Nowlan v Medical Board of Australia

No Appropriate Condition in the Circumstances of this Case

1. The Respondent next submitted that, assuming the Board has the discretionary power for which the Applicant contended, there is no appropriate condition which could be imposed in the present circumstances. The Respondent contended that the imposition of the conditions proposed by the Applicant would not be an appropriate exercise of any such discretion. The Respondent indicated that the examination conducted by the AMC falls within the operation of Section 53(3) and observed that this section generally concerns qualifications from international medical schools.
2. The Respondent referred to a passage in Krause, where the Tribunal explained the role of the AMC in the conduct of examinations for international medical graduates for the purposes of Section 53(c). The Tribunal said: "28. 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 programmes in Australia; (c) undertake the examination of IMGs 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. 29. There are three pathways for an IMG to obtain registration as a medical practitioner in Australia being the: (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). 30. 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." 59 The Respondent referred to advice provided both to the Applicant and the Board from the AMC, to the effect that it administers its examinations only to international medical graduates. In an email dated 12 April 2021 a Senior Operations Manager for the AMC wrote as follows to a Senior Legal Advisor for the Board: "The AMC conducts the assessment process for international medical graduates (IMGs) in the standard pathway (AMC examinations) only; it does not conduct assessments in the competent authority or specialist pathway. The standard pathway is for IMGs seeking general registration with the Medical Board of Australia and involves undertaking the AMC CAT MCQ examination and the AMC clinical examination or workplace-based assessment (WBA) programme. An applicant must hold a primary qualification in medicine and surgery awarded by a training institution recognised by the AMC to be eligible to apply to the AMC for assessment under this pathway. To become eligible IMGs are required to submit their primary qualification (final medical diploma) in medicine and surgery (clinical medicine) for verification, and ensure it was completed and awarded by a training institution recognised by the AMC. This means completion of all examinations and training requirements and be awarded the qualification. The AMC has no role in processing applications for registration or in granting registration, which is the function of the Medical Board of Australia. From the information provided to the AMC regarding Christopher Nowlan's circumstance, the AMC understands that Christopher Nowlan does not meet the required criteria to undertake the AMC examination process (standard pathway) as he does not hold the primary qualification in medicine and surgery awarded by a training institution recognised by the AMC."(emphasis in original).
3. Accordingly, the Respondent contended that the Applicant would be unable to comply with this condition that he undertake the AMC examination. The Respondent submitted further that there was no evidence that the University of Queensland would be prepared to enrol the Applicant in a single unit of its MBBS course, so as to enable him to complete the OSCE course . The Respondent contended that the Board has no power to compel the University of Queensland to permit the Applicant to complete the OSCE unit in its degree program. The respondent submitted lastly that "no condition with any certainty as to is operation could be devised that could ameliorate the non-satisfaction of the qualification criteria".
4. In her oral submissions, counsel for the Respondent drew attention to paragraph 7 of the Board's reasons for refusal of the application for registration, which she described as "a direct response to the submission that [the Applicant] be permitted to practise with conditions". The Board said as follows: "7. In considering your submissions the Board makes the following observations: a You have failed to raise any further evidence in your submissions that would cause the Board to depart from its proposal to refuse registration. b. The Board noted you raised concerns regarding the 'perverse nature' of the Tribunal's reasoning in reaching its decision. Should you wish to challenge that Tribunal's decision and its underpinning reasons the appropriate avenue of dispute is via the appeals process in the relevant jurisdiction. c. It is the role of the University of Queensland as an accredited education provider to determine whether or not a student has met the requirements of the University to be awarded a qualification. The Board advises you that if you wish to dispute the decision of the University of Queensland that avenue of appeal falls within the appeals processes for that institution and not the Medical Board of Australia. d. The AMC examination pathway is designed for overseas applicants who hold an overseas qualification which is not approved by the Board to ensure those applicants are able to demonstrate they are able to meet the rigors of an equivalent Australian qualification. You do not hold an overseas qualification or any qualification for the medical profession and therefore this pathway is not available. e. Imposing conditions on your registration cannot satisfy the mandatory requirement for you to hold a qualification under s53 of the National Law to be granted provision registration to complete your internship."
5. Counsel for the Respondent pointed out that the Queensland Court of Appeal made no reference in Lee to s82 of the National Law. As noted above, s82 sets out the duties of the Board after consideration of an application for registration. These duties include a mandatory requirement for refusal if the applicant is "ineligible" as defined in s82(1)(c).
6. Counsel for the Respondent submitted that the NCAT decision of Taylor v Medical Board of Australia dealt with provisions of the National Law which have no relevance to the present proceedings. As noted, that decision concerned an application for a stay of conditions imposed by the Board upon the registration of a medical practitioner.
7. Counsel for the Respondent referred to the VCAT decision in Krause. In her written submissions counsel wrote: that 'VCAT held that the power to impose conditions under s83 does not expressly or impliedly abrogate the necessity for an applicant to come within eligibility criteria otherwise prescribed by s52(1), specifically s52(1)(a) coupled with s53. Registration by way of conditions where an applicant does not satisfy the basic eligibility criteria for registration 'would subvert the registration system'".
8. Counsel for the Respondent referred to the NCAT decision of Susan Margaret McMahon v Midwifery Board of Australia [2013] NSWNMT4. In her written submissions counsel for the Respondent stated the Tribunal held that conditions imposed under s83 could not be used as a means to avoid compliance with requirements of registration set out in s52(1).

