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[2013] QCAT 609
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2013-10-15
Mr J, Ms J
Original judgment source is linked above.
Lee v Chinese Medicine Board of Australia [2013] QCAT 609
Judge Alexander Horneman-Wren SC, Deputy President
HEALTH PRACTITIONER - CHINESE MEDICINE PRACTITIONER - LICENCES AND REGISTRATION - where the applicant applied for general registration as a Chinese medicine practitioner in the division of Acupuncture - where the Board refused the applicant's application - where the Board's reasons for decision were that the applicant was not eligible for registration as his qualifications did not satisfy section 303(1)(b) of the Health Practitioner Regulation National Law - whether the Board may decide an individual is eligible for general registration in the profession by imposing conditions on the applicant's registration - whether the correct and preferable decision is to grant the applicant's application for general registration
Health Practitioner Regulation National Law (Queensland) ss 52(1)(a), 52(2), 53, 81, 82, 82(1)(c)(i)(A), 83(1), 199(1)(a), 303, 303(1)(a), 303(1)(b), 303(1)(c)
McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4, cited
Palatty v Nursing and Midwifery Board of Australia [2013] WASAT 78, cited
Ms J Rosengren instructed by Rodgers, Barnes & Green Lawyers
[1] On 22 March 2012, Mr Jeon Lee applied to the Chinese Medicine Board of Australia for general registration as a practitioner of Chinese medicine in the division of Acupuncture. Chinese medicine was not a regulated profession in Australia, other than in Victoria, until 1 July 2012. At that time, it became subject to the Health Practitioner Regulation National Law.[1]
[2] Mr Lee's application for registration as a Chinese medicine practitioner was ultimately refused by the Chinese Medicine Board at a meeting convened on 28 December 2012. The decision was conveyed to Mr Lee by a letter dated 3 January 2013 from the Australian Health Practitioner Regulation Agency (AHPRA).
[3] Upon applying for registration, Mr Lee had been granted limited registration. That limited registration was granted for the purpose of allowing applications for registration in this newly regulated profession to be considered.
[4] In December 2011, the Australian Health Workforce Ministerial Council had approved a registration standard called the Grandparenting and General Registration Eligibility Standard with effect from 1 July 2012. That Grandparenting Standard contained, amongst other things, requirements for applicants making application under the grandparenting provisions, to which I will refer shortly, particularly under s 303(1)(b).
[5] Under Part 7 of the National Law, in order to be registered, an individual must satisfy certain eligibility requirements. Section 52(1)(a) provides that an individual is eligible for general registration in a health profession if the individual is qualified for general registration in the health profession.
[6] Section 53 of the National Law provides a number of circumstances by which an individual is qualified for general registration in a health profession. It is common ground that Mr Lee satisfies none of the limbs of s 53, which would render him qualified under s 52(1)(a). There are, however, grandparenting provisions contained in s 303 of the National Law.
[7] It is common ground in these proceedings that s 303(1)(b) is the applicable provision. Mr Lee is unable to satisfy s 303(1)(a), because he does not hold a qualification and has not completed training in the profession that the National Board established for the profession considers is adequate for the purpose of practising the profession. Nor does he satisfy s 303(1)(c), because he has not practised the profession for a period of five years. The qualification primarily upon which Mr Lee relied was his Advanced Diploma of Acupuncture and Oriental Therapies conducted by the Australia College of Eastern Medicine. He concluded those studies in 2011.
[8] Section 82 of the National Law provides for decisions about applications for registration. Section 82(1)(c)(i)(A) provides that, after considering an application for registration and any submissions made in accordance with a notice under s 81, a National Board - here, the Chinese Medicine Board of Australia - must decide to refuse to grant the applicant's registration in the health profession if the applicant is ineligible for registration in the profession under the relevant section because the applicant is not qualified for registration. The effect of s 82(1)(c)(i)(A) is that if Mr Lee is not qualified for registration, then his application must be refused.
[9] Section 52(2) of the National Law provides:
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.
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.
[11] The operation of s 52(2), together with s 83, is, in my view, important in this matter and I shall return to their operation shortly.
[12] Before I do so, something further should be said of the history of the consideration of Mr Lee's application. In reciting the history, it must be accepted that the registration of a new profession under the National Law and the consideration of applications by would be registrants under transitional arrangements is a complex and difficult undertaking. Nothing that I say should be considered as a criticism of the Board and its Registration Committee, which diligently went about that task.
