Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : ARAKKAL and MEDICAL BOARD OF AUSTRALIA [2016] WASAT 130

Health Practitioner National Law - Appeal from decision of State Administrative Tribunal upholding decision of Medical Board of Australia to refuse to renew the appellant's specialist registration as an orthopaedic surgeon - Whether Tribunal erred in finding that the appellant's specialist registration occurred without an application and subsequent consideration by the Board - Whether Tribunal erred in finding that the appellant was not registered as a specialist under s 38(4) of the Medical Practitioners Act 2008 (WA) and that her registration came about due to an administrative mistake - Whether Tribunal erred in accepting certain evidence as to the appellant's qualifications and the manner in which her name was entered onto the specialist register - Whether Tribunal erred in considering whether the appellant was qualified for specialist registration where appellant registered pursuant to s 270(2) of the Health Practitioner National Law - Whether Tribunal erred in interpreting 'qualification' in s 58(d) of the Health Practitioner National Law as meaning something obtained after a course of study - Meaning of 'qualification'

Practice and procedure - Appeal from State Administrative Tribunal - Whether decision of Tribunal has the effect of depriving appellant of her capacity to lawfully pursue a vocation - Where appellant has never practised as an orthopaedic surgeon and continues to be able to practise medicine

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 53(d), s 58(d), s 112, s 270

State Administrative Tribunal Act 2004 (WA), s 105(13)

Respondent : Ms K Walker QC and with her Ms J McKenzie

Arakkal and Medical Board of Australia [2016] WASAT 130

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pereira v Psychology Board [2014] VSC 417

R v Refshauge (1976) 11 ALR 471

1 The appellant was purportedly registered as a specialist orthopaedic surgeon under the Medical Practitioners Act 2008 (WA). On 18 October 2010, that Act was repealed and replaced by the National Law scheduled to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The appellant's specialist registration was renewed annually until 2014. In early 2015, the Medical Board of Australia decided to refuse to renew her specialist registration as an orthopaedic surgeon, on the ground that she was not qualified for registration in that specialty under the National Law. The State Administrative Tribunal affirmed that decision on review. The appellant now appeals against the Tribunal's decision.

2 One issue raised in the appeal is whether the appellant was validly registered as a specialist under the Medical Practitioners Act. The Board was only empowered to register an applicant as a specialist under that Act if it was satisfied that the applicant complied with specified sets of requirements.[1] The Tribunal found that, as a matter of fact, the appellant was purportedly registered without the Board being so satisfied. The appellant's challenge on appeal to that finding fails. As a result the appellant's purported specialist registration under the Medical Practitioners Act was invalid. Her purported but invalid registration did not engage the provisions of the National Law on which the appellant relied for an asserted entitlement to renewal of her specialist registration.[2] The failure of the ground of appeal challenging the Tribunal's factual finding means that the appeal must be dismissed, even if other grounds succeed.

3 The appeal must also be dismissed for another reason. In deciding whether to renew the appellant's specialist registration, the Board and Tribunal were entitled and obliged to consider whether the appellant was qualified for registration in the specialty at the time of renewal.[3] The appellant could only be qualified if she held a 'qualification' that, under the Medical Practitioners Act, qualified her for specialist registration in the specialty of orthopaedic surgery.[4] The provision of the Medical Practitioners Act on which the appellant relied[5] required her to have practised in the specialty in the period immediately preceding 1 December 2008.[6] The Tribunal found that she had not practised as an orthopaedic surgeon in that period. That finding was not challenged on appeal. It follows that, even assuming that provision identified a relevant 'qualification', the appellant was not qualified for registration in the specialty at the time of the renewal decision. Therefore, even if the appellant had been validly registered as a specialist under the Medical Practitioners Act, the Board and Tribunal were entitled to refuse to renew her registration on the basis that she was not qualified for registration under the National Law.

4 Therefore, notwithstanding that the Tribunal erred in construing the reference to 'qualification' in the relevant section of the National Law[7] as confined to a qualification obtained after a course of study, the appeal must be dismissed.

5 The legislation operating at different times relevant to this appeal established different Boards which were charged with the administration of the relevant Act. In these reasons, it is convenient to simply refer to the relevant Boards as 'the Board'. Those references should be understood as being to the Board established under the Act being discussed.

6 The appellant migrated to Australia from India in February 1995.[8] At that time she held:[9]

(1) a Bachelor of Medicine and Bachelor of Surgery (MBBS), obtained from the University of Madras in 1982;

(2) a Post Graduate Diploma in Orthopaedics, obtained from the University of Calicut in 1989; and

(3) a Fellowship of the Royal College of Surgeons of Edinburgh, awarded in 1993.

Appellant's general registration under the Medical Act in 1998

7 Following periods of conditional registration and practise as a Senior Fellow or Service Registrar in Orthopaedics,[10] the appellant was granted general registration as a medical practitioner on 15 September 1998.[11]

8 At that time, the relevant legislation was the Medical Act 1894 (WA). Under s 19 of the Medical Act, no person other than a 'medical practitioner' was entitled to practise medicine or surgery, or use specified medical titles. The term 'medical practitioner' was defined to mean a person registered under that Act.[12] Section 10 established a register of medical practitioners. An individual was entitled to be registered as a medical practitioner if he or she:

(1) had 'recognised medical qualifications' (s 11(1)(a)),

(2) had successfully completed a period of internship or supervised clinical practice as required by the Board (s 11(1)(b));

(4) the Board was satisfied (under s 11AA) that the person:

(a) was competent to practise medicine (that is, the person had sufficient physical capacity, mental capacity and skill to practise medicine);

(b) had a sound knowledge of the English language and possessed sufficient skill in the expression of that language, both written and oral, for the practice of medicine; and

9 Section 11(2a) of the Medical Act defined 'recognised medical qualifications'. There were two kinds of recognised medical qualifications. The person could be a graduate of an Australian or New Zealand Medical School accredited by the Australian Medical Council (AMC). Alternatively, the person may have successfully completed examinations held by the AMC for the purposes of registration as a medical practitioner. The appellant was registered on the basis of having completed the AMC examination.[13] Her registration was renewed annually.

