1. The decision of the Medical Board of Australia to refuse general registration to the Applicant, Dr Christine Krause, is confirmed.

Dr Ian Freckelton SC, instructed by Minter Ellison Lawyers

1. On 11 July 2012, Dr Krause, the Applicant in this proceeding, applied for general registration as a medical practitioner pursuant to s 77 of the Health Practitioner Regulation National Law (Victoria) 2009 (the 'National Law').
2. The Victorian Board of the Medical Board of Australia (the 'Board') determined to refuse to grant the general registration pursuant to sub-paras 82(1)(i)(A), (B) and (E) of the National Law because of deficiencies in qualifications for registration.[1]
3. Dr Krause applied to the Victorian Civil and Administrative Tribunal (the 'Tribunal') for a review of the Board's decision pursuant to para 199(1)(a) of the National Law.

1. Dr Krause studied at the Medical School Hannover in Germany for 6 years, completing her medical training in 1993. From July 1994 to December 1996 Dr Krause undertook an internship, also at the Medical School Hannover. She was granted a licence to practice in Germany in 1996.
2. Between July 2000 and 30 June 2012, Dr Krause has worked in Australia with special purpose and limited registration for postgraduate training or supervised practice, in various orthopaedic and surgical positions.[2]
3. Dr Krause commenced working in Australia as an unaccredited orthopaedic registrar and then sought to enter the Royal Australasian College of Surgeons ('RACS') training program as a surgical trainee. Between 2002 and 2005, Dr Krause sat and failed the first part of the RACS exam on three occasions. Although eligible to attempt the exam a further time, she decided to abandon the specialist pathway to registration for the standard pathway via the Australian Medical Council ('AMC').
4. Dr Krause subsequently passed the first phase of the standard pathway, described below. However, she failed to pass the clinical assessment phase after four attempts.
5. Being aware that her limited registration was unlikely to be further extended, by letter to the Board dated 11 July 2012,[3] she sought to obtain ongoing general medical registration with a view to working exclusively as a surgical assistant. Alternatively, she seeks general registration with a restriction to work only as a surgical assistant.
6. Whilst not falling within any of the standard pathways to obtaining general medical registration, discussed further below, Dr Krause asked the Board to take into consideration that she:
   • (a) has worked in Australia for 12 years and received only good work performance reports;
   • (b) is orthopedically/surgically trained and that yearly work performance reports point out that her standard is equivalent to that of Australian trained surgical trainees;
   • (c) has been recognised as a 'Basic Surgical Trainee' by RACS, which also recognised previous training and internship in Germany;
   • (d) has passed the Australian Medical College - Multiple Choice Question exam (AMC - MCQ) exam;
   • (e) failed the Australian Medical College clinical exams, but such exams are 'not medically required or related to the work I do'; and
   • (f) holds an unconditional medical registration with the General Medical Council in the UK.
7. In addition, Dr Krause pointed out that her preparation for the AMC exams included:
   • (a) Attending the AMC preparation course of the College of General Practitioners;
   • (b) Attending the AMC preparation course at Monash Medical Centre;
   • (c) Weekly classes with Dr Johannes Wenzel, Director of the Emergency Department in the Dandenong Hospital;
   • (d) Participating in a study group; and
   • (e) Attending a general practice one day per week for a few months.
8. On 9 August 2012, the Board advised that it proposed to refuse her application as there was no other pathway that would allow her to obtain general or specialist registration. Dr Krause was invited to provide a response to the proposed refusal.
9. By further letter dated 9 October 2012, Dr Krause made further submissions to the Board.[4] Dr Krause stated that she could be eligible for general registration pursuant to s 53(b) of the National Law, namely, that she holds a qualification that the Board might consider to be substantially equivalent, or based on similar competencies, to an approved qualification. Dr Krause detailed her medical practice in Germany as an Assistant Doctor. As a result of such prior experience, the RACS granted certain exemptions from the clinical training components of the RACS Part 1 Training and Assessment package. Dr Krause also referred to having worked in Australia under supervision for 7 years in several positions, performing the duties of a surgical assistant.
10. On 27 November 2012, the Board confirmed its refusal. In summary, the Board considered that there were deficiencies in Dr Krause's qualifications for registration. The Board refused to grant general registration pursuant to section 82(1)(i)(A), (B) and (E) of the National Law because Dr Krause is not qualified for general registration in that she has not completed an examination required to assess her ability to practise the profession (AMC clinical examination) and therefore she is unable to comply with the relevant approved registration standard.

