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[2013] WASAT 202
General information, not legal advice.
State Administrative Tribunal (WA)
2014-05-02
Original judgment source is linked above.
ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION : GEORGE and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2013] WASAT 202
Health Practitioner National Law Nursing and Midwifery Board of Australia Registration under Health Practitioner National Law Registered nurse Graduated or trained overseas Approved qualifications Similar qualifications
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 11, s 49, s 52, s 52(1), s 52(1)(a), s 53, s 199(1)(a)
Ms Dinol George resides in India and qualified as a nurse there in 2006.
In June 2011 Ms George applied to the Nursing and Midwifery Board of Australia for registration as a registered nurse and midwife in Australia.
In October 2012 the Nursing and Midwifery Board of Australia refused Ms George's application for registration in Australia and she sought to review that decision at this Tribunal.
Following orders made on 20 August 2013 the matter was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The issue to be determined was whether Ms George was entitled to general registration as a registered nurse and registered midwife under the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
Ms George contended that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification, and that when the application was submitted, she had achieved all of the standards of the Nursing and Midwifery Board of Australia.
As for Ms George's contention that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification, the Tribunal found, as it had in previous cases, that such a comparison with other applicants is of no value and that the real question was whether, as at the date of her application, Ms George held an approved qualification.
As for the applicant's second contention that when she had submitted her application she had achieved all of the standards, Ms George had put no evidence before the Tribunal to show that was the case.
Following an examination of the submissions filed, the Tribunal found that there was no evidence to show that Ms George was qualified through any of the four possible routes by which an individual can be qualified for general registration in Australia.
In the circumstances the Tribunal confirmed the decision of the Nursing and Midwifery Board of Australia and dismissed the application for review.
Respondent : Australian Health Practitioner Regulation Agency
Akpan v Nursing and Midwifery Board of Australia (7 June 2013)
Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78
1 By application dated 24 June 2011, Ms Dinol George (applicant), a resident of India, applied for general registration (graduated or trained overseas) as a registered nurse and registered midwife with the Nursing and Midwifery Board of Australia (respondent or National Board).
2 The applicant provided a copy of the following documents with her application:
3 Following an initial assessment of her application, the National Board contacted the applicant by email dated 1 August 2011 requesting additional information following which the applicant provided additional documents.
4 In its submission to the Tribunal, the respondent confirmed that following receipt of those additional documents the respondent dealt with the matter in the following manner:
9.2 invited to make a written or verbal submission to the Committee in relation to their proposal to refuse her application for registration by 6 August 2012.
10.1 the Respondent had previously accepted the same level of qualification;
10.2 her application was submitted before 8 June 2012 and at that time, she met all of the Respondent's standards; and
10.3 she had provided all of the documents that were requested.
5 In the respondent's letter dated 5 October 2012 under the heading 'Reasons for Decision', the respondent stated:
When considering an application from an overseas trained nurse or midwife, the Committee uses the Framework for the Assessment of Internationally Qualified Nurses and Midwives for Registration. Criterion three of the Framework outlines that the requirement for a registered nurse or midwife is met when the applicant has a minimum qualification of a Bachelor degree, or qualification combined with experience that is comparable in duration and content to the nationally agreed minimal educational standard for nursing and midwifery in Australia.
Your qualification from [the] School of Nursing Malik Deenar Charitable Hospital has been determined to be not equivalent to an approved qualification for registration purposes (pursuant to section 53(a) of the National Law). Therefore, in accordance with the Framework, your qualification from [the] School of Nursing Malik Deenar Charitable Hospital combined with your experience in nursing in India and Saudi Arabia have been reviewed together to see if they can be considered substantially equivalent, or based on similar competencies, to an approved qualification (pursuant to section 53(b) of the National Law).
When reviewing experience, the Committee takes into account the length and depth of the experience, together with the country in which the experience was acquired. When making an assessment as to whether the experience gained matches the experience which would have been gained by an Australian graduate, only experience in certain countries has been identified as being substantially equivalent. Experience from the following countries is considered to be substantially equivalent as the health systems in place in the following countries is seen to be similar:
United Kingdom
Republic of Ireland
New Zealand
United States of America
Singapore
Canada
In accordance with section 81(2)(b) of the National Law, you were invited to make a written or verbal submission to the Committee.
On 14 September 2012, the Committee reviewed your submission received recently in support of your application for a Registered Nurse.
