Ghobashy v Medical Board of Australia

The written evidence of the Appellant

1. The Appellant filed one affidavit sworn 6 July 2022. It was very short and stated that all the documents submitted by him to the Tribunal, including his written submissions, are true and correct.
2. The written material relied upon by the Appellant is also, in many respects, relied upon by the Respondent. The Appellant has tendered the material in an apparent effort to show that his performance, while being supervised as a post graduate medical practitioner on the specialist pathway, should not be seen as sufficient for the Tribunal to conclude he is not a suitable person to be given the limited registration as he has applied for.
3. In this determination it is important to remember the type of registration which the Appellant had applied for. He applied for, and was refused, "supervised limited registration as a Psychiatry Registrar Level 3 on the standard pathway." (The wording used by the Appellant in his External Appeal Form which initiated the proceeding now before us for determination). The wording used by AHPRA in its letter to the Appellant dated 31 March 2022, described the application, which was refused, as "limited registration for postgraduate training or supervised practice on the standard pathway to practice as a Psychiatry Registrar with level 3 supervision."
4. As will be seen later in these reasons, the request for the limited registration to be with "Level 3 supervision" is an important aspect of the Appellant's application.
5. The evidence provided by the Appellant and identified earlier, focused on the material which the AHPRA decision of 25 March 2022 detailed either specifically or inferentially in reaching its decision that the Appellant's application should be refused. (See the evidence contained in AHPRA's letter to the Appellant dated 31 March 2022 which is set out at page 14 of 475 in exhibit A1). The evidence which both the Appellant and the Respondent took us to was largely contained in the "Work Performance Report" documents (also labelled as WRIG-30). The documents have been created by AHPRA and provide for the person noted in the AHPRA records of the Appellant's "Principal Supervisor" to complete at the conclusion of each "Assessment Period" set out in the WRIG-30 document.
6. In its letter to the Appellant dated 3 February 2022 AHPRA detailed the documents it had regard to in considering the Appellant's application for limited registration (detailed earlier in these reasons). The letter gave notice to the Appellant that the Western Australia Registration Committee of the Medical Board of Australia had considered his application in meeting on 28 January 2022 and gave notice that it was proposing to refuse the application. The letter advised the Appellant that pursuant to s 81(2)(b) of the National Law he must be given the opportunity to make a submission to the Committee about the proposal. The Appellant did make that submission in a letter dated 6 February 2022.
7. The letter dated 3 February 2022 from AHPRA to the Appellant detailed the evidence it had considered in the Appellant's application for limited registration. That evidence is detailed earlier in these reasons being the same as set out in the letter of 31 March 2022 from Ahpra to the Appellant.
8. In its letter of 3 February 2022, AHPRA set out the matters considered in reaching its' proposal to refuse the application, subject to the receipt and consideration of any submission the Appellant may make. Those matters can be summarised as follows:

• The Board expects practitioners granted limited registration to achieve key milestones towards attaining general or specialist registration within four years of being granted initial registration.
• The Appellant was granted initial registration on 25 March 2014 and most recently held that limited registration until August 2020.
• The Appellant's comparability assessment with the RANZCP expired on 31 January 2020 and the Appellant failed to meet the requirements for specialist registration within the specified timeframe and no longer met the requirements for the specialist recognition pathway.
• On 20 November 2020 the Appellant passed the AMC CAT MCQ examination and now meets the minimum entry requirements for limited registration on the standard pathway.
• Since 15 August 2016 in work performance reports three different supervisors identified performance issues across all appraisal criteria.
• Dr John Wardell in the report for the period 5 August 2019 to 20 May 2020 recommended that the Appellant's supervision level should be increased to Level 1.
• In the work performance report for the period 3 February 2020 to 5 June 2020 whilst the Appellant was under direct supervision (Level 1) Dr John Wardell identified continuing performance issues in all domains and assessment criteria and recommended the Appellant was not suitable for ongoing registration. The report confirmed the Appellant had been suspended and his contract ceased in August 2020.
• The Northern NSW Local Health District undertook an investigation of a complaint or concern about the Appellant's professional performance. A copy of the investigation report was provided to the Health Care Complaints Commission. The matter was referred to AHPRA.
• The application for limited registration on the standard pathway to practice as a Psychiatry Registrar at Armadale Health Service (WA), is with Level 3 supervision.
• Level 3 supervision would allow the Appellant to take primary responsibility for each individual patient. The committee determined that the proposed supervision arrangements are not appropriate given the evidence considered and detailed in the documents considered by the Committee.
• The Appellant had failed to demonstrate to the satisfaction of the Committee that he can practise competently and safely, even with direct supervision. He had failed to demonstrate his practise is at a minimum, at the level expected of a Psychiatry Registrar, the position for which he was seeking registration.
• The Committee did not consider that conditions could remediate the issues and/or identified risk to the public.

1. We set out the above matters arising from the letter to the Appellant of 3 February 2022 because the Appellant's case has been apparently conducted in a manner to demonstrate the decision made by AHPRA, through the Western Australia Registration Committee of the Medical Board of Australia, was either not properly founded on the available evidence, has been made having regard to a selective negative evidence rather than consideration of positive evidence supportive of the Appellant's competence, or upon evidence which is not reliable for the purpose of reaching the decision to exclude the Appellant from the registration he sought.
2. It seems that based upon the Appellant's apparent approach to this hearing he has also relied upon much of the same evidence as the Respondent with the purpose of illustrating that evidence does not, on a balanced view, entitle the conclusion reached that he should be denied the registration he sought, or indeed, any other registration in Australia.

The Appellant's written and oral evidence.

1. On 6 February 2022 the Appellant wrote to AHPRA (Mr John Molloy) setting out his response to the letter received from AHPRA and dated 3 February 2022 (referred to earlier in these reasons). That letter encapsulated the grounds upon which the Appellant submitted his registration, as applied for, should be granted. It sets out the same grounds upon which the Appellant relies, in the hearing conducted before the Tribunal. We here set out a summary of those reasons and we will consider specific evidence which relates to the Appellant's submission and which has been relied upon in this hearing by either the Appellant or the Respondent. 1. In 2014 the Appellant applied to the RANZCP for admission to "Stage III Advanced Trainee" on the Partial Comparable Pathway, suitable to work as SMO or as a Specialist Psychiatrist in a designated area of need. 2. The Appellant commenced his employment in Australia (Melbourne) at "Level III supervision" and continued for 2 years at that level without any issues regarding competency. He had very good work performance reports. 3. The Appellant commenced working in the ACT in 2016, he did so having made a new application to AHPRA for registration and was approved at Level II supervision. After 10 months his supervisor Dr Diana Tracy upgraded the Appellant's supervision status to Level III for 2017. 4. In July 2018 the Appellant obtained a very good WRIG-30 from Dr Tracy with recommendation for supervision level to continue at Level III. In the mid-term assessment prepared in May 2018, the assessment was rated at Junior Consultant level as the Appellant was at the end of his "pathway" at that time. That resulted in AHPRA changing his supervision level to Level II. 5. The Appellant commenced employment at Northern NSW-LHD on 12 August 2019. AHPRA requested that he undertake a WRIG-30 assessment in order to renew his registration. The Appellant said there was an "excellent" WRIG-30 sent to AHPRA in October 2019. It was signed by his supervisor Dr Wims (Clinical Director, Mental Health Service NNSW-LHD). 6. In the first College rotation assessments in December 2019 and January 2020 the Appellant received "very good feedback" from three consultants including Dr John Wardell. 7. Dr John Wardell had rated the Appellant as incompetent in two reports between 5 August 2019 to 20 May 2020 and another between 3 February 2020 and 5 June 2020, recommending an increase in supervision level to Level 1 (the highest level of supervision) and then in the second report that he be de-registered. 8. The Appellant was unaware of the content of those reports and was not interviewed about them. There was no request from AHPRA at around those dates for a WRIG-30 report. The assessment reports of Dr Wardell were in contrast to his assessment he signed in January 2020. That report rated the Appellant as "very good in most practice domains". He was also rated as having "very excellent assessment skills". 9. Dr Wardell had signed an OCA assessment for the Appellant following the Appellant being monitored in a formal client interview. In his comments Dr Wardell had written that the Appellant has good history taking; good rapport building and good physical examination skills. He also acknowledged two consultant's assessments of the Appellant when he undertook two EPA's including 6 WBA's, which rated the Appellant as meeting the standard required and sometimes above the standard. 10. The Appellant submits no explanation was provided by Dr Wardell for his changed assessment of the Appellant's competency or suitability for the programme. 11. The Appellant has been very careful to comply with the RANZCP rules and the MBA's Good Medical Practice and otherwise practice in an ethical manner since commencing work as a medical practitioner in Australia. 12. At the end of May 2020 Dr Wardell refused to renew the Appellant's registration. The Appellant was told that was because there were serious concerns about his performance. The General Manager of the NNSWHD had asked the Appellant to take leave (without pay) until the end of his contract. The Appellant asked for a formal investigation of the serious concerns raised about his performance. That request gave rise to the investigation report prepared in relation to the complaints. 13. The investigation looked at seven (7) accusations. Three were found to be established. Two of the established complaints alleged not ordering medications appropriately. The Appellant denies that was the case. The third established accusation was caused by a type writing error. One of those accusations was that the Appellant had written the word "liable" instead of "justifiable" in a patient's notes. However, the Appellant said that after a word-search he found out the word "liable" was not the wrong word. The Appellant was also denied the opportunity to take a "snapshot" of the relevant allegedly offending entry in the patient's notes. 14. The Appellant said that he had never had a single incident report about his performance over his entire career both in this country or overseas. The Appellant relied upon two "Good Standing Certificates" he provided to AHPRA from two different countries. 15. The Appellant only received the job offer from Armadale after a rigorous interview process in which he was one of many applicants. He relied on two references provided to him by two consultants he had worked with in Northern NSW LHD. 16. The Appellant had completed all of the RANZCP Specialist Recognition requirements except for the last OSCE exam. In that exam he was very close to the pass score. The College is considering his request to be able to undertake the exam again. The Appellant relied upon his result from the OSCE he undertook in September 2019. 17. In an addendum to his letter of 6 February 2022 the Appellant wrote again to Mr Molloy pointing out that on 27 May 2020, just a week before he was prevented from further working in the NNSWLHD, the Appellant had written three Mental Health Tribunal Reports and had presented two of those in front of the Tribunal board. The reports are very complex and require competency in the psychiatry field of medicine. Had he been seen as incompetent, at that time, it was not sufficiently a concern to have required that he not make those presentations and write the reports.
2. Having detailed those reasons provided by the Appellant we will address the specific documents which are referred to in the submission and in the oral evidence relied upon by the parties.
3. The Appellant relied upon an affidavit of Dr Harry William Freeman, medical practitioner, affirmed on 14 June 2022. In that affidavit we noted the following evidence of particular importance in this determination.
4. Dr Freeman is a Consultant Psychiatrist and previously worked with the Appellant at Lismore Base Hospital in Northern NSW. They worked together between August 2019 and the end of January 2020. Dr Freeman stated that "During this period, he (the Appellant) has maintained himself in a regular and efficient attendance showing a great reliability in performing his job tasks…His past experience, potentials, energetic attitude, time management, dedication and clinical judgment abilities are unquestionable."
5. Dr Freemen further deposed that the Appellant is truly unique in his ability to emphasize and establish rapport with his patients….He was able to achieve his tasks very efficiently. He is extremely well organized and detail oriented in his management approach, whilst always seeking advice from his superiors and acknowledging his role limitations….He demonstrated the ability to work effectively as part of a multidisciplinary team….He has a solid updated scientific knowledge background."
6. Dr Freeman concluded his affidavit with the following: "I am equally confident that he possesses the empathy, caring nature, listening skills and intellectual capacity to gain a more brightened and prosperous future. I fully recommend him to have future positions and gain higher qualification."
7. Dr Freeman was required for cross-examination by the Respondent. We noted the following matters, in particular, from his oral evidence.
8. Dr Freeman confirmed the content of his affidavit was true and correct.
9. The Appellant took the witness to the rotation assessment report for January 2020. That document is set out at pages 92/475 to 95/475 of exhibit A1. Dr Freeman agreed his signature was attached to the document and dated 12 December 2019. Although the Appellant had Dr Freeman identify his signature on the document, he had no further question for him.
10. In relation to the document the Appellant had Dr Freeman identify (as referred to in the previous paragraph) we note it is a RANZCP created document. It is about the Appellant and his ability in relation to "Older adult psychopharmacology, including the use of psychotropic medications in patients with treatment-resistant depression and those with complex general medical needs." The form is signed by Dr Freeman and dated 7 December 2019. Dr Freemans signature appears under the title "Entrusting Supervisor Declaration". The wording of the declaration is: "In my opinion the trainee can be trusted to perform the activity described with only distant (reactive) supervision. I am confident the trainee knows when to ask for additional help and will seek assistance in a timely manner. The trainee has completed three related WBA's in preparation for this activity."
11. Under the signature of Dr Freeman is a further heading: "Principal Supervisor Declaration." That declaration requires the Principal Supervisor to declare: "I have checked the details provided by the entrusting supervisor and verify they are correct." The declaration is signed by Dr John Wardell and dated 20 January 2020.
12. In relation to the declarations set out above, it is clear that there was an entrusting supervisor and a principal supervisor. This is a distinction which was brought to our attention by the Respondent who said that the Principal Supervisor is the person accepted by APRAH to supervise the Appellant as part of the limited registration approval for the Appellant. The entrusted supervisor is a psychiatrist who is allocated the task of working on a day-to-day basis with the Appellant in the hospital during a specific period of time. There appears to be no requirement for the Principal Supervisor to actually physically observe the work of the Appellant with patients, and in the other functions associated with his employment within the hospital.
13. The Appellant in his submission and statements to us during the hearing sought to emphasise that Dr Wardell did not specifically supervise his work in the hospital. Rather, Dr Wardell relied upon the reports of other Entrusting Supervisors and medical, nursing and administrative personnel in the employ of the Lismore Base Hospital.
14. In the subject document, signed by Dr Freeman, under the heading of "Feedback" the following information is set out. Under the heading: "What aspects were done well?" There the following words appear in handwriting: "Documentation on EMR. Formulation appropriately sophisticated". Under the heading: "Suggestions for improvement" the following handwritten note is included: "Nothing obvious". Under the heading "Agreed actions/goals" the following handwritten words are set out: "Continued involvement in team discussion and handovers." There is nothing in the evidence to suggest the last stated words were intended as a criticism or to remedy some aspect of performance which was seen as below standard and/or which could be improved.
15. Additionally, the form contains a block of text under the heading "Assessment Criteria". There is a list of actions numbered 1 to 9 against which the supervisors are required to mark whether the identified action was "Below standard for end of stage", or "Meets standard for end of stage", or "Above standard for end of stage." Each activity has been marked as fitting within the last or second last assessment criteria. Again the document is then signed by Dr Freeman and Dr Wardell. The Appellant has also signed the document. Both Dr Freeman and the Appellant signed on 12 December 2019 and Dr Wardell signed on 21 January 2020.

Dr Freeman was cross-examined by the counsel for the MBA, Ms Curtin.

1. Dr Freeman had prepared his affidavit having spoken to the Appellant about the matters to be addressed in the affidavit. The words are entirely his own. The affidavit addressed matters which the Appellant felt important.
2. When pressed about whether the affidavit actually reflected his own views rather than those of the Appellant Dr Freeman said: "I think I actually, they really are quite representative of the way I felt about him, I was particularly impressed with Waleed and he's had the most amazing experiences, he was such a dedicated member of the team in the six months that I supervised him that I thought I should attend to absolutely everything that he felt was appropriate." He also said he regarded the Appellant as having "fairly exceptional abilities."
3. Dr Freeman is no longer working at Lismore Base Hospital. He has not done so since Covid commenced in Australia in March 2020 (or within a few months of that date).
4. Dr Freeman had worked with the Appellant on the Acute Assessment Team. He had worked there three days per week. It might have been two days occasionally. He worked between six and two hours on the days he was there. Dr Freeman understood he was supervising the Appellant when they worked together. He was asked to provide supervisors reports.
5. Dr Freeman confirmed the Workplace Assessment Form he had signed as the Appellant's supervisor included entering into a discussion with the Appellant about the case they were attending upon. Dr Freeman said he thought the Appellant's assessments of the cases which they had worked on together was outstanding. (Note the concession made by Dr Freeman below.)
6. Dr Freeman said he understood the Workplace Assessment was to consider the candidate for final membership of the RANZCP. It was a means of assessing the candidate's performance. He denied it was an artificial setting in which to conduct that assessment.
7. Dr Freeman conceded he did not directly observe the Appellant interacting with patients as a doctor attending to their medical needs. He did observe him working in a multidisciplinary team. He met with him several times a week for months.
8. In relation top his statement in his affidavit that the Appellant's "time management is unquestionable". He said: "There were times when we were both - all of the members of the team were having to do - see patients rather more quickly than we had, and under those circumstances I never felt at any time that Waleed wasn't managing the situation quite adequately." He was only aware of criticism of the Appellant in that area of his practise from what he had read in reports.
9. Dr Freeman said there were frequent occasions when the Appellant had "wanted to talk to me about other patients." When asked what he had meant by the words used in his affidavit that the Appellant was "was always acknowledging his role limitations", Dr Freeman said: "I guess I mean that if the situation were appropriate that he would have no hesitation in acknowledging his limitations."
10. Dr Freeman did not work on the same team as the Appellant after the time they worked together in the Acute Assessment Unit.
11. During what was characterised as re-examination and which was really further examination-in-chief, permitted by us because the Appellant was self-represented, Dr Freeman, in answer to what was really a very general question which the Appellant was endeavouring to ask, said: "In general answer to the question, Waleed is an exceptional doctor, he is quite exceptional. You will notice that in the references in the headings that I address during our - during my affidavit are the same as the ones that are in the assessment criteria, clinical records, clinical assessment, risk assessment, et cetera, et cetera, et cetera. We went through those things. That's the sort of doctor that he is. He is quite exceptional and attends to absolutely everything that could possibly be attended to". Dr Freeman also said: "He was just asking me whether he was on the roster, he was overly represented on the registrar's roster because he was the most available person at the time. He was extremely helpful and useful during those times when we were short-staffed."
12. Senior Member Professional Wilhelm asked Dr Freeman about what appeared to be a discrepancy between his assessment of the Appellant in the Workplace Assessment form he had signed on 7 and 12 December 2019 (also signed by Dr Wardell on 20 January 2020. The document was also signed by Dr Pethebridge as Director of Advanced Training on 17 January 2020.) and the later reports of other consultants, in particular Dr Wardell. Dr Freeman said he could not understand the change in Dr Wardell's opinion of the Appellant within weeks of signing the same Workplace Assessment form as Dr Freeman on 20 January 2020. He was unable to do so. He said that Dr Wardell did not ever work with the Appellant as Dr Freeman had. He said Dr Wradell was the principal consultant and he was in charge "of the place". He was too busy to observe the Appellant.

