Ibrahim v Medical Board of Australia [2014] NSWCATOD 108 | Case summary

Nature of the Appeal 16Both parties accepted the authority of McMahon v Nursing and Midwifery Board of Australia [2013] NSWMT 4 at [76], holding, after a careful review of the relevant authorities, that the unqualified right to 'appeal' provided by s 175 is one to be conducted as a hearing 'de novo'. That means that the Tribunal deals with the applicant's appeal as it was a fresh application for registration. That means, analogously with the regime that applies to merits review of administrative decisions elsewhere in the Tribunal, that both parties may present additional evidence and material relevant to consideration of the application. They are not bound by the state of their cases as they were considered by the first decision-maker, here the Board. 17As noted in the Board's submissions, the jurisdiction exercised by the Tribunal is a protective one, in line with the objective stated at s 3(2)(a) of the National Law: (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. 18Procedural Aspects: We heard the case following the sequence that we understand had been customary in appeals of this kind before the predecessor tribunal to this Tribunal. That is, the appellant opened and presented his case, with the respondent then presenting its case in reply. 19As noted earlier, this type of proceeding belongs to the 'external appeals' jurisdiction of the Tribunal. Even though is an appeal against an administrative decision, it is not governed by the provisions that apply to most of the administrative appeals business of the Tribunal, those found in the Administrative Decisions Review Act 1997 (ADR Act). 20We note that there is no similar complication in Victoria. There health profession appeals of the present kind are not the subject of special provisions and are treated as belonging to the merits review jurisdiction of that State's equivalent Tribunal, and are governed by provisions similar to those in the ADR Act (Drury v Medical Board of Australia [2011] VCAT 858 at [11] ff). The result is that the National Law is being administered in relation to like business in like tribunals in the two major population centres of the country by different methods and by reference to different overarching concepts (appeal de novo learning versus merits review principles). 21In the Tribunal's view, it would have assisted the hearing of this case had the procedure conventional in the merits review jurisdictions been followed in this instance. Under this procedure the decision-maker opens and explains the regulatory context, then presents the evidence in support of its decision, with the review applicant (here the appellant) responding with his or her case as to why there should be a different decision. It did not become clear to us until well into the hearing that the issues addressed by the appellant in opening were not the totality of the issues seen as relevant by the Board. This lack of clarity would have been avoided had the approach we commend been adopted.

Consideration 22We will not recite in detail the contents of the material placed before us. 23Mr Ibrahim's Background. In December 1988 at the age of 23, Mr Ibrahim graduated in medicine from Ain Shames University, Cairo, Egypt after a six year course. He then completed one year's internship split between the El Demerdash and El Matareya Public Hospitals. Early in 1990 he was registered as medical practitioner by the relevant authority in Egypt. He has a record of continuous practice from 1990 to 2000. His major difficulty is the discontinuous nature of his work as a general practitioner since 2001. 24He did not practice between February 2001 and December 2003. As to that gap he gave the following explanation. He began by noting that he and his wife had married in 1997 in Egypt and their first child was born in 1998. They first came to Australia in 2002 and spent 15 days here. They decided to migrate and successfully applied for a business visa. (Their second and third children were born in Australia in, respectively, 2003 and 2013.) He explained that he and his wife established in Sydney a business operating child care centres. He stated that the gap in his practice experience between 2001 and 2003 is explained by those developments. 25He returned to practice in Egypt in January 2004. His wife stayed in Australia during the time he was back in Egypt and she ran the child care centre business. He stated that he worked alone in a general practice from January 2004 to June 2007, but also did work at the Abou Sefein Polyclinic and the Glym Hospital. He provided the Board with professional testimonials in relation to that work period. Dr Kamerman questioned the adequacy of his practice experience during that period. 26He returned to Australia in June 2007, and has lived here continuously since then with his wife and family. He explained that he and his wife had sold their two childcare centres for a substantial sum in 2008, had paid out their debts and invested the balance in a new business venture which had failed for reasons explained in his affidavit. His cv does not refer to any employment history between 2007 and 2010. He did refer in his material to undertaking observerships at a medical practice during 2008. 