ACT MEDICAL BOARD v JAVAID

ACT MEDICAL BOARD v JAVAID - [2011] ACAT 65 - ACAT 2011 case summary — Zoe

[40]

The object is achieved, inter alia, by regulating particular health professions and by providing for a system of registration of health professionals who practise in regulated professions. The Executive may decide to regulate a particular health profession[1]. Once it does, a regulation must be made to establish a health profession board for the regulated profession. A regulation must also be made to provide for the general area of operation of the profession and the 'suitability to practise requirements' for the profession[3].
The regulation providing for the suitability to practise requirements is to state the requirements that a person must satisfy to be unconditionally registered to practise in the regulated profession. It must include requirements about health, qualifications, professional competency and development, and the requirements for admission to any specialist area of practice within the profession[4].
Section 37 of the HP Act identifies who may be registered. Sub-section (1) says that the board that is established for a profession must register any individual who, it is satisfied, meets four criteria. The criteria include the suitability to practise requirements for the profession. The board may register the person under this sub-section either conditionally or unconditionally[5].
The suitability to practise requirements are detailed in section 114 of the Health Professionals Regulation 2004 (the Regulation). That section provides that a person is suitable to practise if the person has relevant qualifications for the health profession or for a specialist area of the profession and has successfully completed particular training and is generally competent. Relevant qualifications and training are identified in a schedule to the Regulation.
Section 37(5)(b) of the HP Act permits a regulation to be made to prescribe when a person who is not required to be registered under section 37(1); that is, a person who does not meet any of the four criteria; may be registered conditionally. The legislature clearly contemplates that it is possible for a person to be registered, albeit conditionally, if they do not satisfy the suitability to practise requirements.
Section 116 is the regulation that prescribes when a person may be conditionally registered. It sets two criteria for conditional registration. The Board may register a person conditionally if satisfied first, that it is in the public interest to do so and secondly, that registration will not endanger public safety.
Section 117 does not, of itself, authorise conditional registration although it appears to have been treated in this way in several documents before the tribunal. It assists the operation of section 116 by setting out the circumstances in which the decision maker can be satisfied that conditional registration is in the public interest. Section 117(1) identifies 8 specific circumstances. Four relate to a person undergoing training that will allow them to be unconditionally registered under section 37(1). It is in the public interest to permit conditional registration in the meanwhile. One relates to the taking up of a teaching or research position rather than a clinical practice position.

[58]

13 months unless he successfully completed the Australian Medical Council (AMC) examination or qualified under a "specialist pathway". The respondent's evidence was that he became aware that he only had conditional registration, what the conditions were and that registration had been sought on the basis that he was filling an unmet need, after the event. He was surprised. He says, and this was not disputed, that when he was advised of the condition that required him to be supervised, he raised his concerns with the person who was to be his supervisor. He was re-assured that this was a first step towards recognition of his existing qualifications locally[8]. 3. He was unable to commence work at TCH because of other commitments until October 2003. He was permanently appointed to the position of Director of Nuclear Medicine in January 2004. 4. He made immediate application to the AMC for recognition as a specialist in nuclear medicine. The AMC referred his application to the RANZCR for assessment. 5. In the meanwhile, the appellant considered an application for renewal of conditions because the initial period had expired. On 14 May 2004, it decided that he should be registered for the period from 19 January 2004 to 16 January 2005. There was no mention of his registration being related to unmet need. There were conditions requiring that he practise nuclear medicine under supervision, that he not undertake medical practice in clinics or as a locum outside of the employment that had been approved and that further renewals were to be limited to a period of one month without successful completion of the AMC exam or the specialist pathway. It was noted that this was subject to annual review. 6. In June 2004, the AMC advised the respondent that the RANZCR noted that he had a masters degree and a doctorate in nuclear medicine from the University of London, but that because he did not hold a specialist qualification in radiology, it could not proceed with its assessment[9]. 7. At some date that is not clear, his application was referred to the RACP for assessment. 8. In August 2004, the Health Insurance Commission wrote to him to say that the Specialist Recognition Advisory Committees for NSW and the ACT had recommended that he be recognised as a specialist in the speciality of Nuclear Medicine. This entitled him to use particular item numbers in the Medicare Benefits Schedule. It noted that in order to attract Medicare benefits for nuclear medicine imaging, he would need to be credentialed by the Joint Nuclear Medicine Credentialing and Accreditation Committee of the RACP and RANZCR. He applied for credentialing in October 2004 but his application was not accepted because it was not complete. He gave evidence about this at the hearing. 9. In December 2004, the respondent wrote to the appellant requesting a 12 month extension of his registration because the RACP assessment process had not been completed. His application was supported by a letter from his then supervisor. On