[13] From the material, it appears that Mr Lee's application was first considered by the Registration Committee of the Chinese Medicine Board of Australia ('the Committee') in or about May 2012.
[14] On 8 June 2012, the committee wrote to Mr Lee in the following terms:
Thank you for your application for general registration to practise as a Chinese medicine practitioner in the division of Acupuncture. Your application was submitted to the Registration Committee of the Chinese Medicine Board of Australia (the Committee) at its meeting convened on 1 May 2012.
The Grandparenting and General Registration Eligibility Standard (the Standard) and Schedules attached to the Standard set out the required practice evidence and competence evidence that you should lodge with your application. A copy of the Standard is enclosed for your convenience.
The Committee has considered your qualifications in acupuncture under section 303(1) of the Heath Practitioner Regulation National Law Act 2009 (Cth) (the National Law). The Committee is of the view that, on the basis of your qualifications and supporting evidence provided, you may not be eligible for registration in the division of Acupuncture.
The Committee has decided that your qualifications in acupuncture do not meet the requirements of sections 303(1)(a) or 303(1)(b) of the National Law. Given that you obtained your qualifications in December 2011, you are not able to produce two years of practice evidence as required by the Standard.
You may request your application to be resubmitted to the Committee to be assessed on an individual basis under section 303(1)(c) of the National Law. Please note that for assessment under this section, applications are generally accompanied by the following documentation:
[15] The letter then referred to the practice evidence and competence evidence set out in the Standard in respect of applications under s 303(1)(c) of the grandparenting provisions.
[16] In response to the Board's letter of 8 June 2012, Mr Lee wrote a letter which was received by the Board at least by 14 June 2012. In that response, he states, after addressing the fact that he could not satisfy the criteria under s 303(1)(c) because he had not practiced for five years, that he was applying under s 303(1)(b). In that letter, he said,
I am newly qualified. I have liaised with many of my fellow graduates and they confirmed that they are being considered under section 303(1)(b) of the National Law. These students include Andrew Hoge, Catherine Jenkins, Matthew Earsmen, Maria Hunter, Rochelle Conforte, Matthew Sincock, Nathan Coxen, Mark Crossland, and Kelly Hook (who has recently been accepted by the Board).
[17] He then set out a statement that he had a clinical component, which was in terms of the clinical component as it was set out in the Standard. The committee further considered Mr Lee's application on 10 July 2012. An "Acupuncture Decisions of Assessment Panels" document completed on that day records that a panel, which comprised five persons, recommended registration in the division of Acupuncture on the basis that Mr Lee was approved for registration upon satisfaction of s 303(1)(b).
[18] The document notes that the Committee had reviewed records (a patient case) that Mr Lee had provided, and recommended that in a letter Mr Lee be advised that the Committee had recommended that he undertake a period of supervision. That document was signed by three of the identified five panel members.
[19] A separate Acupuncture Decisions of Assessment Panels document prepared on 10 of July 2012, which, again, identifies the same five panel members, and which was signed by four of them, refers to further information being required, that being the applications by other persons referred to in Mr Lee's letter as set out above.
[20] There is, however, a minute of the meeting, concerning the decision made in respect of Mr Lee, on 10 July 2012. That minute records that the Committee, under s 301(1)(b)(b)(c)(d) of the National Law, decided that Mr Lee is qualified for general registration as a practitioner of Chinese Medicine for the division of Acupuncture, as he held a qualification, or had completed training in the profession, whether in a participating jurisdiction or elsewhere, and has completed any further study, training, or supervised practice, in the profession required by the board, for the purpose of s 52(1)(a). The reference to s 303(1)(b)(b)(c)(d) is confusing, there is no such section. However, the matters recited in the body of the minute are referable only to s 303(1)(b).
[21] Notwithstanding the fact that the Committee decided that Mr Lee was qualified on 10 July 2012, that was not communicated to him.
[22] I have already referred to Mr Lee's letter of 14 June 2012 having raised the fact that a number of persons with qualifications the same as his own were being considered for registration under s 303(1)(b), or, in the case of one, had already been registered. In an affidavit by Mr Peter John Gigante, a member of the Committee which considered Mr Lee's application for registration, he deposes that one of those persons, Ms Hunter, was approved for registration by the Committee on 20 August 2012. He further states, at paragraph 39 of his affidavit
The Committee subsequently determined that the precedent being used at that point was not appropriate when measured by proper decision-making standards. The Committee acknowledged that this oversight, in accordance with its obligations to protect the public, needed rectification.