Having reviewed the information provided in relation to your qualification from [the] School of Nursing Malik Deenar Charitable Hospital, your nursing experience from India and Saudi Arabia and your submission provided recently, it has been determined that these, taken together, cannot be considered to be substantially equivalent, or based on similar competencies, to an approved qualification.
...
6 On 18 March 2013 the applicant applied to this Tribunal seeking a review of the Committee's decision, stating:
(a) I kindly request you to consider my application
(b) please issue a Decision letter from Australian Health Practitioner Regulation Agency (AHPRA)
I have received a letter from N.M.B.A recived [sic] my application for registration with the Nursing and Midwifery Board Australia dated on 286-2011.
I have recived [sic] a letter from Georgia Neindorf Registration, Communication Client Support Officer on 7-2-2012 was stated we have recived [sic] all the documents.
I kindly remind your Nursing Board of Australia already accepted the same level of qualification I have submitted my application form about [a] year back.
A meeting of the Western Australia Registration Committee of the NMBA only 14-Sep 2012.
7 In a covering letter accompanying her application, the applicant stated:
...
I am writing you to appeal about refusal of my application for registered nursing and midwifery board of Australia.
I would like to mention you, I have send all the documents which you have requested I have received a letter form [sic] Mr. Georgia Neimdort [sic] (registration communication and client support officer) on 07/02/2012 was stated we have received all the documents.
I kindly remind you, nursing board of Australia already accepted the same level of qualification. I have submitted my application form about [a] year back (before 14th of September 2012). I would like to remind you when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia.
I kindly request you to reconsider my application, I look forward to hearing from you in the near future regarding same. Whether you have any more clarification please do not hesitate to contact me.
...
8 Initial directions by the Tribunal were held in the matter on 9 April 2013, with a number of further directions and mediations over the preceding months with the applicant attending on occasion by teleconference.
9 Following the unsuccessful mediation of the matter, a final directions hearing was held on 20 August 2013 when the following orders were made:
10 In compliance with order 1 the Tribunal received an email at 7.24 pm on 4 September 2013 on behalf of the applicant which attached a letter addressed to the Tribunal stating:
...
Subject: Registration with the NMBA
Reference: Order of Justice Chancy [sic] on 20th August 2013
11 The respondent filed a statement of issues, facts and contentions dated 16 September 2013 in compliance with order 2, and filed a section 24 bundle in compliance with order 4 on 27 August 2013.
12 The issue for determination by the Tribunal is whether, based on the facts set out and the documents provided by her, the applicant is entitled to general registration as a registered nurse and registered midwife under the National Law.
13 Section 199(1)(a) of the National Law allows a person who disagrees with a decision of the National Board to appeal that decision to the appropriate responsible tribunal, and s 11 provides:
A reference in the Health Practitioner Regulation National Law (Western Australia) to an appeal against a decision is, for an appeal to the State Administrative Tribunal as the responsible tribunal, a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3.
14 The Tribunal is satisfied that the applicant is entitled to bring the application for review to this Tribunal as the responsible tribunal.
15 Section 52 of the National Law states:
(1) An individual is eligible for general registration in a health profession if
(a) the individual is qualified for general registration in the health profession; and
(i) any period of supervised practice in the health profession 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 profession;
(c) the individual is a suitable person to hold general registration in the health profession; and
(d) the individual is not disqualified under this Law or a law of a coregulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
16 A person is therefore eligible for general registration as a registered nurse if they meet each of the five criteria identified in that section.
17 Section 53 of the National Law sets out the qualifications for general registration and states:
Qualifications for general registration
An individual is qualified for general registration in a health profession if
(a) the individual holds an approved qualification for the health profession; or
(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or
(c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; 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 general registration (however described) in the health profession; and
(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.
18 In Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78 (Palatty), this Tribunal, when dealing with a similar application from an applicant who also resided in India and had similar qualifications to the applicant, namely, a Diploma in General Nursing, considered the relevant provisions of the National Law and confirmed that in the case of every application for general registration as a registered nurse, applicants must meet each of the five criteria identified in s 52(1) of the National Law to be eligible for general registration.
19 In respect of s 52(1)(a) of the National Law, namely, whether the applicant is qualified for general registration, this Tribunal stated at [47] of Palatty:
Section 53 identifies four possible and alternative routes by which an individual can be 'qualified for general registration' so as to meet the first of the five eligibility requirements for general registration identified in s 52(1)(a) of the National Law set out above. Broadly speaking, they are:
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law?
