part of the review process. This is especially the case when onerous action is taken by the National Board (such as a suspension). This can lead to a fairer outcome for both parties and avoid unnecessary legal costs being incurred.
In order to minimise adverse costs consequences, National Boards should adopt a conservative approach to conditions that are imposed upon practitioners when making immediate action decisions and ensure that they have adequately satisfied the provisions outlined above.11 In the event that review proceedings are commenced in QCAT, the National Board should initiate a further internal review of the immediate action conditions in light of any evidence presented by the health practitioner prior to QCAT making a finding.12