10 The registration under the Medical Act described above was a general registration.[14] Section 11A of the Medical Act enabled the Governor, by Order in Council, to declare branches of medicine to be 'specialties'. The Board was empowered to make rules for the registration of medical practitioners as specialists. 'Orthopaedics' was declared to be a specialty.[15] However, no rules were ever made, so that specialist registration was not available under the Medical Act.[16]

11 Although there was no system of specialist registration, the Board kept records of some registered medical practitioners' qualifications. In the Tribunal, the Board relied on the evidence of Prof Stokes, who was a member of relevant Boards since 1996.[17] Prof Stokes' evidence was that, under the Medical Act, practitioners were able to file an application for the registration of additional qualifications. His evidence was that the Board's practice was to only record qualifications listed with the AMC as recognised medical specialties in Australia, such as fellowship of a recognised specialist medical college. At that time, the Board's publicly communicated view was that medical practitioners should achieve fellowship of the relevant specialist medical college, or have their qualifications assessed as substantially comparable to fellowship, in order to provide specialist services. However, at that time it was up to an individual hospital's accreditation committee to determine the criteria for acceptance as a specialist within the individual hospital setting.[18]

12 In January 2000, the appellant began working on a part-time basis as a surgical assistant to various orthopaedic surgeons, performing operations in various hospitals in and around Perth.[19] On 3 August 2000, by letter copied to the Board, the appellant was granted clinical privileges as an orthopaedic surgeon at Swan Districts Hospital.[20] While she accepted the grant of these clinical privileges, the appellant did not apply for theatre sessions or practise as an orthopaedic surgeon at Swan Districts Hospital. Rather she decided to seek to gain entry into a training program leading to Fellowship of the Royal Australasian College of Surgeons (FRACS), which was ultimately unsuccessful.[21]

13 On 19 August 2000, an entry was made in the Board's electronic database recording the appellant's specialisation as 'Surgery - Orthopaedic Surgery'.[22]

14 The appellant practised as a service registrar in orthopaedics from January to September 2002.[23] Between September 2002 and late 2003, the appellant practised as a surgical assistant in orthopaedics in various hospitals in Perth.[24] After a health issue arose in late 2003, the appellant returned to work as a surgical assistant in various Perth hospitals on a part-time basis.[25]

15 In 2008, the appellant was selected for a Carl Zeiss Fellowship in Hand Surgery at the Ganga Hospital in Coimbatore, India. After completing the Fellowship in April 2008, the appellant returned to Perth. She conducted specialist orthopaedic research into the non-union of the scaphoid bone. She also practised part-time as a surgical assistant in orthopaedic surgery at various hospitals in Perth.[26]

Appellant's general registration under the Medical Practitioners Act

16 On 1 December 2008, the operative provisions of the Medical Practitioners Act came into force, and the Medical Act was repealed.

17 By s 124 of the Medical Practitioners Act, a person was prohibited from practising medicine unless that person was a medical practitioner. A 'medical practitioner' was defined to mean a person registered by the Board under the Medical Practitioners Act.[27] Section 30 of the Medical Practitioners Act required the Board to register an applicant as a medical practitioner if satisfied that the applicant complied with certain requirements, which generally reflected those provided for by the Medical Act. One of those requirements was that the applicant had a 'recognised medical qualification'. Under s 30(3), a person had a 'recognised medical qualification' if the person met one of the following requirements:

the person

(a) is a graduate of a medical school accredited by the [AMC]; or

(b) has successfully completed examinations held by [the AMC] for the purposes of registration as a medical practitioner; or

(c) is certified by [the AMC] as having a qualification that is substantially equivalent to a qualification referred to in paragraph (a) or has successfully completed examinations that are substantially equivalent to those referred to in paragraph (b); or

(d) has been certified by the [AMC] as having skills, knowledge and training of a standard suitable for registration.

18 Registration under s 30 of the Medical Practitioners Act conferred the right to carry on in Western Australia the practice of medicine under the title of 'medical practitioner'.[28]

19 Under a transitional provision, the appellant's registration under s 11 of the Medical Act was taken to be registration under s 30 of the Medical Practitioners Act for a period ending on 30 September 2009.[29]

Specialist registration under the Medical Practitioners Act

20 Section 37 of the Medical Practitioners Act provided for the making of regulations prescribing branches of medicine that are specialties with respect to which a person may be registered as a specialist, and the title of the specialty. Regulation 5 of the Medical Practitioners Regulations 2008 (WA) (which also commenced operation on 1 December 2008) prescribed orthopaedic surgery as a specialty, with the title 'orthopaedic surgeon'.

21 Section 127(1)(b) of the Medical Practitioners Act prohibited the use of a prescribed title by a person not registered to practise in that specialty.

22 Section 38(1) of the Medical Practitioners Act provided that the Board was to register an applicant as a specialist in a specialty if satisfied that the applicant had paid the relevant fee and complied with one of the 'set[s] of requirements for registration as a specialist' in s 38(2), s 38(3) or s 38(4) of that Act.

23 One of the requirements under both s 38(2) and s 38(3) was that the applicant had:

(1) a prescribed Australian or New Zealand qualification; or

(2) a qualification that the Board considered was substantially equivalent to, or based on similar competencies to, a prescribed qualification.[30]

FRACS was the only prescribed qualification for the specialty of orthopaedic surgery.[31] It was common ground that the appellant did not, therefore, meet either of the sets of requirements in s 38(2) or s 38(3) of the Medical Practitioners Act.

24 Under s 38(4) of the Medical Practitioners Act, a set of requirements for registration as a specialist was that the applicant:

(a) is registered under section 30; and

(b) has practised in a specialty in the period immediately preceding the day on which the specialty was prescribed under section 37; and

(c) is competent to practise in the specialty (that is, the applicant has sufficient physical capacity, mental capacity and skill to practise the specialty); and

(d) has knowledge of, and experience in the practise of, the specialty that the Board considers are sufficient as a basis for specialist registration in the specialty.

25 Section 41 of the Medical Practitioners Act provided for an application for registration to be made in writing in an approved manner and form.

26 It is common ground that the appellant did not apply for specialist registration when the Medical Practitioners Act commenced operation on 1 December 2008. In circumstances where there were no registered specialists under the Medical Act, the transitional provisions of the Medical Practitioners Act did not make any provision for the continuation of specialist registration.[32]

Appellant's renewal of general registration in October 2009

27 The appellant's transitional general registration under the Medical Practitioners Act could be renewed under s 45 of the Medical Practitioners Act. Section 46(1) of that Act provided for the Board to refuse to renew a registration if it believed, on reasonable grounds, that the applicant for renewal did not have sufficient practical experience, or had not maintained adequate knowledge and skill, relating to his or her type of registration.

28 In August 2009, the Board wrote to the appellant advising that her registration as a medical practitioner was due for renewal. The letter enclosed a 'Form R' (application for renewal of registration) and a 'Form P' (notification of registration details). The letter advised that it was an offence under s 127 of the Medical Practitioners Act to use a title under which a specialty may be practised unless the person has registered to practice the specialty with the Board. The letter invited the appellant to complete and submit a 'Form G' (application for registration of additional qualifications), obtainable from the Board's website, to add her specialist qualifications.[33]

29 The appellant considered the details in the Form P and found that they were correct. The appellant also found that all her specialist qualifications were included in Form P. Accordingly, she completed and signed the Form R, signed the Form P and posted them to the Board together with her cheque for the registration fee.[34]

30 In about October 2009, the Board issued the appellant with a certificate, signed by the CEO/Registrar of the Board, certifying that the appellant was:

(1) generally registered as a medical practitioner, under s 30(1) of the Medical Practitioners Act; and

(2) registered as a specialist in 'Surgery - Orthopaedic Surgery',

in Western Australia from 1 October 2009 to 30 September 2010.[35]

31 By s 50(3) of the Medical Practitioners Act, a certificate of registration was evidence that the appellant was registered, in the absence of evidence to the contrary.

32 The power to register a person as a specialist under s 38 was not one of the powers which the Board could delegate under s 13 of the Medical Practitioners Act.