27Responses to Criticisms. In his affidavits and oral evidence, Mr Ibrahim sought to respond to and meet the criticisms contained in the Board's reasons. As to the PESCI interview, he drew attention to the positive aspects of the PESCI committee's assessment, most significantly the excellent standard of his communication in English. In relation to scenario 1, he stated that he was affected by nerves being in the presence of three other doctors, being the members of the assessment panel. He felt that once he settled down, he performed better, and that was reflected in his better assessments for scenarios 2 and 3. 28He offered replies to each of the criticisms made of his performance. He gave a firm commitment to taking up each of the suggestions that the panel made as to how he might improve his knowledge of aspects of practice relevant to a general practitioner position of the kind he had been promised. In relation to the criticism that he not provide the female patient with a chaperone for the testing required in connection with scenario 2, he responded that he would not have thought that necessary as, in a real situation, he would have had Dr Giurgius (his prospective supervisor) in the room with him and his presence would have served that purpose. 29Further, in relation to his attempts to qualify himself for Australian registration, he noted that until he won registration he could not engage in direct clinical care in Australia. So he had sought to plug the gap in his clinical practice since June 2007 by engaging in observerships at medical practices, as outlined in his original application. He referred the observerships he had undertaken in the two year period January 2011 to December 2012. They had occupied ten hours per week (Mt Druitt, the year 2011) and sixteen hours per week (Colyton, 2012), and in addition he had spent eight hours per week at Dr George Ibrahim's practice during both years. He outlined the range of clinical, record taking and record keeping, and medical practice management activities he had observed. He referred to the clerical and administrative tasks that he performed on behalf of those practices. In addition he referred to other voluntary and paid activities that he had undertaken more recently, i.e. observership at the Macquarie Health Centre and Bourke Street Medical Centre between April 2012 and March 2014 (attendance, minimum eight hours, two days a week). He outlined the clinical practice activities that he observed, and the clerical and administrative tasks that he had undertaken. He referred to his work as a medical receptionist at Bourke Street Medical Centre (part-time, March 2011 to April 2012) and the scope of his duties as a senior pathology collector (from November 2010). 30He listed several programs of further professional education that he had undertaken with the RACGP, and noted that he is presently studying for the AMC examinations. He listed various study groups that he has voluntarily attended, mainly at Westmead Hospital, and involving Dr Amir Hanna, since 2008. As to his future professional development plans, he relied on the professional development and re-entry to practice plan found at annexure J to the external appeal form. 31Mr Ibrahim's affidavit evidence was not significantly challenged in cross-examination. In our opinion, Mr Ibrahim is making a sincere and diligent attempt to meet the requirements for Australian registration on a limited basis. 32We will now turn to the difficulties seen by the Board and by Dr Kamerman as to the extent to which Mr Ibrahim's record and his activities since 2007 meet the criteria for registration. 33There was an objection on behalf of Mr Ibrahim on the question of whether Dr Kamerman should be treated as an expert in the matters to which he has deposed. We are not bound strictly by the rules of evidence, and the Tribunal may inform itself as it thinks fit: National Law, Sched 5D, cl 2. Dr Kamerman is an experienced general practitioner and supervisor of persons with limited registration. He has held a number of professional leadership positions especially in relation to general practice in rural settings, and has a close familiarity with the relevant standards and their application. We should give weight to his opinions on that basis, but, we are, of course, not bound by them. 34PESCI assessment. In Dr Kamerman's view a borderline assessment in relation to a scenario is never acceptable, all scenarios had to be rated satisfactory. On this view, he should have been assessed as not passing the assessment. 35We accept that the use of terms such as 'borderline' in a report of this kind are not apt to instil confidence in a reader and the public. It would be preferable if panels used a single final term, and introduced any qualifications into its assessment in the section of their report that gives a general appraisal. Nonetheless we do not share the Board's and Dr Kamerman's concerns to the same degree. 36We accept that Mr Ibrahim's performance in relation to scenario 1 did omit to provide as a possible explanation for the sclerotic lesion shown at T9 by the CT a metastatic deposit. We are prepared, as the panel did, to give him the benefit of the doubt in the circumstances, a difficult assessment environment and the first of the three he was required to undergo. In relation to scenario 2, we think his explanation for not considering a chaperone is plausible - he envisaged a setting as a limited registrant where there would be a supervisor present and available, if he was undertaking a procedure involving examination of a female patient. We accept that he should, possibly, have approached the scenario strictly on the basis that he was in an unrestricted private practice setting, in which case the issue of having a chaperone for the examination would clearly have arisen. 