A policy that is ‘…unreasonable, unfair and liable to lead to positive injustice'

  • TurkAlert
  • Published 05.03.2021

Issue

The Queensland Civil and Administrative Tribunal expressed concern about Ahpra’s policy that prevents a practitioner applying to have a reprimand removed from the public register less than five years after it was published.

While it is mandatory for a National Board to record a reprimand on the face of the register, the National Law contains no provisions setting a minimum publication period. 

Relevant Law

Section 226(3) of the National Law enables National Boards to remove a reprimand from the public register ‘if it considers it is no longer necessary or appropriate for the information to be recorded on the Register.’

The Ahpra Management Policy provides that in the absence of an order specifying a ‘publication end date’, reprimands will be recorded on the public register for five years. Applications to remove reprimands before the expiry of five years will not be accepted.1

Contrary to what the policy states, the statutory tribunals exercising jurisdiction under the National Law are not empowered to order a publication end date.   

Last week, Judge Allen QC accepted submissions on behalf of the Health Ombudsman that it would be ultra vires to order a publication end date but expressed concern that the ‘application of such a policy would be unreasonable, unfair and liable to lead to positive injustice.

Ahpra’s policy clearly goes beyond the terms of s226 and, in the absence of an ability to appeal a decision about removing a reprimand, improperly fetters the discretion of the National Boards and the ability of a practitioner to seek removal when they can demonstrate publication is no longer necessary or appropriate. 

Implications

To the extent the policy provides early applications will not be accepted, it exposes National Boards to adverse findings on judicial review and the making of orders for mandamus.

Louise Nixon

Partner

P: 07 3212 6716

Email Louise

Andrew Forbes

Partner

P: 07 3212 6715

Email Andrew