Consideration and Conclusion

1. As noted, the Respondent contended that the observations of the Queensland Court of Appeal in Lee in relation to the scope of the power to impose conditions under section 52(2) are obiter dicta and thus need not be followed in future decisions. The written submissions of the Respondent set out carefully the arguments which were said to support this proposition.
2. The Applicant in Lee had applied for registration pursuant to section 303(1)(b) of the National Law. The Court of Appeal described this pathway to registration as follows: "The Respondent graduated in December 2011, prior to the commencement of the national scheme for Chinese medicine. In December 2011 approval was given to a registration standard called the grandparenting and general registration eligibility standard…with effect from 1 July 2012. The grandparenting standard applied to section 303 of the National Law, providing a limited window of time in which applicants for registration could apply under an alternative pathway to that contained in section 52 of the National Law. Under section 303 of the National Law applications under the alternative pathway were permitted if they were made before 1 July 2015…"
3. The Court allowed the appeal on the basis that QCAT failed to address the second limb of section 303(1)(b), namely that the applicant had completed "training in the profession". The Court observed that 'section 303(1) provides a completely alternative method of establishing that an applicant is qualified for general registration, is apparent in subsection 303(2) it provides that section 303 'applies despite section 303'. When one has regard to section 53 the qualification referred to in that section is one that has been approved by the Board, or which the Board considers to be substantially equivalent to an approved qualification, where the Board has imposed an examination or assessment, or where it was a previously registered qualification. None of those things apply to section 303(1)(b)."
4. The Court of Appeal observed further: 41. Section 303(1) does not, in my view, conflict with section 83 of the National Law which gives power to a Board to impose conditions. Section 303(1) is directed towards providing an alternative form of qualifying for the purposes of section 52(1)(a). It has no further ambit of operation than to provide the alternative qualification avenue, limited to those who apply before 1 July 2015."
5. It may be that the Respondent is correct in the submission that the observations of the Queensland Court of Appeal in relation to the construction of sections 52 and 83 are "not material as to its conclusion as to error of law or in the application of section 303(1)(b) and were obiter dicta". Additionally, there would appear to be force in the submissions of the Respondent as to the proper construction to be given to sections 52, 62, 83 and 303(1)(b).
6. In particular, it would appear that there is merit in the submissions of the Respondent as to the purpose of provisional registration and the absurd consequences which would flow from a construction of the statutory provisions which was contended by the Applicant in these proceedings. Section 61(1) sets out the purpose of provisional registration as follows: "1. An individual is eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession…"
7. Section 62(1) refers specifically to a mechanism by which a person is enabled to "complete a period of supervised practice" so as to qualify for general registration. S62(2) allows the Board to "decide the individual is eligible for provisional registration by imposing conditions … under s83". Section 83(2) mandates that the Board must "decide a review period for the condition".
8. It may be thought that these provisions of the National Law do not sit easily with the construction for which the Applicant contends in these proceedings. This construction would enable an applicant who has tried but failed to obtain a recognised tertiary qualification to achieve registration by being permitted to undertake an examination which is designed and intended to qualify a class of individuals who already hold an overseas university degree.
9. The Applicant's construction of the relevant provisions of the National Law may well mean that, theoretically, a person could apply for provisional registration at any time during the last twelve months of a recognised degree program with a condition of successful completion of the course. The likelihood of an exercise of discretion in favour of such an applicant is another matter entirely.