37The weight to be given to Dr Kamerman's assessment is affected necessarily by the fact that he was not personally present at the PESCI assessment, a point he acknowledged. We are not inclined to reject the panel's assessment of Mr Ibrahim's PESCI performance, though we accept, as the panel noted in its report, that it had a number of shortcomings. 38We note in that regard that the panel made detailed recommendations as to the steps Mr Ibrahim was to take while subject to limited registration to improve his performance in the areas noted as deficient. We note the firm commitment given by Mr Ibrahim in these proceedings to implementing those recommendations. 39Supervision Plan. Dr Kamerman acknowledged that his report had not referred to the amended supervision plan lodged with the Board in February and the further amended plan lodged with the Tribunal. But while he acknowledged that the amended plan contained some improvements on the one with which he had been briefed, he considered that it remained inadequate. His principal criticism went to the degree of supervision that was proposed to be exercised on a day to day basis by the intended supervisor, Dr Giurgius. It spoke of 'weekly' review of the work done by the appellant. He said that this was an inadequate level of supervision for someone being considered for registration at Level 1. Level 1 supervisees require a greater level of supervision that Level 2 supervisees. We agree with Dr Kamerman that a weekly review system is not sufficient. 40Dr Kamerman went further, and expressed the opinion that it was essential that the supervisee have the supervisor with him in the consulting room during the key parts of a consultation. Dr Giurgius has now indicated that he will ensure that he is present in a room adjacent to the appellant's consulting room whenever he is seeing patients. In Dr Kamerman's opinion this was still insufficient. 41In our view the Guidelines for Supervised Practice are not so strict as to mandate constant presence in the consulting room by the supervisor. Relevantly to the present situation, they state: Level 1 Supervision The supervisor takes direct and principal responsibility for individual patients 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 c) Supervision via telephone contact is not permitted. The supervisor is required to submit an assessment of the IMG's performance in the form of a report to the Board at the completion of the first three months of the IMG's employment (or earlier if requested by the Board) and the Board may direct that Level 1 supervision must continue to apply for a specific period or the Board may direct that supervision shall be provided at one of the following levels [the Guideline goes on to refer to Level 2, Level 3 and Level 4 classes of supervision]. 42The requirement placed on the supervisor is to be physically present at the workplace at all times when the IMG is providing clinical care. In our view, the usual level of supervision of a Level 1 GP would be relatively intensive in the early period (and involve a high degree of presence by the supervisor at the consultation), with the supervisor 's role being less intensive as the supervisor grew more confident of the ability of the new GP to deal with patient presentations. As time passed, we consider the level of presence would often give way to a practice of the kind Dr Giurgius has promised. Similarly, we would expect the Level 1 supervisor to have an interactive relationship with the supervisee that was more than a mere end of the day or end of the week review of any concerns. To those extents, we agree with the Board and Dr Kamerman's criticisms. 43In our view, the supervision plan needs to be redrafted again, and the nature of the relationship between Dr Giurgius, as supervisor, and Mr Ibrahim needs to be spelt out more clearly to meet the concerns of the Board. This is a matter that is capable of being resolved between the parties, and by reference to precedents that have been found acceptable. The Board would need assurance that the plan in its revised form could then be implemented in practice by Dr Giurgius and his team at KRS Health. 44Gap in Clinical Practice. This, as we see it, is the key area of concern. 45For recency of practice purposes the RCAGP confines its assessment to the ten years preceding the application. In this case it treated the three and half years of practice in Egypt (Jan 2004-June 2007) on which Mr Ibrahim relied as being the equivalent of two years and eleven months of Australian equivalent practice (letter, 2 October 2013, annexure to external appeal form). 46We have noted earlier Mr Ibrahim's activities by way of observerships, work in health sector environments, and his professional development courses. In regard to the latter, he referred to the subject matter of some of those courses which he saw as relevant to work as a GP in a remote setting, i.e. clinical emergency management, reproductive and sexual health, polycystic ovary syndrome. He had passed in April 2012 the Australian Medical Council assessment (CAT-MCQ) required of international medical graduates seeking Australian registration. He noted that he was a member of the Royal Australian College of General Practitioners (RACGP). 