QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	QRZ v Nursing and Midwifery Board of Australia [2024] QCAT 204	
PARTIES:	QRZ	

(applicant)	

	v	
	Nursing and Midwifery Board of Australia	

(respondent)	

APPLICATION NO/S:	No. OCR 113 of 2023	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	24 May 2024 (ex tempore)	
HEARING DATE:	24 May 2024	
HEARD AT:	Brisbane	
DECISION OF:	Judge Dann, Deputy President	
ORDERS:	1.	The respondent is granted leave to use and rely upon documents lodged in these proceedings in the following categories for the purpose of determining the applicant’s application to renew her registration lodged 2 April 2024 and otherwise as is necessary to achieve all its objectives and exercise its functions and powers under the Health Practitioner Regulation National Law (Queensland):
(a)	records produced in response to section 63 orders from the following non-parties:
(i)	Mackay Hospital and Health Service;
(ii)	Services Australia;
(iii)	Dr Majd Mahmoud Arnaout and/or The Doctors Mackay;
(iv)	Dr Padmaprasad Kumar and/or The Doctors Mackay;
(v)	Dr Helen Mary Wordsworth and/or Sullivan Nicolaides Pathology;
(vi)	Dr Labiba Ahmad and/or Dr Rachel Jennifer Bidgood and/or One Stop Medical;
(vii)	Caneland Medical; and
(viii)	Perception Psychology;
(b)	Report of Dr Prior dated 3 October 2023;
(c)	Report of Dr Prior dated 10 April 2024; and
(d)	Email correspondence and other documents written and provided by the applicant to the Tribunal and to the Board in the proceeding.	
CATCHWORDS:	PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — UNDERTAKING IN COURSE OF LEGAL PROCEEDING — where the respondent is a regulatory body — where the respondent applies to be released from the Harman undertaking — where the material subject to the Harman undertaking is directly relevant to a function of the body — where the release from the Harman undertaking is not by consent — application granted
Health Practitioner Regulation National Law (Queensland)
Human Rights Act 2019 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Ashby v Slipper (No 2) [2016] FCA 550; 343 ALR 351
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd 
R 509
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36; 235 CLR 125
McDonald v Queensland Building and Construction Commission [2023] QCAT 123
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 3) [2009] QSC 76; [2010] 1 Qd R 244
Sinnott v Chief of Defence Force [2020] FCA 643
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217	
APPEARANCES & REPRESENTATION:	

Applicant:	
No appearance	

Respondent:	
L Nixon, solicitor of TurksLegal	

REASONS FOR DECISION
What is the application before the Tribunal?
[1]	There is a specific application today by the Board.  It is to permit it to use categories of documents filed in this proceeding when it is considering an application by QRZ to renew her registration as a nurse.  
[2]	In legal terms, it is an application to release the Board from any implied undertaking in these proceedings, that where documents have been disclosed in them, the party obtaining disclosure cannot, without the leave of the court or tribunal, use those documents for any purpose other than that for which it was given, unless it has been received into evidence.
[3]	QRZ has not appeared in the Tribunal this morning.  QRZ was provided a notice of hearing by the Tribunal for today on 14 May 2024, which specified the directions hearing would occur at 9 am.  QRZ was served by email with the Board’s  application on 10 May 2024.  QRZ was provided by email from my Associate on 17 May 2024 with a reminder of the hearing today at 9 am.  
[4]	I am satisfied in all the circumstances that even though QRZ is not attending, I can proceed today in accordance with section 93(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) because I am satisfied that the applicant has been given the notice of the hearing that was required under s 92 of the QCAT Act.   
What is the underlying proceeding about?
[5]	The underlying proceeding is a review of the Board’s decision dated 27 March 2023, to take action under s 178(2)(b), which should, in fact, be a reference to s 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) to impose restrictions on QRZ’s registration.  