20 This Tribunal agrees with, and adopts that position in this matter and confirms that the question is whether the applicant, as at the date of her application for general registration, in this case 24 June 2011, was qualified for general registration by one of the four routes identified in s 53 of the National Law.
21 The applicant holds qualifications similar to the applicant in Palatty, namely, a 'Diploma in General Nursing and Midwifery'. It is for the applicant to satisfy the National Board, or alternatively this Tribunal, that the qualifications she holds are approved qualifications for general registration in Australia as at the relevant date. The list of approved qualifications, approved by the National Board, appears, in accordance with s 49 of the National Law, on the Australian Health Practitioner Regulation Agency's (AHPRA) website.
22 The applicant holds a Diploma in General Nursing and Midwifery obtained from the School of Nursing, Malik Deenar Charitable Hospital, India, during the period January 2003 to January 2006.
23 The applicant's qualification does not appear on the AHPRA list. Therefore, the applicant does not hold an approved qualification for the purposes of s 53(a) of the National Law.
Route 2 qualification substantially equivalent to approved qualification (s 53(b))
24 The respondent referred the Tribunal to a decision of the Northern Territory Health Professional Review Tribunal in Akpan v Nursing and Midwifery Board of Australia (delivered 7 June 2013) dealing with similar issues, which stated at [44] to [46]:
This is a case where the appellant needs to demonstrate that her qualifications and experience are substantially equivalent or based on similar competencies.
As it is her appeal Mrs Akpan has the onus to prove her claim.
The mere assertion of equivalency and the invitation to compare job descriptions and subjects in courses is not sufficient to discharge that onus.
25 This Tribunal agrees with that proposition, and notes that in the present case the applicant has made no submissions in respect of any approved qualification under the National Law with which any qualification she holds is comparable, nor has she made any effort to demonstrate that her qualifications and experience are substantially equivalent or based on similar competencies. She has merely asserted in the penultimate paragraph of her covering letter (set out earlier) received on 18 March 2013:
I kindly remind you, nursing board of Australia already accepted the same level of qualification. I have submitted my application form about [a] year back (before 14th of September 2012). I would like to remind you when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia.
26 In respect of the first assertion in the applicant's letter that the 'nursing board of Australia already accepted the same level of qualification', this Tribunal dealt with that issue in Palatty, and stated at [48] and [49]:
... [A] comparison with other applicants is of no value because their full circumstances are unknown and because the respondent has conceded that various State Boards may have not interpreted the National Law correctly in the case of some applicants.
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law?
27 As for the second assertion that 'when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia'. On the assumption that 'sanders' is a reference to 'standards', we repeat our observation that it is necessary for the applicant in this review application to demonstrate that she fits within one of the four routes identified in s 53 of the National Law.
Route 3 has successfully completed an examination or other assessment required by the National Board (s 53(c))
28 There is no evidence that the applicant has undertaken any examination or assessment that the National Board requires to be successfully completed for the purposes of s 53(c) of the National Law.
Route 4 qualified under previous law and previously registered (s 53(d))
29 The applicant does not rely upon this route and no evidence to support its application has been produced.
30 For the above reasons, the Tribunal is not satisfied that the applicant holds the necessary approved qualification for general registration within the meaning of that term for the purposes of s 52(1)(a) of the National Law. The decision of the Nursing and Midwifery Board to refuse the applicant's application for registration will be confirmed and the application for review will be dismissed.
31 At paragraph 35 of its submission, the respondent submitted that if the Tribunal found in its favour, costs should be awarded, and at paragraphs 36 and 37 the respondent went on to outline the reasons why it believed it was appropriate for the Tribunal to exercise its discretion in respect of costs in its favour. The respondent did not claim any particular amount of costs, nor provide any other particulars of costs claimed.
32 The applicant's submissions were drafted and filed prior to the respondent's submissions, and consequently she has not addressed the issue of the respondent's costs . She should be given an opportunity to do so.
33 The Tribunal's order indicates the manner in which the respondent's costs claim will be managed through to its determination.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION : GEORGE and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2013] WASAT 202 (S)
Health Practitioner National Law Nursing and Midwifery Board of Australia Costs application Turns on own facts
Health Practitioner Regulation National Law (WA) Act 2010
On 17 December 2013, the Tribunal dismissed Ms George's application to review the Nursing and Midwifery Board of Australia's refusal to register her as a registered nurse and midwife in Australia.