33 In September 2010, the appellant submitted a further Form R for renewal of her registration, and was issued with a certificate of registration for the period 1 October 2010 to 30 September 2011. The certificate indicated that her specialty was 'Surgery - Orthopaedic Surgery'.[36]

34 From August 2010 until 2014, the appellant took up a position in the rooms of an orthopaedic surgeon, Mr Ian Skinner. In that position, she saw all of the patients on whom Mr Skinner had operated, and dealt with their post-operative care. This involved two 4-hour sessions per week.[37]

35 The National Law came into force in Western Australia on 18 October 2010. The objects of the Law include establishing a national registration and accreditation scheme for the regulation of health practitioners:[38]

to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;

A guiding principle of the national registration and accreditation scheme is that:[39]

restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

36 The term 'health practitioner' is defined to mean an individual who practises a health profession. The term 'health profession' is defined to be one of the professions listed (including a recognised specialty in any of those professions). The list includes, but is not limited to, the medical profession. It also includes professions such as Chinese medicine, chiropractic, dental, nursing and midwifery, optometry, osteopathy and pharmacy.[40] National Boards are established for different health professions, including the Medical Board of Australia for the medical profession.[41]

37 Section 113 of the National Law, in general terms, has the effect of prohibiting persons not registered in a health profession from using specified titles (such as 'medical practitioner'). Section 115 of the National Law similarly regulates the use of specialist titles for a recognised specialty approved under s 13 of the National Law. Section 13 of the National Law provides for the Ministerial Council to approve a list of specialties and specialist titles for certain professions, including the medical profession. Orthopaedic surgery was approved as a specialty of the medical profession with effect from 1 July 2010.[42]

38 The National Law provides for both general registration and (where relevant) specialist registration in a health profession. Section 52 and s 53 of the National Law deal with eligibility for general registration, while s 57 and s 58 provide for specialist registration.

39 As s 57 and s 58 are of central importance in this appeal, it is convenient to set out the terms of those provisions in full:

(1) An individual is eligible for specialist registration in a recognised specialty in a health profession if:

(a) the individual is qualified for registration in the specialty; and

(b) the individual has successfully completed:

(i) any period of supervised practice in the specialty required by an approved registration standard for the health profession; or

(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the specialty;

(c) the individual is a suitable person to hold registration in the health profession; and

(d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the specialty; and

(e) the individual meets any other requirements for registration stated in an approved registration standard for the specialty.

(2) Without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by imposing conditions on the registration under section 83.

An individual is qualified for specialist registration in a recognised specialty in a health profession if the individual:

(a) holds an approved qualification for the specialty; or

(b) holds another qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the specialty; or

(c) holds a qualification, not referred to in paragraph (a) or (b), relevant to the specialty and has successfully completed an examination or other assessment required by the National Board for the purpose of registration in the specialty; or

(d) the individual -

(i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and

(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty.

40 FRACS is the only approved qualification for the specialty of orthopaedic surgery.[43]

41 Section 52 and s 53 of the National Law are in very similar terms to s 57 and s 58, save that they refer to registration in a health profession, and qualification for general registration.

42 Section 77 of the National Law provides for an individual to apply to a National Board for registration in the health profession for which the Board is established. Section 82(1) of the National Law provides for the determination of applications under a 'relevant section' (which includes s 52 and s 57[44]) in the following manner:

After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must:

(a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or

(b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or

(c) decide to refuse to grant the applicant registration in the health profession if:

(i) the applicant is ineligible for registration in the profession under a relevant section because the applicant:

(I) is not qualified for registration; or

(II) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or

(III) is not a suitable person to hold registration; or

(IV) is disqualified under this Law from applying for registration, or being registered, in the health profession; or

(V) does not meet a requirement for registration stated in an approved registration standard for the profession;

(ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular.

43 Section 107 of the National Law provides that a registered health practitioner may apply to the relevant National Board for renewal of his or her registration. Under s 112(1) of the National Law, the Board may decide to renew, or refuse to renew, the applicant's registration. Section 112(2) provides for the grounds on which the Board may refuse to renew the renewal application, in terms which appear to be exhaustive. Under s 112(2)(a), the Board may refuse to renew an applicant's registration:

on any ground on which the Board could refuse to grant the registration ... under section 82 ... if the application were for a grant of registration.

44 Under s 112(6) of the National Law, a renewed registration starts on the day immediately after the applicant's previous registration ended and expires 12 months after that day.

Appellant's registration under the National law

45 Part 12 of the National Law contains transitional provisions relating to both general and specialist registration.

46 Section 269 of the National Law applies to a person who, immediately before the participation day for a participating jurisdiction (which in the case of Western Australia is 18 October 2010[45]) held general registration (however described) in a health profession under the law of that jurisdiction. Section 269 applied to the appellant as a person who, immediately before 18 October 2010, held general registration in the medical profession under the Medical Practitioners Act. By force of s 269(2) of the Act, the appellant was, from 18 October 2010, taken to hold general registration under the National Law in the medical profession.

47 Section 270 of the National Law contains similar provision in relation to specialist registration:

(a) immediately before the participation day for a participating jurisdiction, a person was a specialist health practitioner in a specialty in a health profession under the law of that jurisdiction; and

(b) from the participation day:

(i) the specialty is a recognised specialty in the health profession under this Law; or

(ii) a recognised specialty in the health profession under this Law includes, or is equivalent to, the specialty.

(2) From the participation day, the person is taken to hold specialist registration in the recognised specialty in the health profession under this Law.

(3) In this section:

corresponding purpose means a purpose that is equivalent to, or substantially equivalent to, a purpose for which limited registration may be granted under this Law;

specialist health practitioner, in a specialty in a health profession, means a person who held specialist registration in, or was endorsed or otherwise authorised to practise, the specialty in the health profession but does not include a person who held registration to practise the profession only for a corresponding purpose.

48 Immediately before 18 October 2010, the appellant purportedly held specialist registration in the orthopaedic surgery specialty of the medical profession under the Medical Practitioners Act. From 18 October 2010, orthopaedic surgery was a recognised specialty in the medical profession under the National Law. Therefore, if her registration under the Medical Practitioners Act was valid, then, by force of s 270(2) of the National Law, the appellant would, from 18 October 2010, be taken to hold a specialist registration in the orthopaedic surgery specialty of the medical profession under the National Law.

49 On 15 December 2010, the Medical Board of Australia issued the appellant with a certificate of registration as a medical practitioner with general and specialist registration under the National Law. The specialty was identified as 'Surgery - Orthopaedic Surgery'. The indicated period of the registration was 18 October 2010 to 30 September 2011.[46]

Renewal of appellant's registration under the National Law

50 Under s 280(2)(b) of the National Law, the appellant's transitional general registration under the National Law expired on 30 September 2011, being the day on which the registration would have expired under the Medical Practitioners Act. Section 280(2)(b) also applied to any specialist registration held by the appellant, such that it would expire on the same date.

51 The appellant sought and obtained renewal of her registration in 2011, 2012 and 2013.[47]

52 The appellant again applied to renew her registration on or around 12 August 2014. On 18 March 2015, the Board resolved to refuse to renew the appellant's specialist registration, essentially on the ground that the appellant was not eligible for specialist registration.[48] The appellant then appealed to the Tribunal against the Board's decision to refuse to renew her specialist registration, pursuant to s 199(1)(c) of the National Law.