[6]	QRZ acts for herself in the review application, which she commenced on the 14 April 2023.  The conditions imposed are:
(a)	a limitation on practice:
(i)	to prohibit practice in any role which requires direct or indirect clinical patient contact, including any role involving supervision of other practitioners engaged in direct or indirect clinical conduct; 
(ii)	such that the practitioner can only use her professional knowledge to practice in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles; and
(iii)	such that the practitioner may only practice in places of practice approved by the Board and the decision notes nil approved practice locations;  
(b)	a requirement that QRZ:
(i)	attend on her treating practitioners;
(ii)	undertake treatment by attending a psychiatrist, psychologist or general practitioner at a frequency determined by that treating practitioner; and 
(iii)	must provide Ahpra with:
A.	the contact details of all treating practitioners;
B.	acknowledgements from those practitioners that Ahpra may seek reports from them on a quarterly basis; and 
C.	confirmation from the treating practitioners they’ve seen a copy of the conditions. 
[7]	There are also ancillary conditions to give effect to the substantive conditions.  
[8]	In summary, the Board has imposed these conditions because the applicant has an extensive history with the Board dating back to 2009, relating to an impairment that she suffers from, namely psychotic disorder, secondary to epilepsy.  
[9]	There is a lengthy independent health assessment history, which concluded:
(a)	in 2015, in part, that QRZ suffered from a health impairment due to psychological illness that is likely to significantly impair her capacity to function as an enrolled nurse and that she remained without insight into that condition which makes management difficult;  
(b)	in 2017, in part, that QRZ’s significant psychiatric consequences of her epilepsy and psychotic conditions are partially controlled by maintenance medication, attending her psychiatrist and attending her general practitioner.  QRZ was likely approaching maximal medical improvement, and encapsulated delusions remain in relation to the doctors who treated her in Sydney and at the Mackay Base Hospital; and 
(c)	in 2019, in part, that QRZ showed evidence of suffering from psychotic disorder due to epilepsy with delusions.  QRZ had been in treatment as an in-patient and an out-patient and has follow-up appointments with a psychiatrist every three months and takes antipsychotic and antiepileptic medication with good effect.  QRZ’s condition is essentially in remission with appropriate treatment, but she has mild residual beliefs that her former employers are obstructing her ability to return to the workplace.  Given her compliance with her treatment and her partial insight, QRZ would be fit to return to practice under supervision and treating practitioner restrictions; however, she would need upskilling prior to return to practice.  
[10]	The Board then proposed the conditions in January 2023 against which QRZ appeals, because Ahpra had received information which indicated that QRZ may be experiencing an impairment in her mental state.  That information was in the form of:
(a)	correspondence from a university regarding its concerns about her continuation in the Bachelor of Nursing Science course, which involved clinical placements and their requirement that she complete an independent health assessment to continue in the course, which she would not complete.  Consequently, QRZ was not enrolled in any program of study; and
(b)	a medical practitioner-provided report on 17 December 2022 that stated:
(i)	QRZ was not compliant with her medication and required further treatment;
(ii)	there were concerns with her health as related to fitness to practice; and
(iii)	she should not be permitted to practice as an enrolled nurse as she denied any issues with her mental health and proclaimed she does not need treatment and that she should avoid, in any circumstances, being responsible for the care of patients.  
[11]	The Board concluded the information presented to it was unequivocal, that QRZ is likely to pose a risk to patient safety if she is placed in a clinical setting and was particularly concerned about QRZ’s failure to demonstrate insight into her health and her non-compliance with treatment and was of the belief that it was unlikely she would be able to self-regulate.
[12]	Based on the information before it, the Board formed the reasonable belief QRZ has a mental health impairment characterised by her treating practitioner as psychotic disorder, secondary to epilepsy with delusions.  QRZ’s response submissions included that:
(a)	she did not consent to any changes to restrictions;
(b)	the Board’s concerns were nonsense for reasons including politics and corruptions by Ahpra and doctors;
(c)	the only valid outcome was for her to return to work as a nurse; and 
(d)	QRZ had never been given any reasoning that she had a medical condition.  