10. In any event, if there is a discretion in this Tribunal which would allow and/or enable the relief sought by the Applicant, we determine that such should not be exercised in his favour. In our view, essentially the Applicant remains in the same position as was the case at the time of the proceedings before QCAT. The Applicant was excluded by the University of Queensland from its MBBS program on the basis of unsatisfactory academic progress. His academic record at the University of Queensland was summarised by QCAT as follows: "4. In semester 1 of 2012 the Applicant passed four subjects, although a pass in Medical Science 1 was achieved on supplementary assessment. In semester 2 he passed three subjects but failed Clinical Skills 2, despite being accorded supplementary assessment. No subjects were studied in 2013, and in 2014 the only subject studied was Clinical Skills 2 in Semester 2, which he passed. In each semester in 2015 he passed four subjects, although in the case of Clinical Science 2 only after supplementary assessment. In Semester 1 of 2016 he failed Medicine in Society and passed General Practice only after supplementary assessment; he passed both subjects in Semester 2. In Semester 1 of 2017 he failed Paediatric and Child Health and passed Surgical Specialities only after supplementary assessment. 5. After failing the third course, the university refused further enrolment because of unsatisfactory academic progress.
11. The Applicant referred to this decision in the course of the present proceedings. He took no issue as to the accuracy of this account of his academic record at the University of Queensland. The Applicant contended that "QCAT has already made a finding of fact that the Applicant has completed all required units for the Bachelor of Medicine/Bachelor of Surgery degree at UQ which is an accredited qualification. However, the QCAT found that the Applicant did not complete the final practical examination". The Tribunal, in fact, noted these aspects of the academic history of the Applicant in an introductory section to the reasons which is headed "Background to the Decision".
12. As noted, the Applicant called evidence from two witnesses who appeared under subpoena and were "expected to give evidence as to the Applicant's competence in their respective fields of medicine". As recorded above, however, Associate Professor Kothere said words to the effect: "All I can say is that you completed your eight-week rotation." and "I cannot say you are competent to perform as an intern in obstetrics and gynaecology. I do not have your results." Associate Professor Coulthard said words to the effect "I think you would be a bit rusty in paediatrics now".
13. It is our view that the evidence of these two witnesses did little to bolster the claims of the Applicant that he has competency in the fields of obstetrics and gynaecology and paediatrics. The Applicant has an academic record which, overall, leaves room for doubt as to his competency and militates against an exercise of discretion in his favour.
14. As to the conditions proposed by the Applicant, the evidence was abundantly clear that the Australian Medical Council would not permit him to undertake its examination for international medical graduates. Accordingly, the Applicant could not satisfy one of the very conditions which he proposes for provisional registration.
15. Nothing in the evidence suggested any reason for optimism that the University of Queensland would permit the Applicant to undertake its OSCE examination. The converse would seem more likely, given that the University authorities have excluded the Applicant from the course on account of unsatisfactory academic progress; dismissed his appeal and declined to award him the degree of MBBS although he completed the remaining units while enrolled on a provisional basis. We are far from persuaded that any request from this Tribunal to the University authorities would be fruitful or, indeed, appropriate in the present circumstances. Accordingly, we conclude that the Applicant could not satisfy this condition for his proposed provisional registration.
16. We have real and substantial doubt as to whether it is the responsibility of this Tribunal of itself to craft conditions which would enable the Applicant to obtain provisional registration. In any event, we are unable to devise any suitable and/or effective conditions which would achieve that purpose.
17. In our view, these considerations militate convincingly against any exercise of discretion in favour of a grant of provisional registration to the Applicant. In reaching this conclusion, we are conscious of and have regard to the paramount consideration of safeguarding the health and safety of the public and ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, even on a provisional basis.