53 The Tribunal said that the onus was on the Board to prove that there was a ground on which the appellant's registration could be refused to the standard in Briginshaw v Briginshaw.[49] If the Tribunal was not satisfied that there was a ground on which registration of the appellant should be refused, then there was no proper basis to refuse to renew the appellant's specialist registration under the National Law.[50]

54 The Tribunal was satisfied that there was a ground on which the appellant's specialist registration should be refused, and affirmed the Board's decision. Its reasons for doing so are, with respect, not entirely clear, but appear to involve the following conclusions:

(1) The power to refuse registration under s 112 of the National Law, on the ground that the appellant was not qualified for specialist registration under s 57 and s 58, existed even when registration under the National Law occurred pursuant to s 270.[51]

(2) The appellant could only qualify for registration as a specialist under s 58(d) of the National Law.[52] She did not do so because:

(a) even if she met the requirements of s 38(4) of the Medical Practitioners Act, that was not a 'qualification' within the meaning of s 58(d) of the National Law (which is a qualification obtained after a course of study);[53] and

(b) The appellant's purported registration as a specialist under the Medical Practitioners Act occurred without an application and without the Board considering if she complied with the set of requirements in s 38(4). Her registration came about, most likely, due to an administrative mistake.[54]

55 The appellant appeals against the Tribunal's decision on 6 grounds. The grounds are lengthy, and are not convenient to set out in full here.

56 In essence, grounds 1 - 4 seek to challenge the basis for the Tribunal's decision noted at (2)(b) of [54] above. These grounds all involve alleged errors in fact-finding by the Tribunal.

57 Ground 1 is critical for the appellant's success in the appeal. It contends that the Tribunal erred in fact in finding that the appellant's specialist registration occurred without:

(1) an application to the Board for specialist registration;

(2) the Board considering whether she complied with the set of requirements for registration in s 38(4) of the Medical Practitioners Act; and

(3) the Board determining that it was satisfied that she complied with the set of requirements for registration in s 38(4) of the Medical Practitioners Act.

58 The valid exercise of the power in s 38(1) of the Medical Practitioners Act to register an applicant as a specialist was expressly conditioned by the Board being satisfied that the appellant complied with a set of requirements in s 38(2), s 38(3) or s 38(4) of that Act. The appellant clearly had not complied with the sets of requirements in s 38(2) and s 38(3) of that Act.

59 If, as the Tribunal found, the Board never considered whether the appellant satisfied the set of requirements in s 38(4) then an express statutory condition for the valid exercise of the power to register her as a specialist would be absent. The purported registration of the appellant as a specialist orthopaedic surgeon would be infected by jurisdictional error. The appellant would not then be a 'person who held a specialist registration in' the specialty of orthopaedic surgery for the purposes of the definition of 'specialist health practitioner' in s 270(3) of the National Law. As such, she would not have been a 'specialist health practitioner' within the meaning of s 270(1)(a) of the National Law, who was taken to hold specialist registration in that specialty under s 270(2) of the National Law. Nor would she be a person who was previously registered under the corresponding prior Act (the Medical Practitioners Act) on the basis of holding a qualification in that specialty for the purposes of s 58(d) of the National Law.

60 Grounds 2, 3 and 4 are ancillary to ground 1. Ground 2 contends that the Tribunal erred in fact in finding that the appellant was not registered as a specialist under s 38(4) of the Medical Practitioners Act and that her registration as a specialist came about, most likely, due to an administrative mistake. Grounds 3 and 4 contend that the Tribunal erred in fact and law in accepting aspects of the evidence of Prof Stokes as to the appellant's qualifications and the manner in which her name was entered onto the specialist register under the Medical Practitioners Act. Success on grounds 2, 3 and 4 cannot assist the appellant if she fails on ground 1, and are unnecessary if ground 1 succeeds. It is therefore unnecessary to separately deal with these grounds.

61 Ground 5 challenges the basis for the Tribunal's decision noted at (1) of [54] above. The appellant contends that the Tribunal erred in law in considering whether the appellant was qualified for specialist registration under s 58(d) of the National Law. The appellant contends that this is an irrelevant consideration in the case of an applicant originally registered pursuant to s 270(2) of the National Law.

62 Ground 6 challenges the basis for the Tribunal's decision noted at (2)(a) of [54] above. The appellant contends that the Tribunal erred in law in interpreting the word 'qualification' in s 58(d) as meaning something obtained after a course of study. The appellant contends that the Tribunal should have interpreted the word 'qualification' as encompassing practical skill and experience unconnected with a formal educational qualification or membership of a recognised professional body. She contends that the Tribunal erred in law in finding that she was not qualified for specialist registration under s 58(d). The appellant contends that the Tribunal erred in law in failing to find that the appellant's formal qualifications in orthopaedic surgery, or alternatively her specialist registration under the Medical Practitioners Act, constituted a relevant qualification.

63 Section 105(1) and s 105(3) of the State Administrative Tribunal Act 2004 (WA) provide for a right of appeal to this court, with leave,[55] from a decision of the Tribunal constituted by, or by members who include, a judicial member. Generally, under s 105(2), an appeal can only be brought on a question of law. An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law.[56]

64 However, there is an exception to the requirement that an appeal can only be brought on a question of law, provided for by s 105(13) of the State Administrative Tribunal Act. That exception applies where the Tribunal's decision under the National Law,[57] or in a proceeding for the review of a decision made under the National Law, 'has the effect of depriving a person of the person's capacity to lawfully pursue a vocation'. Where that exception applies, an appeal may be brought under s 105 'on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact'.

65 The operation of s 105(13) of the State Administrative Tribunal Act was considered by Buss JA, with whom Wheeler and Pullin JJA agreed, in Paridis.[58] Buss JA observed:

Section 105(13)(b) refers to the 'effect' of the Tribunal's decision. In my opinion, the provision is concerned with the legal, as distinct from the practical, effect of the decision. If the Tribunal decides to disqualify or suspend a person from practising his or her profession or other vocation, then the legal effect of the decision will be to deprive that person of his or her 'capacity to lawfully pursue a vocation', within s 105(13)(b). It is not necessary, for s 105(13)(b) to apply, that the deprivation be permanent or indefinite. If, however, the Tribunal were merely to impose a fine or were to reprimand or caution a person, that penalty would not have the legal effect of depriving the person of his or her 'capacity to lawfully pursue a vocation'.

The apparent intention of the Parliament, in enacting s 105(13), was to expand the scope of an appeal with leave under s 105(1) to include grounds of appeal involving questions of fact or questions of mixed law and fact where the Tribunal's decision has the legal effect of significantly interfering with a person's capacity to practise a profession or pursue a vocation for which he or she is otherwise qualified with, no doubt, serious consequences for his or her livelihood and reputation in the community [48] - [49].

66 The appellant contends that the direct legal effect of the decision to refuse to renew her specialist registration is to deprive her of the capacity to lawfully pursue her vocation as an orthopaedic surgeon. Therefore, it is not necessary for the appellant to confine her appeal to questions of law.

