Has the decision in Vega Vega v Medical Board of Australia [2014] QCAT 328 affected the way immediate action decisions should be conducted by National Boards?

Vega Vega v Medical Board of Australia [2014] QCAT 328 (Vega Vega) recently demonstrated that reconsideration of a decision to take immediate action1 by a National Board2 under the Health Practitioner Regulation National Law Act 2009 (National Law) creates  a multiplicity  of reviewable decisions rather than one amended decision.

Assuming that the health practitioner applies for review, it appears now that each subsequent decision is an individual decision reviewable by the Queensland Civil and Administrative Tribunal (the Tribunal).3

The reconsideration of an earlier decision because of the provision of new or supplementary evidence (by the health practitioner) may still have the advantage of achieving the appropriate outcome and also reducing any negative costs consequences for a regulator, even if subsequent decision(s) are overturned upon review in the Tribunal. Therefore, National Boards should continue to review the original decision in light of any new evidence put forward by the health practitioner during the review process. 4

Multiplicity of decisions

In Vega Vega the Medical Board of Australia (the Board), made three separate decisions. A chronology of those decisions considered by the Tribunal is as follows:

  • On 9 May 2014 the Queensland Immediate Action Committee of the Board took immediate action to suspend Dr Vega Vega’s registration (Decision 1).5 On 20 May 2014 Dr Vega Vega applied for review of the decision.6
  • On 2 June 2014 the Board resolved to repeal and replace the decision of 9 May 2014 and accept an undertaking offered by Dr Vega Vega not to practice until the hearing date.7 On 11 June 2014, in  response to a request made on behalf of Dr Vega Vega, the Board refused to revoke the acceptance of this undertaking (Decision 2).8 On 12 June 2014 Dr Vega Vega applied for review of the Board’s refusal to revoke the undertaking.9
  • On 20 June 2014 the Board took immediate action to end the undertaking and impose conditions following consideration of the material filed by Dr Vega Vega on 10 June  2014,  and  his submissions to the Board dated 20 June 2014 (Decision 3).10

At the time of hearing Dr Vega Vega had filed applications to review Decisions 1, 2 and 3.11

The effect of reconsideration

The Board purported to repeal Decisions 1 and 2 when it made Decision 3. Decision 3 was reviewable in its own right.12  But, were Decisions 1 and 2 reviewable in their own right?

The importance of this question relates to professional standing: though a decision purportedly repealed by a National Board had ceased to have effect, it would not necessarily have ceased to exist;13 therefore the practitioner would still have to declare the decision in certain circumstances (such as in response to a question on a job application).14

The Tribunal concluded:

  • Every immediate action decision is as an appellable decision.15
  • Section 159 of the National Law states that an immediate action decision can only be set aside on appeal, revoked by the National Board or removed by agreement of the parties.16
  • Section 159 of the National Law provides the period of effectiveness and the means by which the effect of an immediate action decision by a National Board can be brought to an end.17
  • The National Law does not confer power upon a National Board to repeal its earlier decisions.18
  • Therefore, under the National Law, even if the effect of the decision is nullified, the decision remains until set aside by appeal to the Tribunal.19

So, as a matter of law, reconsideration by a National Board does not affect the reviewable nature of previously made decisions.

The Tribunal concluded that on the evidence before it, Dr Vega Vega did not pose a serious risk to the persons and is capable of exercising his judgement unburdened by conditions as imposed by Decision 3.20  The result of the case on the conclusions outlined above was that Decisions 1, 2 and 3 were all set aside by the Tribunal.

Conclusion

The fact that Decisions 1 and 2 in Vega Vega were reviewable before the Tribunal does not affect the benefit or validity of reconsideration of an immediate action decision by a National Board or associated entities. As such, immediate action decisions should be reviewed upon the presentation of new evidence in a review proceeding before the Tribunal.