The position of the Board and Committee was that any previous decisions to grant registrations to ACEM graduates were erroneous, and that it was inappropriate to continue to register ACEM graduates having regard to the objectives of the National Law 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.
With respect to those graduates who had already been granted registration, the Committee determined that it was unable at law to reverse the decision to grant them registration.
The Board and Committee determined that in accordance with the duty to provide for protection of the public, the registration of those applicants who had already been granted registration would be made subject to conditions requiring they be supervised upon renewal of their registration. The Committee resolved to impose such conditions upon Ms Hunter's registration upon its renewal.
[24] In his oral evidence before the Tribunal, Mr Gigante has identified that Ms Hunter's registration renewal would have arisen in or about late November 2012. In fact, as part of exhibit 2 in the proceedings, there is the first page of a letter to Ms Hunter dated 31 January 2013. It informs Ms Hunter that the registration Committee of the Board further considered her application for renewal of general registration, together with her submission to practice as a Chinese medicine practitioner, at its meeting convened on 22 January 2013. It goes on to record that the Committee determined to approve her application for renewal of general registration subject to certain conditions. Those conditions now appear on her registration.
[25] The reasons record that the Board had determined that the advanced Diploma of Acupuncture and Oriental Therapies conducted at the Australian College of Eastern Medicine did not meet the requirements of the Board's Grandparenting Standard. Specifically, it didn't meet all the requirements that appear at paragraph 2(a) in the Standard.
[26] Exhibit 6 in the proceedings is a bundle of extracts from the register of AHPRA concerning a number of those persons identified by Mr Lee in his letter to the Board of 14 June 2012. In respect of Ms Hunter, Ms Jenkins, Mr Hogue and Mr Sincock, it identifies that each of those persons is qualified under the National Law in accordance with s 303 of the transitional provisions.
[27] Each of them have conditions imposed in, materially, the same terms. I say "materially", because there is a variation in respect of Mr Hogue as to the date upon which certain matters are to be concluded. Each of those persons has registration conditions in the following terms:
(1) The registrant must provide the Registration Committee of the Chinese Medicine Board of Australia (the Committee) with the name and details of a prospective supervisor to be approved by the Committee, along with a signed Supervision Agreement between the registrant and their prospective supervisor by a particular date. In Ms Hunter's case, that was 11 February 2013, the decision having been made on 22 January 2013.
(2) The registrant must provide, within one week of receiving notification of approval of the supervisor, a supervised practice plan setting out proposed objectives, levels, type and amount of supervision proposed, and how the supervisions is to occur, for approval by the Committee.
(3) When the plan is approved and commences, the registrant is to provide a minimum of quarterly reports, and a report on application for renewal of registration.
[28] The registration details, in respect of Ms Jenkins, do not contain any conditions.
[29] The decision to refuse to register a person is an appellable decision under s 199(1)(a) of the National Law. It is common ground that in the Tribunal, a review is governed by s 20 of the Queensland Civil and Administrative Tribunal Act 2009. The purpose of which is to produce the correct and preferable decision on a hearing or a review conducted by a hearing afresh on the merits.
[30] In Palatty, v the Nursing and Midwifery Board of Australia[2] the State Administrative Tribunal of Western Australia, in considering an application for registration under the National Law by a nurse, said;
It was also noted that, although one or two of those individuals appeared to have similar qualifications to the applicant, apart from the limited documentation that has been subpoenaed, there was no detail of what was actually before the respondent when it made its decision in respect of those individuals. In any event, as will be outlined later, what the respondent did or did not do in respect of other applications is of no value in determining the present application.
Further, the respondent conceded before the Tribunal that for a time in the past since the introduction of the National Law various State Boards of the National Board have made inconsistent decisions and decisions that are not in accordance with the correct and proper interpretation of the National Law.
That concession, and the Tribunal's observations concerning comparisons between the records showing individuals who have been registered, and the applicant's circumstances, demonstrates that a comparison with registrations in the past is neither a reliable nor satisfactory basis to assess whether the applicant in the proceeding is eligible for general registration as a registered nurse.
[32] In my view, the circumstances being considered in Palatty are different to those before the Tribunal in this matter. Here is a circumstance whereby it is said on behalf of the Board that there is a prohibition on registration by the combined operation of s 52(1)(a) and ss 82(1)(c) & (a). The basis for the lack of qualification, is that the course which Mr Lee completed can not satisfy the requirements of s 303, and by that, the requirements of s 52(1)(a). Rather than it being a matter of comparing similar qualifications held by various applicants, here the qualification said to disqualify Mr Lee, is that which has been found not to disqualify others in circumstances including, as identified in the letter notifying renewal of Ms Hunter's registration, that it was considered by the Board that the qualification did not meet the Grandparenting Standard.