The evidence of Stephen Blainey

1. An affidavit was affirmed by Mr Blainey on 20 June 2022. We noted the following of relevance in that affidavit.
2. Mr Blainey is a registered nurse and worked with the Appellant at Lismore Base Hospital. He worked with the Appellant for six months on his rotation through the Clozapine Clinic between August 2019 and January 2020. During that time the clinic operated once per week. The Appellant sometimes made home visits during that time.
3. Mr Blainey recalls: "That initially there was a period where cultural differences may have impacted on some of the client's interaction with the Waleed." He said: "I was impressed with Dr Waleed's ability to recognise the issue and adjust his approach accordingly. I believe Waleed's humour, energy and sensitivity helped in this regard."
4. Mr Blainey observed "Dr Ghobashy demonstrated a keen interest in the needs of the clients and his assessments, both physical and psychological in the Clozapine Clinic were excellent in my opinion."
5. Mr Blainey was not required for cross-examination.

The Appellant's Oral evidence

1. The Appellant gave oral evidence. He confirmed that he had on 4 April 2022 filed an External Appeal form in the Tribunal's registry. The appeal challenged the decision of the MBA made 31 March 2022.
2. The Appellant identified his affidavit filed on 6 July 2022. That document was marked as exhibit A4. The Appellant told the Tribunal the content of the affidavit was true and correct.
3. The Appellant was cross-examined by counsel for the Respondent.
4. The Appellant said that when he came to Australia he applied for limited registration, specialist pathway, as an advanced trainee. He said he was assessed by the RANZCP as a stage 3 advanced trainee. He had hoped to be able to become registered as a psychiatrist in Australia. He said he had been placed on the "partial convertible pathway" (sic). He agreed he was required to pass Objective Structured Clinical Examinations (OSCE). He acknowledged he had not been able to pass that exam in September 2019. He had also failed that exam at an earlier time. The September 2019 OSCE was the fourth time he had sat the exam and failed it.
5. The Appellant denied he had received academic assistance/preparation for the OSCE. He agreed it was part of the pathway that he should have received that assistance however in his last employment with NNSWHD he had not received that assistance. The Appellant said he had travelled, at his own expense to workshops and conferences in different cities in Australia as part of his education here. He had also paid for private tuition.
6. Although the Appellant had failed the OSCE he had applied to the RANZCP for reconsideration of his circumstances surrounding the last OSCE he had undertaken on the basis of the late notice he had received of the examination date. He was still awaiting an outcome from that application. He did agree that the College had now (from January 2020) excluded him from the comparable pathway. It was put that he had been excluded from October 2019. The Appellant acknowledged that was correct however he said he had not been advised of that until January 2020.
7. It was put to the Appellant that he had been excluded from the pathway in October 2019 because he had "failed to progress within the required time". The Appellant rejected that and said he was excluded because he failed the last OSCE he had undertaken. He said he had only been given two weeks notice of his enrolment for the exam as a result of an oversight by the College. He had paid the fees for the exam in May 2019. He said he had no choice but to participate in the OSCE as it "was his last chance."
8. The Appellant denied he was excluded from the specialist pathway in October 2019. He referred us to a letter from the College dated 11 May 2020 (page 123 of 475 of exhibit A1). That letter certified that the Appellant "is currently on the partial comparability pathway with RANZCP". It stated that his position was "currently under consideration by RANZCP". That letter was attached to an email from the College to the Appellant dated 13 May 2020 which email stated "Usually this type of letter is enough for renewal of registration, AHPRA will let you know if they need something else." (see page 124 of 475 of exhibit A1).
9. The Appellant confirmed he did pass the AMC MCQ exam in November 2020. The Appellant submits that shows progress which AHPRA, the MBA and the College should have acknowledged.
10. The Appellant did not accept that his failure of the OSCE demonstrated he had failed to make progress. He said he had finished all of the requirements except the OSCE. He said he was "very close" to passing the OSCE. The Appellant also asserted he had been working in Australia at level 2 or level 3 supervision.
11. The Appellant agreed that the levels of supervision under which he can be working are from Level 1 to Level 4. The higher the level the lesser the amount of supervision he required. He agreed that generally, the level of supervision recommended by the Appellant's supervisors indicated that assessor's indicator of how the Appellant was performing. Level 3 allows the Appellant to take primary responsibility for patient care. He agreed that a downgrading by an assessor from Level 3 to Level 2 indicated more supervision was required. He said however, that a recommendation that he continue at Level 3 by Dr Tracey in Canberra, was apparently not accepted by AHPRA which set the Level of supervision at Level 2.
12. The Appellant was taken to his statement that between 2016 and 2020 he had "excellent yearly WRIG-30 and ITA reports." He agreed that was the case.
13. The Appellant commenced work in Australia as a psychiatric registrar. He commenced on Level 3 supervision and continued there for two years whilst working in Melbourne. He then moved to the ACT for 2017 and 2018.
14. The Appellant was taken to his Work Assessment Report for the period 1 April 2014 to 1 February 2015 (page 337 of 475 in exhibit A1). The Appellant had his attention drawn to page 340. That page addressed "Communication Criteria". The criteria addressed is "Communicates effectively with patients and their families." The Appellant had marked himself as "Performs consistently at the level expected". His supervisor had assessed him as "Performs consistently below the level expected". The Appellant was asked to accept that was a concern identified in the report. Whilst the Appellant acknowledged it was a concern, he emphasised that it was only one of 20 to 25 items addressed in the report. He said that the other assessments were that he was performing either above the level or at the level expected.
15. We pause here to note that there are in the report above referred to 21 categories for assessment. Both the Appellant and the Supervisor are required to attribute to each item a tick in one of four available boxes. The first box is: "Performs consistently well below the level expected". The second is: "Performs consistently below the level expected." The third is: "Performs consistently at the level expected." The fourth is: "Performs consistently above the level expected." We note the Appellant marked himself as either "Performs consistently at the level expected" or "Performs consistently above the level expected." He marked himself as "Performs consistently above the level expected" in 10 of the boxes. The Supervisor marked him only 5 times at that level and on each occasion, it was where the Appellant had himself at that level.
16. The Appellant in his answer to the question about a mark by his supervisor as "performing consistently below the level expected" sought to "downplay" the importance of the mark by the supervisor. He said it was merely an indication by his supervisor of areas of his practice which require improvement. He said focusing on one out of 21 categories as the only area which was identified as below the level ignored the balance of the report which must be regarded as good (or excellent as the Appellant described).
17. The Appellant was taken to the end of the report referred to above and to pages 343 and 344/475 of exhibit A1. There he acknowledged the comments of his supervisor that "communication skills is an area that needs some improvement" and "working within a multidisciplinary teamwork needs some improvements too". That was the period 2014/2015. The Appellant did not accept that those two areas of concern had continued to be concerns of his supervisors until 2020.
18. The Appellant explained that he worked in different surgeries in Melbourne in 2014 and 2015 when it was put that his contract had not been renewed. The Appellant agreed it was not renewed however he said that was because he chose to work somewhere else rather than in Melbourne.
19. Between February 2016 and August 2016 the Appellant was unemployed. This occurred because he had applied for a job in the ACT and it took some time to create the position (administrative/red tape holdup). When he was able to commence the job, he was started at level 2 as a psychiatric registrar. It was at that level that his first Work Performance Report was undertaken.
20. The Appellant said that at the start of his first rotation in the ACT he had some difficulty in adapting to their different work systems which he had worked with in Victoria. He said it was AHPRA that said he was to have Level 2 supervision.
21. The Appellant was taken to page 58 of 507 of exhibit R1, where the WRIG-30 report for the period 15 August 2016 to 15 November 2016 was set out. The Principal supervisor was Dr Tracy. In that report the Appellant agreed he had been assessed at Level 2 supervision, by his supervisor as "Sometimes performs below the level expected." Under the General heading of "Professionalism" that comment was marked for the following specific categories: "Exhibits high standards of moral and ethical behaviour towards patients, families and colleagues including an awareness of appropriate doctor/patient boundaries."; "Able to recognise limitations in his practice and request assistance when necessary"; "Shows honesty at all times in their work, puts patient welfare ahead of personal consideration and accepts responsibility for own actions"; "Knows limits of own competence and functions within those capabilities, seeks advice and assistance when appropriate, accepts feedback". Under the general heading "Safe Practice" Dr Tracy placed the Appellant under that comment for "Recognises and correctly reports adverse incidents in a timely manner."
22. We note in the above referred to Report by Dr Tracy under the heading "Describe the nature and level of the Supervision", she has handwritten: "Dr Tracy provides 1 hour of face to face clinical supervision discussing cases and giving feedback. In addition Dr Ghobashy spends at least 3 hours in clinical supervision with other staff specialist reviewing and discussing cases. Dr Ghobashy is at level 2 supervision and discusses all cases with a staff specialist before clinical decision is enacted."
23. We also noted under the heading "Strengths" Dr Tracy has written: "Dr Ghobashy works hard and attend supervision regularly. He is keen to progress the RANZCP training program and seeks training opportunities to facilitate this". We also noted under the heading "Area for Development" Dr Tracy has handwritten: "More reflective capacity. Improve written and spoken English. More detailed history, management plan and review of physical work up and clear discharge planning. Daily review of all patients with notes detailing this."
24. Under the general heading of "Communication" Dr Tracy has marked the Appellant as "Sometimes performs below the level expected" for the following specific areas: "Communicates effectively with patients and their families"; "Communicates effectively with other members of the health care team"; "Communicates effectively with professional colleagues. This includes communication with general practitioners for the handover, referral and transfer of patients"; and "Clearly documents patient care, maintains complete and timely medical records/progress notes." Dr Tracy made the comment: "As before these issues are discussed in weekly supervision."
25. Under the Heading "Clinical management" Dr Tracy listed the following specific headings under her assessment that the Appellant "Sometimes performs below the level expected". "Obtains and documents a comprehensive patient history"; "Performs and documents appropriate physical examination"; "Critically assess information, identifies major issues, makes timely and appropriate decisions and acts upon them"; and "Requests follow up and interprets appropriate investigations and revises management plans as necessary." Dr Tracy included the following comment under the "Performance Assessment criteria. "Dr Ghobashy requires ongoing supervision to improve in some areas of practice. We are meeting weekly to address these issues."
26. Towards the end of the document there is a heading "List the issues to be addressed." Dr Tracy has listed three issues and a recommendation. The Issues are: "Reactive capacity"; "Improve written and spoken English"; and "Improve clinical skills in assessment and management." Her recommendations are: "As above. Ongoing close supervision of clinical work and detailed feedback about performance to improve performance." Dr Tracy stated the "IMG is suitable for ongoing registration" and she did not recommend a change in the Appellant's level of supervision. Dr Tracy signed the report and dated it 17 November 2016.
27. The Appellant was taken to those entries which could not be characterised as constituting "excellent reports" and asked to acknowledge that it was not the case that there were no concerns about his performance whilst he worked in the ACT. The Appellant responded in a somewhat exasperated manner acknowledging those parts of the written reports he was taken to and then asserted "there were no issues generally speaking". He seemed to suggest the matters raised by the counsel for the MBA as "frivolous". He acknowledged there were some difficulties in the beginning of his time in the ACT however, that was due to his having to adjust to a different system of work to that he had experienced in Melbourne. He also stated that although there were criticisms of his performance in the early part of his training in the ACT that had changed in the later time he was there so that he received "a very good excellent report in July 2017 when Dr Tracy, the same doctor, she promoted me from level 2 to level 3." Thereafter the Appellant said his reports from his supervisors were "excellent".
28. The Appellant did acknowledge, in response to a proposition put to him by the counsel for the MBA, that there were aspects of his performance in the early part of his time in the ACT that were marked as "below the level expected" which went beyond his difficulty adjusting to a different system of work.
29. In his answer to this line of questioning the Appellant said: "Yes, the falling below but not consistently below, not well below, just sometimes, it is called sometimes below, performance below under the level, sometimes. Sometimes means that most of the time I was on the expected level of performance. When it is you say sometimes below means usually most of the time was on the level".
30. The Appellant was then asked to look at the work performance report for the period 16 November 2016 to 24 February 2017 which was also completed by Dr Tracy.
31. We pause here to make the following observations of that document. The document is set out at page 73 of 507 and following of exhibit R1. 1. The description of the nature and level of supervision explains as follows: "Dr Tracy has provided one hour per week face to face clinical supervision which includes discussion of cases, review of notes and giving feedback to Dr Ghobashy. Dr Ghobashy spends time with other staff specialists in general clinical supervision. Dr Carper has taken over the day to day supervision from 6 February but Dr Tracy still has weekly clinical contact with Dr Ghobashy." 2. In the section headed "Performance" the Appellant has been assessed as "Sometimes performs below the level expected" in 4 out of 7 sub-categories. He was assessed as "Performs consistently at the level expected" in 3 of the sub-categories. He had no acknowledgment in the sub-category of "Performs consistently above the level expected". 3. In the "Additional comments" box on the form under the heading "Performance" Dr Tracy has stated: "Dr Ghobashy has made some progress in these areas (3 sub-categories as above) He has understood better what is required and is making progress toward meeting the expected level of performance." 4. Under the heading "Communication" the Appellant has been assessed as "Sometimes performs below the level expected" in 3 of the 5 sub-categories. He was assessed as "Performs consistently at the level expected" in 2 of the sub-categories. He was assessed as not qualifying in any of the sub-categories under the heading "Performs consistently above the level expected". 5. In the "Additional comments" box under the Communications category Dr Tracy stated: "Dr Ghobashy is improving in the above areas although is not consistently performing at the expected level as yet although he has been working actively at communication issues." 6. Under the heading "Professionalism" the Appellant was assessed in all six sub-categories as "Performs consistently at the level expected" There were no additional comments provided for this area of assessment. 7. Under the heading "Safe Practice" the Appellant has been assessed in all 3 sub-categories as "Performs consistently at the level expected" 8. At the conclusion of the form Dr Tracy has noted the following under the heading "Strengths". "Dr Ghobashy is hard working. He attends training and supervision regularly and wishes to progress RANZCP and meet the standard required. He attends all training opportunities possible." Under the heading "Areas for development" Dr Tracy has stated: "Is working on reflective capacity and ability to incorporate feedback and improving. Dr Ghobashy is working on spoken and written English. Dr Ghobashy is working on history and examination, management and discharge planning and regular reviews of his inpatients with contemporaneous written notes." 9. Under the heading "List of issues to be addressed. - ie. areas for development." Dr Tracy has written: "Reflective capacity." - Weekly meetings with Dr Caper where feedback is given". "Written and Spoken English.- Regular review of notes with feedback about how to improve." "Assessment and management. - Weekly clinical discussion with clinical supervisor." 10. Under the heading "Recommendations" Dr Tracy has written "Ongoing close supervision of clinical skills and work and regular feedback to improve performance." 11. Dr Tracy had stated: "The IMG is suitable for ongoing registration". She did not recommend a change in the Appellant's level of supervision. She considered Level 2 was the appropriate level of supervision.
32. The Appellant was cross-examined about the content of the Work Assessment Form above set out. It was put that the assessment of his communication skills was an ongoing performance issue. The Appellant again reiterated that the comments fall under the word "sometimes" rather than "mostly" or "usually" or some other equivalent descriptive.
33. The MBA counsel took the Appellant to page 91 of 507 in exhibit R1 being the Work Performance Report for the period 28 August 2017 to 27 February 2018. We pause here to set out the relevant evidence from that document. 1. The document set out that Dr Tracy continued to provide face to face teaching every 1 to 2 weeks. Dr Ratrayake provided 1 hour per week face to face clinical supervision and greater than 3 hours of general supervision. 2. Under the heading "Clinical management" all of the 7 sub-categories have been assessed in the "Sometimes performs below the level expected" column. Dr Tracy's comment was "Dr Ghobashy is making progress". 3. Under the heading "Communication" Dr Ghobashy has been assessed in 2 of 15 categories as "Sometimes performs below the level expected". In the other 3 sub-categories he has been assessed as: "Performs consistently at the level expected". There were no "Additional Comments". 4. Under the heading "Professionalism" the Appellant has been assessed in 5 of 6 sub-categories as "Sometimes performs below the level expected". He was assessed in one sub-categories as "Performs consistently at the level expected." There are no "Additional comments". 5. Under the heading "safe practice" the Appellant is assessed in all 3 sub-categories as "Performs consistently at the level expected." 6. Under the heading of "Strengths" Dr Tracy has written " Dr Ghobashy works hard and is helpful and co-operative. He attends training and supervision and is keen to progress with RANZCP training requirements. Dr Ghobashy has a good knowledge base." Under the heading "Areas for development" Dr Tracy has written: "Dr Ghobashy needs to work on written English communication. He needs to continue working on feedback given to him." 7. Under the heading "List issues to be addressed" Dr Tracy has written: "Issue: Written communication.- Action/tasks to address issue: Feedback from supervisor. Issue: Reflective capacity and accepting feedback. Action/tasks to address issue: Discuss in supervision with principal and co-supervisor. Issue: Examination preparation. Action/tasks to address issue: Weekly with principal supervisor." 8. Under the heading "Recommendations" Dr Tracy has written: "Continue in Registrar role with ongoing supervision and feedback. Progress with RANZCP training and examinations". 9. Dr Tracy considered the Appellant was suitable for ongoing registration with no change to the supervision level. She considered level 3 supervision should continue.
34. We note that there was another Work Performance Report for the period 17 March 2017 to 16 June 2017. In that report under the heading "Professionalism" all of the sub-categories were assessed as "Performs consistently at the level expected". Dr Tracy's remark under that heading was positive. Under the heading "Safe Practice" all of the sub-categories were assessed as "Performs consistently at the level expected". Under "Communication", all but one sub-categories was assessed as "Performs consistently at the level expected". Under the heading "Performance" all but 1 of the 7 categories was assessed under the column "Performs consistently at the level expected".
35. In the report for the March to June 2017 period the "Issues to be Addressed" were noted as follows. Issue: "Working in teams". Action to address issue: "continue to accept feedback to improve." Issue: "Written and spoken English." Action to address issue: "Continue to seek exposure to vernacular English and seek feedback." Issue: "High level assessment and management". Action to address issue: "Discussion in supervision." Under the heading "Recommendations", Dr Tracy has written: "Will move to Calvary Hospital to widen exposure to clinical problems encountered in Australian clinical practice."
36. In the report for the March to June 2017 term Dr Tracy said the Appellant was suitable for ongoing registration and she recommended a change to the supervision level to Level 3.
37. In the Work Performance Report for the period 28 August 2017 to 27 February 2018 Dr Tracy continued to be the principal supervision and Dr Ratnayake was the other supervisor. The report is largely complimentary to the Appellant. We noted that all of the sub-categories under the heading "Clinical Management" show the Appellant is assessed as "Sometimes performs below the level expected". However, the comment is: "Dr Ghobashy is making progress". Under the heading "Communication" 2 of the 5 sub-categories are assessed as: "Sometimes performs below the level expected" whilst the other 3 categories are assessed as "Performs consistently at the level expected." There is no additional comment. Under the heading "Professionalism" all but one of the 6 sub-categories are assessed as: "Sometimes performs below the level expected". There are no additional comments. Under the heading "Safe Practices" all sub-categories are assessed as "Performs consistently at the level expected." There is no additional comment. At the conclusion of the report Dr Tracy has identified the "Strengths" of the Appellant as: "Dr Ghobashy works hard and is helpful and co-operative. He attends training and supervision and is keen to progress with RANZCP training requirements. Dr Ghobashy has a good knowledge base." The area for development was identified as: "Dr Ghobashy needs to work on written English communication. He needs to continue working on feedback given to him."
