Dr Medhat Sedky Fouad Dous (the Appellant or Dr Dous) appealed to this Tribunal against the refusal by the New South Wales Board of the Medical Board of Australia (the Board), on 15 June 2021 (Ex R1, p 20), of his application for limited registration.
In his application dated 23 December 2020 (Ex R1, pp 25-51) Dr Dous sought "limited registration for post-graduate training or supervised practice", pursuant to s 66 of the Health Practitioner Regulation National Law (NSW) (the National Law).
The Board gave lengthy reasons for its refusal, in its letter to Dr Dous, dated 17 June 2021 (Ex R1, pp 11-15 and 20-24), a copy of which he attached to his External Appeal Form filed 14 July 2021 (Ex R1, pp 8-9).
The grounds of the Board's refusal were its finding that Dr Dous is unsuitable for registration under s 55(1)(g) and (h) of the National Law, on account of (i) his failure to progress to general or specialist registration, (ii) his consistent and repeated examination failures, and (iii) performance assessments establishing limitations on his ability to practise safely as a general practitioner (GP).
The Board also considered that Dr Dous' failure to obtain the Australian Medical Council (AMC) Certificate after 18 attempts shows (Ex R1, pp 11 and 20):
"a persistent failure to meet a requirement of an approved registration standard particularly in circumstances where [he] previously held limited registration for 15 years".
Dr Dous relied on three affidavits he swore in this appeal, dated 8 September 2021, 29 October 2021, and 16 November 2021. (The application of 23 December 2020, and the Board's letter of 17 June 2021, are also to be found as Annexures "P" and "Y" to his affidavit of 8 September 2021, at pp 77-173, and pp 196-200 of his material).
The Board required Dr Dous for cross-examination at the appeal hearing on 1 December 2021, at which he was represented by Mr D-L Del Monte of counsel.
The Board was represented by Ms Julie Curtin of counsel, who relied on an affidavit from its senior manager, Christine Alison McKeay, affirmed on 15 October 2021, and a bundle of additional materials (Ex R1).
Ms McKeay deposed to the context in which the Board's decision was made, and to Dr Dous's "extensive registration history", and she annexed to her affidavit (as Ex CAM1, at pp 12-19) the relevant registration standard, dated 1 July 2016.
Ms McKeay also annexed (as Ex CAM2, at pp 21-28) a "Fact Sheet" emphasising the expectations the Board has of "International Medical Graduates" (IMG) such as Dr Dous, and identifying key milestones it expects to be achieved "within four years of being granted initial registration".
Dr Dous's notice of external appeal (Applicant's material tab 3) claims that the Board's refusal decision of 15 June 2021 is:
"vitiated by error in that the decision makers:
1.1 had regard to irrelevant considerations;
1.2 failed to consider relevant matters;
1.3 acted in bad faith in making their decision, as is demonstrated by the email sent by Demmi Rebeling on 2 February 2021 and the ultimate decision was infected by this act of bad faith;
1.4 made a decision which was unreasonable and contrary to the weight of the evidence favouring the applicant;
1.5 erred as a matter of law;
1.6 did not accord the applicant procedural fairness;
1.7 were biased and had predetermined the application, as is demonstrated by the email sent by Demmi Rebeling on 8 February 2021 and the ultimate decision was infected by this bias."
In its Reply, filed on 15 October 2021 (Ex R1, p 51), the Board says:
"1. Each of the 'Grounds of Appeal' identified by the applicant is without foundation, and is denied;
2. The right to appeal provided by s 175 of the Health Practitioner Regulation National Law (NSW) No 86a is one to be conducted as a hearing, de novo; and
3. The respondent's decision, dated 15 June 2021, to refuse the applicant's application for limited registration, should be confirmed as the correct and preferable decision, and the appeal dismissed."
[2]
Factual Background
Dr Dous has been an Australian citizen since 21 June 1991, and is now permanently resident here.
He furnished the authorities with a comprehensive CV (Ex R1, pp 53-56, and see also pp 171-173 in tab 4 of the Applicant's materials), as at 22 January 2021, and the full details of the CV need not be repeated here.
He was born on 22 January 1955, in Egypt. He graduated MBBS from Cairo University in 1982, and completed his internship at that university's training hospital in 1984.
After working for four years as a GP in several clinics in Egypt, he migrated to Australia in 1988, but returned to Egypt to work as a GP. After dividing his time between Egypt and Australia 1995-2001, he moved permanently to Australia, and so acquired status as an IMG.
He gained registration here, on 26 April 2002, and has worked as a GP in multiple locations, mostly rural "areas of need", such as Maryborough, Laurieton/Port Macquarie, and Wagga Wagga (see Annexure "D" to his affidavit of 8 September 2021). He now lives in Bella Vista, is sponsored by the Ingleburn Family Practice, and also holds an Observership at Greystanes. There are, however, several gaps in his clinical practice history (see Ex R1, pp 56 and 83).