1. In support of her Application, Dr Krause gave oral evidence and relied upon previous correspondence with the Board and submissions filed with the Tribunal.
2. In opposing the Application, the Board relied upon:
   • (a) Tendered documents from the Tribunal Book comprising: correspondence between the parties, including the reasons for the Board's decision; and the academic record of Dr Krause in Australia;[5]
   • (b) The expert report[6] and oral evidence of Professor David Watters, Professor of Surgery; and
   • (c) The witness statement[7] and oral evidence of Ian Frank, Chief Executive Officer, Australian Medical Council.
3. Professor David Watters[8] addressed the role of the RACS, the qualifications and experience of Dr Krause; and the training and duties of a surgical assistant.
4. Mr Ian Bjarne Frank has been Chief Executive Officer of the Australian Medical Council (AMC) since 1991. He explained the role of the AMC[9] and the three pathways by which an IMG may become eligible for either general or specialist medical registration.[10]

1. The Medical Board of Australia is the relevant National Board established for the medical health profession in Australia.[11]
2. Pursuant to s 3 of the National Law, the Board's primary role is to protect the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent manner, are registered.
3. Dr Krause makes this application for review pursuant to para 199(1)(a) of the National Law which makes a decision of the Board to refuse registration an appellable decision.

(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision -

(a) a decision by a National Board to refuse to register the person;

1. Pursuant to s 51 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') and s 202 of the National Law, the Tribunal may amend, confirm or substitute another decision for, the appellable decision;[12] and has all the functions and powers of the original decision-maker.[13]
2. Part 7 of the National Law deals with the registration of health practitioners. The following provisions are relevant to the current application.

(1) An individual is eligible for general registration in a health profession if -

(a) the individual is qualified for general registration in the health profession; and

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

(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; 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 general registration in the profession by imposing conditions on the registration under section 83.

1. The qualification requirements for general registration are then set out in s 53 of the National Law.

An individual is qualified for general registration in a health profession if -

(a) the individual holds an approved qualification for the health profession; or

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

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

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

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

1. An 'approved registration standard' means a registration standard:
   • (a) approved by the Ministerial Council under section 12; and
   • (b) published on the website of the National Board that developed the standard.
2. For the period of time during which Dr Krause has been practising medicine in Australia, she has been afforded limited registration pursuant to s 66.
   1. 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.

1. Section 82 directs the Board as to how it may deal with an application for registration:

(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 -

(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.

1. Section 83 allows the Board to impose conditions upon registration.

(1) If a National Board decides to register a person in the health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances.

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.

PATHWAYS TO REGISTRATION OF AN INTERNATIONAL MEDICAL GRADUATE ('IMG')

1. In addition to advising the Commonwealth Government and the Medical Board of Australia with respect to accreditation and assessment of medical practitioners, the role of the AMC is to:
   • (a) credit basic medical courses and schools in Australia;
   • (b) credit specialist training programs in Australia;
   • (c) undertake the examination of IMG's for the purpose of general medical registration in Australia; and
   • (d) facilitate the assessment in Australia for the purposes of registration as specialists of overseas trained specialists in conjunction with the specialist colleges, such as the RACS.

1. There are three pathways for an IMG to obtain registration as a medical practitioner in Australia being the:[14]
   • (a) Competent authority pathway (leading to general medical registration);
   • (b) Standard pathway (leading to general medical registration); or
   • (c) Specialist pathway (leading to specialist medical registration).
2. In the case of (a) and (b) above, the AMC has direct responsibility for administration of these two pathways leading to the award of an AMC Certificate, which then enables the individual to apply for general registration.
3. In the case of (c) above, the AMC performs a facilitative role, such as verifying foreign qualifications and will then hand the individual over to the relevant specialist College who makes an assessment of the individual. Once the training and education requirements of the specialist College have been satisfied, the AMC advises the Board of the individual's eligibility for the relevant specialist registration.