38. At the conclusion of the February 2018 WRIG-30 report, Dr Tracy identified 3 issues. The first issue was "Written Communication". The second issue was: "Reflective capacity & accepting feedback". To address that issue Dr Tracy said: "Discuss in supervision with principal and co-supervisors." The third issue was "Examination preparation". The Action to address was: "Weekly with principal supervisor."
39. The Recommendation made by Dr Tracy at the end of the February 2018 report is: "Continue in Registrar role with ongoing supervision and feedback. Progress with RANZCP training and examinations." She also assessed the Appellant as suitable for ongoing registration at Level 3 supervision.
40. The Appellant continued under the supervision of Dr Tracy for the period 28 August 2017 to 27 February 2018. In relation to that period Dr Tracy completed a "Stage 3 Generalist: end of rotation In-Training Assessment (ITA) form". This form requires assessment of "Medical Expertise" over 8 separate criteria. Of those assessments Dr Tracy and the co-supervisor assessed the Appellant in 6 of the categories as "Almost always meeting expectations" and in 2 categories as "Sometimes Exceeded Expectations". Under the heading "Communicator" all the sub-categories were assessed as "Almost always met expectations." Under the heading "Collaborator" 2 of the 4 categories were assessed as "Almost always met expectations." The other 2 were assessed as "Sometimes exceeded expectations". Under the heading "Manager" all categories were assessed as "Almost always met expectations." The same assessment was given to the categories under the headings "Health Advocate", "Scholar" and "Professional".
41. Under the heading "Feedback provided at the end of the Rotation Review" the Supervisor wrote: "(1) Dr Ghobashy has improved in the areas of relating to patients and family members. (2) His relationship with the multidisciplinary team has improved. (3) His understanding of mental health legislation has improved."
42. Under the heading "Three areas identified as requiring further development the Supervisor has written: "(1) The interview technique can improve with particular reference to the language used. (2) Documentation needs to continue to improve. Suggest checking things once written. (3) To get a better understanding of the referral system and places to refer. Communication both verbal and written is the major area that requires improvement."
43. The final portion of the Report required the Supervisor to assess a pass or fail category for the Appellant. A pass grade was selected with the box containing the following words marked: "Sometimes exceeded the overall standard required."
44. When pressed about his earlier assertion that his performance had been excellent and whether he still saw it that way in the face of some aspects of his reports (above referred to), the Appellant, again in a somewhat exasperated manner, said that the judgment of whether his performance had been appropriate (and possibly excellent) is really to be judged by the final recommendation of the Principal Supervisor and whether there was a recommendation for continued registration and the supervision level.
45. The Appellant was then asked to look at the Work Performance Report for the period February 2018 to May 2018.
46. We pause here to set out detail from that report which is contained in exhibit R1 at page 116 of 507. We note the following: 1. Dr Tracy remained the Principal Supervisor. She continued to provide the same level of supervision as we have noted in the earlier reports. The Appellant also had 3 hours weekly general clinical supervision and 2 hours fortnightly educational supervision. 2. In the assessment of "Performance" all but 2 of the 7 sub-categories of Performance were scored in the "Sometimes performs below the level expected" column. In 2 of the sub-categories the Appellant was assessed in the "Performs consistently at the level expected" column. There was no additional comment. 3. In the assessment of "Communications" all but 1 of the 5 sub-categories the Appellant was assessed at "Performs consistently at the level expected." In 1 sub-category he was assessed as "Sometimes performs below the level expected". That sub-categories was "Communicates effectively with patients and their families." There was no additional comment under the category of "Communication" and so it is not possible to know what it was about the Appellant's communication which required the lesser assessment. 4. Under the heading "Professionalism" the Appellant was assessed in 4 of the 6 sub-categories as "Sometimes performs below the level expected and in 2 of the sub-categories as "Performs consistently at the level expected". 5. Under the heading "Safe practice" the Appellant was assessed in all 3 of the sub-categories as "Performs consistently at the level expected". There were no additional comments. 6. Under the heading "Comments and future development plans" the further heading "Strengths" is set out with the following comment: "Good knowledge. Keen to progress RANZCP training pathway. Works hard. Has worked on MDT/team working well." 7. Under "Areas for development" the following has been written: "Continue to develop written English. Continue to work on communications with patients, families and teams." 8. The "Issues to be Addressed" and the "Actions/tasks to address issues" portion of the report states as follows: "English: Continue to address in supervision; Interactions with patients, teams and families: Continue to provide feedback and reflection; Exam Preparation: Fortnightly exam preparation". 9. Under "Recommendations" the following has been written. "Continue current Registrar role including academic preparation, ….. and feedback" 10. The Appellant was noted as suitable for ongoing registration and that there be no change in the supervision level.
47. The MBA counsel drew the attention of the Appellant to the areas of the report which were noted as "Sometimes performs below the level expected." The Appellant drew the attention of counsel and the Tribunal to the recommendation that the Appellant continue at Level 3 supervision.
48. The counsel for the MBA then took the Appellant to the "Mid-Roatation in Training Assessment" form which is set out at page 124 of 507 in exhibit R1. In that document we note the following: 1. The period to which the Assessment relates is said to be from 5 February 2018 to 29 April 2018. 2. Under the heading "Medical Expert" the Appellant is assessed in 3 of 9 sub-categories as "Sometimes exceeded expectations" and in in 4 as "Consistently exceeded expectations" and in 1 as "Unable to comment". 3. Under the heading "Communicator" the Appellant has been assessed in 4 of 5 sub-categories as "Sometimes Exceeded Expectations" and in 1 as "Consistently Exceeded the Expectations". 4. Under the heading "Collaborator" the Appellant has been assessed in all of the 4 sub-categories as "Consistently Exceeded Expectations". 5. Under the heading "Manager" the Appellant was assessed in all of the 6 sub-categories as "Sometimes exceeded the Expectations". 6. Under the heading "Health Advocate" the appellant was assessed as "Consistently Exceeded Expectations". 7. Under the heading "Scholar" the Appellant was assessed in all 3 sub-categories as "Consistently Exceeded Expectations". 8. Under the heading "Professional", the Appellant was assessed in 2 of 5 sub-categories as "Sometimes Exceeded as Expectations" and in 3 sub-categories as "Consistently Exceeded Expectations". 9. Under the heading "Trainees three areas of particular strength" the following is written: "Develops good rapport; Comprehensive Assessment; Good knowledge". The "Areas identified as needing further development" are noted as: "Keep working on Communication; Increase the pace; more interviewing and present patients".
49. In answer to questions about this Mid-Rotation Report, the Appellant said: "In mid-May rotation assessment she rated me excellent in all of the domains at that time."
50. The counsel for the MBA drew the Appellant's attention to the comments on page 130 of the exhibit which set out the "Areas identified as needing further development". The Appellant said: "Yes communication…it needs some polishing up."
51. In August 2018 the Appellant said he moved to a different establishment in the ACT which was a prison. The Appellant conceded he had difficulty transitioning to that new work environment. In relation to that period the Appellant was asked to look at the Work Performance Report at page 142 of 507 (exhibit R1).
52. Before reviewing the Work Performance Report for the August 2018 period we note there was a Work Performance Report for the period 1 May 2018 to 1 July 2018 as a Psychiatry Registrar at Canberra Hospital by Dr Tracy for the Appellant. The assessment was largely reported in the "Performs consistently at the level expected". The comments were supportive. An example is found under the "Additional comments" under the heading "Performance". There the following appears: "Dr Ghobashy has made significant progress in this area in the last few months. History taking is now at the level expected for a consultant as are physical examination skills, emergency management and discharge processes. He has improved in terms of clinical …and investigations but is not quite at consultant level…(indecipherable)..I expect that he will reach his competency." The report also contained a comment that the Appellant's Communication has improved including written English in medical records. It also stated there are only "very occasional issues identified". There was a recommendation that the Appellant continue at level 3 supervision.
53. The Report to which the Appellant's attention was taken by the counsel for the MBA commences at page 142 of 507 of exhibit R1. In that report we note the following: 1. The Work Performance Report is for the period 15 August 2018 to 15 November 2018. The position held by the Appellant was "Registrar Psychiatry". Dr Tracy is noted as Principal Supervisor. 2. Under the heading "Performance-Clinical Management" of the 7 sub-categories the assessment shows 1 as "Performs consistently below the level expected", 4 as "Sometimes performs below the level expected" and 2 at "Performs consistently at the level expected." Under the comments at the end of this "Clinical Management" assessment category, the following is hand-written: "Dr Ghobashy had made progress in his previous clinical setting, however he has moved to a different clinical setting since August and it has been difficult for him to carry the improvements to a new setting. He has been given clear feedback about issues and has a plan to work at those issues again." 3. Under the heading "Communication" the Appellant was assessed in 3 of the 5 sub-categories as "Sometimes performs below the level expected" and "Performs consistently at the level expected" in one sub-category. One of the sub-categories was marked "N/A". Under the comments the words "Please see previous comments' are written. 4. Under the heading "Professionalism" the Appellant is assessed in 5 of the 6 sub-categories as "Sometimes performs below the level expected" and in 1 only sub-category as "Performs consistently at the level expected." 5. Under the heading "Safe practice" the Appellant was assessed in all 3 sub-categories as "Performs consistently above the level expected." 6. Under the heading "Strengths" the following is set out: "Has very good knowledge base. Is keen to learn more and attends sessions and case conferences. Wants to pass examinations and is working on exam plan." 7. Under "Areas of development" the following is set out: "Working in multi-disciplinary team. Listening to and responding to feedback from MDT team members. Understanding team roles and utilising team appropriately. Clinical skills- Clear comprehensive assessments. Management planning." 8. Three "Issues" were identified. Those issues were noted as "Working MDT; Assessment skills; Management planning". The Recommendation noted is: "Continue current rotation with clear targeted plan to improve in above (indecipherable). I will review progress with clinical supervisor monthly." 9. The continued registration was recommended. Although the box "NO" was marked under the heading "Do you recommend a change to the IMG's level of supervision?" the next box titled "What level of supervision would you consider appropriate?" had "Level2" handwritten in it. It was signed by Dr Tracy on 20 November 2018.
54. The Appellant was cross-examined on the above report. He claimed he had been assessed as a "Junior Consultant" and that had accounted for the change in assessment outcomes. It was put that even if that is so, the Report was not a good one. The Appellant replied: "If you're going to want volumes it would be yes, but if you take it as a whole realistic approach for the reports of course it is not a big no". We didn't understand that answer.
55. The Appellant was asked to look at the Work Performance Report for the period 15 November 2018 to 01 February 2019. This report related to the position held by the Appellant at Canberra Hospital as a Registrar in Psychiatry. The Principal supervisor remained Dr Tracy. We noted the following from that report: 1. Under the heading "Performance-Clinical Management" the Appellant was assessed in 1 of the 7 sub-categories as "Performs consistently below the level expected". In 3 of the sub-categories he was assessed as "Sometimes performs below the level expected". In 3 of the sub-categories he was assessed as "Performs consistently at the level expected". 2. In the "comments" under the "Performance" assessment criteria the following is handwritten: "Dr Ghobashy continued to struggle in this clinical setting. His supervisor (RANZCP) Dr Wyeth has not passed him on this term as he felt he was not able to synthesise information obtained at an appropriate level (junior consultant) and that he did not action feedback given to him regarding his performance." 3. Under the Heading "Communication" the Appellant was assessed for 1 out of 5 sub-categories as "Performs consistently below the level expected"; 3 sub-categories as "Sometimes performs below the level expected"; 1 sub-category as Performs consistently at the level expected". In the "Comments" box the following is handwritten: "Feedback obtained from the clinical supervisor suggests that Dr Ghobashy struggled to work in the team and there were issues at times in communicating with patients. Notes are usually quite detailed but often lack clarity and specificity". 4. Under the heading "Professionalism" the Appellant was assessed in 5 of the 6 sub-categories as "Sometimes performs below the level expected" and in 1 sub-category as "Performas consistently at the level expected". 5. In the "Safe Practice" category 2 of the 3 sub-categories are assessed as "Performs consistently at the level expected". One sub-category is assessed as "Sometimes performs below the level expected." 6. The "Strengths" of the Appellant were noted as "Is knowledgeable and keen to learn. Attends training and exam preparation. Is enthusiastic about completing training." 7. Under the heading "Areas for Development" the following is written: "Accepting and actioning feedback. Working in teams, listening to others, understanding roles and limits of practice of others. Conducting clear, practised, (indecipherable) assessment and management plan". 8. Under the heading of "Issues" the following are noted: "Working in MDT"; Assessment skills; Management planning." It was further noted by Dr Tracy that Dr Ghobashy did not have an ongoing contract with Canberra Hospital. 9. Under the heading "What level of Supervision would you consider Appropriate?" Dr Tracy has written: "Requires level 2 supervision and ongoing feedback regarding performance in a range of clinical settings".
56. The Appellant was questioned about the abovementioned report. It was put to the Appellant that he had been assessed as failing the rotation as a junior consultant. After some submission made by the Appellant, referring to some of the areas where he had been assessed as at the level expected, he conceded the point however, he argued he had been assessed at the wrong level and that AHPRA had recognised that.
57. The Appellant was asked to look at the Board's decision in 2018 about the Appellant's continued limited registration. He was taken to page 191 of 475 of exhibit A1. That document is a "Decisions and Actions" document under the letterhead of Medical Board of Australia AHPRA. It records the decision made in a meeting held on 1 August 2018 in the ACT. It addressed matters relating to the Appellant. We note in particular the following: 1. In the reports received there were areas of underperformance noted since registration initially granted on 25 March 2014. 2. Decided to increase supervision level from Level 3 to Level 2. 3. Agreed to require WPR's at one-month levels. Reports to address Communication Skills, Working with Multidisciplinary teams and clinical skills assessments and management. 4. The Board was sufficiently concerned by the practitioners continued underperformance particularly as he commenced practise in Australia in 2014. 5. Although Dr Tracy had not recommended an increase in Supervision level to Level 2 the Board considered it was reasonable to increase the level to give support to the Practitioner.
58. It was put to the Appellant that the above report does not indicate a continued level of "excellent performance" between 2014 and 2018 as asserted by the Appellant in his case. The Appellant denied that assertion. He said the decision was made before the Board received his July 2018 report which was not received by it until 15 August and the Appellant said that report was excellent.
59. It was put to the Appellant that notwithstanding his last answer, Dr Tracy had not recommended in her next report that his level of supervision should be level 3 not level 2. The Appellant said the reason she did not make that recommendation was because she had assessed him at Junior Consultant level which was a mistake on her part. In support of that assertion the Appellant referred to page 195 of 475 exhibit A1 which is part of the report of the MBA dated 13 February 2019. That document confirmed that the report from Dr Tracy for the May to July 2018 period had not been received until 15 August 2018. Further it confirmed Dr Tracy had assessed the Appellant during that period as a junior consultant rather than as a registrar.
60. The Appellant was asked if the ACT Health authority had offered him an ongoing contract when his existing contract expired in February 2019. The Appellant said he had already decided to move to Northern NSW in December 2018 and although the ACT Health did offer to renew his contract he had decided to move on. He did not apply to the ACT Health to have them renew his contract. Although his contract with ACT Health had expired in February 2019, he did not commence employment at Lismore Base Hospital until August that year.
61. The Appellant was next asked to look at the Work Performance Report for the first rotation at Lismore Base Hospital. The document containing the report is found at Page 74 of 475 in Exhibit A1. In relation to that report we note the following: 1. The Report period is 12 August 2019 to 1 October 2019. The position held was Psychiatry Registrar. The Principal supervisor is Dr Wims. 2. The assessment was of the Appellant who was at Level 2 supervision. 3. Under the Category "Clinical Management" the Appellant was assessed in 6 sub-categories as "Performs consistently at the level expected". The Additional comment of the supervisor is "Performing at the level expected of a senior Registrar". 4. Under the heading "Communication" the Appellant was assessed in each of 4 sub-categories as "Performing consistently at the level expected." 5. Under the heading of "Professionalism" the Appellant was assessed in 3 of 6 sub-categories as "Performs consistently at the level expected." He was assessed in 2 sub-categories as "Sometimes performs below the level expected" and in 1 sub-category as "Performs consistently above the level expected". The additional comment under that heading includes the following: "I suspect because of previous level of seniority Dr Ghobashy can sometimes find his level of supervision restrictive and may get in the way of recognising limitations and seeking advice. This is sometimes identified by all parties and is being proactively addressed." 6. Under the heading "Safe Practice" the Appellant was assessed as either Performing consistently at or above the level expected. 7. The Appellant's strengths were noted as: "Commitment to Psychiatry. Commitment to CPD and learning." His "Areas for Development" were noted as: "Seeking appropriate support and seeking advice."
62. The MBA put to the Appellant that the report indicates a lack of insight into his own limitations as a practitioner. He denied that. It was put that the failure to appreciate his own limitations as a practitioner was the subject of a number of the earlier reports which had been prepared in relation to the Appellant's work performance. The Appellant denied that. It was put that a lack of ability to recognize his own limitations demonstrated a lack of insight. The Appellant also denied that.
63. The Appellant agreed that once he had been downgraded by the MBA in terms of supervision from level 3 to Level 2 (in 2018) he remained at that level for the remainder of his time working at Lismore. He said he had not applied for an upgrade to Level 3. The Appellant said that Dr Williams had told him he would change the supervision level to Level 3 at a later time, however Dr Williams had left the service.
64. It was put that after Dr Williams left his new supervisor could have recommended a change. The Appellant said that after January 2020 he was without any supervision sessions. In January 2020 the Appellant said he underwent an OCA exam with Dr Wardell and then did not have any supervision session with Dr Wardell thereafter. The Appellant said he did not receive any form of apparent supervision from January 2020 when Dr Williams left the Lismore Base Hospital.
65. It was put that the Appellant had claimed Dr Wardell gave him a "good assessment report" at the end of the first rotation in Lismore and that was for the period of August 2019 to February 2020. The Appellant said that Dr Wardell had little to do with him during that period apart from conducting the OCA exam. He said that Dr Wardell had asked Dr Freeman and Dr Cowley to do the face-to-face supervision of the Appellant. The consequence inferred was that Dr Wardell had relied upon the reports of those two psychiatrists to complete the Work Performance Report for that period of time.
66. It was put to the Appellant that on a number of occasions he had told the Tribunal he regarded the report Dr Wardell had given him for the Rotation ending in January/February 2020, as "very good". The Appellant agreed he had however, he pointed out that the report would still have identified strengths and weaknesses. He directed our attention though to his assertion that the report shows he passed the rotation.
67. The Report identified for the August 2019 to February 2020 rotation is set out at page 82 of 475 (Exhibit A1) to 89 of 475. We pause here to take note of the following in that report. 1. The document is titled "Stage 3 Generalist: end-of-rotation In-training Assessment (ITA)." 2. The document contains a "Trainee Statement" which has been signed by the Appellant and by Dr Wims as "Principal Supervisor". The trainee statement states a series of facts which include the following:

• "During the Rotation there has been a clear line of responsibility to a consultant."
• "During this rotation I have received at least 4 hours of clinical supervision per week of which 1 hour per week was individual supervision". 1. The form contains a block which reports on "Learning Outcomes". Under the sub-heading "Medical Expert" there are 9 categories to be marked. In relation to those categories the Appellant was assessed as "Almost always met" in 2 (these were for Management and Formulation); "Sometimes exceeded" in 4; "Consistently Exceeded" in 1 and "Unable to comment" in 1. 2. Under the heading "Communication" the Appellant was assessed in 3 of 5 categories as "Almost always met" and in 2 as "Sometimes exceeded". The 3 areas of "Almost always met" fell under the headings of "Communication with patients and Families"; Communication with colleagues, services and agencies," and "Cultural Diversity." 3. Under the heading of "Collaborator" the Appellant was assessed as "Almost always met" (Collaboration with team members, colleagues and Health Professionals; and, "Collaboration with Patients".). In 2 categories he was assessed as "Unable to comment". 4. Under the heading "Manager" the Appellant was assessed in 3 assessed categories as "Almost always met". Those were: "Clinical Governance", "Clinical Leadership", and "Management and Administration". In 1 category "Resource Prioritisation" he was assessed as "Inconsistently met". 5. Under the headings of "Health Advocate", "Scholar" and "Professional" the Appellant was assessed in all sub-categories as "Sometimes exceeded". 6. Under the "Feedback" heading the Appellant's strengths were noted as: "Excellent assessment of skills. Very good understanding of physical health issues, particularly neurology." The Three areas noted as needing further development were "Time management. Needs to stop trying for a perfect outcome." 7. The document is concluded with a page titled "Principal Supervisor Report - Final Summative Assessment". It is signed by Dr Wardell and dated 16 January 2020. It is also signed by Dr Pethebridge as "Director of Training". It shows the Appellant was assessed as a "Pass Grade" assessed as "Almost always met the overall standard required"

1. In relation to the above document the counsel for the MBA suggested it represented "just a pass" rather than an excellent result. The Appellant said, "A pass is a pass".
2. The Appellant said he wanted the Tribunal to see the report of the OCA in which he participated in December 2018 (sic) (actually December 2019) and which was conducted by Dr Wardell. We turn to that document which is contained on page 90 of 475 (exhibit A1) and following. We note the following from that document: 1. Under the heading "Mandatory Feedback" Dr Wardell has written that the following aspects were done well: "Good history taking process; Good relevant physical assessment; Good rapport building." 2. Under the heading "Suggestions for Improvement" Dr Wardell has written: "Needs to learn to summarise findings - not good at highlighting pertinent details". 3. Under the heading "Agreed actions/goals" Dr Wardell has written: "To practise summarising cases." 4. On page 91of the document is a box with 6 areas for assessment. In the 5 of the 6 the Appellant was assessed as "Meets standard for end of stage". There was a grading within that criteria of "Meets standard for end of stage" with 3 choices numbered 4, 5 and 6. The higher the number the better the result. 3 gradings were at level 6 and 2 at level 4. There was also 1 assessment of "Physical examination skills which achieved the highest assessment mark of 9 which was under the heading "Above standard for end of stage". 5. The report is dated and signed by Dr Wardell and the Appellant on 12 December 2019. 6. On page 92 of 475 the Case Based assessment of the Appellant continues by assessing his performance in a different aspect of Psychiatric health. It deals with Psychiatry of old age. This involves assessing the Appellant presenting the case of a 73 year old male patient with a history of Alcohol Use Disorder. Dr Wardell noted the following as "Done well": "Documentation on EMR. Formulation appropriately sophisticated." Under the heading "Suggestions for improvement" Dr Wardell has written: "Nothing Obvious". Under the heading "Agreed Actions/goals" Dr Wardell has written: "Continued involvement in team discussions and handovers." 7. In the area required to be completed for assessment of the Appellant's performance, there are 9 categories. In 5 he has been assessed as "Meets standard for end of stage". In 4 he has been assessed as "Above standard for end of stage". 8. The document is then signed by the Appellant (12/12/2019), Dr Freeman (12/12/2019) and Dr Wardell (20/1/2020).
3. The next part of the "Case-Based Discussion Assessment" for the Appellant was in relation to "Older adult psychopharmacology." We note the following from that part of the assessment. 1. Under the Feedback heading Dr Wardell had noted as "well done": "Comprehensive appreciation of a very complex case with multiple physiological influences". There was no obvious "Suggestions for Improvement". Agreed actions were noted as: "Continue his obvious passion with metabolic aspects of mental life." 2. The assessment categories numbered 9 of which the Appellant was marked as "Meets standard for end stage" in 4 and was "Above standard for end stage" in 5. 3. The form is signed by the Appellant (12/12/2019), Dr Freeman (12/12/2019) and Dr Wardell (20/1/2020).

The evidence of Christine McKeay

1. The evidence of Christine McKeay is contained in her affidavit affirmed 15 June 2022. Ms McKeay is employed by AHPRA as National Manager of the International Stream in the department of Registration. She has been in that role since May 2021. Prior to holding that position, Ms McKeay she was employed in AHPRA as Senior Regulatory Advisor, Registration (International).
2. In her current position with AHPRA Ms McKeay has access to the records kept by AHPRA. She provided her affidavit based upon her access to the records of AHPRA and her experience in assessing and overseeing the assessment of applications for registration made by IMG's under the National Law.
3. We have noted in particular the following evidence provided in the affidavit of Ms McKeay. 1. AHPRA is the agency which supports the National Boards to implement the National Scheme (the National registration and accreditation for health practitioners). 2. The MBA is a National Board established by s.31 of the National Law. Its functions are set out at section 35. 3. Ms McKeay set out the provisions of sections 65 and 66 of the National Law and reminded us of the provisions of section 72 which "provides for the period of limited registration of health practitioners. That section provides, relevantly, that: a. the period of registration that is to apply to a health practitioner granted limited registration in a health profession is the registration period, not more than 12 months, decided by the National Board for the profession and published on the Board's website; and b. limited registration may not be renewed more than three times." 4. In order to be eligible for limited registration an applicant must, in addition to meeting the eligibility requirements prescribed by paragraphs 65(1)(a)-(d) of the National Law, meet any other requirements for registration stated in the registration standards approved by the Ministerial Council: (paragraph 65(1)(e) of the National Law). The Board must decide to refuse an applicant registration if the applicant is ineligible for registration because the applicant does not meet a requirement for registration stated in an approved registration standard:(subparagraph 82(1)(c)(i)(E) of the National Law). However, without limiting the operation of subsection 65(1), the Board may decide that the applicant is eligible for registration by imposing conditions on their registration: (subsection 65(2) of the National Law). 5. Ms McKeay annexed to her affidavit a document titled "Fact Sheet". This is a document published by the MBA and provides information on how international medical graduates (IMG's) can demonstrate satisfactory progress towards attaining gereral or specialist registration. Of particular note in this case Ms McKeay provided the following extract in her affidavit: "a. both the standard pathway and the specialist pathway include key milestones that must be achieved in order for IMGs to attain general or specialist registration; b. on renewal of each limited registration, the Board will require IMGs to provide evidence of satisfactory progress towards achieving the key milestones; c. IMGs who wish to practise in Australia beyond four years are expected to attain the qualifications for general or specialist registration within four years of limited registration; d. if an IMG has exhausted the number of renewals permitted under the National Law and they have not been granted general or specialist registration, they can make a new application for limited registration; e. new applications for limited registration will be subject to the Board's registration standards in place at the time. IMGs who hold limited registration for postgraduate training or supervised practice on the specialist recognition pathway are subject to the milestone requirements set out on the final page of the Fact Sheet." 1. Ms McKeay attached to her affidavit a copy of the Board's Registration standard: specialist registration dated 15 February 2018 (Specialist Registration Standard) and also the Limited Registration Standard pathway to attaining general registration. 2. Of particular note from the Specialist Pathway is the provision that "any examination and/or assessment of a specialist IMG will be conducted by the relevant specialist medical college accredited by the AMC. 3. Ms McKay attached to her affidavit a copy of the Board's "Guidelines: Supervised Practice for international medical graduates" dated 2 January 2016. That document detailed the different levels of supervision which we set out later in these reasons. 4. Ms McKeay set out the history of the Appellant's practice in Australia as contained in the records of AHPRA. There is no issue about that history commencing with his first grant of limited registration for postgraduate training or supervised practice on the specialist recognition pathway on 25 March 2014. There was a new application for that registration which was granted on 15 August 2016. She set out that: "Dr Ghobashy's registration for postgraduate training or supervised practice on the specialist recognition pathway was renewed for the third and final time on 1 February 2020. That renewal was granted subject to the following conditions: a. Dr Ghobashy was required to provide evidence of progress towards qualifying for either general or specialist registration. b. Dr Ghobashy was permitted to practise only with the support of the Royal Australian and New Zealand College of Psychiatrists (RANZCP). Dr Ghobashy most recently held limited registration for postgraduate training or supervised practice on the specialist recognition pathway until 14 August 2020. He most recently practised as a psychiatry registrar at the Northern NSW Local Health District (NNSWLHD). His comparability assessment with the RANZCP expired on 31 January 2020. 5. Ms McKeay attached copies of the following documents to her affidavit: (i) WRIG-30 report completed 15 November 2016; (ii) WRIG-30 report completed 24 February 2017. (iii) WRIG-30 report completed 16 June 2017. (iv) WRIG-30 report completed27 February 2018. (v) WRIG-30 report completed 1 May 2018. (vi) WRIG-30 report completed 1 July 2018. (vii) WRIG-30 report completed 15 November 2018. (viii) WRIG-30 report completed 1 February 2019. (ix) WRIG-30 report completed 1 October 2019. (x) WRIG-30 report completed 20 May 2020. (xi) WRIG-30 report completed 16 June 2020. 1. Under the heading "Other performance issues" Ms McKeay included the following: Other performance issues On 14 September 2019, Dr Ghobashy completed the Objective Structured Clinical Examination (OSCE), a practical clinical exam organised by the RANZCP. Dr Ghobashy was unsuccessful in completing the OSCE. Exhibited hereto and marked CAM-16" is a copy of Dr Ghobashy's OSCE results and a letter from the RANZCP. By letter dated 11 May 2020, NNSWLHD advised Dr Ghobashy that his employment with NNSWLHD would not be extended or renewed. Exhibited hereto and marked "CAM-17" is a copy of the letter from NNSWLHD to Dr Ghobashy, dated 11 May 2020. On 13 May 2020, the RANZCP advised Ahpra in writing that while Dr Ghobashy remained on the partial comparability pathway with the RANZCP, his position on that pathway was currently under consideration or review by the RANZCP. Exhibited hereto and marked "CAM-18" is a copy of the letter from the RANZCP to Ahpra, dated 13 May 2020. On 4 February 2022, the RANZCP advised Ahpra in writing that Dr Ghobashy was excluded from the RANZCP specialist pathway in October 2019, and since then had not progressed on the RANZCP specialist pathway. Exhibited hereto and marked "CAM-19" is a copy of the letter from the RANZCP, dated 4 February 2022. 1. Ms McKeay set out detail of the Appellant's application for limited registration currently under consideration in this appeal. Included in a list of documents, then annexed to her affidavit, is an undated letter from Armadale Kalamunda Group, confirming the offer of the Armadale position, and providing details of the proposed training program for Dr Ghobashy; A certificate of Dr Ghobashy's performance in the Australian Medical Council CAT-MCQ examination, dated 20 November 2020; Supervised practice plan and supervisor's agreement, dated 5 July 2021; Department of Home Affairs confirmation of grant of Dr Ghobashy's Temporary Work (Skilled) (subclass 457) visa dated 22 September 2018. 2. Ms McKeay also included a letter from the Appellant to AHPRA seeking to amend his application to reflect a new offer as a Career Medical Officer - Psychiatry at Bloomfield Hospital, Orange, with the Western NSW Local Health District. A letter from Bloomfield dated 9 August 2021 was also provided to AHPRA. That application is for a position which is to be supervised at Level 3. 3. On 23 September 2021 the WNSWLHD advised AHPRA that the offer of employment at Bloomfield, Orange had been withdrawn. 4. On 28 September 2021 Armadale Kalamunda Group wrote to AHPRA to confirm that the offer of employment remains open to Dr Ghobashy. 5. On 25 March 2022 the MBA decided to refuse the Appellant's application for Limited Registration on the General Pathway and advised him of the decision by letter dated 31 March 2022.