Dr Dous became a member of the Royal Australian College of General Practice (RACGP) in 2002 (No. 554917), but he has never passed the fellowship examination, and has failed the AMC repeatedly since 2003. He became unregistered on 17 October 2018.
He was found suitable for the Ingleburn position in a Pre-Employment Structured Clinical Interview (PESCI), conducted by the Australian College of Rural and Remote Medicine, on 3 December 2020 (that PESCI is found at Ex "Q" to his affidavit of 8 September 2021, and in Ex R1, at pp 82-89).
There is a factual dispute between Ms McKeay and Dr Dous regarding his attempts to complete his AMC examinations, either in person or online (McKeay affidavit par 24, c. f. Dous affidavits 29 October and 16 November 2021), but the Tribunal draws no conclusion adverse to Dr Dous in this regard.
In any event, he does not dispute the history - recounted at several places in the material, including the Board's reasons in its letter of 17 June 2021 - of his attempts to progress to general and/or specialist registration, as required by the conditions imposed upon him from 2007. He has failed on 18 occasions to successfully obtain his AMC clinical certificate (see par "d" on p 58 of Ex "J" to affidavit of 8 September 2021, and p 194 of Ex R1).
He claims that he loses confidence, and performs badly, in interviews and in any examination situation (affidavit of 8 September 2021, par 39), and he says that he has often had insufficient time to prepare for the relevant examinations. He also says he does better in a "paper" examination situation than in one that is technology based (affidavit of 8 September 2021, par 40). He also found the PESCI situation a "very big stress".
He has strong support from employers, referees, and supervisors, and claims (affidavit of 8 September 2021, par 39) that his peers regularly seek his assistance. On the other hand, he is said to be "disorganised" and/or "superficial" in some dealings with patients, and unclear in his prescribing and record keeping.
However, he appears to be correct when he says (affidavit of 8 September 2021, par 57) that he has never been the subject of a formal complaint or disciplinary action in over 16 years as a rural GP. He required only low level (Level 3) supervision (affidavit of 8 September 2021, par 22). As his counsel says (submissions, par 3), since 2002 "he has practiced (sic) in various capacities without complaint, disciplinary action, or professional blemish".
We also note his participation in CPD events.
[3]
The Present Issue
The application dated 23 December 2020, refusal of which is the subject of the present appeal, is for limited registration for post-graduate training or supervised practice as a GP at Ingleburn Family Practice, with Level 1 supervision to be provided by Dr Andrew Newman and Dr Thanh-Huong Doan (see agreement 16 December 2020, at pp 140-152 of his affidavit of 8 September 2021).
The favourable PESCI report for this position is only one of a number of elements that the New South Wales Board of the Medical Board of Australia must consider (par 14 of the refusal letter).
The Board's refusal letter also acknowledged Dr Dous's concerns about its staff and its internal processes (see, for example, suggestion of pre-judgment, in his email of 8 February 2021 at p 178 of his affidavit of 8 September 2021), and assured him that its decision was made "without any prejudice against [him]" (pars 15 and 16 of the letter). His major complaint was found to lack substance.
The Board decided that he was "not suitable for registration", even limited registration, a situation not altered by any of his submissions (pars 21 and 23), and that he continues to need to successfully participate in the "relevant examinations" (par 22). Meanwhile, he poses an "unacceptable risk to the safety of patients", a risk not alleviated by conditions requiring supervision (par 24).
[4]
Consideration
The Tribunal has a wide range of options available to it in a de novo external appeal such as this, including the imposition of "any condition considered necessary or desirable" (s 83).
[5]
Applicant's Submissions
Counsel for Dr Dous submits that we should find that his application was "improperly refused", and that we should, therefore, grant him limited registration, for which he is eligible under s 66 of the National Law, subject to appropriate conditions, for a period of 12 months (s 72).
Dr Dous relies upon (i) the PESCI of 3 December 2020, (ii) the absence of any formal complaint or disciplinary measures against him, (iii) his observance of all conditions imposed on him to date, (iv) his persistence in pursuing registration, and (v) the good reports from his referees and prior supervisors (albeit that they all date from some time ago).
His counsel submits that his failing of examinations is explicable, he has passed the AMC questionnaire and the PESCI, and he has an unblemished history in medical practice. We should accept his references, and conclude that he has demonstrated that he can safely and competently practise as a medical practitioner. He is prepared to accept Level 1 supervision.
Dr Dous maintains his intention to sit the AMC clinical examinations, but submits that he has been frustrated by Covid-19.