[59]

21 January 2005, the appellant renewed his registration to January 2006. There was no mention of unmet need. Registration was made subject to conditions that he practise nuclear medicine under supervision at TCH and that he not engage in medical practice outside his employment. It was noted that there would be no further renewals without successful completion of the AMC exam or the specialist pathway and that the registration was subject to annual review. 10. Between May and August 2005, there was correspondence between the appellant, the TCH, the respondent, the RACP and the AMC about various aspects of the assessment process and his registration, including the arrangements for his supervision following the retirement of the original supervisor and whether his registration was still sought in relation to an area of need. 11. The conditions of his registration were amended by the appellant in August 2005 to indicate that he was registered in accordance with section 117(1)(h) of the Regulation. The section relates to competence. There was no material before the tribunal that explained the reason for the reference to this sub-section. We assume it was because the absence of a base qualification limited the clinical competence of the respondent to matters of nuclear medicine. There was no evidence of any concern about the respondent's competence as a health professional within the specialty of nuclear medicine. He was registered to January 2006, he was required to practise as a Registrar in Nuclear Medicine under the supervision of Dr Sullivan and it was said that there would be no further renewals unless the respondent provided evidence that he had commenced the "AMC process". The respondent made an application to the original tribunal in relation to this decision. 12. Registration was further considered on 2 September 2005 in response to a letter from TCH seeking registration on the basis of an area of unmet need while the AMC conducted a peer review process. The appellant's response indicated that conditional registration was again permitted in accordance with section 117(1)(h). The conditions were amended to show that the respondent was registered to practise as a consultant under Dr Sullivan's supervision rather than as a Registrar. 13. In the meanwhile, the AMC requested that the respondent lodge a further application for assessment by the RACP as a specialist in an area of unmet need. As part of this process, he was required to undertake a 12 month period of peer review. 14. On 3 March 2006, the original tribunal ordered that registration be extended until

[74]

The respondent's counsel submitted that the tribunal should approach its consideration of public interest in the context of section 117(2), by looking at the intention of the legislation. She identified the intention as protecting the public from those whose practice of medicine might place them at risk. Section 30 of the HP Act states this as the main object and identifies competence and the need to achieve and maintain the required standard of practice, as the means by which protection of the public should be sought. The registration provisions set out in the Regulation support a conclusion that the focus of the legislation is public protection.
We accept that the tribunal's consideration of the public interest should be guided by the purpose of the HP Act and the Regulation, but within that context, there is a broad general discretion.
We assume that the legislature intended that the broad general discretion have some meaningful application beyond the specific circumstances identified in section 117(1), although the specific circumstances may assist to identify the sorts of factual considerations that are considered to be relevant. It is in the public interest to facilitate the practice of people who have yet to complete training or who have skills or knowledge for which there is a demand. It is in the public interest to facilitate the registration of those who want to teach or undertake research, but who may not meet requirements of registration for clinical practise. It may be in the public interest to allow the registration of a person with limited competence. Placing conditions on registration in that context assists to manage public safety concerns that arise from the limitations on competence.
Sub section 117(1)(f) facilitates registration in an area of unmet need. Much of the evidence and submissions before the original and this tribunal concerned this issue. ACT Health has a specific policy about the engagement of overseas trained practitioners under this provision.[13] In summary, the policy promotes the conditional registration of medical practitioners from overseas for 12 months initially and then a further 12 months where "the International Medical Graduate has performed satisfactorily and has commenced the process to obtain a qualification recognised by the ACT Medical Board...". The policy may guide, but cannot govern all the circumstances in which section 117(1)(f) might apply.
There is a distinction between the interests of the public and that of an individual. The interest of an individual might coincide with the public interest, but where it does not, the public interest must prevail.

[85]