1. The competent authority pathway involves a recognition of prior examination, or a recognition of other examinations that are consistent with the AMC examination standard.[15] The AMC currently recognises examinations conducted by four overseas bodies.[16]
2. The Professional and Linguistic Assessments Board (PLAB) examination of the General Medical Council in the United Kingdom is one such recognised examination. On 23 September 2011, Dr Krause was granted unconditional registration by the General Medical Council in the United Kingdom by reason that her German qualifications are automatically recognised by the UK, both being members of the European Union. Consequently, for the purpose of UK registration, Dr Krause was never required, nor would she be permitted, to undertake the PLAB test.[17] Mr Frank explained:[18]

...under the arrangements in the EU ... the UK is not permitted to ... formally examine, any graduates of EU countries for the purposes of general registration in the United Kingdom. So the PLAB exam is basically available for people who are trained outside the EU, and wish to obtain registration in the UK.

1. Having not passed the PLAB test, Dr Krause does not qualify under the competent authority pathway on the basis of her registration in the UK alone. Furthermore, Dr Krause does not qualify under the competent authority pathway by reason that she does not hold an approved qualification and has not passed any of the four examinations conducted by recognised overseas bodies.

1. The specialist assessment pathway is open to IMG's who have completed specialist training overseas and are recognised as a specialist medical practitioner in the country of training. The specialist college then conducts assessments against the standards required of an Australian-trained medical specialist in the same specialty.[19] The relevant specialist college for surgeons is the RACS.
2. Dr Krause commenced but never completed specialist surgical training in Germany. RACS assessed Dr Krause, from her training in Germany, as having completed the equivalent of a one year rotating internship and two years of basic surgical training. Dr Krause commenced working in Australia as an unaccredited orthopaedic registrar and then sought to enter the RACS training program as a surgical trainee.
3. Professor Watters noted that, on the basis of her prior clinical experience in Germany, Dr Krause was assessed as being at the level of a basic surgical trainee, rather than an advanced one and was required to complete certain requirements of the RACS Training and Assessment package before applying for a specialty training program in one of RACS' nine specialties.
4. However, Dr Krause did not successfully complete the orthopaedic surgical training and on three occasions Dr Krause sat and failed the first part of the RACS exam.
5. Accordingly, the RACS determined that Dr Krause does not qualify for specialist medical registration under the specialist assessment pathway because she does not have a postgraduate speciality nor is she a qualified specialist in Germany.
6. Professor Watters clarified that the RACS does not train surgical assistants and there is no category of training for such an individual health practitioner under the auspices of RACS. In practice, a registered nurse with specific surgical experience, may perform the role of a surgical assistant. He was also aware that in some jurisdictions, although not Victoria, qualified Theatre Technicians perform some surgical assistant role. Medical students, as part of their training, will also perform limited surgical procedures under instruction and supervision. In all of these cases the assistant is not authorised to prescribe medication or otherwise treat the relevant patient in any way.
7. More commonly, a surgical assistant is a registered doctor such as a surgical trainee; specialist surgeon transitioning from active surgical practice or in a retirement phase; or a general practitioner. These practitioners will be registered on the general register or as specialists and are required to provide confirmation of continuing professional development for the registration. The Continuing Professional Development program of the RACS offers a category of surgical practice for Fellows of the RACS who work only as surgical assistants.
8. A surgical assistant performs only those functions delegated and under the supervision, as appropriate, of the principle surgeon. Professor Watters described the typical duties of a surgical assistant as follows:

a surgical assistant assists the primary operator during a procedure. They are an important person within the surgical team. They may perform certain procedures as part of the assistance depending on how the various functions to be carried out our delegated by the senior surgeon. For example, they may cut sutures, tie ligatures, hold clamps, and in some cases insert screws, use diathermy to cut or coagulate, depending on how the primary operator chooses to deploy them, as certain aspects of a procedure require more than two hands and there is considerable variability in the challenge of a procedure between individual patients. In some cases the assistant may close the wound once the critical aspects of the procedure had been completed. This is at the discretion of an individual surgeon, as to what they will or can delegate. During a procedure surgical assistants may also proffer advice, help consider options, confirm anatomy, and/or reassure the primary surgeon, even although the responsibility for decisions made during a procedure belongs to the primary surgeon.[20]

1. On the basis of material provided to him, Professor Watters considered that Dr Krause had the training and capability of being a surgical assistant and would not compromise patient safety. However, he also noted that she does not currently qualify for general or specialist registration and the RACS does not offer Certification or a Fellowship in a category of Surgical Assistant.
2. Dr Krause abandoned the specialist pathway to registration for the standard pathway via the AMC.