Oral evidence of Ms Christine Alison McKeay

1. Ms McKeay was asked to identify a results report from the AMC exam which the Appellant sat in April 2022. The report was marked as exhibit R3. The report shows that the Appellant passed only 4 of 14 stations which Ms McKeay said was an overall fail of the AMC exam.
2. Ms McKeay was asked about a WRIG-30 signed off by Dr Tracy for the period 15 November 2018 to 1 February 2019. This is the WRIG-30 which the Appellant said reflected his being assessed at the incorrect level, namely as a junior consultant and not as a Registrar. Ms McKeay said that correspondence had been entered into with Dr Tracy about that matter and she said: "I was able to have a look through our database on or around that date and I was able to find an email from Dr Tracy to one of our registration officers at the time confirming that the report assessed him as a registrar. But, in fact, he was concluding his training and they, they typically would've assessed that as a junior consultant, in which case he would've failed that rotation as a junior consultant. But they were being a bit more general in the report because they had employed him as a registrar and therefore they assessed him as a registrar." Ms McKeay identified an email in the records of AHPRA which was marked as exhibit R4.
3. We have inspected the email marked as exhibit R4 and note that it is an email from Dr Tracy to Joel Temple at AHPRA. It states that in relation to the completed WRIG-30 for the Appellant for the period November 2018 to February 2019: "The standard for training is at the end of the stage of training, so for him the standard on his training form is of junior consultant although he was employed as a registrar. He did not meet the standard for junior consultant and has failed the rotation, however, I have tried to complete the WRIG-30 for him as a registrar so there is a slight difference between the two levels. Canberra Hospital and Health Service did not offer him ongoing employment and so he is not working as a doctor with our service from 4 February 2019."

Ms McKeay was cross-examined by the Appellant.

1. The Appellant had difficulty in framing questions for this witness. In answer to one of the questions asked by the Tribunal Ms McKeay stated: "So the National Law outlines that we can only grant renewal three times per limited registration, so they can have four years of registration. So there are different standards to renew versus for a new application. But this application that was refused was a new application for limited registration, so he had expired his previous renewals."
2. The Appellant asked Ms McKeay why she had not included in her affidavit any of the Work Performance Reports in relation to his employment prior to August 2016. There was an objection to the question however, it was conceded by the counsel for the MBA that prior to August 2016 there was no evidence of performance issues identified in relation to the Appellant.
3. Ms McKeay explained that when giving her evidence, the words "the Board" which she used was a reference to the NSW or ACT State Board of the Medical Board of Australia.
4. The Appellant sought to have Ms McKeay answer why the MBA had set his level of supervision at Level 2 when his supervisor Dr Tracy had recommended Level 3. He was informed the decision of the MBA is found at page 192 of 475 of exhibit A1. We pause here to consider the content of that document. We note the following: 1. The reason for adjusting the level of supervision in the meeting on 1 August 2018 included: "The practitioners previous and current registration history; WRP dated from 16 November 2016 to 1 May 2018; Mid-rotation in-training assessment reports from RANZCP; Statement from principal supervisor, Dr Tracy, addressing unsatisfactory reports." 2. "The Board noted that the practitioner commenced practice in Australia in 2014. The Board is sufficiently concerned by the practitioner's continued underperformance in light of the RANZCP specialist assessment considering that the practitioner commenced practice in Australia in 2014." 3. "In the Board's view, the increased supervision requirements are reasonable and appropriate when considering that the practitioner has not made satisfactory progression in his performance and the high number of areas of underperformance still identified in the latest work performance report." 4. The Board acknowledged that Dr Tracy had recommended that the Appellant continue at Level 3 supervision, however, it concluded that it was necessary to set the level of supervision at Level 2 for at least a three month period.
5. Ms McKeay said that the Appellant has met the minimum requirements for the Standard Pathway which he has now applied for.
6. The witness was asked a number of questions about whether there were any conditions attached to the Limited Registration which the Appellant has held. Ms McKeay stated that all Limited Registration holders are subject to conditions.
7. A copy of the Certificate of Registration issued by the MBA for the period 15 August 2018 to 14 August 2019 was tendered and marked as exhibit R5. That showed there were "Nil Conditions".
8. The Appellant was concerned that a document which set out the scores he had achieved in the OSCE in 2019 had been altered to show only the stations he had failed. It appeared to us that the copy of the document, which was attached to the affidavit of Ms McKeay, had been corrupted in the process of attempting to include it in the affidavit. In any event an uncorrupted copy of the document was provided by the Respondent. The Appellant then sought to argue that the score he did achieve (255.5 out of 550) was very close to a pass. The "OSCE cut score" was 275. The Appellant sought to have that result accepted as "Close to a pass".
9. The oral evidence of Dr Wardell was interposed. Dr Wardell had affirmed an affidavit 14 June 2022. That affidavit is contained in Exhibit R1 at page 1 behind Tab 2. In his oral evidence Dr Wardell made some alterations/changes to the body of that document during his evidence-in-chief.
10. We noted the following evidence contained in the affidavit of Dr Wardell. 1. Dr Wardell worked with the Appellant at both St Vincent's Hospital in Melbourne and at Lismore Base Hospital. 2. The Appellant was supervised by Dr Wardell for the entire period he was employed by NNSWLHD. Dr Wardell was the acting Clinical Director of Richmond-Clarence Mental Services during that period. 3. Dr Wardell described his usual form of supervision for the Appellant between August 2019, when the Appellant commenced working at Lismore Hospital, until February 2020. During that period the Appellant was working in the Acute Care Emergency Department. Dr Wardell held informal meetings with the Appellant, when required, usually 2 or 3 times each week. The Appellant would present the details of patients to Dr Wardell. There were also formal meetings once a week. In those meetings the Appellant would present cases including management plans. 4. Although the Appellant had been employed as requiring supervision at Level 2 Dr Wardell said he had applied a "hands off" supervision style because the Appellant had been working in Australia for several years. Dr Wardell did not generally observe the Appellant working with patients. He had found the way in which the Appellant presented cases to him in his meetings was generally routine and sensible. 5. Between about February (corrected to March in oral evidence) 2020 and June 2020 the Appellant was working in the acute adult inpatient unit at Lismore Base Hospital. In that setting the Appellant, when working with patients, was generally accompanied by other medical staff. In that setting Dr Wardell received a higher level of feedback about the performance of the Appellant. 6. Within the first two weeks of the Appellant starting to work on the wards Dr Wardell was receiving emails from two consultant psychiatrists regarding the Appellant's performance. Dr Wardell spoke to those two consultants and then devoted a greater level of attention and supervision to the Appellant's performance. 7. With the closer level of supervision Dr Wardell personally observed (some performance) and had some matters reported to him by Hospital staff and Consultants, the following deficits in the Appellant's performance. (i) He took an extended period of time to conduct an initial assessment. (ii) The Appellant would fail to identify important aspects of cases, would easily become distracted by small and unimportant details, and would focus heavily and unduly on neurological issues. This resulted in the Appellant often reaching incorrect conclusions and diagnoses. (iii) The Appellant would order scans, including CT and MRI scans, where it was unnecessary or surplus to requirements. (iv) The Appellant was extremely unreceptive to any form of coaching, feedback or advice. (v) The Appellant was extremely difficult to work with, being frequently argumentative, and always insisting that he was correct. 8. On one occasion Dr Wardell asked the Appellant to present a case to him. Dr Wardell provided him with feedback which was critical of the presentation. Dr Wardell said: "The Appellant, in response, disagreed with my feedback, rejected my suggestions, and flatly refused that he needed to be more succinct." 9. Other consultants made specific complaints about the Appellant to Dr Wardell. There was an investigation carried out by NNSWLHD in relation to which Dr Wardell was not involved. 10. Dr Wardell expressed an opinion that the conduct of the Appellant as observed by him and other consultants and medical staff "meant that the Appellant is unsafe practice as a psychiatrist." Dr Wardell said the Appellant did not acknowledge the seriousness of the issues identified with him and appeared to be unable to learn from those issues and feedback provided to him. 11. Dr Wardell set out the circumstances of his completing the WRIG-30 for the Appellant in about 20 May 2020. The document is annexed to the affidavit of Dr Wardell. It highlights very significant performance issues with the Appellant. Dr Wardell met with the Appellant to discuss the document. The Appellant became angry and refused to sign the document as is the usual course with a supervised IMG. 12. Dr Wardell prepared and updated WRIG-30 at the request of the Director of Metal Health and Alcohol and Other Drugs Services. That WRIG-30 was dated 16 June 2020 and is annexed to the affidavit of Dr Wardell. In the later WRIG-30 Dr Wardell expanded on the issues he had identified in the performance of the Appellant which were significantly greater than he had realised at the time of preparing the earlier WRIG-30. 13. Prior to providing the second WRIG-30 report to AHPRA Dr Wardell met with the Appellant to discuss it. At that time the Service Manager of the Hospital, Ms McDougall, was also present. Dr Wardell informed the Appellant that he was not performing at a safe level. The Appellant was very upset and angry regarding that statement and the content of the WRIG-30. The appellant said to Dr Wardell: "Why are you doing this to me?" 14. Dr Wardell advised the Appellant that he had decided to update the first WRIG-30 because he believed the Appellant was not suitable for ongoing registration.
11. In his oral evidence we noted the following evidence in particular. 1. Dr Wardell explained that he had to prepare the affidavit whilst he was on holidays in Melbourne and did not have access to all his records. He corrected some dates and other detail in the affidavit. 2. He was able to provide a copy of his electronic calendar for 4 May 2020. It recorded a meeting which he said he attended on 4 May 2020. That meeting he said was attended by both the Appellant and Ms McDougall. It was at that meeting that the Appellant's contract was discussed with him. 3. Dr Wardell produced another screenshot of his diary which related to a meeting on 28 May 2020. He said it was a meeting with the Appellant and Ms McDougall. That document was marked as exhibit R7. The screen shot of the diary page for 4 May 2020 was marked earlier as exhibit R6. A further copy was marked exhibit R8. 4. Dr Wardell said he was not sure when each of the conversations took place with the Appellant at the meetings held with the Appellant and with Ms McDougall in May 2020. That is, whether it was at the first or the 2nd meeting that the extension of the Appellant's contract occurred. He was sure he had discussed with the Appellant his work performance at the 2nd meeting in May. 5. Dr Wardell retracted the evidence he had set out in paragraphs 36, 37 and 38 of his affidavit. In relation to paragraphs 37 and 38 he said he thought he had conflated in his mind the conversations he had on 28 May 2020. 6. In relation to the suggested level of supervision to be Level 1 for the Appellant, as advised to the Appellant in the meeting held on 28 May 2020, Dr Wardell said that would require another practitioner to be with the Appellant at all times and he would not be able to participate in an "on call" roster. 7. Dr Wardell agreed that the Appellant's result from the OSCE exam were discussed with him at the meeting on 28 May 2020. He said he had asked the Appellant if he had passed the exam. It was the appellant's fourth attempt and the College would not permit more than four attempts. The College did not release the results for a long time. It took quite some time in that meeting for the Appellant to inform that he had failed the OSCE by what he said was a small margin. 8. The Appellant was suspended from his position at Lismore Base Hospital by the administration. Dr Wardell said he had no part in that determination.
12. Dr Wardell was cross-examined by the Appellant. In that cross-examination we noted the following evidence in particular. 1. Dr Wardell was asked about the emails he said he commenced receiving from consultant psychiatrists working with the Appellant, as set out in paragraph 15 of his affidavit. He said he believed it was March 2020 when he received those emails however, he did not have the emails available to check the date. He also said he spoke to Dr Duke, a consultant psychiatrist who had worked with the Appellant, who provided him with information. 2. Dr Wardell had not received any complaint about the Appellant between September 2019 and March 2020 whilst he had worked in the emergency department of the hospital. 3. Following receipt of the email complaints about the Appellant, Dr Wardell said he had kept a closer eye on the Appellant's work. When asked why he did not have any discussions with the Appellant, Dr Wardell said he was the AHPRA supervisor for the Appellant and not his day-to-day supervisor. That was Dr Butler. 4. Dr Wardell was asked why he did not meet with the appellant during the supervision. He responded: "It is not my usual practice unless it was a serious matter that needed to be discussed with yourself. I felt that you needed further monitoring until you settled into the ward." Dr Wardell said he was not providing weekly supervision for the Appellant by March 2020. He said the meetings on 4 May 2020 and 28 May 2020 were supervision meetings as was the meeting on 5 June 2020. 5. Dr Wardell said that during the period between March 2020 and June 2020 it was a period of COVID and practitioners were being sent home. It was the expectation that the consultant with whom the Appellant was working, on the ward, would give supervision once a week. 6. Dr Wardell agreed he had passed the Appellant in the first rotation at Lismore Base Hospital. He also agreed he had rated the Appellant as good in the OSCE he conducted. When asked to explain the change in opinion held by Dr Wardell as to the Appellant's performance, he said: "When you were working in the outpatients you presented cases well." Although he had made comments in relation to the first rotation, he said that because of the other work the Appellant was doing, he did not consider it was of sufficient seriousness to prevent the Appellant being noted as: "passing the rotation". It was the reports which were being received, by Dr Wardell, after that period of time, which raised his concern. 7. Dr Wardell was asked about the content of paragraph 17 of his affidavit, which related to his observing the Appellant present a patient. He agreed that this was the only case presentation that he had observed with the Appellant and that he had not failed the Appellant on that presentation. He said with the benefit of hindsight he should have failed him. 8. The Appellant asked why Dr Wardell had changed his evaluation of the communication performance of the Appellant between that reported for 2019 and that reported in 2020. He said that in the May sessions, there were two communications which were not able to be understood. There were contradictory statements. There was also significant feedback from other consultants about the poor communication capabilities of the Appellant. 9. Dr Wardell was asked about paragraph 28 of his affidavit. He said that paragraph 28(b) related to admitting patients onto the ward. It was brought to his attention by staff. There was a lack of documentation which was said to be of concern. 10. Dr Wardell was asked about an apparent contradiction between the complaint of Dr Wardell that the Appellant was not accepting of advice and feedback and that set out in the end of rotation ITA for the 2019 period where it was rated as: "sometimes exceeded expectation". Dr Wardell said that was the circumstance at that date. 11. The Appellant asked Dr Wardell about the assessment of his physical examination technique when he was working on the Acute Crisis Team. The Appellant said: "Those are patients which required me to perform a physical examination". Dr Wardell replied: "That is not correct. In the Acute Crisis Team work it would not be standard to undertake a thorough physical examination of patients. It is seldom necessary." 12. In relation to Level 1 supervision, Dr Wardell said that for the last three months of the Appellant's work in the hospital he was under Level 1 supervision by the hospital. The staff were making reports about the Appellant's performance to Dr Wardell. 13. (We note what Level 1 supervision entails (see what is set out in detail hereafter) and that any concerns about the performance of the Appellant, whilst he was under Level 1 supervision would become very apparent. Level 1 is the highest level of supervision which can be provided) 14. Dr Wardell was asked by the Appellant: "If a consultant reported I was risky to patients why did you not formally require one on one supervision?" Dr Wardell responded: "Because we decided you would not see patients alone and there was no need to put a formal documentation about that supervision because if the issue resolved quickly then there would not be a bad comment about you." 15. It was put by the Appellant that Dr Wardell had stopped him working on 5 June 2020. Dr Wardell said that was not his doing but the Hospital's decision given there was an investigation underway. 16. Dr Wardell was asked about his statement that he could not recognise any strengths when completing the final WRIG-30 for the Appellant in June 2020. Dr Wardell said: "Given the large number of deficits I had been informed of and noticed, the lack of your ability to learn from errors, your lack of self-awareness of need to change, that was the reason I assessed no strengths. Clearly you have strengths but at the time they were not apparent." 17. Dr Wardell agreed he had relied upon reports in relation to the Appellant's performance. 18. Dr Wardell was asked why he had changed his opinion in relation to the performance of the Appellant in the space of three weeks. He said: "There was additional and documented information about you. They held the opinion that you should not be registered." 19. Dr Wardell, in a response to a question, agreed he had not sent a copy of the first WRIG-30 for the Appellant to him. He said that was because the Appellant had refused to sign it. He did not show the second WRIG-30 to the Appellant because at that time he had been suspended. He would normally have sent a copy of the document to the Appellant after he had signed the document. Dr Wardell said he had not contacted Dr Petherbridge about the Appellant's performance. 20. Dr Wardell was asked whether before 21 May 2020 ,was there any documented complaint about the Appellant. Dr Wardell said there was. He said there were a number of emails which set out those complaints. Those emails are not now available to Dr Wardell as he has changed health districts. Dr Wardell said in relation to the decision that the Appellant needed one on one supervision on the ward, he had advised the consultants orally of that decision.
13. At the conclusion of the oral evidence, each of the parties did provide some oral submissions, however, there was insufficient time for the parties to be able to complete their submissions. In fairness to the parties, we provided each with an opportunity to provide written submissions. We address below the written submissions of the parties.