Costs

1. The Applicant contended that each party should pay their own costs of the proceedings, in reliance on s60 of the Civil and Administrative Tribunal act 2013 (NSW) ('the CAT Act'). This section provides, in essence, that each party to proceedings in the Tribunal is to pay his, her or its own costs unless "there are special circumstances warranting an award of costs". Section 60(3) provides guidance as to what matters the Tribunal may take into account in determining whether "special circumstances" exist in any particular case.
2. In written submissions in support of his costs argument, the Applicant traversed the proceedings in QCAT and outlined his complaints against the Board as a litigant. We note that the orders of QCAT made provision for written submissions on the issue of costs. For reasons unknown to us, the Applicant did not pursue the costs issue in those proceedings. In these circumstances, we do not propose to take into account the alleged conduct of the Respondent in the QCAT litigation in our consideration of the issue of the costs of these proceedings.
3. The Respondent submitted that this Tribunal has power to make an order for costs in its favour pursuant to s175B of the National Law. Section 175 deals with "Appellable decisions",one of which is "a decision by a National Board to refuse to register [the] person (s175(1)(a)". A note to s175(1) reads that: "An appeal under this section to the Tribunal in its capacity as an appropriate responsible tribunal is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013."
4. Section 175B provides that: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings." Accordingly, this Tribunal has a discretion to make any order as to costs which is considered appropriate in all of the circumstances of the proceedings.
5. The Respondent submitted that the Applicant had an opportunity to put his case for provisional registration in QCAT and was unsuccessful in those proceedings. The Respondent contended that the Applicant was able to initiate the current proceedings only because he had changed his place of residence from Queensland to New South Wales and his actions are "almost an abuse of process".
6. We would stop short of labelling the Applicant's commencement of the current proceedings as "almost an abuse of process" but, nonetheless, we consider that there are matters which weigh in favour of the Respondent on the question of costs. Ultimately, the Applicant found himself in a very similar position at the conclusion of these proceedings as was the case in his unsuccessful QCAT litigation.
7. As noted, the evidence of the two witnesses called by the Applicant did little to advance his contentions as to competency. In these proceedings, the Applicant advanced two proposed conditions which he could not fulfil and made no other proposals. The Applicant was on clear notice that the AMC examination was unavailable to him and, in our view, he must be taken to have been aware that he would not be permitted to undertake the OSCE course at the University of Queensland.
8. In these circumstances, we conclude that the Applicant should pay the costs of the Respondent in the present proceedings. We do not accept the submission of the Applicant that such an order "would be prohibitive and deny the Applicant and other medical students their statutory right to seek review" and/or "would be inconsistent with s 60(1) Civil and Administrative Act and the objects of the Act stated in s 3(2) and (B)".

Orders 1. The decision of the Board made on 30 November 2021 is confirmed pursuant to s175(1)(a) of the National Law 2. The Appeal is dismissed pursuant to section 79(2)(b)(i) of the Civil and Administrative Tribunal Act 2013 3. The Applicant will pay the costs of the Respondent of and incidental to the appeal, as agreed or taxed

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2022