The Nursing and Midwifery Board of Australia applied for its costs and that was the issue determined in these reasons.
Having considered the submissions received and the statutory provisions of the State Administrative Tribunal Act 2004 (WA), the Tribunal decided that, although in normal circumstances each party bears its own costs, in the present case, due to the applicant's failure to comply with various orders of the Tribunal and the lack of any real effort to prosecute the review in circumstances where the respondent was a body carrying out a statutory function in the public interest, costs should be awarded.
The respondent was awarded the sum of $1,832.10 for costs.
Respondent : Australian Health Practitioner Regulation Agency
George and Nursing and Midwifery Board of Australia [2013] WASAT 202
Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78
1 On 17 December 2013 the Tribunal published reasons for decision in George and Nursing and Midwifery Board of Australia [2013] WASAT 202 (George), in which it affirmed the Nursing and Midwifery Board's (respondent) decision to refuse the applicant's application for registration and the application for review was dismissed.
2 At [31] to [33] in George, under the heading 'Costs', the Tribunal stated:
At paragraph 35 of its submission, the respondent submitted that if the Tribunal found in its favour, costs should be awarded, and at paragraphs 36 and 37 the respondent went on to outline the reasons why it believed it was appropriate for the Tribunal to exercise its discretion in respect of costs in its favour. The respondent did not claim any particular amount of costs, nor provide any other particulars of costs claimed.
The applicant's submissions were drafted and filed prior to the respondent's submissions, and consequently she has not addressed the issue of the respondent's costs. She should be given an opportunity to do so.
The Tribunal's order indicates the manner in which the respondent's costs claim will be managed through to its determination.
3 Then, having dealt with the applicant's substantive application in orders 1 and 2, the Tribunal made the following orders:
4 In compliance with those orders, the respondent filed submissions and furnished a 'Schedule of Costs Claimed' (Schedule) with the Tribunal on 16 January 2014. A copy of the schedule is attached.
5 The applicant filed no submissions opposing the respondent's application for costs. Rather, on 14 January 2014, she filed a document seeking costs in her own right in the amount of $4,314.
6 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) deals with the issue of costs of proceedings before the Tribunal, with s 87(1) recognising that parties generally bear their own costs. Section 87(2) of the SAT Act allows the Tribunal to make orders for costs and in their text Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012), Parry and De Villiers at paragraph 1072, in dealing with the issue of costs in review proceedings, state:
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the [State Administrative Tribunal Act 2004 (WA) (SAT Act)] in review proceedings (including vocational review proceedings and valuation of land review proceedings) is that normally each party should bear its own costs of the proceedings. As Barker J observed, SAT was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, propriety and financial interests. An applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the decisionmakers costs if they do not succeed. Conversely, an applicant is not entitled to an award of costs if they succeed.
Section 87(4) of the SAT Act provides that, without limiting anything else that may be considered in making an order for the payment by a party of another party's costs in review proceedings, the Tribunal is to have regard to:
Costs orders are only generally made in review proceedings where a party has acted unreasonably including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.
7 In respect of vocational disciplinary proceedings, Parry and De Villiers state at paragraph 1703:
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body for disciplinary action by the Tribunal will usually lead to an order for costs being made in favour of the vocational regulatory body.
8 That is not the case here as the substantive application fell within the Tribunal's review jurisdiction and the provisions of s 87(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) referred to above are relevant.
9 The present matter first came before the Tribunal in March 2013, and on 18 June 2013 the Tribunal made orders sending the matter to mediation.
10 On the same date, 18 June 2013, the respondent provided the applicant with a copy of the Tribunal's decision in a similar matter: Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78 (Palatty) which was effectively on all fours with the applicant's case and clearly sets out issues the applicant needed to address to be successful.
11 Indeed in the Tribunal's final decision in the substantive hearing in George delivered on 17 December 2013, the Tribunal referred to that very issue and at [21] stated:
The applicant holds qualifications similar to the applicant in Palatty, namely, a 'Diploma in General Nursing and Midwifery'. It is for the applicant to satisfy the National Board, or alternatively this Tribunal, that the qualifications she holds are approved qualifications for general registration in Australia as at the relevant date.