The Final Submission of the Respondent

1. As directed the Respondent provided a written submission following the conclusion of the hearing of oral evidence before us. The Respondent encapsulated its position concisely in that submission in the following words: "The Respondent did not decide that the Appellant was unfit to practise the profession under any level of supervision. Rather, it made its decision to refuse the application for limited registration based on the specific position for which the Appellant applied, and so to now must the Tribunal, who stands in the shoes of the Respondent. The Respondent considered that the Appellant had failed to demonstrate that he could practise the profession competently and safely and even with direct supervision had failed to demonstrate that his practice is at a minimum at the level expected of a Psychiatry Registrar, which is the position for which he seeks registration. The Respondent suggested that the Appellant may wish to apply for a lower position, with a higher level of supervision."
2. The Appellant in this matter is unrepresented. The Respondent appears as a model litigant and in that capacity provided the following outline of the applicable legislation for the benefit of both the Tribunal and the Appellant. "LEGISLATIVE SCHEME 1. The legislative scheme that governs the Current Application and forms the background to these proceedings is set out in detail in the Respondent's opening written submissions. [1] As stated in those submissions, two of the stated objectives of the National Scheme are: a. 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; [2] and b. to facilitate the rigorous and responsive assessment of overseas trained health practitioners. [3] 2. The Tribunal's jurisdiction, having regard in particular to the above-mentioned objectives, is protective. These objectives must be at the heart of the Tribunal's consideration of this appeal. Limited registration 1. The Appellant's application is for limited registration on the standard pathway, so that he might practise as a psychiatry registrar under Level 3 supervision. Division 4 of Part 7 of the National Law provides for limited registration in a health profession. Limited registration is a type of registration available to individuals, including international medical graduates ("IMGs") such as the Appellant, who do not qualify for general registration under s. 52 of the National Law, or for specialist registration under s. 57. 2. Section 65 of the National Law provides as follows: 65 Eligibility for limited registration 1. An individual is eligible for limited registration in a health profession if- a. the individual is not qualified for general registration in the profession or specialist registration in a recognised speciality in the profession; and b. the individual is qualified under this Division for limited registration; and c. the individual is a suitable person to hold limited registration in the 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 health profession; and e. the individual meets any other requirements for registration stated in an approved registration standard for the health profession. 2. Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for registration in the profession by imposing conditions on the registration under section 83. The type of limited registration the subject of the Current Application is limited registration for postgraduate training or supervised practice, regarding which s. 66 of the National Law provides as follows: 66 Limited registration for postgraduate training or supervised practice 1. An individual may apply for limited registration to enable the individual to undertake a period of postgraduate training or supervised practice in a health profession, or to undertake assessment or sit an examination, approved by the National Board established for the profession. 2. The individual is qualified for the limited registration applied for if the National Board is satisfied the individual has completed a qualification that is relevant to, and suitable for, the postgraduate training, supervised practice, assessment or examination. Section 55 of the National Law prescribes the criteria by which the Respondent may determine if an applicant is unsuitable to hold general registration. By operation of s. 70, the various grounds contained within s. 55 upon which the Respondent may decide an individual is not a suitable person to hold general registration are made applicable to applications for limited registration. Section 55 provides as follows: 55 Unsuitability to hold general registration 1. A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- a. in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or b. having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or c. the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or d. in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or e. the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or f. the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or g. the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or h. in the Board's opinion, the individual is for any other reason- i. not a fit and proper person for general registration in the profession; or ii. unable to practise the profession competently and safely. 1. In this section- relevant law means- a. this Law or a corresponding prior Act; or b. the law of another jurisdiction, whether in Australia or elsewhere. Pursuant to s. 72 of the National Law, the period of limited registration granted to a practitioner must not be more than 12 months. [4] Further, limited registration may not be renewed more than three times. [5] After three renewals, a practitioner wishing to continue to practise under limited registration is required to make a new application for limited registration. Applications for registration 1. Section 82 of the National Law empowers the Respondent to grant or refuse the application, and provides that the Respondent must decide to refuse the applicant registration if the application is ineligible for registration because, relevantly, he or she "is not a suitable person to hold registration" (s. 82(1)(c)(C)) or "does not meet a requirement for registration stated in an approved registration standard for the profession" (s. 82(1)(c)(E)). Section 83 of the National Law provides that the Respondent may grant an application for registration subject to any condition it considers necessary or desirable in the circumstances. The Registration Standards 1. Pursuant to s. 35 of the National Law, the functions of the Respondent include: a. deciding the requirements for registration or endorsement of registration in the medical profession, including the arrangements for supervised practice in the profession; b. developing or approving standards, codes and guidelines for the medical profession, including: i. approval of accreditation standards developed and submitted to it by an accreditation authority; ii. development of registration standards for approval by the Ministerial Council; and iii. development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession. 1. The Respondent may develop registration standards about any issue relevant to the eligibility of individuals for registration or the suitability of individuals to competently and safely practise the profession. [6] Registration Standards developed by the Respondent may be approved by the Ministerial Council under s. 12 of the National Law. 2. In order to be eligible for limited registration, an applicant must, in addition to meeting the eligibility requirements prescribed by s 65(1)(a) - (d) of the National Law, meet any other requirements for registration stated in the registration standards approved by the Ministerial Council. [7] The Respondent must decide to refuse an application for registration if the applicant is ineligible for registration because he or she does not meet a requirement for registration stated in an approved registration standard. [8] 3. The Respondent has developed and published on its website a registration standard entitled "Registration standard: Limited registration for postgraduate training or supervised practice" (the "Limited Registration Standard"). [9] The Limited Registration Standard was approved by the Australian Health Workforce Ministerial Council on 27 August 2015. [10] The Limited Registration Standard prescribes the requirements for an application for and renewal of limited registration for postgraduate training or supervised practice. Eligibility requirements for limited registration 1. The Limited Registration Standard requires that an individual applying for limited registration must, inter alia, meet the eligibility criteria for one of three specified pathways to registration, including, relevantly, the standard pathway. This is demonstrated by providing evidence of successful completion of the Australian Medical Council ("AMC") Computer Adaptive Test (CAT) MCQ Examination (the "AMC (CAT) Exam"). The Appellant is eligible to apply for limited registration on the standard pathway as he has passed the AMC CAT Exam. Requirements during the registration period 1. The Limited Registration Standard also sets out a series of requirements with which a practitioner must comply during his or her period of limited registration for postgraduate training or supervised practice. These include, relevantly, that the individual is "working towards meeting the requirements for general or specialist registration" if that individual intends to apply for more than three renewals of registration. [11] When a practitioner applies for renewal of their limited registration, he or she must "demonstrate compliance with any conditions or undertakings imposed on his or her registration or requirements on registration set by the Board", and provide evidence to demonstrate that he or she is "satisfactorily progressing towards meeting the requirements for general or specialist registration." [12] An IMG is exempt from this requirement if he or she will not apply for more than three renewals of registration. [13] Period of limited registration 1. The Limited Registration Standard provides that 12 months of registration may be granted by the Respondent (as is prescribed by the National Law). 2. As prescribed by the National Law, up to three renewals of limited registration are permitted, following which a practitioner who wishes to continue to practise must make a new application for registration. [14] Satisfactory progress 1. The Respondent has published a fact sheet entitled "Information on how international medical graduates can demonstrate satisfactory progress towards attaining general or specialist registration" (the "Fact Sheet"). [15] The Respondent emphasises in its Fact Sheet that: "IMGs seeking to practise in Australia long term or permanently must be in a pathway leading to general or specialist registration". The Respondent's expectation, which is also emphasised in the Fact Sheet, is that IMGs who wish to practise in Australia for more than four years are expected to attain the qualifications for general or specialist registration within four years of limited registration. 2. The Fact Sheet identifies the "key milestones" that must be achieved to attain general or specialist registration. It is explained in the Fact Sheet that satisfactory progress towards attaining general or specialist registration (which the Registration Standard requires an IMG to demonstrate) is demonstrated by the achievement of a "key milestone" in the pathway to general or specialist registration. The Tribunal's jurisdiction 1. An appeal under s. 175 of the National Law is conducted as a de novo hearing. [16] At the conclusion of the appeal, the Tribunal should determine for itself, having regard to all of the evidence available to it at the time of the hearing and the parties' submissions, whether the Appellant's application for limited registration should be granted. It is not necessary for the Appellant to establish error in the Decision. 2. The Tribunal may confirm or amend the Decision or substitute it for another decision, [17] and in so doing, has the same powers at its disposal as the Respondent. [18] This includes the discretion to impose such conditions on the Appellant's registration under s. 65(2) of the National Law as it considers necessary or desirable in the circumstances, pursuant to s. 83 of the National Law. 3. However, the scope of the Tribunal's jurisdiction is limited to determining the application for limited registration that is now before it. The Respondent has determined the requirements for limited registration, in accordance with its functions set out in s. 35 of the National Law as well as its powers under s. 38 of the National Law, which include prescribing the arrangements for supervised practice in the profession under limited registration. These requirements, including how an applicant may demonstrate eligibility for registration, and what an applicant for limited registration must do when making an application, are detailed in the Limited Registration Standard. Relevantly, they include that in support of an application for limited registration an applicant must provide certain details about the applicant's proposed employer, including, inter alia: a. written confirmation of an offer of employment; b. the position description, including key selection criteria addressing clinical responsibilities and qualifications and experience required to meet the requirements of the position; c. a supervision plan that includes details about the supervisor/s and describes how supervision will be provided to ensure safe practice. The supervision plan must also include written confirmation from the proposed principal supervisor that they agree to provide supervision and to comply with supervision obligations as required by the Respondent; and d. details of the training that will meet the supervised practice or postgraduate training requirements of the applicant. 1. The Limited Registration Standard and the requirements for an application for limited registration prescribed by that standard, establish that an individual cannot apply for limited registration for a period of supervised practice absent a specific offer of employment that not only identifies the level and nature of supervision to be provided to the applicant but also details how this supervision will ensure safe practice. Equally, the Limited Registration Standard establishes that the Respondent (and the Tribunal, when standing in its shoes) cannot grant an application for limited registration in the abstract, that is, absent or divorced from a specific offer of employment that has been made to the applicant. This is because an application for limited registration for a period of supervised practice may only be made in connection with a specific offer of employment, in relation to which the Board (or the Tribunal) must then determine the applicant's suitability. The harnessing of the grant of limited registration to a specific position, which is then assessed by the Board (or the Tribunal) in order to determine whether it will ensure the safe practice of the applicant, is one of the mechanisms by which the public is protected by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, and overseas-trained health practitioners are rigorously and responsively assessed. 2. Support for the proposition that an application for limited registration hinges on and can only be granted in relation to a specific offer of employment (and the particular level of supervision to be provided in connection with that employment) is found in other requirements for limited registration prescribed by the Limited Registration Standard. These include that during the registration period: a. an individual must comply with the supervision plan approved by the Respondent, and restrict their practice to the position approved by the Respondent; [19] b. the individual must maintain his or her employment in the position for which limited registration was granted, failing which he or she will be considered unable to comply with the requirements on his or her practice and will not be permitted to practise medicine until registration is granted for a new position; [20] c. if an individual wants to change his or position (including moving to a role with increased clinical responsibilities) within the same type of registration, the individual must apply to the Respondent for a "change in circumstances". In that application, the individual must provide, among other things, written confirmation of the offer of employment, a new or revised position description addressing clinical responsibilities and qualifications and experience required to meet the requirements of the position, and a new or revised supervision plan that includes a description of how supervision will be provided to ensure safe practice and written confirmation from the proposed principal supervisor that they agree to provide supervision and comply with the supervision obligations as required by the Respondent. [21] 3. It is always open to the Tribunal to suggest that, in its view, an applicant would be suitable for limited registration at a level of supervision different to that which has been applied for. However absent satisfaction that the applicant's proposed employer was capable of and agreed to provide that level of supervision to the applicant (for example, through the provision of a new Supervised practice plan and supervisor's agreement) the Tribunal could not grant an application for limited registration with a level of supervision different to that which formed the basis of the application. This is because the Tribunal would not have before it evidence to establish either that a higher level of supervision can in fact be provided to the applicant by the prospective employer, or that the particular level of supervision suggested would in fact enable the applicant to practice the profession competently and safely. 4. Having regard to the limits of the Tribunal's jurisdiction set out above, the question now before the Tribunal is this: should the Appellant be granted limited registration, under s. 82(1) of the National Law, in order to carry out a period of supervised practice as a psychiatry registrar, with Level 3 supervision? It is this position for which the Appellant has applied for limited registration, pursuant to s. 66 of the National Law, and it is the application that the Respondent refused, under s. 82(1)(c)(i), on the ground that the Appellant was ineligible because he was not a suitable person to hold registration. The Respondent submits that the correct and preferable decision, on the material now before the Tribunal, is to refuse to grant the Appellant limited registration, pursuant to s. 82(1)(c)(i)(C) or alternatively s. 82(1)(c)(i)(E)."
3. We have added emphasis to the above portion of the submission because it answers a question we raised with the Respondent during the hearing. The effect of the submission is that unless we can be satisfied the Appellant is qualified in terms of experience, knowledge and skill to be able to safely and appropriately function in the position which he is proposing to undertake with the Armadale Health District, then the Tribunal cannot grant a limited registration at a level of supervision requiring a greater level of supervision (eg. Level 2) as there is no offer of employment for the Appellant at such a level being considered for the purpose of limited registration.
4. The Respondent submitted the Appellant has the burden of establishing that he is a suitable person to be registered to enable him to undertake the position he has been offered at Armadale in WA.
5. In its submission the Respondent acknowledged it bore an evidentiary onus. It described that onus as follows: "The Respondent accepts that in relation to particular matters of fact raised by the Respondent against the Appellant's suitability or fitness to be registered, those particular matters place upon it an evidentiary onus. Specifically: a. That he was adjudged unsuitable to practice under Level 1 supervision by his then supervisor Dr Wardell, in his last position of employment. In that connection, the Respondent relies on Dr Wardell's affidavit dated 14 June 2022 ("the Wardell Affidavit"), and the evidence he gave orally before the Tribunal; b. That he had been the subject of an investigation by his prior employer - Northern NSW Local Health District ("NNSWLHD"), owing to concerns with his ability to practice competently and safely, in relation to which the Respondent relies on the copy of the investigation report; [22] c. That issues had been identified with his practice by three separate supervisors over an extended period of time. In that regard, the Respondent relies on the Affidavit of Christine McKeay affirmed on 15 June 2022 ("the McKeay Affidavit"), and the WRIG-30s that are exhibited to that affidavit as CAM-5 through to CAM-15. Evidence that is also relevant to the concerns articulated by the Appellant's supervisors are the previous decisions of the Respondent made with respect to his applications for renewal of his previously held registration. [23] These decisions (recorded in the Respondent's decisions and actions papers) note concerns with the Appellant's performance as well as a failure to progress, and give the lie to the proposition that the first time any concerns were noted with respect to the Appellant's performance was in 2020, or that Dr Wardell was the only practitioner to identify concerns with the Appellant's performance."
6. The MBA then addressed the refusal of the Appellant's application for limited registration based on unsatisfactory progress. It submitted as follows: "It is clear from the Decision that the Respondent made its decision on the principal basis that the Appellant was not a suitable person to hold limited registration because it had formed the opinion that he was unable to practise the profession competently and safely (pursuant to s. 55 (1)(h)(ii) of the National Law, which applies through s. 70). The Respondent maintains that the Current Application can and should be refused on that basis. However, an alternative ground exists as a basis to refuse the Appellant's application for limited registration (addressed in the Respondent's opening written submissions from paragraph [76]), which is that the Appellant did not meet a requirement for registration stated in an approved registration standard. [24] As set out above, the Limited Registration Standard provides that during the registration period, an individual is required to "perform satisfactorily in the position for which you were registered to practice." [25] It is also a requirement that the individual demonstrate satisfactory progress towards meeting the requirements for general or specialist registration. [26] The Fact Sheet sets out information on how IMGs can demonstrate satisfactory progress towards attaining general or specialist registration: "the Board expects practitioners granted limited registration to achieve key milestones towards attaining general or specialist registration within four years of being granted initial registration." [27] Passing a necessary exam (such as the AMC exam or an exam for a specialist college) demonstrates progression, but a failed exam does not demonstrate progression. [28] The Appellant failed the specialist exam set by the Royal Australian & New Zealand College of Psychiatrists ("RANZCP") - the Objective Structured Clinical Examination ("OSCE") - four times whilst he held limited registration on the specialist pathway. Whilst he has passed the AMC CAT exam, on 21 April 2022 he failed the AMC clinical exam. [29] At sub-heading 5 of the Fact Sheet, the Respondent addresses an individual's failure to progress to general or specialist registration within four years of initial registration: "Under section 72 of the National Law, limited registration may not be renewed more than three times (total four years of registration). IMGs who wish to practise in Australia beyond four years are expected to attain qualifications for general or specialist registration within four years of limited registration" Section 72 of the National Law provides that limited registration may not be renewed more than 3 times. The note to that provision provides that if an individual has been granted limited registration in a health profession for a purpose under the division, had subsequently renewed the registration in the profession for that purpose three times, and at the end of the period wished to continue holding limited registration in the profession for that purpose, the individual would need to make a new application for limited registration in the profession for that purpose. The Respondent submits that the legislative intention is clear: practitioners should be permitted to practise under limited registration for a confined period of time only. This interpretation is supported by the fact that there is no limitation on the number of renewals permitted with respect to general registration (s. 56, National Law) or specialist registration (s. 61, National Law). It is also supported by the words of s. 66(1) which establish the type of limited registration for which the Appellant applies: "An individual may apply for limited registration to enable the individual to undertake a period of postgraduate training or supervised practice in a health profession..." (emphasis added). Plainly, limited registration for postgraduate training or supervised practice was not intended by the legislature to be a long-term means of registration."
7. The MBA submitted "As this Tribunal found in Medhat Dous v Medical Board of Australia [2022] NSWCATOD 66, at [42], limited registration was never intended to be long-term, and registrants are generally expected to achieve registration within four years."
8. The MBA then submitted that the Appellant should be refused Limited Registration, as he has sought because he is "unsuitable to hold limited registration." It submitted he is unable to practice the profession competently and safely as is required by s. 55(h)(ii) of the National Law. The MBA then addressed the evidence which is set out in the WRIG-30 prepared by Dr Wardell, the Investigation Report prepared by the NNSWLHD and the other issues identified by the Appellant's supervisors since 2016. We have set that evidence out in our reasons and we don't repeat that evidence here.
9. The MBA has relied heavily upon the assessment of the Appellant's performance by Dr Wardell. The MBA pointed to the evidence of Dr Wardell and the apparent contradiction between the earlier reports signed by Dr Wardell on the Appellant's performance at Lismore Base Hospital and the later reports which were highly critical of the Appellant's performance. The MBA submitted: "Although Dr Wardell's supervision of the Appellant commenced in August 2019, it is only in May 2020 that Dr Wardell prepared a WRIG-30 for the Appellant that raised issues with his performance, by way of notification to the Respondent. Indeed he had, prior to this time, completed two positive assessments of the Appellant, being the Observed Clinical Activity Workplace-Based Assessment ("OCA") dated 12 December 2019, [30] and the end of rotation In-Training Assessment form ("ITA"), dated 17 January 2020. [31] In Dr Wardell's affidavit and also under cross-examination, Dr Wardell explained the disparity between his initial assessments of the Appellant and his subsequent assessments of the Appellant, which in part was attributable to the more limited opportunity to observe the Appellant in his initial rotation, in contradistinction to the increased capacity to monitor performance in the Appellant's rotation from March 2020. In the Wardell Affidavit, at paragraph [11], Dr Wardell explained where the Appellant was working when he initially commenced his employment at Lismore Base Hospital, namely, in acute care in the Emergency Department. Dr Wardell also explained the type and style of supervision he administered to the Appellant during this time. At paragraph [13], Dr Wardell explained that when the Appellant moved from the Emergency Department into the acute adult inpatient unit (in around March 2020) the nature of the work the Appellant was performing changed. At paragraph [14], Dr Wardell described the clinical care provided to patients in the inpatient setting and why it is that this change in setting allowed closer observation of the Appellant than had previously been the case by nursing staff, allied health and consultant psychiatrists: "During this period, I began to receive a higher level of feedback from my colleagues regarding Dr Ghobashy's clinical performance than I had previously, as a result of the way in which clinical care is provided in the inpatient setting. The psychiatry registrars are nearly always in with a patient, accompanied by nursing staff, allied health, and often consultant psychiatrists. In the inpatient setting, it is usual for a psychiatry registrar to be alone with the patient, as opposed to an outpatient setting where that would be much more common. The inpatient setting allows for greater observation of practitioners' performance by the other health practitioners present."
10. The MBA said that in his evidence Dr Wardell referred to the OCA which he conducted with the Appellant which had concerned him. The MBA relied upon the following evidence from Dr Wardell: "I was expecting you to present the case in 7-10 minutes, I had to stop you at about 30 minutes, and you had only done about a quarter of the case. That wasn't the concerning thing. What was concerning was my attempts to counsel you into how you should present a case to pass an exam were dismissed, belittled and you objected to it, you said there was no need to change things, you disagreed with my observations, suggestions and I was trying to improve your performance at the exam level. You were flatly ignoring it and contradicting what I was saying, I was concerned about that."
11. The evidence submitted by the MBA, of Dr Wardell, also highlighted the magnification of issues identified with the Appellant's performance once he became the subject of closer supervision on the "in-patient wards". That accounted for the difference in the assessment of performance in the ITA in January 2020 and the later reports prepared by Dr Wardell. The MBA submitted: "While these two early assessments completed by Dr Wardell do not point to significant issues with the Appellant's performance as at the time of the assessments the areas emphasised are important because part of the Appellant's case before the Tribunal was the suggestion that Dr Wardell's two WRIG-30s upon which the Respondent relies make no sense - he argues that they must be wrong (or false) because they contradict Dr Wardell's earlier assessments of the Appellant. In reality, the position is this: two of the biggest issues Dr Wardell observed about the Appellant's performance - his ability to synthesise patients' cases in a timely manner and to identify the relevant or pertinent details, and relatedly, his time management - were observed by and commented upon by Dr Wardell in these two assessments. Dr Wardell's earlier assessments do not, as the Appellant would submit, contradict his subsequent WRIG-30s. The disparity between them is in part a question of degree and Dr Wardell explained in his affidavit and in his oral evidence before the Tribunal how this disparity arose as a by-product of the difference in clinical settings (between when the OCA and ITA were completed on the one hand, and when the WRIG-30s were completed on the other).'
12. In response to the Appellant's case that Dr Wardell had done nothing about the increased concern about the Appellant's performance until May 2020 having said the concerns were apparent in March 2020, the MBA submits as follows: "He (Dr Wardell) stated that he did not wait until May 2020 to address the concerns that had been identified with respect to the Appellant's performance. Rather, the hospital had made its own judgment on how the Appellant would be supervised, from March 2020, and it was hoped that with this form of intervention in place, the Appellant's performance would improve. When it became apparent that those interventions did not have the desired effect, Dr Wardell completed the first WRIG-30, recommending that the Appellant's supervision should be revised to Level 1."
13. The MBA submitted that to the extent there is conflict between the evidence of Dr Wardell and the Appellant in their evidence the credit of Dr Wardell should be accepted ahead of that of the Appellant.
14. The MBA addressed the weight which should be attributed to the failure of the Appellant in his examinations (OSCE). It said these measures of performance are very significant and should be given significant weight in this determination. The MBA submitted: "This Tribunal, in the matter of Medhat Dous v Medical Board of Australia [2022] NSWATOD 66, at [48], stated as follows: "The cases have determined that neither satisfaction of supervisors, nor absence of complaints, is a superior measure of competence to examinations. In Tabanas v Medical Board of Australia (No 3) [2013] QCAT 524, the relevant Tribunal in Queensland opined that prescribed examinations apply a desirable uniformity to the measurement of competence, and repeated failures "provide a sound basis for concluding that the person is unable to demonstrate a sufficient level of competence"."
15. In its' submission the MBA pointed out the following: "Candidates are usually given three opportunities to sit the OSCE that the Appellant sat for the fourth time in September 2019. [32] It was only upon the Appellant showing cause that he was permitted to sit the OSCE for a fourth time, but this was already unusual. Candidates are required to pass within three attempts."
16. The MBA submitted that the Appellant's excuse for failing the last (and fourth) OSCE, i.e. that he was not given sufficient time to prepare, should not be accepted as he had applied to be able to undertake the fourth attempt some time before the offer was made to him. He had more than sufficient time to prepare had he accepted that he may well be offered the chance to have a fourth attempt. Further the MBA says that the examination result which is the most directly relevant to the application for Limited Registration on the standard pathway, Level 3 supervised, (the appellant currently being considered in this appeal) is the AMC clinical examination, which the Appellant failed in April 2022. He passed only 4 of the 14 stations. The Appellant had submitted that the 4 stations he passed were referrable to his psychiatric medicine knowledge. The MBA points out that the candidates are required to pass the exam as a whole.
17. The MBA addressed its submission to the Investigation Report prepared by the NNSWLHD. The MBA submits that: "The investigation report details the process that was undertaken by the investigators, and there was no suggestion made by the Appellant that due process was not followed or that there was any procedural unfairness in the way the investigation was conducted. On its face it impresses as a measured report."
18. The MBA submits that the Investigation Report: "was but one ground upon which the Respondent relied in determining to refuse the Appellant's application for limited registration, and just one ground upon which the Respondent now says its Decision should be affirmed." The MBA says that the importance of the Investigation Report should be seen as: "The investigation report from the Appellant's former employer and the findings made by the investigators establish that there were performance issues in his last period of practise that: a. Were identified by practitioners other than Dr Wardell; b. Were deemed sufficiently serious as to trigger the Managing Complaints and Concerns about Clinicians process; and c. Resulted in the investigators finding that three out of the seven complaints were substantiated. The respondent submits that the findings of the investigators serve to:

• corroborate or provide support for the opinions Dr Wardell formed about the Appellant's unsuitability to practice;
• underscore or are in harmony with criticisms of the Appellant's performance made by his other supervisors (Dr Tracy in the ACT and Dr Wims at Lismore Base Hospital); and
• provide support for the Respondent's Decision to refuse Dr Ghobashy's application for limited registration."

1. The MBA then addressed the Appellant's evidence. We do not set out those submissions further as we have addressed the Appellant's evidence extensively in these reasons.
2. The MBA addressed matters which relate to the weight which the Tribunal should give to the evidence of the Appellant. It addressed the manner in which the Appellant conducted himself during the hearing and in particular when he was giving oral evidence. It submitted the Appellant was extremely argumentative, declined to make concessions, he continued to deny there were any issues of concern about his work performance or general progression during his supervised time on the specialist pathway Limited Registration. He denied there was any substance in the allegations investigated by the NNSWLHD, and, he sought to profess that the fourth failed OSCE should really be seen as demonstrating competence.
3. The MBA addressed the evidence relied upon by the Appellant from Dr Freeman who had been supportive of his competence and knowledge from the time Dr Freeman had worked with the Appellant at Lismore Base Hospital. That occurred during the first rotation the Appellant undertook at the hospital. The MBA submitted limited weight should be given to the evidence of Dr Freeman because some of the affidavit sworn by Dr Freeman were in the Appellant's words and Dr Freeman could not be said to be working closely with the Appellant.
4. As a conclusion to its' submission the Respondent sets out the following: "The correct and preferable decision is that the Appellant's application for limited registration be refused. The Respondent submits that this is the appropriate regulatory response because the Appellant has been unable to demonstrate that he can competently and safely practise as a Psychiatry Registrar with Level 3 supervision, and is therefore not a suitable person to hold limited registration. [33] A secondary or alternative basis upon which the Respondent submits that the Appellant is not a suitable person to hold limited registration (within the meaning of s 82(1)(c)(i)(C) of the National Law) is that he has failed, over a number of years, to progress towards general or specialist registration. In so doing, the Appellant has failed to meet the requirement prescribed in the Limited Registration Standard that he demonstrate satisfactory progress towards meeting the requirements for general or specialist registration. A failure to meet this requirement in the Limited Registration Standard constitutes a ground upon which the Respondent may determine that the Appellant is not a suitable person to hold limited registration. [34] Having regard to all of the above, it is submitted that the necessary regulatory response is to refuse the Appellant's application. However, as the Respondent made plain in its Decision, it would be open to the Appellant to make a further application for limited registration for a period of supervised practice, with a higher level of supervision. The Appellant is not prevented from taking this path, should the Tribunal confirm the Decision. It is not possible to predict whether such an application would be successful, but that is not a matter with which the Tribunal can presently be concerned. The question remains, has the Appellant discharged his legal onus of establishing that he is a suitable person to be granted limited registered on the standard pathway so that he might practise as a psychiatry registrar under Level 3 supervision in the position proposed in his application? The Respondent submits that he is not, and that the necessary and appropriate regulatory response, and correct and preferable decision, is to refuse the Current Application."

The final submission of the Appellant

1. The Appellant commenced his final submission with the following explanation for the manner in which he would frame his submission: "As a summary to my previous submission, and as an addition to the evidence I already presented to the honourable members of the tribunal, I would like to discuss two important items in this submission Firstly, to refute the issues the Medical Board legal representative has mentioned and discussed during the Tribunal Hearings. Secondly, the main points I rely on in a highlighted brief review of the material I forwarded previously. In regards to the first item, I noticed that the Medical Board legal representative is focusing on three main points in their defence A. Picking up some flaws or shortcomings from previous work performance reports, and sometimes attempting to twist some clear facts to appear that they are in favour of a claimed low incompetent work performance. B. Two degrading reports from my previous supervisor Dr John Wardell. C. The investigation report of my Northern NSW LHD Employer."
2. The Appellant than addressed "topic A" which he had identified above. The Appellant submitted the focus of the MBA in this case has been on the weaknesses in his performance as highlighted in their evidence and submission. However, the Appellant submits that the bulk of the evidence in the WRIG-30 and other reports, the subject of the evidence, from 2014 to 2020 show an acceptable and expected standard had been demonstrated. There have also been repeated examples of the Appellant's supervisors recommending continued registration and at the Level of supervision then being in place or at an advanced level (i.e. a move from level 2 to level 3 supervision)
3. The Appellant continued to press his case that he was assessed by Dr Tracy in her 2018 assessments as a Junior Consultant rather than as a Registrar. The Appellant highlighted the evidence at page 113/507 (exhibit R1), page 199/475 (exhibit A1) and page 200/475. That last quote really commences with the paragraph at the bottom of page 199 of 475 where the Ahpra & National Boards letter 7 January 2020 had been ultimately favourable to him. However, we note that the document addresses the meeting of Ahpra on 7 January 2020 to consider the application of the Appellant for re-registration. The Board resolved to grant the Appellant renewal of registration as a Medical Practitioner with the following conditions: 1. The Practitioner must provide evidence of progress towards qualifying for either general or specialist registration. 2. The Practitioner can only practice with the support of the RANZCP. The document also noted the following: "The Board require another work performance report to be submitted after completing a further three months of supervised practice. This report must comment on Dr Ghobashy's performance in the identified under-performance areas and outline how the identified areas of under-performance are being addressed." It further stated: "Dr Ghobashy has a history of under-performance however has greatly improved as indicated on his most recent work performance report for the period 12 August 2019 to 1 October 2019 as only two areas of concern in professionalism have been identified. Dr Wims has stated that Dr Ghobashy needs to work on recognising his limitations and seeking advice and that this concern is being proactively addressed. Dr Wims supports Dr Ghobashy's ongoing registration. The board is satisfied that the performance issues are being appropriately managed by the supervisors as outlined in the work performance reports."
4. The report on page 113 of 507 (exhibit R1) identified and relied upon by the Appellant as having a pass grade for the "Final Summative Assessment" is signed by his supervisor on 24 January 2018. The Pass grade was in the category of "Sometimes exceeds the overall standard required."
5. The Appellant concluded the submission on Item A with the following:
6. "At the end, they will never come to mention that I fulfilled the condition imposed on me during January 2020 meeting, when AHPRA obliged me to show progress towards the general or specialist registration, the matter I fulfilled in November 2020 when I passed the first part of the AMC Exam. In the interim, they will not mention about the invitation AHPRA has sent me to renew my registration in May 2020."
7. The Appellant then addressed Item B as set out earlier. He submitted that the reports had been hidden from him until 6 May 2022. He submitted that they were both inaccurate in content and time frame. The reports contradict the earlier reports of Dr Wardell. The report of Dr Wims also was contradictory to the later reports of Dr Wardell. The report of Dr Wardell also purported to assess the Appellant prior to the commencement of his contract with the NNSWLHD.
8. In relation to this heading the Appellant said: "Again while I am under oath, I bear witness that Dr Wardell never gave me any supervision session after Mid-January 2020. So how was he able to rate me even without giving me any feedback about my performance since that time till I stopped working on 5th of June 2020". The Appellant was also critical of Dr Wardell having completed his last WRIG-30 prior to receiving the outcome of the Investigation conducted by the NNSWLHD into complaints made about the Appellant.
9. The Appellant then addressed the evidence contained in the Investigation Report conducted by the NNSWLHD. The Appellant denied that any of the substantiated accusations were correct. He was particularly aggrieved by the accusation of having written the wrong medication for a patient and not updating medications to another patient in the medical record. The Appellant drew our attention to the documents he obtained from the Lismore base hospital on subpoena which he said substantiated his claim. In support of that submission the Appellant relied upon part of exhibit A3 which is a medical note for Patient JT for 24 March 2020. That note showed an entry "Dr Faingold added she will be trailed on regular chlorpromazine". The page of notes for that day however, is said to be authored by the Appellant.
10. (We note the complaint by Dr Faingold was that he had directed the Appellant to chart promethazine (25mg) and he charted chlorpromazine (25mg). Dr Faingold told the inquiry that he had directed that medication as the patient had been given the drug the previous day with good effect. Unfortunately, the chart for the previous day is not included in the material provided by the Lismore Hospital. However, the following day is provided and that shows the change of medication to promethazine. That evidence tends to support the version of fact provided by Dr Faingold rather than that of the Appellant about the complaint. We, however, are not in a position to determine that matter. We are left to consider the weight to be given to the findings of the Investigation. We conclude, given the way in which the investigation was conducted, the investigators appear to have gone to considerable lengths to ensure a fair and impartial investigation. We conclude therefore that weight of significance should be given to the findings.)
11. We also note from the report of the investigation, a recording of the Appellant having conceded he had made an error. However, in his submission the Appellant denies he made the concession attributed to him.
12. The Appellant then directed his submission to identify and summarise those parts of the evidence he had provided in support of his appeal. In the main we have referred to the evidence he relies upon already in these reasons and we do not repeat that evidence. The Appellant set out the following in his written submission which we include here. "There has not been any specific error or mistake amid all of these faked allegations. The medical Board hasn't mentioned any specific documented incident denoting my incompetency. It is completely illogical that I was on level III supervision in the first two years of my practice and at the ACT Health, whilst I was considered incompetent, even not able to perform at a level of an intern after almost 7 years of my practice in Australia. IMGs are still allowed to come to Australia and work without having any background about the culture and the local practice. Accordingly, how have I been prevented from practicing after an experience of seven years in the profession in many versatile challenging settings and scopes, in addition to the Credentials I obtained, the training, doing exams' rehearsals, attending workshops & exams settings nearly every year. All over my practice, there was never a single question about my performance. No previous incident reports or complaints (except the one made by Dr John Wardell). Consequently, how out of a sudden I became incompetent without any physical evidence proving that. Please take a look at the Overseas Good Standing Certificates. I am a qualified overseas staff specialist in psychiatry, have been in the profession since 1994, obtained 4 overseas credentials, so I have a very deeply ingrained experience while I was working in many overseas countries when I encountered many multicultural clients. I have been assessed by the RANZCP before starting work in Australia, and has been eligible to work as a consultant at area of need or a Career Medical officer according to the eligibility letter from the College I forwarded, page 213/475 of Ghobashy- Board Additional Material" forwarded to me by the legal representative of AHPRA. Additionally, I was assessed as a stage III advanced Trainee on the partial comparable Pathway which I am still linked to it through the reconsideration process I currently have at the College. Finished the RANZCP requirements of six rotations successfully. Finished all RANZCP requirements except the OSCE which its last score was very close to the cut pass score. Attachment # 10, OSCE Outcome - September 2019."
13. The Appellant submitted that his work performance reports for the period 2014 until 2019 had been "excellent". He submitted: "I was doing my job in an efficient professional manner till the last days of my practice as indicated by the three attached Mental Health Tribunal reports. Pages 304, 307 and 310/475 of "Ghobashy- Board Additional Material" forwarded to me by the legal representative of AHPRA." … "AHPRA has invited me for renewal in May 2020, indicating no issues at that time. Please to look at attachment # 44 "Notice of renewal of AHPRA registration may 2020"" … "I had no issues in doing job interviews, as there was a 5 consultants' panel who assessed me thoroughly for the Armadale Mental Health position. I was the preferred candidate for this job among many (26 candidates)."… "I rely also on the Two Affidavits supporting my opinion, one from Dr Freeman and the other from Mr Blainey, in addition to my own Affidavit I had forwarded to NCAT on the 6th of July 2022".
14. As a possible solution to the problem now faced by the Appellant he suggested that he be granted the limited registration on the basis that his supervisor from the Armadale Hospital provide a report addressing the appropriateness of the Appellant continuing on level 3 supervision based on his performance during the first month of his employment with that employer.
15. The Appellant concluded by submitting that his appeal should be granted and an order made that he be granted limited registration to permit him to take up the employment he has been offered by Armadale. Further he submitted the Respondent be required to pay all the legal costs of the appeal.
16. In his written submission the Appellant referred to earlier submissions that he had made in this hearing. Those submissions were both written and oral and we have had regard to those documents and that oral submission. We have not specifically set that out in these reasons, largely because the submissions addressed the evidence which we have particularised in these reasons.