Professor Buirski gave oral evidence before the original tribunal and the appeal tribunal. He provided a witness statement dated 5 August 2009.[16]
He is the Director of the Medical Imaging Unit at TCH and the respondent's supervisor in respect of administrative, rather than clinical matters. In summary, his evidence was:
- That the respondent is 'without question' a competent practitioner and a respected and very competent nuclear physician who can fulfil his nuclear medicine staff specialist requirements. Professor Buirski is "very happy with Dr Javaid's work".
- His duty statement is appropriate for his position and the work that he performs. His duties form about 95% of the work of a qualified Nuclear Medicine Physician
- Before the original tribunal Professor Buirski gave evidence that the hospital was unable to bill Medicare for some of the work performed by the respondent and that this created financial difficulties for the hospital. He also gave what the original tribunal described as 'speculative evidence', about the arrangements that could be put in place if the respondent was unable to continue work at TCH.
- These matters were the subject of further evidence by Professor Buirski at the hearing before this tribunal. He said that TCH was unable to bill for the respondent's services through Medicare because he did not have a specialist provider number. About seventy percent of the Nuclear Medicine department work is outpatient work billed through Medicare. The revenue makes a significant contribution to the hospital's revenue. An arrangement had been in place under which the respondent's work was signed off by another specialist working in the area. That practise ceased because of a concern about the extent to which it was necessary for the specialist to have a personal involvement, rather than a supervisory involvement, in the work. He said that this had limited the work that the respondent could be assigned and had led to rostering difficulties and a 'doubling up of personnel.' It was not clear why Medicare had not issued the relevant provider number to the respondent following the original tribunal's decision that allowed his conditional registration as a specialist.
- Evidence was given about a restructuring of the Medical Imaging Department that had led to a change in title for the respondent and a loss of the allowance he received for managerial work. He was no longer required to undertake administrative duties relating to tasks such as budgetary work and ordering of equipment.
- Professor Buirski anticipated that TCH would shortly be able to install a Positron Emission Technology (PET) service. This is a new technology that would attract both a significant demand for services and an interest from specialists who want to work with the new technology. He believed that the respondent would not be able to obtain the accreditation required to use the technology. This, in turn, would further reduce the respondent's effectiveness as a member of staff and would result in a significant detriment to TCH.
- If the respondent was not a member of staff, a full time nuclear physician specialist would need to be recruited. If he remained a member of staff, Professor Buirski thought that a current .5 position would need to be converted to a full time position. There was detailed evidence about the process that would need to be followed to recruit for a new position and the possibility of a junior staff member who was going interstate for training for two years, returning to seek employment in the ACT. Professor Buirski was asked about the enquiries that he had made about the employment market. In his witness statement he said that he thought that there should be no difficulty recruiting other specialists. His answers indicated that this statement was made on the basis of very preliminary inquiries. The respondent's counsel correctly characterised his evidence as speculative.
- He confirmed that the respondent is involved with research and teaching as would be expected of a staff specialist in a teaching hospital and described the respondent's work as of benefit to the hospital and to the broader environment.

[86]

The tribunal had statements made by the respondent dated 8 May 2007, 15 February 2008, 19 February 2009 and 3 September 2009.[17] He gave oral evidence before the original tribunal and this tribunal. In addition to the information about his training and his applications for registration referred to above, he gave evidence about the duties described in his duty statement, the actual work he performs and his future intentions. In summary, he relevantly said:
- He wishes to practise as a specialist in nuclear medicine only and that he has no interest in any other area of practice. As a result, he is content to have a condition placed on his registration limiting his practise to nuclear medicine only;
- He has no role in the direct treatment of patients rather, he reports to treating doctors to aid their diagnosis of a patient;
- He reviews patients referred by others, identifies nuclear medicine tests and imaging procedure required to assist diagnosis, carries out the relevant tests and procedures and reports back to the referring doctor;
- In addition to the work described above, he has been involved in research, co-authored several peer reviewed papers, been able to obtain a new machine at no cost for TCH, been involved in the replacement of important equipment and overseen an improvement in clinical service delivery. Both Dr Sullivan and Professor Buirski confirmed the respondent's involvement in non-clinical duties including registrar and student training.
- He intends to practise in Canberra until his retirement and is willing to work within TCH and within the terms of his duty statement.
- He said that he had not taken any steps to undertake training for qualifications that would meet the requirements for fellowship of a college and did not intend to do so because he is satisfied that he had done everything required to practise nuclear medicine.
- He commenced the process for obtaining a Medicare provider number but did not progress it after the decision of the original tribunal because this appeal had been lodged. He saw no point in doing so.

[87]

The respondent has a clear personal interest in conditional registration, but his personal interest is not a relevant consideration. His submissions stressed that he did not seek to rely on those circumstances. Both the appellant and the respondent stressed that the tribunal should also not take account of the respondent's employment status at TCH or his ability to continue that employment. We accept that this is also not a relevant consideration.
The appellant submitted that conditional registration of the respondent would require the appellant to assess the respondent's fitness to practise annually and to determine whether his actual duties were still confined by his duty statement at TCH. This is not necessary for other specialists who "come with a raft of skills and competencies certified by the relevant college and refreshed by a process of continuing education ...sanctioned by the relevant college ... The base level of qualification required of other specialists in the respondent's area of practice is simply not present." The tribunal accepts that this is so, but notes that there is nothing in the legislation that indicates an intention to prohibit conditional registration of professionals who do not have the base level of qualification. Section 37(5) of the HP Act and sections 116 and 117 of the Regulation, clearly envisage that conditional registration can be available to health professionals in those circumstances. The question that the tribunal needs to consider is, notwithstanding the lack of a base level qualification, is this particular health professional one in respect of whom conditional registration is in the public interest and does not represent a danger to public safety? Clearly, the appellant can and has relied on the relevant college for the purpose of peer review and to comment generally on the respondent's qualifications. The response of the college has been supportive of the respondent's registration, on the condition that he practices within the ambit of his duty statement, notwithstanding that he lacks the base qualification needed for fellowship of the College.
The appellant was critical of the respondent seeking to circumvent the policy that applies to those who are registered to practise because they meet an area of need and setting himself apart from a process of accreditation that applies to every other specialist. Regardless of whether there was a misunderstanding initially, it was submitted that he has made no attempt to bring himself into line with the position of others by undertaking or even considering further training.
The appellant said:

[89]

This is on the face of it, a powerful contention. It is true to say that a health professional who does not meet the suitability to practise requirement cannot have an expectation of unconditional registration. The legislative scheme does not allow it. But the respondent does not seek unconditional registration and there is nothing in the legislative scheme that limits conditional registration in the way contended by the appellant. The scheme provides a broad general discretion constrained by considerations of public safety. The respondent's position is not necessarily advantageous when compared with others who have "conformed to local accreditation processes". He will never be able to achieve unconditional registration. The conditions imposed by the original tribunal and endorsed by this tribunal, impose substantial limits on the respondent's ability to practise medicine where and how he likes. He chooses to accept those limits, but it is difficult to characterise them as giving him an advantage over others.
Finally, the appellant contends that there is a serious doubt as to whether the respondent's continued employment at TCH is in the public interest. On the other hand, the appellant says that the Tribunal should not be concerned with the employment needs and budgetary position of TCH, unless the respondent seeks to rely on an assertion that he is meeting an area of otherwise unmet need. That is not the basis on which we understand the respondent to advance his case.
The respondent submitted that it is in the public interest that he be conditionally registered because first, nuclear medicine is an area of specialist practise in which there is a shortage, particularly in the public arena, and the respondent is a person who is recognised as having advanced training in this area and as being competent in this area. He also wishes to practise in the public health system. The appellant criticised this submission as raising an area of need argument "by the back door". We accept the respondent's submission that it is not, because it is put on a broader basis than the more specific consideration of "area of unmet need" as enunciated in the relevant policy document. In any event, there is no basis for restricting consideration of need and available supply of practitioners to meet a need, to those applications that specifically call on section 117(1)(f) of the Regulation in aid of an application for conditional registration. Consideration of 'public interest' involves a broad general discretion that is not limited by the circumstances set out in section 117(1)(f). We agree that the evidence, particularly of Professor Buirski, demonstrates that this is area of practice in which the recruitment of readily available practitioners is a challenge. We accept that this is a factor that the tribunal is entitled to consider in the context of its exercise of the broad general discretion.
Secondly, the respondent submitted that there is no evidence that the respondent practices or has practised in a way that puts members of the public at risk, and that there is positive evidence that his practice of medicine is safe for members of the public. His initial merit based recruitment, successful peer review, absence of any adverse event recorded in respect of him and the support of the RACP for his registration to practise nuclear medicine in the position he holds; were referred to in support of this submission. We accept that this is the case - the appellant does not contend otherwise.
Thirdly, the respondent submitted that the appellant's decision not to conditionally register the respondent was based on a theoretical concern linked to maintaining the integrity of the registration system for its own sake, rather than for the necessary protection of the public. It was said that there is no actual concern about the respondent linked to public interest. We accept that the evidence establishes that the respondent is a competent nuclear physician and that there is no actual concern about the quality of his professional practice.
Further, the respondent submitted that the availability of an experienced medical practitioner is in itself matter of public interest. The decision of the WA State Administrative Tribunal in the matter of Medical Board of WA v A Medical Practitioner [2007] WASAT 20 was referred to as the authority for this proposition.
The appellant rejected the reliance on this decision for this contention. It is a decision concerning the conditional registration of a medical practitioner who had a depressive illness and who had been the subject of disciplinary proceedings because of his misuse of drugs. The practitioner in that case contravened conditions imposed on his practice and was suspended from practise as a result. In deciding to lift the suspension so as to allow the practitioner to return to work under conditions, the tribunal said at [47]:

At a glance

Court

Decision date

Source

Judgment (96 paragraphs)

ACT MEDICAL BOARD v JAVAID (Occupational Discipline) [2011] ACAT 65 (16 September 2011)

Parties

Legislation Cited (4)

Cases Cited (1)