[6]
Respondent's Submissions
The Respondent submits that the Tribunal's jurisdiction is protective (of the public - s 3(2)(a)), and that the correct and preferable decision to be made on all the material now before us is to confirm the Board's refusal of Dr Dous's application.
The submissions outlined the registration regime comprehensively. That outline was not contested, and need not be repeated here. It is also subject to the published "registration standard" (Ex CAM1), approved by the relevant Ministerial Council.
The Board accepts that Dr Dous is qualified to apply for - but considers that he is not suitable to be granted - the registration sought. The Board submits that he is "potentially dangerous" (Ex R1, p 96), and not safe and competent.
Despite the apparent absence of complaints, the various PESCIs in the material before us show his professional deficiencies. Even with the benefits of competent supervision, he has failed to pass the required examinations.
His lack of disciplinary problems cannot substitute for his not meeting the prescribed requirements for registration.
[7]
Discussion
Essentially, the Tribunal accepts the Board's submissions on this appeal, and finds that none of the grounds of challenge has been made good. We have come to this conclusion despite Dr Dous's voluminous submissions over the years (e.g. pp 279-375).
We found Dr Dous to be an unconvincing witness, who seemed to be giving one-word answers he thought the Tribunal wanted to hear, rather than convince us that he was deserving of our favourable consideration. We do not accept that he has developed any genuine insight.
Limited registration was never intended to be long-term, and registrants are generally expected to achieve registration within four years. Dr Dous has been granted several periods of registration, so that he could cover various identified "areas of need" as a medical practitioner, but he has consistently failed to achieve the essential condition of the registration system.
Indeed, rather than progressing, as the regulators require, the evidence suggests persistent difficulty in his meeting the required competency standards. His own evidence shows that his progress has stalled over recent years.
We were taken to the Tribunal's decision in Rahman v Medical Board of Australia [2015] NSW CATOD26, in which the Tribunal found an appellant entitled to renewal of limited registration, notwithstanding his failure to satisfactorily complete the AMC clinical examination.
Dr Rahman, like Dr Dous, had "communication difficulties" (at [14]), but had passed the multiple choice exam (at [4]). His wife's health, and his long working hours were claimed as explanations for failing the AMC clinical (at [7]), and he relied on his "extensive and successful" work history, and strong support from his superiors, to seek registration (at [8], and [10]-[16]).
The Tribunal found Dr Rahman's evidence "less than satisfactory" (at [17]), but also noted that one of his referees was critical of the examination system, saying ([12]) that it "did not measure either the value or performance of the doctor in the workplace". That referee opined that "the appellant should be given an opportunity [for] a workplace-based assessment".
The Tribunal in Rahman noted that such opinions of the system were not determinative of its decision to allow the appeal - the "relative worth" of alternative systems of assessment were appropriately matters for the regulator and other interested bodies, and we respectfully agree.
This appeal must deal with the system of examinations and registration in place at this time. 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" (quoted in paragraph 70 of the Board's written submissions).
The Tribunal determined to give Dr Rahman "one last opportunity" (at [21] and [22]).
We note the similarities between Dr Rahman's situation and that of Dr Dous, but there are significant differences between their cases - Dr Rahman had fewer examination failures, over a much shorter period; his passing of the clinical examination was not specifically mandated, as it is here by a condition; and his supportive references were more contemporary with his appeal than those in Dr Dous's case.
We also note the Board's submission in the present case (par 71) that the PESCI panel's determination that this appellant requires Level 1 supervision "bespeaks a lack of progress and reinforces, rather than ameliorates, the respondent's concerns regarding the appellant's ability to practise competently and safely" (the Board cited in support Cabading v Medical Board of Australia [2016] QCAT 95, which followed Tabanas).
We do not consider that Dr Dous's appeal should succeed. Despite the deficiencies experts have identified in Dr Dous, and his failure in this appeal, he still has available to him, under the current regulatory regime, "a clear pathway to registration by participating in the AMC clinical examinations" (Board submissions, par 75).
[8]
Costs
In the normal course of events, s 175B of the National Law envisages that the unsuccessful Appellant should pay the Respondent Board's costs of the appeal, in the absence of some circumstance dictating a contrary conclusion, such as in Rahman, for example, where the Tribunal made a 50% order for costs in favour of the Appellant.
In the present appeal, the Appellant said nothing on the question of costs, and the Respondent reserved its position (submissions, par 76).
We are of the opinion that the Respondent is entitled to an order for its costs, unless within 28 days either party seeks a different order.
[9]
Orders
The Tribunal, therefore, makes the following orders:
1. The appeal is dismissed;
2. The Applicant is ordered to pay the Respondent's costs of the appeal, unless either party seeks a different costs order within 28 days of this decision.
[10]
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
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Decision last updated: 24 June 2022