67 The Board contends that the appellant cannot appeal on a question of fact or a mixed question of fact and law, as she seeks to do in grounds 1 - 4. The Board points to the Tribunal's finding that the appellant:[59]

has never practised in Australia as a specialist orthopaedic surgeon:

1. running her own lists;
2. having her own patients;

1. practising orthopaedic surgery as an independent, registered specialist orthopaedic surgeon; and

1. conducting orthopaedic surgery, including hand surgery, without supervision.

The Board also points out that the appellant remains able to practise and earn an income as a medical practitioner.

68 The Board's submissions as to the operation of s 105(13) of the State Administrative Tribunal Act should be rejected. The appellant is not confined to an appeal on a question of law. The relevant vocation here is the vocation of an orthopaedic surgeon. The legal effect of the Board's decision, combined with s 115 of the National Law, is to prohibit the appellant from knowingly or recklessly taking or using the title 'medical specialist' or 'orthopaedic surgeon', and to prohibit others from doing so in relation to the appellant.[60] Although the National Law does not prohibit the appellant from undertaking orthopaedic surgery without being registered,[61] she cannot lawfully practise as an orthopaedic surgeon without calling herself a specialist or having others do so. In that manner, the legal effect of the impugned decision is to deprive the appellant of her capacity to pursue the vocation of orthopaedic surgery. In considering the operation of s 105(13), it is not to the point that the appellant could lawfully pursue another vocation (as a non-specialist medical practitioner) or that she has not previously pursued the vocation of an orthopaedic surgeon.

Disposition of ground 1: registration under the Medical Practitioners Act

69 For the following reasons, the Tribunal was correct to find that:

(1) the appellant never applied for specialist registration under the Medical Practitioners Act; and

(2) the Board did not consider whether, and was never satisfied that, the appellant complied with the set of requirements in s 38(4) of the Medical Practitioners Act.

70 The evidence to which the appellant pointed to show that she applied for specialist registration consisted of correspondence exchanged between the appellant and the Board in August and September 2009. At that time, the legal position (explained above) was that the appellant was taken to be registered as a medical practitioner under s 30 of the Medical Practitioners Act. That transitional general registration under the Medical Practitioners Act was due to expire on 30 September 2009. The appellant did not hold any specialist registration under the Medical Practitioners Act.

71 The Board's letter of August 2009[62] began by advising the appellant that her registration as a medical practitioner under the Medical Practitioners Act and the regulations was 'due for renewal'. Objectively, this is a reference to the renewal of the appellant's registration as a medical practitioner under s 30 of that Act. The appellant was asked to complete an 'Application for Renewal of Registration Form R' and to confirm or change her details on a 'Notification of Registration Details Form P'. She was asked either to return the forms or renew her registration online by midnight on 30 September 2009.

72 The only reference in this letter to specialist registration was in the following passage:

Fellowship in a specialty/additional qualifications - it is an offence under s. 127 of the Act to use a title under which a specialty may be practised unless the person has registered to practise that specialty with the Board (e.g. if you are intending to practise as a specialist radiologist, you must first register your relevant specialty qualifications with the Board). To add your specialist qualifications, please complete and submit Application for Registration of Additional Qualifications Form G, available on the Registration Forms page of the Board's website.

73 The Form G referred to in this passage was not in evidence. There is nothing in the Board's letter which indicates that completing the forms which were supplied with the letter constituted an application for registration as a specialist.

74 The Form R completed by the appellant at this time was in evidence.[63] In the Form R, in response to the question 'do you wish to renew your registration as a medical practitioner for 2009/2010', the appellant indicated that she wished to renew her registration. Nothing in the form indicated that the appellant was applying for registration as a specialist, as opposed to renewing her general registration as a medical practitioner. The form was an application for renewal of registration. The only registration the appellant then had was registration as a medical practitioner. The appellant completed her 'currently held medical qualifications' by noting the following:

The Form R also contained a section asking whether the appellant had undertaken professional development and educational activities in the last 12 months. Against the box 'self-directed' the appellant wrote 'Fellowship in Hand Surgery (Carl Zeiss)'.

75 The Form P which the appellant completed in 2009 was not tendered. The appellant's evidence was that the 'qualifications' box of the Form P listed her qualifications as:

MBBS, Diploma in Orthopaedics, FRCS (Edinburgh) and AMC Certificate.

76 The appellant's evidence was that, as her 'specialist qualifications' were all listed in the Form P, she did not consider that it was necessary to complete and submit a Form G. She gave evidence that, at the time of submitting the forms, it was her understanding that the Board regarded her as a specialist orthopaedic surgeon. The appellant said that she expected that she would be registered as a specialist orthopaedic surgeon under the Medical Practitioners Act.[64]

77 The above correspondence objectively conveys the appellant's intention to apply to renew her general registration. There is nothing in that correspondence which objectively conveys an application to obtain specialist registration in orthopaedic surgery. The appellant's evidence as to her subjective understanding does not provide any reason for doubting the Tribunal's finding that, objectively, the appellant did not apply for registration as a specialist. Indeed, on the material before the Tribunal, that was the only conclusion reasonably open. The appellant's subjective understanding may explain why the appellant did not apply for registration for the first time as a specialist under the Medical Practitioners Act. However, that subjective understanding does not affect the conclusion that the appellant did not actually make such an application.

78 In addition, there was no evidence of the Board ever considering an application by the appellant for registration as a specialist or whether the appellant complied with the criteria specified in s 38(4) of the Medical Practitioners Act. That was in a context where the Board did not have power to delegate its power to grant registration as a specialist. In circumstances where the appellant did not make an application for registration as a specialist, the compelling inference from the absence of such evidence was that the Board never considered such an application by the appellant.

79 It is also significant that the information which the appellant submitted to the Board when seeking renewal of her registration in 2009 related to her qualifications rather than her experience. The set of requirements in s 38(4) of the Medical Practitioners Act concerned the nature of the appellant's practice in the period immediately preceding 1 December 2008, and her competency, knowledge and experience. The appellant did not submit information about any of these matters. There was no evidence that the Board had evidence before it which would enable it to be satisfied that the appellant met the requirements in s 38(4). There is no evidence that the Board ever met to consider whether the appellant satisfied the requirements of s 38(4) of the Medical Practitioners Act.

80 One aspect of Prof Stokes' evidence concerned the practice adopted by the Board after the Medical Practitioners Act came into force. His evidence was that the specialist register was created by running a custom search on the electronic database for those medical practitioners with an entry in the 'Specialisations' field on the basis that those practitioners were entitled to specialist registration under the Medical Practitioners Act.[65] That evidence explains how the appellant's certificate was noted with the specialty, by transfer of information on the Board's informal database kept under the Medical Act. It strongly suggests that the Board did not consider whether the appellant complied with the set of requirements in s 38(4) of the Medical Practitioners Act at the time of her purported registration as a specialist orthopaedic surgeon. Ultimately, in cross-examination, Prof Stokes accepted that he did not know whether the Board considered the provisions of s 38(4) of that Act. However, his uncontradicted evidence was that the appellant never applied for specialist registration, and there was no minute of the Board indicating that it had considered such an application. [66]

81 There was evidence of a certificate that the appellant was registered under the Medical Practitioners Act as a specialist orthopaedic surgeon from 1 October 2009 to 30 September 2010,[67] and from 1 October 2010 until 30 September 2011.[68] Those certificates were evidence that the appellant was registered as a specialist orthopaedic surgeon, in the absence of evidence to the contrary. However, there was evidence to the contrary, summarised above.