1. The majority of IMG's obtain general medical registration via the standard pathway, which consists of two sequential stages. The first stage is a Multi-Choice Question examination ('MCQ') of applied medical knowledge. If the IMG successfully passes the MCQ, they can proceed to the second stage which consists of a 16 station Objective Structured Clinical Examination ('OSCE'). On successful completion of the second stage, the IMG can obtain an AMC Certificate leading to general medical registration by the Board.
2. Dr Krause failed the MCQ on 5 occasions between 2004 and 2006 before finally passing the MCQ in November 2007.
3. Dr Krause then attempted but failed the OSCE in 2009 and 2010.[21] A third attempt in February 2012 resulted in a marginal assessment[22] which entitled her to be retested. However, in her fourth attempt in May 2012 she again failed, achieving a pass in four of the eight cases. Dr Krause has advised the Board that she does not plan to sit the AMC clinical examination again, although Professor Watters confirmed that she would be entitled to do so.

1. This case is somewhat unusual to the extent that the Applicant, Dr Krause, has not contested any of the evidence relied upon by the Board. Her application is predicated solely upon an interpretation of the National Law to the effect that the Board, and the Tribunal on appeal, is authorised to grant general registration in circumstances where pre requisite qualifications have not been satisfied, but where the applicant is otherwise deemed competent to practice in a limited or restricted area and a conditional registration could give effect to such restrictions.
2. Dr Krause submitted to the Tribunal that she did not understand why she could not continue to practise in the same way that she had been permitted under her limited registration. Dr Krause stated to the effect that her failures in the AMC OSCE exams were in areas of general medicine which are not required or relevant to her duties as a surgical assistant. In particular, Dr Krause referred to and relied upon:
   • (a) her clinical experience in Germany;
   • (b) her clinical experience and study in Australia for approximately 12 years;[23]
   • (c) the Certificate of Full Registration as a Medical Practitioner issued by the General Medical Council of the United Kingdom on 23 September 2011;
   • (d) the Post Graduate Diploma in Surgical Anatomy issued by the University of Melbourne on 1 September 2008; and
   • (e) the favourable references as to her clinical performance provided by: Mr Keith McCullough Orthopaedic Surgeon dated 5 June 2003;[24] Mr James Dugal Orthopaedic Surgeon dated 31 July 2003;[25] Mr Peter Turner Orthopaedic Surgeon dated 18 February 2002;[26] and Mr David Wallace Neurosurgeon dated 9 January 2007.[27]
3. In July 2000, Dr Krause commenced working as an unaccredited surgical registrar on the basic surgical training program, with exemptions from certain components. Between 2000 and 2005 she practised under a Special Purpose Registration under the Medical Practice Act 1994. Subsequently and until June 2012, Dr Krause held limited registration.
4. In her evidence she detailed her clinical experience and her attempts to pass the RACS basic surgical exams,[28] and then the AMC exams, under the standard pathway.
5. The RACS results[29] indicate the following: At her first attempt in June 2002, Dr Krause passed 5/19 stations of the OSCE exam; at her second attempt in March 2003, Dr Krause passed 5/20 stations of the OSCE exam; and at her final attempt in October 2005 Dr Krause received an overall score below the minimum required for the Basic Surgical Training Basic Sciences Exam.
6. After abandoning the specialist pathway, Dr Krause continued to work under limited registration, as a surgical assistant, while she attempted to pass the AMC exams. As indicated above, Dr Krause passed the AMC MCQ exam on the fifth attempt,[30] but failed to pass the AMC OSCE clinical exam after the fourth attempt, including one marginal result.[31]
7. Dr Krause was taken through her examination results in some detail. The Tribunal notes that the results reveal quite low scoring for a number of components on the exams; and in the detailed assessments of her OSCE results, there are a range of satisfactory, unsatisfactory and very unsatisfactory designations. In particular, a 'very unsatisfactory' result is recorded across all of the assessment domains, including management plans for asthma and occupational risk; and managing cardiac arrests. Dr Krause accepted that:

It would be good to know how to manage a cardiac arrest... But you always have the surgeon and have a - have an anaesthetist on board.[32]

1. In all other respects Dr Krause attributed her poor results as relating to areas of general medical knowledge or particular medical practice which she stated is not relevant to her duties as a surgical assistant.
2. In the Tribunal's view, for reasons more fully developed below, there is no basis in law by which such conditional registration could be granted in the circumstances. Furthermore, even if the legislative provisions could be interpreted as conferring a discretion in the Board, which discretion in the Tribunal's view is clearly not available, then there are important practical and policy reasons why such a discretion should not be exercised in the Applicant's favour.

