Effect of suspension on disciplinary orders - Operation of s107 of the National Law clarified

  • TurkAlert
  • Published 19.03.2021

Key Takeaways

The QCAT (‘the Tribunal’) recently considered the scope of their powers in circumstances where a suspended practitioner’s registration had lapsed. Although the issue had been partially addressed by the QCA, the Tribunal’s decision has clarified the issue. 

How s207 operates

Section 207 of the National Law provides that the suspension of a health practitioner’s registration renders them a ‘lay person’ other than for the purpose of applying the part of the National Law that relates to bringing disciplinary proceedings. For the latter purpose, a suspended practitioner is taken to be registered. 

Brief Facts

In the matter recently before the Tribunal, the practitioner’s registration was suspended by the Health Ombudsman in 2016. By the time disciplinary proceedings were commenced, her registration had lapsed because she was excluded from renewing.1

The Health Ombudsman sought orders including for the cancellation of the practitioner’s registration. The practitioner submitted the Tribunal lacked power to make that order because her registration was both suspended and expired. This submission relied upon a decision in the matter of Medical Board of Australia v Waldron (QCAT 2017).

The Tribunal rejected the practitioner’s submission and was satisfied she was a registered health practitioner for the purpose of making final orders; including for cancellation.

Judgment

Taking into account that the decision in Waldron was set aside on appeal,2 Judge McGill SC found:

  1. if the Health Ombudsman Act 2013 (‘the Act’) is read in conjunction with the National Law, the proper interpretation is that because of s207, a health practitioner with suspended registration that has since lapsed is registered for the purpose of making orders under s107 of the Act; and
  2. in the alternative, a health practitioner with suspended registration remains registered because the usual meaning of suspension is that registration continues in existence but ceases to be operative.

Implications

The consequence for health practitioners facing disciplinary action is that the full range of orders in s196 of the National Law and s107 of the Act are available even if they have had their registration suspended and it subsequently lapses. This includes the Tribunal being able to make cancellation orders.


1 National Law, s107(1)
Medical Board of Australia v XY (QCA 2018)

Louise Nixon

Partner

P: 07 3212 6716

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Andrew Forbes

Partner

P: 07 3212 6715

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