82 The evidence before the Tribunal justified, indeed required, the conclusion that the appellant was registered as a specialist without the Board considering whether she met the requirements of s 38(4) of the Act. If that were the case, her purported registration as an orthopaedic surgeon under the Medical Practitioners Act was infected by jurisdictional error and was invalid. That is, the purported registration did not have legal effect, and did not operate as a registration under a corresponding prior Act for the purpose of s 58(d)(ii) of the National Law. Nor did that purported registration operate as a specialist registration for the purposes of s 270 of the National Law.

83 For these reasons, even putting aside the aspects of the evidence of Prof Stokes which are challenged by grounds 3 and 4, the evidence before the Tribunal compelled the conclusion that the appellant never applied for registration as a specialist orthopaedic surgeon under the Medical Practitioners Act. The evidence also compelled the conclusion that the Board never considered whether, and was not satisfied that, the appellant complied with the set of criteria in s 38(4) of the Medical Practitioners Act. The appellant was never validly registered as a specialist orthopaedic surgeon under the Medical Practitioners Act. The evidence before the Tribunal discharged the Board's onus of proving that the appellant was never validly registered as a specialist orthopaedic surgeon under the Medical Practitioners Act, and the Tribunal properly drew that inference from the evidence before it.

84 Ground 1 is not made out. As discussed above, it is therefore unnecessary to deal with grounds 2 - 4, which cannot lead to the appeal being allowed in the face of rejection of ground 1.

85 While it is also strictly unnecessary to deal with grounds 5 and 6, we will deal with those grounds below. The failure of both of those grounds provides an alternative, independent, basis on which the appeal must be dismissed.

Ground 5: Relevance of s 58(d) of the National Law

86 Ground 5 proceeds from the premise that the appellant was originally registered as a specialist under s 270 of the National Law. While that premise is inconsistent with our rejection of ground 1, ground 5 must fail even if it is assumed that the appellant was transitionally registered as a specialist under s 270 of the National law.

87 In her submissions in support of ground 5, the appellant notes that practitioners who were registered as specialists under s 270(2) did not have to satisfy the Board that they were qualified under s 58 of the National Law. Rather, such a practitioner only had to establish that he or she was registered as a specialist under the Medical Practitioners Act. The appellant submits that, in those circumstances, it is irrelevant to the exercise of the discretion under s 112 of the National Law whether the appellant was qualified under s 58 of the National Law. The appellant contends that the Tribunal erred in law by taking that matter into account in the exercise of its discretion.

89 The effect of s 270 is that a person registered as an orthopaedic surgeon under the Medical Practitioners Act immediately before 18 October 2010 was taken to be registered as an orthopaedic surgeon under the National Law from 18 October 2010. That registration under the National Law arose as a matter of the operation of s 270 of the National Law, and not any decision of the Board or other administrator. Under s 280, the deemed registration under the National Law expired when the registration would have expired under the Medical Practitioners Act: ie, on 30 September 2011.

90 Upon the expiry under s 280(2) of a registration taken under s 270 to have occurred, the Board has power under s 112 to renew the registration.[69] Under s 112(2)(a), the Board may refuse to renew the registration on any ground on which the Board could refuse to grant the registration under s 82 if the application were for a grant of registration. Under s 82(1)(c), a Board must refuse registration if the applicant for registration is ineligible for registration on any of the grounds set out in subpars (I) - (V), one of which is, under subpar (I), that the applicant was not qualified.

91 The appellant accepts the first two steps outlined in the preceding paragraph. She also accepts that some of the grounds for refusal under s 82(1)(c) would apply to an application for renewal made after expiry under s 280.[70] But, on the appellant's submission, the ground under subpar (I) - that the applicant was not qualified - is excluded from such application.[71]

92 There is no plausible basis to construe the statutory provisions in this manner. Nothing in s 270 justifies giving a modified operation to s 82(1)(c), as incorporated by s 112. The appellant's contention has no textual foothold and is inconsistent with the general and unqualified language of the relevant statutory provisions. The appellant's submission is, in effect, that 'it's all implicit because of the transitional nature [of s 270]'.[72] There is no foundation for such a radical implication.

93 The appellant submits that to apply the provisions of s 82(1)(c) relating to qualification 'would make a nonsense of what was done by virtue of s 270'.[73] In our view, that is far from so. There is perfectly good sense in a statutory scheme that creates a new registration regime providing transitional extensions of existing registrations through to when the registration would anyway have expired, thereby avoiding the need for an unworkably large volume of existing registrations to all be assessed at the time the new regime comes into operation.

94 Further, it is not necessary to imply the exclusion contended by the appellant in order to protect the position of persons registered as specialists under legislation in force before the National Law came into operation. Section 58(d) of the National Law does that work, by qualifying an individual who holds a qualification that, under a 'corresponding prior Act', qualified the individual for specialist registration and who was previously registered under that Act on the basis of holding that qualification.

95 On the appellant's construction of the National Law, s 58(d) would have limited work to do as a person who was transitionally registered under s 270 could never have their registration refused on the ground that they were not qualified for registration. On the appellant's construction, s 58(d) could only operate in relation to persons who were previously registered under a corresponding prior Act but who were not caught by s 270 because their registration had lapsed and so they were not registered immediately before the participation day.

96 In addition, s 283 of the National Law provides that a program of study which, immediately before 18 October 2010, provided a qualification for registration in a heath profession in Western Australia, is taken to be an approved program of study for that health profession under the National Law. This provision would also be rendered at least largely unnecessary if the question of qualification could not arise in cases where s 270 of the National Law provided for transitional registration.

97 The submissions also refer to additional 'transitional arrangements' which are said to have operated in addition to s 270 of the National Law. The Tribunal made the following findings about these additional 'transitional arrangements', by reference to the Board's statement of issues, facts and contentions:[74]

In addition to the transitional provisions of s 270 of the National Law, which is referred to in detail below, a range of other medical practitioners were included on the specialist register upon transition to the National Registration and Accreditation Scheme (NRAS) as a 'oneoff' grandfathering arrangement (BSIFC paragraph 26).

These included:

1. medical practitioners on the general practice vocational register on 30 June 2010;
2. medical practitioners recognised as specialists by a State or Territory Medical Board; and

1. medical practitioners who had been recognised by Medicare Australia as specialists after being assessed by a Specialist Recognition Advisory Committees (SRACs) or an Overseas Specialist Advisory Committees (OSACs).

As this was a transitional arrangement, no other medical practitioners are eligible to be recognised as specialists through these routes after 18 October 2010 (BSIFC paragraph 28).

It is not necessary to dwell on the nature and legal effect of these arrangements, which the Board contends were made under s 277 of the National Law.[75] It is common ground that the appellant did not meet the criteria for registration as a specialist under these alternative transitional arrangements.

