The case Paramedicine Board of Australia v Jackson [2023] SACAT 66 raised two interesting questions for the South Australian Civil and Administrative Tribunal (SACAT). The first was whether the respondent, Mr Jackson, had ever been registered as a paramedic and the second was whether the Tribunal could hear complaints about conduct that occurred before he was registered.

The timeline

The timeline is set out in detail at [15]. It is summarised here: Mr Jackson applied for registration on 26 November 2018. In January 2019, the South Australian Ambulance Service (SAAS) advised Mr Jackson that his employment would be suspended due to allegations of sexual misconduct whilst at work involving a colleague. Mr Jackson was charged by police on 6 May 2019.  On 22 May 2019 the Board granted Mr Jackson’s registration. The Board was notified of the pending criminal charges on 26 August. The charges were withdrawn on 3 September 2019. Mr Jackson’s registration was renewed in December 2019 and 2020 and January 2021. His registration lapsed on 1 December 2021. On 23 February 2023 referred two allegations to the Tribunal. The allegations were:

Allegation 1 … is that the respondent engaged in professional misconduct or unprofessional conduct in his application for registration as a paramedic in 2018 by failing to disclose relevant information. Allegation 2 of the complaint is that the respondent engaged in professional misconduct or unprofessional conduct on 27 December 2019 in that he made a false or misleading declaration in an application to renew his registration.

The issue was not about the alleged sexual misconduct but the failure of Mr Jackson to disclose the allegations when his registration was being considered and when he applied to renew his registration.

Was Mr Jackson ever registered?

Mr Jackson argued (at [23]) that ‘… he was never registered by the Board…’. This issue arose, on his argument, because of an obligation under the national law for the Board to determine an application for registration within 90 days. Where an application is not granted in that time it is deemed to have been refused giving the applicant a right of appeal ([103] and Health Practitioner Regulation National Law (SA) ss 84-85). The time to make a decision can be extended with the consent of the applicant.

Mr Jackson applied for registration in November 2018. He agreed to an extension of time to allow the Board to make a decision in February 2019. On 2 May 2019 the Board wrote to Mr Jackson asking for further time to consider his application. In their letter, the Board indicated that without his consent for further time, it was required to make a decision by 20 May 2019. Mr Jackson did not reply. The Board purported to grant registration on 22 May 2019. At that time, on Mr Jackson’s argument, his application has already been refused by virtue of the time limits in the legislation (see [114]-[118]).  The Board argued that the deeming provision in the Act gave Mr Jackson a right to appeal but it did not deprive the Board of the right to continue to consider the application and to grant registration ([119]).

At [122] President Hughes said ‘… the Board’s power to make a decision was not exhausted by the deemed refusal’ and at [125] ‘the Tribunal considers that the National Law does not evince an intention that a deemed refusal, where no mind has considered the merits of the matter, is a decision that cannot be revisited.’  Given that a deemed refusal gives an applicant a right to appeal it would be perverse if it also excluded the Board from giving the very outcome (ie registration) that an applicant lodging an appeal is seeking ([126]). The Tribunal held that the decision to register Mr Jackson on 22 May was a valid decision notwithstanding the deemed refusal on 20 May, so Mr Jackson had been a registered paramedic.

Mr Jackson’s argued that the deemed refusal on 20 May meant he was never registered and therefore his applications to renew his registration could not have been validly made. The tribunal, having determined that he was registered on 22 May 2019 meant those arguments had to be rejected.

The first allegation

The first allegation was ‘that the respondent engaged in professional misconduct and/or unprofessional conduct in that he failed to disclose to the Board information that was relevant to the Board’s consideration of his application for registration, and/or he failed to comply with s 130 of the National Law’ ([140]). Section 130 is the provision that requires a ‘registered health practitioner or student’ to report, within 7 days, being charged with a criminal offence (s 130(3)(a)) or that their right to practice has been withdrawn or restricted (s 130(3)(d)). We can again note that Mr Jackson’s application for registration was made in November 2018, his employment was suspended in January 2019, and he was charged on 6 May 2019. He was no registered until 22 May.

The Tribunal noted that there is a distinction in the National Law between ‘persons’ and ‘registered health professionals’. At [37]-[38] the Tribunal said:

… an examination [of the legislation] discloses the legislature’s intention to denote different things by use of the terms “health practitioner”, “registered health practitioner” and “person”. The use of the term “registered health practitioner” operates on those persons in relation to whom the National Law has its primary focus: those who are seeking to be registered [ie students] or who are registered as health practitioners under the regulatory regime.