[13]	The Board observed its primary consideration was the protection of the public, and the conditions were the minimum necessary to manage the noted risks that QRZ’s health impairment currently imposed to the public.  There was no review period of those conditions.  
[14]	QRZ seeks review of that decision.  The bases set out in her application are:
•	UNFAIR, UNREASONABLE AND BIASED DECISION GIVEN I AM REMOTE PATIENT MONITORED BY DOCTORS.  
•	DISCRIMINATION ON GROUNDS — MEDICAL CONDITION.  EPILEPSY & MENTAL HEALTH — DO NOT EXIST. MENTAL HEALTH CONDITION NEVER, EVER EXISTED. 
•	DOCTORS & AHPRA PERFORMING — FLORENCE NIGHTINGALE BEHAVIOURS — UNABLE TO PRACTICE AS EN NURSE WITH THE ABOVE MEDICAL CONDITIONS & DOCTORS MONITORING ONLY CHOOSING TO DO HARM TO [QRZ].   
[15]	QRZ seeks orders in the underlying proceeding that she return to work as an enrolled nurse without upskilling, restrictions or limitations or an undertaking and:
NEVER, EVER IN FUTURE IS [QRZ] TO HAVE ANY LIMITATIONS/RESTRICTIONS OR UNDERTAKING PLACED ON HER PRACTICE AS EN NURSE.  
What is the material before the Tribunal in the underlying proceeding?
[16]	The underlying review proceeding is somewhat advanced.  QRZ has sent voluminous written emails to the Tribunal’s registry, and the Board has filed the documents required under s 21(2)(b) of the QCAT Act. 
[17]	Relevantly to the application before me, the Tribunal has issued notices to produce medical records relevant to the applicant to the Mackay Hospital and Health Service, Services Australia, a Dr Kumar, a Dr Ahmad, a Dr Bidgood and a Dr Aranout, Perception Psychology Mackay, Caneland Medical Centre and Sullivan Nicolaides Pathology.  This was on the basis that these practitioners or health entities were thought to have potentially provided medical services to QRZ.  Material was produced by some of those entities in response to those notices, and the Board has obtained experts reports from Dr Prior dated 3 October 2023 and 10 April 2024.  Each report is a report based on a paper review.  In the directions hearing on 9 February 2024, QRZ indicated she refused to participate in a face-to-face health assessment with Dr Prior.  
[18]	The Tribunal anticipates the remaining steps in the proceeding are for the filing of written submissions and the hearing brief and the allocation of a hearing date.  
[19]	The Board’s application arises because on 2 April 2024, QRZ applied online to renew her registration as a nurse.  That renewal application is in evidence and states, inter alia, that the applicant does not have an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practice the profession and that the applicant does not meet the Board’s recency of practice requirements because of:  
“ONGOING VICTIM OF NON-PUBLICATION ORDER AND CRIMINAL CO- ERCIVE [sic] BEHAVIOURS AND WRONGFUL DISCLOSURE BY NMBA LOUISE NIXON AND QCAT JUDGE DANN WORK-RELATED HOMICIDE AND HORIZONTAL AND VERTICAL VIOLENCE INCLUDING TERRORISM AND VULGAR PROSTITUTION RAPE OF MY MIND BEHAVIOURS FOR NO VALID LEGAL LAWFUL RESON [sic] WORLDWIDE/GLOBALLY. SHOULD NEVER HAD ANY RESON [sic] TO NOT REASON TO STOP NURSING AS PREVIOUSLY MENTIONED. NEVER HAD AN ADVOCATE TO ACTION GOOD FOR MYSELF.  VCTIM [sic] VICTIM VICTIM ONLY!!!”
What are the submissions and the law in relation to the application to be released from the implied undertaking?