98 For the reasons explained above, the question of whether the appellant was qualified for specialist registration under s 58(d) of the National Law was not an irrelevant consideration for the Board when deciding whether to renew her specialist registration. Section 58(d) provided the only basis for the appellant's contention that she was qualified for registration as a specialist under the National Law. Whether the appellant was qualified under s 58(d) was a relevant consideration to the exercise of the Board's power to renew the appellant's registration, under s 112(2)(a), read with s 82(1)(c)(i)(I), of the National Law. That is so even on the assumption, favourable to the appellant, that she was registered as a specialist orthopaedic surgeon under the National Law by operation of s 270(2) of the National Law. Ground 5 fails.

Ground 6: Qualification under a corresponding prior Act

99 Rejection of ground 5 means that it was relevant for the Board to consider whether the appellant was qualified for registration in the specialty of orthopaedic surgery for the purposes of s 57(1)(a) of the National Law. If the appellant was not qualified then she would not have been eligible for that type of registration under s 57. If the renewal application had been an application for registration, s 82(1)(c)(i)(I) of the National Law would have required the Board to refuse to grant registration on the ground of the appellant's ineligibility because she was not qualified for registration. That was a ground on which the Board could refuse to renew the appellant's registration under s 112(2)(a) of the National Law.

100 The appellant would only be qualified for specialist registration as an orthopaedic surgeon under s 58 of the National Law if she met the criteria specified in s 58(d) of that Law. As we have said, it is clear she did not meet the criteria in s 58(a), (b) or (c). Ground 6 is concerned with whether the criteria in s 58(d) are satisfied. The question is whether, at the date of her renewal application, the Board could be satisfied that the appellant:

(i) [held] a qualification, not referred to in paragraph (a) or (b), that under ... a corresponding prior Act qualified [her] for specialist registration (however described) in the specialty [of orthopaedic surgery]; and

(ii) was previously registered under ... a corresponding prior Act on the basis of holding that qualification for the specialty.

101 In this case, the prior corresponding Act is the Medical Practitioners Act. The failure of ground 1 means that, on the facts found by the Tribunal, the appellant was never validly registered under the Medical Practitioners Act on the basis of holding a qualification in the specialty of orthopaedic surgery. It follows that the appellant did not satisfy the second criterion specified in s 58(d)(ii) of the National Law.

102 Further, for the reasons which follow, the appellant did not satisfy the first criterion specified in s 58(d)(i) of the National Law. The Tribunal's finding to that effect was correct, although we respectfully disagree with one aspect of the Tribunal's reasoning.

103 The appellant submits that the Tribunal erred in construing the term 'qualification' in s 58(d) as being limited only to qualifications obtained after a course of study. We are satisfied that the Tribunal erred in confining the meaning of 'qualification', appearing in s 58(d), in that manner.

104 The term 'qualification' is not to be construed in isolation but in the statutory context in which it appears.[76] Moreover, the question of construction raised by ground 6 relates to the meaning of a phrase, not the meaning of a single word. In particular, it is necessary to construe the phrase 'qualification ... that under ... a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty'. That phrase is to be construed in a context of a provision which is concerned with the registration of a wide variety of health professionals, not confined to the medical profession, as specialists. The same language is also used in s 53(d) of the National Law in relation to general registration of a health practitioner in a health profession.

105 The National Law defines a 'corresponding prior Act' in a manner which picks up a range of legislation from Western Australia and other Australian States and Territories.[77] Some of that legislation identified qualifications in terms that did not refer to the person having undertaken a course of study.[78] In that context, if Parliament had intended to disqualify sections of the health profession who were qualified under a corresponding prior Act it would be expected to have used clear language to distinguish those sections from those whose qualifications were to continue to count as a qualification under the National Law. Parliament used no such clear language. To the contrary the language of s 58(d) is, relevantly, perfectly general:

An individual is qualified for specialist registration in a recognised specialty in a health profession if ...:

(i) holds a qualification ... that under ... a corresponding prior Act qualified the individual for specialist registration ...

106 These practical consequences do not appear to have been raised for consideration before Kyrou JA in Pereira v Psychology Board,[79] (on which the Tribunal relied) when considering the meaning of the term 'qualification' in the slightly different context of s 98 of the National Law.

107 The Board supports the Tribunal's construction although, in the end, the Board expanded on the Tribunal's definition so as to include membership of a professionally recognised organisation which may be obtained after sitting an examination without a course of study.[80] The Board also submits, without derogating from its primary submission as to the limits of 'qualification', that on any view a qualification does not encompass all requirements for registration under a prior corresponding Act. Such Acts, like the National Law, had other requirements for registration, such as suitability requirements, that are not a 'qualification' within the meaning of s 58(d).

108 Another arguable construction is that the reference to a 'qualification ... that under ... a corresponding prior Act qualified the individual for specialist registration' refers to whatever the corresponding prior Act identified as a qualification for registration in a specialty, whether or not that involved a course of study or membership of a professionally recognised organisation. Such a construction might better accommodate the variety of legislative provision for different health professions under different prior corresponding Acts. However, even on such a construction, not every prerequisite to registration under a prior corresponding Act would constitute a 'qualification' for the purposes of s 58(d) of the National Law. If such a construction were to be adopted, it would still be necessary to consider whether the set of requirements in s 38(4) of the Medical Practitioners Act was identified by that Act as a 'qualification' for registration in a specialty.

109 It is unnecessary to resolve in a comprehensive way the proper construction of the phrase 'qualification ... that under this Law or a corresponding prior Act qualified the individual for specialist registration' in s 58(d)(i). That is because:

(1) the only candidate for a qualification under a corresponding prior Act relied on by the appellant was that she complied with the set of requirements in s 38(4) of the Medical Practitioners Act; and

(2) on the facts found by the Tribunal and not challenged in grounds 1 - 4, the appellant did not comply with the set of requirements in s 38(4) of the Medical Practitioners Act, and the Board could not have been satisfied to the contrary.

Section 38(4) of the Medical Practitioners Act

111 One criterion in s 38(4) is that the appellant practised in the specialty in the period immediately preceding the day on which the specialty was prescribed under s 37 of the Medical Practitioners Act. That is, the Board must be satisfied that the appellant practised in the specialty of orthopaedic surgery in the period immediately preceding 1 December 2008.

112 As noted above, in November/December 2008 the appellant was conducting specialist orthopaedic research into the non-union of the scaphoid bone, and practised part-time as a surgical assistant in orthopaedic surgery at various hospitals in Perth.[81] The Tribunal's unchallenged finding was that the appellant had never practised as an independent specialist orthopaedic surgeon running her own lists and having her own patients.[82] The appellant had not practised in the specialty of orthopaedic surgery on these findings.

113 The appellant sought to avoid this conclusion by submitting that the reference to practise 'in a specialty' of orthopaedic surgery was not to practising as an orthopaedic surgeon. She contended that practising as an assistant in orthopaedic surgery would still be practising in the specialty.[83] That submission should not be accepted. Section 38(4) is directed to accommodating the position of a medical practitioner whose area of practice has been newly declared to be a specialty under the Act. The purpose of s 38(4) is to define the circumstances in which such a practitioner may continue to undertake the practice after specialist registration is required in order to do so. Section 38(4) is not designed to allow a person who performed work not requiring specialist registration under the new regime (such as assisting a specialist or conducting research in the area) to obtain that registration. As senior counsel for the Board submitted, the reference to a person having practised in a specialty is to the person having done the work of a specialist, rather than to a person who merely helps a specialist to do their work. The appellant cannot be said to have practised in the specialty of orthopaedic surgery, within the meaning of s 38(4)(b) of the Medical Practitioners Act, when she was not practising as an orthopaedic surgeon at the relevant time.