Where the term “person” is used, it signals an intention to include those who are registered health practitioners and those who are not, and is used to in provisions in which the individual might not be a registered health practitioner, or the provision is not directed to that individual qua registered health practitioner. For example, the prohibition on using a protected title in s 113 of the National Law is directed at “a person”. The prohibition is directed at all persons irrespective of whether they are registered health practitioners or not, unless they are registered in the particular health profession associated with that title.

The Board referred the matter to the Tribunal ‘on the basis that it held a belief that the respondent has behaved in a way that constitutes professional misconduct’; but the definition of professional misconduct refers to ‘professional misconduct, of a registered health practitioner’ ([45] and s 3).

The Act provides that the various investigatory and disciplinary procedures can be applied to a person who was, but is no longer registered as a health practitioner, but the notification must be limited to ‘the person’s behaviour while registered…’ (s 138(2) as it was at the relevant time, see note 1, below; [49] and [57]).

At [142] the Tribunal said:

… the conduct that occurred prior to the respondent’s registration may not be the subject of a referral because it is an allegation made about a person who is not now a registered health practitioner in respect of conduct when they were not a registered health practitioner. That aspect of the conduct is not caught by s 130, because s 130 only imposes obligations on registered health practitioners.

The Tribunal noted however that s 130 is a continuing obligation such that Mr Jackson was required to notify the Board of the charges once he became registered. The Tribunal said (at [143]) that this ‘provides an avenue for the Board to refer an allegation concerning a failure to disclose that endures beyond 7 days after registration’; that is if the Board wanted to refer a complaint that, having become registered, Mr Jackson then failed to report that he had been charged and his right to practice with SAAS has been suspended, the Tribunal would have jurisdiction to consider the matter.

The second allegation

At [145] the Tribunal said:

The second allegation in the complaint is that the respondent engaged in professional misconduct and/or unprofessional conduct in that on or about 27 December 2019, he made a false or misleading declaration in his application to renew his registration.

The details of what was ‘false or misleading’ is not made clear but one can infer that he failed to disclose that he had been the subject of a complaint, investigation and criminal charges even though those charges had been dismissed.  The Board’s Criminal History Registration Standard (17 May 2018) was not referred to by the Tribunal but it does say that an applicant’s relevant criminal history includes:

… every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

Whatever the specifics of the allegation, Mr Jackson’s registration had expired on 30 November 2019. There is however a grace period until 31 December where a registered health practitioner can apply to renew their registration and, if granted, the registration is backdated. Mr Jackson applied to renew his registration on 27 December.

The Tribunal said (at ]149]-[150]):

By virtue of s 108, the respondent’s registration was taken to continue in force until the date upon which a new certificate was issued to him. That date was 5 January 2021, and the certificate renewed his registration from the backdated date of 1 December 2020, until 30 November 2021.

Accordingly, the respondent was a registered paramedic at the time of the conduct to which the second allegation is directed.

Conclusion

The tribunal concluded (at [151]) that it did not have the power to hear a complaint that, prior to registration, and whilst his application was pending, Mr Jackson did not notify the Board either that he had been charged with an offence or that his right to practice with SAAS had ben suspended. The Tribunal could hear a complaint, if the Board chose to make one, that he failed to report those matters within 7 days of becoming registered.

The Board could hear and determine an allegation that when making his application during the ‘grace’ period, Mr Jackson had ‘made a false or misleading declaration in his application to renew his registration’ even though his registration had lapsed, because, by virtue of the deeming provisions when his application was granted, it was backdated to 1 December.

None of this determines the merits of the Board’s claims. This case was merely about the procedural issues of whether the Tribunal had jurisdiction. It will now be up to the parties to determine their response to this judgment. It will be up to the Board to decide whether to continue with the referral and up to Mr Jackson to decide how he will respond if the matter does proceed.

Personally, one has to question the merits of pursuing someone for failing to make a disclosure that he had been suspended and investigated in 2019 when he would appear to have practised successfully as a paramedic until 2021, he has not been a paramedic since December 2021 so presumably poses no risk to health consumers and the criminal charges against him were withdrawn, in 2019, presumably without any adverse finding. “Justice delayed is justice denied”

Note 1

Above I referred to ‘s 138(2) as it was at the relevant time’.   The Tribunal noted that there had been changes to the Health Practitioner Regulation National Law that took effect in South Australia on 15 May 2023. These amendments confirmed the power of the Board to investigate, and the Tribunal to determine complaints about behaviour of a currently registered health practitioner that occurred before registration. Those amendments did not, however, change the law for people, like Mr Jackson, who had been registered but who, at the time the matter was referred to the Tribunal, was no longer a registered health practitioner.  For people in that position the Tribunal still does not have jurisdiction to deal with complaints about pre-registration conduct. Section 138(2) as it was at the time this matter was referred to the Tribunal is now s 138A(2).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.