[20]	The Board applies to the Tribunal for orders, which will enable it to rely on the information which has been obtained during the course of this proceeding, for the purpose of determining or assisting it to determine QRZ’s application to renew her registration and to the extent otherwise necessary to perform its functions under the National Law.  The Board’s next board meeting is on 28 June 2024.  The information in the proceeding is broadly of three types:
(a)	the medical records relating to QRZ, which have been produced by the earlier identified medical professionals and organisations in response to notices from the Tribunal requiring them to produce the documents;
(b)	the reports prepared by Dr Prior and filed by the Board, relying on the material produced pursuant to the non-party notices; and 
(c)	the voluminous material filed by QRZ in this matter.  This is, presently, in the order of approximately two inches of paper and comprises, largely, emails from her.  They must be taken to represent her position as they broadly challenge the Board’s imposition of conditions.  Dr Prior had expressed reference to them, as is referred to in certain paragraphs, to his latter report.   
[21]	In support of this application, the Board makes the following submissions:
(a)	the statement of principle for the implied undertaking is that contained in Hearne v Street:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits; and
(b)	in articulating a view about the undertaking, in Central Queensland Cement Pty Ltd v Hardy, McPherson J expressed the underlying principle that supported the implied undertaking was that a document furnished for use for one purpose may not legitimately be used for another. 
[22]	The Board submits that:
(a)	The application of the implied undertaking relating to categories of documents must be determined on a case by case basis;
(b)	orders made pursuant to s 63 of the QCAT Act requiring a non-party to a proceeding to produce documents to the Tribunal, are similar to the issuing of a subpoena in accordance with the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’); and by analogy, material the Board has obtained consequent upon the Tribunal’s exercise of power falls within the ambit of the implied undertaking; 
(c)	the reports by Dr Prior fall within the scope of the implied undertaking because they are independent expert opinions which depend wholly or in part on the documents obtained pursuant to the notices to produce documents and the reports have been obtained for the purpose of assisting the Tribunal to arrive at the correct and preferable decision in the proceeding.  If the Board wishes to use the documents for any purpose other than the hearing, it needs the Tribunal’s leave to do so;
(d)	A party can be released from the implied undertaking if special circumstances are demonstrated.  The test of special circumstances is met if there is a special feature of the case which affords a reason for modifying or releasing the obligation, and which is not usually present.; and
(e)	Once special circumstances are established, it is a matter of the proper exercise of the discretion with many factors being relevant.
[23]	The Board submits the discretionary factors which give rise to special circumstances, in this case, are:
(a)	the statutory scheme for registration has as the paramount principle of the protection of the public and public confidence in the safety of services provided by registered health practitioners and students;
(b)	without leave to rely on the material, when the Board determines the application for registration, the Board will be limited to the material filed in the s 21(2)(b) bundle, which is limited to material from QRZ’s treating practitioners to June 2023, and a report from Dr Prior after a face-to-face assessment of QRZ in June 2019.  Consequently, the Board’s power to make a registration decision that complies with the paramount principle will be fettered;
(c)	the Board acknowledges it has investigatory powers on an application to renew registration, which would permit it to take steps to obtain updated information from QRZ’s former general practitioner and at least some of the other parties which have already complied with the notices to produce in this proceeding.  It submits, though, that the obtaining of those records will take additional time and impose additional costs on the Board.  There may be duplication in the form of payment of fees to practitioners and other entities where it has already paid for access to these same records.  There is an imposition on the practitioners and entities to have to, again, comply with third-party processes to produce the records;
(d)	while the Board can require QRZ to undergo a health assessment, QRZ has refused to participate in a face-to-face health assessment during these proceedings and it is likely the Board’s request to do so, this time, will prove futile.  Absent access to Dr Prior’s reports, the Board will be required to rely on Dr Prior’s 2019 report, or if it manages to obtain updated records, commission another practitioner to ensure that any opinion is independent.  The Board could wait until the conduct of these proceedings and when the material is put into evidence, then rely on it, or, alternatively, await the outcomes of the review and then consider the Tribunal’s reasons and appeal, but this course may constitute a failure to carry out the statutory objectives of the National Law; and
(e)	the Board does not seek relief from the implied undertaking for a purpose that will lead to the publication of QRZ’s clinical and other health information.  There is no separate litigation or second proceeding for which the Board seeks the documents.  The Board is bound by the Privacy Act 1988 (Cth) (‘Privacy Act’) in how it stores and maintains QRZ’s personal information and it is an offence against the National Law if a person exercising a function fails to maintain the confidentiality of protected information.   