47The Board found that this activities did not constitute practice for the purpose of the standard and could not be counted. Dr Kamerman supported the Board, and gave a detailed explanation of the relevant standard and how it is applied. 48We do not accept the submission made on behalf of Mr Ibrahim that 'practice' as defined in the relevant standard (set out earlier in these reasons) extends to 'any role' in connection with the practice of medicine, and therefore covers pathology collection, observerships, medical receptions and study courses. The critical aspect of the definition is the reference to activities that involve the 'use of skills and knowledge as a health practitioner', which we read in the present context to be 'use of skills and knowledge as a medical practitioner'. The definition of 'practice' seeks to pick up situations where medical knowledge is being used outside the usual consultation and treatment setting. The definition of 'practice' allows for the use of professional knowledge in 'indirect nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles'. In our view, the statement is referring to the use of professional knowledge in environments such as the management of professional programs in a medical research centre, teaching in a university medical school, or senior roles in the administration of the health protection functions of a public health agency where specialised knowledge is required. 49We agree with Dr Kamerman and the Board that the work done by Mr Ibrahim by way of observerships, as a medical receptionist and as a pathology collector do not qualify as clinical experience that might meet the standard. He needs, as Dr Kamerman explained, to show some greater level of involvement in clinical activities than that which is involved in observing procedures or undertaking tasks of a narrow, though not unimportant , kind as is involved in, for example, pathology collection. As noted by counsel for the Board, there have been decisions to similar effect affecting applicants for nursing registration: see, for example, McMahon, cited earlier; and De Navi v Nursing and Midwifery Board of Australia [2013] NSWNMT 24. 50Dr Kamerman in his report notes various options that would fall within the definition of 'practice', such as working as a physician's assistant to a general practitioner; or completing his AMC registration and working in a position that only requires a provisional registration, as within a public hospital. He also mentions, what we apprehend from Mr Ibrahim's evidence to be unfeasible for him, a return to Egypt and the acquisition within that country of six months' practice experience. Finally he canvasses another, we assume, unfeasible possibility, entry into a university medical course in Australia. 51Conclusion. The Board's primary submission before us was that we should find that Mr Ibrahim does not presently meet 'a requirement for registration stated in an approved registration standard' (ground (E) in s 82(1)(c)(i)) or, alternatively or in addition, that he is 'not a suitable person to hold a registration' (ground (C) in s 82(1)(c)(i)). We think it sufficient to dispose of the case on the ground (E) basis, i.e. we are satisfied, for the reasons given, that he because he does not meet the limited registration for area of need standard in the ways indicated, and he does not meet the recency of practice standard. 52In its decision the Board relied on another of the possible grounds for refusal, that provided by s 55(1)(h)(ii) - that it was satisfied that the applicant was 'unable to practise the profession competently and safely'. 53In our view, cases of the present kind should ordinarily be decided by reference to the ground which is least negative to the applicant's next application for registration. Here the applicant is a person with some significant prior practice experience, and has been taking steps now for some years both in the medical services environment and the professional education environment to meet the standards applicable to Australian registration. It is sufficient, we think, in cases of this kind simply to dispose of the case by reference to a ground connected with compliance with registration requirements. 54A finding that a person is not 'suitable' is more appropriate to a case where, in addition, there are character or personal fitness issues of significance. This is not a case of that kind. Similarly a finding that a person is unable to practise the profession 'competently or safely' carries a level of implied condemnation that is perhaps not fair to a person in Mr Ibrahim's position with a significant, albeit now non-current. Moreover, Dr Kamerman himself acknowledged that on the key matter of overcoming the recency of practice difficulty all that Mr Ibrahim may need to do is spend six months in a practice setting in his home country. 55Accordingly, we must dismiss the appeal. We should indicate that if the gap in clinical practice issue can be overcome, we regard the other shortcomings, especially in relation to the supervision and professional development plan, as remediable.

Ibrahim v Medical Board of Australia

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