1. Section 52 of the National Law prescribes the circumstances in which an individual is eligible for general registration in a health profession, being the category of registration currently being sought by Dr Krause. The person must first be qualified for general registration in the health profession [para 52(1)(a)] and then meet other requirements set out in the succeeding paragraphs.
2. Section 53 then sets out four ways in which a person may be so qualified, three of which are potentially relevant in this case.
3. Section 53(a) provides that an individual is qualified for general registration if that individual holds an approved qualification for the health profession. Dr Krause does not qualify under this paragraph because her German qualifications do not constitute an approved qualification.
4. Section 53(b) provides that an individual is qualified for general registration if that individual holds a qualification which the National Board for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification. Dr Krause does not qualify under this paragraph because the Board does not consider her German qualifications or the fact that she was eligible for registration by the General Medical Council in the United Kingdom as substantially equivalent or based on similar competencies to an approved qualification.
5. Section 53(c) provides that an individual is qualified for general registration if that individual holds a qualification relevant to the health profession, not referred to under paragraphs (a) or (b), and has successfully completed an examination or other assessment required by the Board for the purpose of general registration in the health profession. While Dr Krause holds German qualifications relevant to the health profession, she has not successfully completed the requisite clinical examination prescribed by the AMC.
6. Where an individual is ineligible for registration by reason of not having qualified within the terms of s 53, then the Board is obliged to refuse to grant the applicant registration. Specifically, s 82(1)(c)(i) mandates that the Board must refuse to grant an applicant registration in the health profession, if that applicant is ineligible for registration by reason that the applicant, so far as relevant to this case:
   • (a) is not qualified for registration [paragraph (A)]; or
   • (b) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board [paragraph (B)]; or
   • (c) does not meet a requirement for registration stated in an approved registration standard for the profession [paragraph (E)].
7. For completeness, although Dr Krause is not currently applying for specialist registration, for the reasons outlined above, she is clearly not eligible for registration pursuant to the specialist pathway.
8. It is conceded that Dr Krause has adequately performed the role of surgical assistant for some years whilst subject to limited registration. However, such experience and performance does not and was never intended to constitute an eligible pathway to general registration.
9. Accordingly, Dr Krause clearly does not qualify and is therefore ineligible for general registration. Indeed, Dr Krause does not contest this interpretation and application of the National Law.
10. Alternatively, Dr Krause seeks to be granted general registration subject to the condition that she act only as a surgical assistant, that is effectively perform in the manner in which she has been permitted to perform under her previous limited registration. To this end, Dr Krause seeks to rely upon sub-s 52(2) which provides that:

Without limiting subsection (1), the National Board ... May decide the individual is eligible for general registration... By imposing conditions on the registration under section 83.