Determination and Conclusion

1. In the determination of this Appeal we have extensively set out detail of evidence which was before us. That evidence was largely contained in over 1000 pages of written documents. We have also detailed the oral evidence of the witnesses who appeared before us where that evidence has addressed portions of contentious documentary evidence and other evidence directly relevant to our determination. We have presented these reasons in that manner because the Appellant is self-represented and we conclude it is necessary for him to be able to see we have considered his case in great detail.
2. We are required to determine this appeal by way of a new hearing, constrained by the provisions of the National Law. We have set out those provisions in the earlier part of these reasons where the specific sections of the National Law were particularised in submission provided by the Respondent. We accept that the Respondent has helpfully and accurately directed our attention to the relevant sections of the National Law. In particular we have regard to the following sections: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 65 Eligibility for Limited Registration 65(1) An individual is eligible for limited registration in a health profession if- (c). "the individual is a suitable person to hold limited registration in the profession;" 66 Limited Registration for postgraduate training or supervised practice. (1) An individual may apply for limited registration to enable the individual to undertake a period of postgraduate training or supervised practice in a health profession, or to undertake assessment or sit an examination, approved by the National Board established for the profession. (2) The individual is qualified for the limited registration applied for if the National Board is satisfied the individual has completed a qualification that is relevant to, and suitable for, the postgraduate training, supervised practice, assessment or examination. 70 Unsuitability to hold limited registration (1) Section 55 applies to a decision by a National Board that an individual is not a suitable person to hold limited registration in a health profession. (2) For the purposes of subsection (1), a reference in section 55 to general registration in the health profession is taken to be a reference to limited registration in the health profession. 55 Unsuitability to hold general registration Section 55(1)(h)(ii) of the National Law is as follows: "Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. (2) In this section - relevant law means - (a) this Law or a corresponding prior Act; or (b) the law of another jurisdiction, whether in Australia or elsewhere."
3. The importance of s.55 is seen in the decision of AHPRA and National Boards made 25 March 2022, (Exhibit A1 page 14/475). The following was stated: "The Committee provided written notice to you on 3 February 2022, advising that under section 82(1)(c)(i)(III)(sic), it proposed to refuse your application for limited registration due to being unsuitable for registration under s.55(1)(h)(ii) of the National Law. You were advised that the reasons for this decision was that the Committee considered conditions could not remediate the issues and/or identified risk to the public and that you had not demonstrated that you were able to practise the profession competently and safely as required by s.55(1)(h) of the National Law."
4. Further sections we have relied upon include: 82 Decision about application (1) 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 - (A) is not qualified for registration; or (B) 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 (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or (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. (2) In this section - relevant section means section 52, 57, 62, 65 or 73. 83 Conditions of registration (1) If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Note. A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition.
5. This determination is largely focussed upon whether the Appellant is suitable for the Limited Registration under s 66 of the National Law. Unsuitability to hold Limited Registration of the type referred to in s 66 is described in s 55 of the National Law. Section 55 of the National Law, as set out above.
6. It seems there is no argument by the MBA that the Appellant may make an application for Limited Registration of the kind referred to in s 66, subject to, not being found to be "unsuitable" for such registration pursuant to s 55.
7. It is the MBA case that the Appellant is unsuitable for the Limited Registration he has applied for. That application is for Limited Registration of the kind specified in s 66 of the National Law with specificity for a Registrar in psychiatry, on the Standard Pathway, with Level 3 supervision. Its' case is that he is unsuitable because he is "unable to practice the profession competently and safely."
8. The determination of whether the Appellant is safe or unsafe to practice the profession competently and safely, requires us to be satisfied we should accept the evidence of Dr Wardell and the written assessment reports, and other reports of the Appellant's performance in late 2019 and in particular in 2020 when the Appellant commenced to work on the in-patient wards of the Mental Health Unit in Lismore Base Hospital. It is largely those reports together with the Investigation Report published by the NNSWLHD in response to a number of complaints made about the work performance of the Appellant, which the MBA submits, speak to the Appellant being unsuitable for the type of Limited Registration he has applied for.
9. In making this determination we have in our minds the provisions of s 3A of the National Law, which compels the exercise of functions under the NSW provisions, to ensure the protection of the health and safety of the public, must be the paramount consideration.
10. We also need to have in our minds that should the Appellant not be able to obtain Limited Registration to practice medicine in Australia, then his Visa to be able to remain in Australia will probably expire. The Appellant clearly wishes to remain living and working in Australia.
11. In this determination we note we are considering the Appellant's application for a Limited Registration which will provide for Level 3 supervision. The employment which the Appellant has been offered at Armadale WA is as a Registrar in Psychiatry with Level 3 supervision. That level of supervision does not require constant physical supervision of the Registrar as he works with patients nor even frequent supervision sessions (daily or second daily) between the Appellant and his principal or other supervisors. Quite the opposite. It envisages the Registrar having a degree of autonomy to treat patients, thus freeing up Consultant Psychiatrists to undertake other work and direct the Registrar (rather than physically supervise) in the management of patients. The detail of what is entailed in each level of Supervision under the MBA "Guidelines: Supervised Practice for International Medical Graduates" is set out inn Exhibit "CAM-4" of the affidavit of Ms McKeay.
12. We note and accept, the submission of the Respondent, that we could not grant the Appellant a Limited Registration of the kind referred to in s.66 of the National Law, with a higher level of supervision to be required than Level 3. That is because the Appellant has not been offered employment by the Armadale Hospital other than at Level 3 supervision. We do note however, that in the letter of 31 March 2022, Ahpra, did bring to the attention of the Appellant that he could apply for Limited Registration on the Standard Pathway "lower position with a higher level of supervision".
13. We are concerned at what appears to be a rapid escalation in the concern expressed by Dr Wardell and other consultants at Lismore Base Hospital, about the performance of the Appellant whilst he worked there. In part that may have arisen because of a change in the work-place environment and the pressure of work, which the Appellant said he had experienced at that hospital. Further, it seems to us that Dr Wardell had less personal supervision of the Appellant in 2020 than the Appellant had experienced whilst he worked at Canberra Hospital under his then Principal Supervisor Dr Tracy. As Dr Wardell explained, once the Appellant commenced to work on the in-patient wards, he was subjected to much closer informal supervision by the consultant psychiatrists with whom he worked. He was also working more closely with other hospital staff. Those consultants and hospital staff members (or some of them), with whom the Appellant was closely working, made complaints to Dr Wardell about the performance of the Appellant. Further, it seems that from March to June 2020 the Hospital was subjected to staff shortages and other challenges arising from the onset of the Covid virus.
14. Although the Appellant challenged the evidence of Dr Wardell in terms of its accuracy and submitted that his evidence should not be accepted, we found the evidence of Dr Wardell was reliable and acceptable, thereby requiring us to give it weight. We were impressed by Dr Wardell as a witness when he gave his oral evidence. He presented as measured in the giving of his evidence and he impressed as having endeavoured to assist the Appellant as best he could with the progression to general registration, only to have that help rejected by the Appellant, as Dr Wardell explained in his evidence. Clearly, Dr Wardell was confronted by the level of complaint he received in 2020 from the consultants and Hospital staff working with the Appellant. Those complaints reached a level where the Hospital Administration convened its' own investigation into those complaints.
15. The Appellant's personality also may have been a contributor to the escalation in concern about his performance. We observed when he appeared before us that the Appellant was apparently unprepared to shoulder responsibility for the supervisors' comments which appeared on the WRIG-30 reports, where they identified areas of performance which needed to be improved. The personal traits of the Appellant may have presented to some of the consultants he worked with, as arrogance. The Appellant seemed to us to take the view that those were comments which the supervisors had to make because nobody could be seen as perfect in their performance. He rated himself as "excellent" for most of his work in Australia, when giving his evidence before us. However, in those workplace performance reports, which required him to rate his own performance across a number of different areas of assessment, he did allocate less than excellent performance ratings amongst others.
16. One of the areas of performance which was of particular concern to Dr Wardell was the Appellant's reluctance to accept feedback which clearly was less than supportive of some aspect of performance by the Appellant, and even a refusal to accept criticism. There is also concern raised about the Appellant's ability to work within teams and with other hospital staff.
17. Given the evidence of Dr Freeman, which was highly complementary of the Appellant's medical knowledge, it is clearly a concern that he was not able to pass the OSCE exams which were set for him. The last OSCE result was of particular concern, yet we note the Appellant was able to see positive aspects from those results. The same is true of the AMC practical exam which he failed this year. We also note that in Dr Freeman's oral evidence, he said he did not observe the Appellant actually working with a patient during the time he worked with the Appellant, in the Emergency Department, of the Lismore Hospital.
18. It was our observation of the Appellant, in the conduct of the hearing and in the giving of his oral evidence, that he presented as highly intelligent. He had a very good knowledge of the written evidence which had been presented to us and where particular evidence could be found amongst more than 1,000 pages of tendered documents.
19. We are required to determine if the Appellant should be granted the Limited Registration, he has applied for to enable him to take up the position at Armadale Hospital. That position requires a Registrar who is able to work at Level 3 supervision with patients with mental health illness. We have to be satisfied that it is safe for the health of the public, who may come under the care of the Appellant, to grant the Appellant that registration.
20. We have weighed up all the evidence set out in these reasons and taken into account all the submissions which have been provided in reaching our conclusion. We find we are not satisfied it is safe for the public's health to allow the Appellant to be granted the limited registration for which he has applied.
21. We have next considered whether the Appellant could be granted the Limited Registration for which has applied, with further conditions attached to his registration. Notwithstanding this possible solution was not really addressed, although the Appellant suggested a possible condition that there be a review of his performance, in the new position, at Level 3 supervision, by the MBA within a short time of commencing in that position (possibly at 1 to 3 months), we have considered a range of conditions which might be imposed, however, none is more effective or sufficient in this case, than the level of supervision which could be imposed such as Level 1 or Level 2. The position the Appellant applied for at Armadale Hospital does not allow for that level of supervision.
22. Having reached the conclusion set out in the preceding paragraph, we note the invitation set out in the letter of 31 March 2022 from Ahpra to the Appellant which we have highlighted earlier in these reasons.
23. The information provided in the affidavit of Ms McKeay, explains the different levels of supervision for Limited Registered practitioners as follows: 6.2 Supervision in general practice positions It is preferred that IMGs with limited or provisional registration work in general practices that are currently accredited to the RACGP Standards for general practices (latest edition). If the practice is not accredited, the supervisor must satisfy the Board that they have structures in place to support safe practice by the IMG.1 The Board will decide on one of the following supervision levels for IMGs working in general practice. Level 1 supervision The supervisor takes direct and principal responsibility for each individual patient. a. The supervisor must be physically present at the workplace at all times when the IMG is providing clinical care. b. The IMG must consult their supervisor about the management of all patients at the time of the consultation and before the patient leaves the practice. c. Supervision via telephone contact or other telecommunications is not permitted. Level 2 supervision The supervisor shares with the IMG, responsibility for each individual patient. The supervisor must ensure that the level of responsibility that the IMG is allowed to take for patient management is based on the supervisor's assessment of the IMG's knowledge and competence. a. Supervision must be primarily in person - the supervisor must be physically present at the workplace a minimum of 80% of the time that the IMG is practising. Where the supervisor is not physically present, they must always be accessible by telephone or video link. b. The IMG must inform their supervisor on a daily basis about the management of individual patients. Level 3 supervision a. The supervisor must ensure that there are mechanisms in place for monitoring whether the IMG is practising safely. b. The IMG is permitted to work alone provided that the supervisor is contactable by telephone or video link. 6.2 Supervision in hospital-based positions The supervision levels described above are suited to the general practice environment. However, it may be more appropriate to use the existing hospital supervision structures and protocols for hospital-based positions. If the levels above do not correspond to the proposed level of supervision for a hospital-based position, the Board will consider other supervision structures.
24. Each of the Respondent and the Appellant has referred to costs of the appeal being awarded. Neither has addressed submission to the subject and that is quite understandable in the absence of each knowing the outcome of the appeal. Additionally, we did not ask the parties to address the issue of costs in their final submission. We will in the order we make, provide for each party to address the question of costs within a limited time following the publication of our decision and order.
25. The Respondent sought an order to ensure the name of any patient referred to in this determination is not published. We have determined we will make the following restriction on the publication of patients' names: "Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of any person identified as a patient or former patient of the Respondent".
26. The order the Tribunal will make is as follows: 1. The Appeal filed by the Appellant is dismissed. 2. The Respondent is to file and serve within 14 days, notice of the order it seeks in relation to the costs of the appeal together with a submission of not more than 4 A4 pages in length, which supports the order sought. 3. The Appellant is to file and serve withing 14 days of receipt of the submission of the Respondent addressing costs, a submission of no more than 4 A4 pages in length, replying to the submission of the Respondent and setting out the costs order the Appellant seeks. 4. The decision of the Tribunal on costs is reserved.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Endnotes

1. See Respondent's Written Submissions, dated 6 July 2022 ("MFI 2"), at pp. 5 - 13.
2. National Law, s. 3(2)(a).
3. National Law, s. 3(2)(d).
4. National Law, s. 72(1).
5. National Law, s. 72(3).
6. National Law, s. 38(2)(c).
7. National Law, s. 65(1)(e).
8. National Law, s. 82(1)(c)(i)(E).
9. A copy of the Limited Registration Standard appears as Exhibit CAM-3 to the McKeay Affidavit, at pp. 39 - 46.
10. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at p. 45.
11. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at p. 42.
12. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at pp. 42 - 43.
13. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at p. 43.
14. National Law, s. 72(3).
15. A copy of the Fact Sheet appears as Exhibit CAM-1 to the McKeay Affidavit, at pp. 23 - 30.
16. Susan McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 at [76]; Barrett v Medical Board of Australia [2012] NSWMT 21.
17. National Law, s. 175C(1).
18. National Law, s. 175C(2).
19. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at p. 42.
20. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at p. 42.
21. See Limited Registration Standard, Exhibit CAM-3 to the McKeay Affidavit, at pp. 43 - 44.
22. See Tab 21 of Exhibit R1, at p. 113 and following.
23. See Tabs 33 - 35 of Exhibit R1, at pp. 191 - 200.
24. Section 82(1)(c)(i)(E) and s. 55(1)(1)(g) of the National Law: "The individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession."
25. See Exhibit CAM-3 to the McKeay Affidavit, p. 39 of 507, at p. 42.
26. See Exhibit CAM-3 to the McKeay Affidavit, p. 39 of 507, at p. 43.
27. See Exhibit CAM -1, at p. 23 of 507.
28. See Exhibit CAM -1, at p. 24 of 507.
29. A copy of the results published by the AMC is found at Exhibit R3.
30. A copy of the OCA appears at Tab 13 of Exhibit R1, pp. 90 - 91 of 475 and at Exhibit A1, pp. 264 - 265 of 475.
31. A copy of the ITA appears at Tab 12 of Exhibit R1, p. 82; and at Exhibit A1, pp. 256 - 263 of 475.
32. See the letter from the RANZCP, dated 28 July 2022, that is annexed as Exhibit KAO-3 to the Affidavit of Ms Kim O'Connell dated 28 July 2022 (Exhibit R2).
33. Sections 55(1)(h)(ii), 70, and 82(1)(c)(i)(C) of the National Law.
34. Sections 55(1)(g) and 70 of the National Law. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 10 October 2022 - Representation: typographical error corrected - Counsel for the Respondent 10 October 2022 - Corrected typographical error 10 October 2022 - Decision date corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2022