[24]	In oral submissions, the Board referred the Tribunal to two further authorities, Ashby v Slipper (No 2) and Sinnot v Chief of Defence Force.  Neither case deals precisely with the circumstances before the Tribunal, but the Board contends they are relevant by analogy, because in each case, the Federal Court has granted relief from the implied undertaking in circumstances where:
(a)	there was no second proceeding on foot; and 
(b)	it has acted in accordance with broader public interest principles.
[25]	In Ashby, the release from the implied undertaking was granted so the documents could be referred to the Australian Federal Police (‘AFP’) to investigate possible offences against Commonwealth laws, and the wider public interest principles were identified at [10].  In Sinnot, the party was afforded relief from the implied undertaking so that the Australian Defence Force (‘ADF’) could undertake relevant investigations as to whether its own confidentiality, disciplinary, and administrative processes had been breached, and also for referral to the Regulator, in that case, the Legal Services Commission.  Logan J referred broadly to a singular public interest being served by permitting the use of the relevant material for the purposes that the ADF sought.
How do these principles apply in this case ? 
Are the documents subject to the implied undertaking?
[26]	The implied undertaking, on the authorities, applies to documents produced under subpoena.  In this case, the Tribunal accepts that by analogy, the documents produced to the Tribunal in response to notices to produce issued to non-parties and made available to the parties are caught by and subject to the implied undertaking.  
[27]	As to the two expert reports, each of them has been produced for the purpose of this proceeding.  Each of them relies in whole or in part on information obtained pursuant to the s 63 notices. In Springfield Nominees, Wilcox J observed that witness statements were, like other categories of documents — affidavits, interrogatories, lists of documents and admissions — brought into existence for the purpose of the instant litigation, and which may contain confidential or personal information, which may or may not be read in open court.  That is an apt description of each of Dr Prior’s reports.  Each of Dr Prior’s reports deals with the doctor’s opinion about QRZ’s personal health circumstances. The underlying information is clearly information which may be confidential personal information, and each report may or may not, when the time comes, be read in open court.  The provision of the latter of these reports to the Tribunal and QRZ is expressly provided for by a direction of the Tribunal.   
[28]	The Board referred me, today, to a decision of Senior Member Traves of this Tribunal, in McDonald v Queensland Building and Construction Commission, in circumstances where the senior member was not satisfied that expert reports, in that matter, fell within the implied undertaking on the basis that those documents were not simply produced by reason of the compulsory processes of the court.  That is a factual difference from the circumstances in this case and I am grateful to have been provided with the decision, but I do not consider it is germane to the considerations today.   I am satisfied that the two expert reports are subject to the implied undertaking in this case. 
[29]	The third category of documents is those documents prepared or produced to the Tribunal by QRZ.  As I have already indicated, they are documents produced in circumstances where QRZ was directed on the 26 May 2023 to provide material in support of her application and the contents of this material clearly suggests that is what the documents are intended to do. The material has been referred to by Dr Prior in the preparation of his second report at paragraphs 3.43 to 3.6.  
[30]	The Tribunal is satisfied that the three categories of documents that are subject of the application are subject to the implied undertaking.  
Are there special circumstances warranting relief from the implied undertaking?
[31]	The Tribunal is satisfied that there are special circumstances here arising from a number of matters:   
(a)	the statutory scheme, which requires the Board to:
(i)	oversee a system of registration of suitably qualified and skilled practitioners;
(ii)	further the protection of the public; and 
(iii)	maintain public confidence in the system of registration of health practitioners.  