12 The applicant had made no effort to address those issues or comply with the requirements set out in Palatty.
13 Further, the Tribunal dealt with the applicant's contention that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification by again relying on the reasons in Palatty as follows (George at [26]):
[T]his Tribunal dealt with that issue in Palatty, and stated at [48] and [49]:
... [A] comparison with other applicants is of no value because their full circumstances are unknown and because the respondent has conceded that various State Boards may have not interpreted the National Law correctly in the case of some applicants.
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law?
14 Relevantly for present purposes, the applicant maintained her position through to the hearing without making any submissions to support it. Indeed, the applicant failed to furnish any meaningful submissions on any issue raised by the review proceedings. An example of the submissions filed on behalf of the applicant can be seen in her response to Order 1 of 20 August 2013 in the substantive matter.
15 Order 1 had stated 'on or before 3 September 2013 the applicant is to file with the Tribunal and send to the respondent submissions setting out why she contended her application should be granted'.
16 The only documentation received in compliance with that order, was referred to, and set out, at [10] of the Tribunal's original decision of 17 December 2013 as follows:
In compliance with order 1 the Tribunal received an email at 7.24 pm on 4 September 2013 on behalf of the applicant which attached a letter addressed to the Tribunal stating:
Reference: Order of Justice Chancy [sic] on 20th August 2013
17 The applicant also made little or no effort to partake in the mediations organised by the Tribunal.
18 Examples of the applicant's failures to attend mediation, despite the Tribunal's efforts,` can be seen from various examples of orders which are as follows:
22 Finally, on 20 August 2013, orders were made programming the matter through to a final decision on the documents, which was published on 17 December 2013, when the respondent's original decision was confirmed and the applicant's application was dismissed.
23 On examining the bundle of documents filed by the respondent pursuant to s 24(b) of the SAT Act, there is nothing to suggest that the applicant behaved in a way, when dealing with the matter before the original decision-maker, which might be classified as not genuine in attempting to assist the original decision-maker to make a decision on its merits. Nor was any such submission made by the respondent.
24 However, as stated in s 87(4) of the SAT Act, this does not limit anything else that may be considered when making an order for payment by a party of another party's costs in review proceedings.
25 In dealing with the matter before this Tribunal, it is clear, as set out above, that the applicant made little or no effort to properly prosecute her case, particularly in light of the issues that needed to be dealt with by the applicant and which had clearly been set out in Palatty, a copy of which had been furnished to her.
26 The applicant's submissions were poor and sketchy at best with little or no effort made to address the relevant issues. Furthermore, her non-attendance at directions and mediations, whether by phone or being represented, despite various warnings, was unhelpful to both the Tribunal and the respondent.
27 Indeed, the respondent submitted that it was put to unnecessary expense by having to attend a number of directions hearings and mediations which the applicant failed to attend, in circumstances where the respondent was performing a function which promotes the public interest with limited resources.
28 Although the Tribunal recognised that the applicant resides in India and was unrepresented, even a minimal effort on her behalf to comply with the Tribunal's orders may have saved significant time and cost. Even when addressing the orders in this costs application, no effort was made to address the respondent's submissions or meet the case made.
29 In all the above circumstances, the Tribunal considers this to be an appropriate case where costs should be awarded, but limited to the respondent's costs incurred since 18 June 2013. That was the date of the Tribunal's direction hearing when the matter was referred to mediation and which happens to coincide with the date on which the respondent furnished the applicant with a copy of the Palatty decision.
30 As to the amount of costs to be awarded, the respondent furnished a schedule for a total of 30 items totalling a sum of $2,140.30. Of the total amount, $308.20 relates to the period up to and including our cutoff date of 18 June 2013. This leaves a balance of $1,832.10.
31 Being satisfied that all charges comprising this figure are reasonable, in terms of both their incidence and amount, there will be an order for the respondent's costs fixed at $1,832.10.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
Arranging for new file to be opened and for all relevant documents to be collated
Reviewing Tribunal Application and applications for registration
Drafting email to applicant and scanning bundle of documents in order to serve
Reviewing correspondence from Tribunal and Applicant's submissions
Drafting Statement of Issues, Facts and Contentions
Drafting Statement of Issues, Facts and Contentions
Drafting Statement of Issues, Facts and Contentions
Drafting Statement of Issues, Facts and Contentions, including consideration of relevant case law
Settling Statement of Issues, Facts and Contentions
Settling Drafting Statement of issues, Facts and Contentions
Amending Statement of Issues, Facts and Contentions and drafting letter to Tribunal
Conferring with Tribunal regarding case law referred to in Statement of Issues, Facts and Contentions and provision of relevant case