[33] In McMahon v The Nursing and Midwifery Board of Australia[3] the Nursing and Midwifery Tribunal considered the application of s 52(2) of the National Law. At [102] the Tribunal said,
Mr Stafford, in effect, submits a correct interpretation of the provision is that conditions may be imposed in addition to the general registration requirements set out in s 52 (1) including compliance with the Standard. But because of the words, "without limiting subsection (1)", the requirements in section 52(1), cannot be disregarded. In short, conditions cannot be used as a "back door" means of satisfying the registration requirements and avoid the necessity for compliance with the Standard.
[35] In my view, s 52(2) cannot be used as a means of avoiding compliance with the requirements of s 52(1). However, s 52(2) provides a means of establishing compliance with s 52(1). That is, that the Board may decide an individual is eligible for registration by imposing conditions on the registration under s 83.
[36] In my view, that is what the Board has done in the circumstances where it has renewed the registration of Ms Hunter and others, by imposing conditions. That is, the Board has established an eligibility based on qualification by the imposition of conditions. That is, in my view, an authorised and an appropriate use of the power under s 52(2) of the National Law. It is clear from the material that the Board did so mindful of the duty imposed by the National Law in respect of ensuring protection of the public, and directed conditions accordingly to that issue.
[37] In the statement of reasons filed in the proceeding on 15 May 2012, a careful and detailed analysis of the deficiencies of the course and qualification in question is carried out. In Mr Gigante's affidavit in the proceedings, that is expanded upon in considerable detail. In Mr Gigante's evidence before the Tribunal, he has further clarified and expanded upon that.
[38] In my view, that evidence establishes that which had already been identified by the Board earlier in its consideration of the qualification. That is, that it was of the view that the qualification did not meet the requirements of the Grandparenting Standard. However, that does not disqualify the Board, or in this case the Tribunal, from being satisfied of an applicant's eligibility by the imposition of conditions which, as I have said, is what the Board has done in respect of the renewal of registration of Ms Hunter and others.
[39] Had it been otherwise, that eligibility was not being satisfied in that way, then the only decision that the Board would have been able to make in respect of those other matters, would have been to have refused registration.[4]
[40] It is apparent from the recitation of the chronology which I have set out above, that the consideration of Mr Lee's application for registration was occurring at or about the time that the Board was considering renewal applications by others holding the same qualifications who had been registered originally. There is a lack of evidence as to how it was that Mr Lee's application followed one course, and the applications for registration of Ms Hunter followed a different course at that time.
[41] It is apparent, however, that the deficiencies which the Board identified in respect of the qualification were known to it both prior to the consideration of its refusal of Mr Lee's registration, and its granting of the renewal of registration to others.
[42] In my view, the correct and preferable decision in respect of Mr Lee's application for registration was a grant of the registration on the same conditions identified by the Board as being necessary and desirable under s 83 in the circumstances, as that which it imposed on the registration of the other persons. I propose to allow Mr Lee's application for review and set aside the decision of the Board of 28 December 2012 refusing his application for registration, and in lieu grant registration subject to conditions in those identified terms.
[43] The conditions will be that:
Mr Lee must provide to the registration committee of the Chinese Medicine Board of Australia, the committee, with the name and details of a prospective supervisor to be approved by the committee along with a signed supervision agreement between himself and his prospective supervisor by 15 November 2013.
Mr Lee must provide within one week of receiving notification of approval of his supervisor, a supervised practice plan setting out proposed objectives, levels, type and amount of supervision proposed and how the supervision is to occur for approval by the committee.
When the plan is approved and commences, Mr Lee is to provide a minimum of quarterly reports and a report on application of renewal of registration.
[44] Section 83(2) of the National Law requires that if a decision is made to register a person subject to a condition referred to in subsection 83(1), then a review period for the condition must be decided. I decide that the review period for the condition is the period expiring 12 months from today, on 15 October 2014.
[1] The applicable law for this jurisdiction being the Health Practitioner Regulation National Law (Queensland) (National Law).
[2] [2013] WASAT 78 at [24].
[4] See National Law, ss 112(2)(a) and 82(1)(c)(i)(A).
Lee
Chinese Medicine Board of Australia [2013] QCAT 609