As has been acknowledged in the other authorities in the Federal Court, in the context of this legislative scheme there is a wider public interest at play;
(b)	whilst it is not an inter-party proceeding, the question of renewal of QRZ’s registration is one which is central to the relationship between QRZ, who seeks to remain a registered health practitioner, and the Board, as the body charged with the responsibility for making decisions about registration.  No unrelated third party is involved;
(c)	the documents produced pursuant to the non-party notices relate solely to QRZ, and, as such, are the most current information available to the Board about her health, which, given her registration history, will be of primary consideration before the Board when it is considering her application for renewal of her registration;
(d)	Dr Prior’s reports are prepared based on that material in circumstances where he has met the applicant in 2019 for the purpose, at that time, of a face-to-face health assessment;
(e)	the practical considerations arising from the steps the Board has already taken to obtain material in this proceeding, including paying the costs of some parties for the production of the documents and the duplication of time and cost which would be involved if the Board was required to exercise its statutory powers of investigation, where the Board’s resources are not limited, is a consideration;  
(f)	the Board is required to manage the information it receives in accordance with the Privacy Act; and 
(g)	there are statutory safeguards which make an offence under the National Law for anyone to fail to maintain the confidentiality of the material.   
What is the application of the Human Rights Act 2019 (Qld)?
[32]	The Tribunal has considered QRZ’s rights under the Human Rights Act 2019 (Qld) (‘HR Act’), specifically, in this application, the following rights may be engaged:
(a)	recognition and equality before the law; 
(b)	privacy and reputation; and 
(c)	a fair hearing.
[33]	When the Tribunal is exercising its functions, s 48 of the HR Act provides that it must interpret statutory provisions in a way which is compatible with human rights.  Section 58 of the HR Act requires it to act or make a decision in a way which is compatible with human rights.  
[34]	The Tribunal does not consider there is any ambiguity in this application which requires consideration.  The statute conferring responsibilities and functions on the Board is clear in its terms.  The legal principles relating to the implied undertaking and release are well established.   
[35]	The Tribunal is satisfied that this application process offers QRZ the right to a fair hearing, and that that right has not been limited.  Similarly, the Tribunal is satisfied there has been no limitation on QRZ’s rights to recognition and equality before the law.  The Tribunal’s consideration of this interim application to excuse the Board from the implied undertaking does not unlawfully or arbitrarily interfere with QRZ’s privacy, family, home, or correspondence, because the application is conducted within established legal parameters.  Further, s 3A of the National Law provides the main guiding principle of the National Registration and Accreditation Scheme is that the paramount consideration is the protection of the public and the maintenance of public confidence in the safety of services provided by registered health practitioners.   
[36]	I am satisfied that any limitation on QRZ’s rights arising because of any decision to release the Board from the implied undertaking so that documents disclosed in this proceeding may be used by it in the assessment of QRZ’s registration to renew her registration as a health practitioner is consistent with the paramount principles in the National Law.  These considerations outweigh QRZ’s individual private interests because of the wider public’s interests and considerations, so any limitation which the Tribunal imposes is reasonable and justified in the circumstances.
Orders
1.	The respondent is granted leave to use and rely upon documents lodged in these proceedings in the following categories for the purpose of determining the applicant’s application to renew her registration lodged 2 April 2024 and otherwise as is necessary to achieve all its objectives and exercise its functions and powers under the Health Practitioner Regulation National Law (Queensland):
(a)	records produced in response to section 63 orders from the following non-parties:
(i)	Mackay Hospital and Health Service;
(ii)	Services Australia;
(iii)	Dr Majd Mahmoud Arnaout and/or The Doctors Mackay;
(iv)	Dr Padmaprasad Kumar and/or The Doctors Mackay;
(v)	Dr Helen Mary Wordsworth and/or Sullivan Nicolaides Pathology;
(vi)	Dr Labiba Ahmad and/or Dr Rachel Jennifer Bidgood and/or One Stop Medical;
(vii)	Caneland Medical; and
(viii)	Perception Psychology;
(b)	Report of Dr Prior dated 3 October 2023;
(c)	Report of Dr Prior dated 10 April 2024; and
(d)	Email correspondence and other documents written and provided by the applicant to the Tribunal and to the Board in the proceeding.