1. Section 83 provides that registration may be subject to any condition the Board considers necessary or desirable in the circumstances.
2. In the Tribunal's view, consistent with the submissions made on behalf of the Board, sub-s 52(1) and s 83 do not either expressly or by implication abrogate the necessity for an applicant to have complied with the eligibility criteria otherwise prescribed by s 52 and in turn s 53. The imposition of conditions is predicated upon an individual otherwise satisfying the eligibility criteria for registration. The circumstances in which the Board may nevertheless consider imposing conditions upon registration will be typically:
   • (a) where the professional performance of a registered practitioner has been found deficient in some respect, resulting in sanctions such as a fine, suspension or cancellation of registration;
   • (b) where the registered practitioner may have suffered a physical impairment, which would render the right to unconditional general medical practice inappropriate or impracticable; or
   • (c) where the registered practitioner seeks to restrict their practice and their exposure to professional indemnity insurance accordingly.
3. Dr Krause is, in effect, seeking to translate the limited registration, under which she has practised in Australia, to general registration with conditions, which effectively preclude her from practising medicine other than as a surgical assistant.
4. The Tribunal endorses the submission of the Board's Counsel to the effect that registration by way of conditions, notwithstanding that the applicant does not satisfy the basic requirements of general registration, would subvert the registration system. Indeed such a 'sub-category' of registration would enable serious deficiencies in satisfaction of criteria for general registration to be remedied by the imposition of conditions, which purport to obviate those deficiencies by restricting the registrant's right to practise medicine. In the Tribunal's view, such an outcome would, as concluded by the Board's Counsel, be 'anomalous, confusing and problematic and would undermine the system of registration as it is structured'.
5. In the Tribunal's view, the regime for registration of health practitioners prescribed under Part 7 of the National Law, does not provide for any residual discretion in the Board, or in turn the Tribunal, to impose conditions upon registration, in lieu of an applicant meeting eligibility criteria. The preamble to sub-s 52(1), 'Without limiting subsection (1)...' makes this purpose and intent clear enough. The circumstances which may give rise to appropriate conditions attaching to registration, of the kind outlined above, do not relate to a deficiency in prescribed eligibility.
6. If, contrary to the Tribunal's interpretation of the National Law, there is a residual discretion pursuant to sub-s 52(2), then in the Tribunal's view it would be both unsafe and inappropriate to grant conditional general registration of the kind sought, having regard to the following circumstances:
   • (a) The Applicant came to Australia as a relatively inexperienced doctor who had not progressed beyond the early stages of specialist surgical training in Germany;
   • (b) The Applicant comprehensively failed the RACS examinations on three occasions, notwithstanding having taken extra time to prepare;
   • (c) The Applicant failed the first phase AMC MCQ exam four times before finally passing on the fifth attempt;
   • (d) The Applicant failed the AMC OSCE clinical exam on three occasions, with one marginal result, and including a significant number of unsatisfactory and very unsatisfactory assessments;
   • (e) The Applicant admitted a deficiency of general medical knowledge and clinical experience in certain areas covered by the exams, asserting that these were not required or relevant for the practice of a surgical assistant; and
   • (f) The circumstances in which the Applicant has performed satisfactorily under supervised or limited medical practice in Australia was part of ongoing training and experience toward eligibility for general registration and was not designed or intended to qualify an IMG for restricted medical practice.

1. In the Tribunal's view:
   • (a) The Applicant is ineligible for general registration as a medical practitioner having failed to satisfy any of the criteria under subparagraph 82(1)(c)(i)(A), (B) or (E) of the National Law and accordingly the Tribunal must refuse to grant the Applicant general registration;
   • (b) Having failed to satisfy eligibility requirements, there is no category of conditional registration of the kind sought by the Applicant whereby general registration can be granted subject to a condition that the Applicant's practice is restricted to that of a surgical assistant; and
   • (c) Sub-section 52(2) and the ability to impose conditions upon registration under s 83 of the National Law does not permit any discretion in the Board or the Tribunal to waive compliance with eligibility criteria otherwise prescribed under ss 52 and 53.
2. The Tribunal will dismiss the appeal and confirm the decision of the Board.

[1] TB 1-2; Letter to Dr Krause dated 27 November 2012 advising of Board's decision to refuse general registration.

[2] Limited registration was granted under s 66 of the National Law.

[6] Exhibit 1, report dated 8 March 2013, TB 9-19.

[7] Exhibit 2, report dated 13 March 2013, TB 20-36.

[8] Professor Watters has been Chair of the Professional Development and Standards Board at the Royal Australasian College of Surgeons since June 2012 and Councillor of the RACS since 2007. He also holds the position of Divisional Medical Director (Surgery) at Barwon Health, Professor of Surgery at Deakin University and Barwon Health, and Specialist General

Surgeon at Barwon Health, the St John of God Hospital and Geelong Private Hospital.

[9] Refer in particular, witness statement paras 3 to 6, TB 21.

[10] Refer in particular, witness statement paras 7 to 14, TB 22-23.

[12] Subsection 202(1) of the National Law; and sub-s 51(2) of the VCAT Act.

[13] Subsection 202(2) of the National Law; and sub-s 51(1) of the VCAT Act.

[14] Transcript 27-28, evidence of Ian Frank.

[15] Ian Frank Witness Statement, Tribunal Book page 22.

[16] These are set out at paras 10 & 11 of Ian Frank's Statement, being relevant examinations in USA, Canada, UK and New Zealand. TB 22.

[17] Applicant's email to AHPRA dated 9 October 2012.

[19] Ian Frank's Witness Statement, Tribunal Book page 22.

[21] Achieving a score of 8/16 when a score of 12 was required for a pass. TB 38.

[22] Achieving a score of 10/16. TB 38.

[28] For which she also worked part time for 12 months between 2002 and 2003 to give time for preparation, Transcript 55.