114 As the appellant was not practising in the specialty of orthopaedic surgery in the period immediately preceding 1 December 2008, she could not comply with the set of requirements for registration as an orthopaedic surgeon in s 38(4) of the Medical Practitioners Act. Assuming, without deciding, that complying with that set of requirements was a qualification that, under that Act, qualified an individual for specialist registration within the meaning of s 58(d) of the National Law, the appellant did not hold that qualification. There was nothing to show that the Board was, or could have been, satisfied to the contrary. As such, the appellant could not be qualified for specialist registration under s 58(d) of the National Law on the basis that she satisfied the set of requirements in s 38(4) of the Medical Practitioners Act.

115 The appellant advanced two other arguments as to how she was qualified for specialist registration under s 58(d) of the National Law.

116 First, the appellant contended that her registration as a specialist orthopaedic surgeon under the Medical Practitioners Act constituted the qualification for the purposes of s 58(d) of the National Law. That submission must be rejected as inconsistent with the language and structure of s 58, which distinguishes between a qualification for specialist registration and previous registration under a prior corresponding Act. The section requires both a qualification and prior registration, and does not treat prior registration as itself a qualification. In any event, for the reasons explained in dealing with ground 1, the appellant was never validly registered as an orthopaedic surgeon under the Medical Practitioners Act.

117 Secondly, the appellant submitted that her medical degrees constituted the relevant qualification. That submission must be rejected on the basis that holding those degrees did not qualify the appellant for specialist registration in orthopaedic surgery under the Medical Practitioners Act. Even if (and there was no evidence of this) holding those degrees could assist in satisfying the Board of the matters referred to in s 38(4)(c) and (d) of the Medical Practitioners Act, nothing in s 38(4) provides for the degrees themselves to qualify the appellant for registration in a specialty.

118 For the above reasons, although it erred in the construction of s 58(d) of the National Law, on the facts found by the Tribunal it was correct to conclude that the appellant was not qualified for specialist registration under that section.

119 The appellant's purported registration as an orthopaedic surgeon under the Medical Practitioners Act was invalid, so that the requirement of s 58(d)(ii) of the National Law was not satisfied. The appellant also failed to satisfy the requirements of s 58(d)(i) of the National Law. On either basis, the appellant was not qualified for specialist registration in orthopaedic surgery under s 58 of the National Law. The Board, and the Tribunal standing in the shoes of the Board, was empowered to refuse to renew the appellant's registration as a specialist under s 112(2)(a), read with s 82(1)(c)(i)(I), of the National Law on the ground that she was not qualified for registration as an orthopaedic surgeon. On that basis, while leave to appeal should be granted, the appeal must be dismissed.

[1] Section 38 of the Medical Practitioners Act.

[2] Section 58(d) and s 270 of the National Law.

[3] Under s 112(2)(a) read with s 82(1)(c)(i)(I) of the National Law.

[4] Section 58(d)(i) of the National Law.

[5] Section 38(4) of the Medical Practitioners Act.

[6] Section 38(4)(b) of the Medical Practitioners Act.

[8] Arakkal and Medical Board of Australia [2016] WASAT 130 (Primary decision) [17].

[12] Section 3 of the Medical Act (definition of 'medical practitioner').

[14] Section 11(2) of the Medical Act.

[15] Order in Council made on 13 October 1949 (Western Australian Government Gazette, 21 October 1949, page 2533).

[16] Primary decision [12], [49]; see also Statement of Prof Stokes par 26 (Green AB 68).

[18] Statement of Professor Stokes pars 28 - 30 (Green AB 68 - 69); Primary decision [13], [45] - [46].

[21] Primary decision [47], [55] - [56].

[27] Section 4 of the Medical Practitioners Act (definition of 'medical practitioner' and 'registered').

[28] Section 44 of the Medical Practitioners Act.

[29] Clause 6(1) of sch 2 to the Medical Practitioners Act.

[30] Sections 38(2)(b) and 38(3)(e) of the Medical Practitioners Act.

[31] Regulation 6 of the Medical Practitioners Regulations.

[32] Clause 6 of sch 2 to the Medical Practitioners Act.

[33] Primary decision [66]. The standard form letter which was sent to the appellant is referred to in her statement (Green AB 122) and appears at Green AB 155 - 157. While the Tribunal's reasons refer to the letter inviting the appellant to apply for registration as a medical practitioner under the Medical Practitioners Act, this is inconsistent with the terms of the letter and appears to be an error.

[35] Primary decision [68]. The certificate appears at Green AB 194.

[36] The Form R and certificate appear at Green AB 197 - 202. The Tribunal's findings about these documents at Primary Decision [73] are not entirely consistent with the documents.

[38] Section 3(1)(a) and (2)(a) of the National Law.

[39] Section 3(3)(c) of the National Law.

[43] Primary decision [105] - [106].

[44] Section 82(2) of the National Law.

[46] The certificate appears at Green AB 204. The Tribunal refers to the certificate at Primary decision [86] - [87], although it erroneously also refers to an application for and grant of registration.

[48] Primary decision [92] - [97]. The Board's decision appears at Green AB 143 - 146.

[49] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[51] Primary decision [136] - [149].

[52] Primary decision [124], [151].

[53] Primary decision [107] - [123], [131], [171].

[54] Primary decision [158] - [168], [170], [172].

[55] As to the power to grant of leave to appeal, see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] - [18].

[56] Paridis [53]. As to the nature of a question of law, see Paridis [53] - [57].

[57] The Health Practitioner Regulation National Law (Western Australia) Act is identified as a 'relevant Act' for the purposes of s 105 of the State Administrative Tribunal Act by sch 1 to the latter Act.

[58] Adopted in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [149].

[60] Other related prohibitions are contained in s 118 and s 119 of the National Law.

[61] Contrast s 121 - s 123 of the National Law which impose practice restrictions.

[64] Appellant's witness statement, pars 198 - 200, 205, 210 - 212 (Green AB 123 - 125).

[65] Witness statement of Prof Stokes, par 85 (Green AB 83 - 84).

[66] See trial ts 37, 47 - 50, witness statement of Prof Stokes, par 91 (Green AB 87).

[69] That is confirmed by the terms of s 280(2)(b).

[76] R v Refshauge (1976) 11 ALR 471, 475, 477.

[78] In relation to the medical profession, see s 30(3)(b) and (c) of the Medical Practitioners Act, s 4(2)(b) and (c) of the Medical Practice Act 1992 (NSW), s 44(1)(b) and (c) of the Medical Practitioners Registration Act 2001 (Qld), and s 5(1)(b) and (c) of the Health Professions Registration Act 2005 (Vic).

[79] Pereira v Psychology Board [2014] VSC 417.