Reimers v Medical Board of Australia

The further appeal to this Court

1. The appeal to this Court is as of right but confined to a question of law unless the Court grants leave to extend the appeal to other grounds. No application for such leave was sought.
2. There were five grounds of appeal. Four of those grounds contended that NCAT misconstrued or misunderstood its statutory task, while the fifth was that its decision was "seriously irrational or legally unreasonable".
3. In oral address, the grounds were addressed in a different order, and I shall follow the same course, because aspects of ground 2 were conceded.

Ground 2 - conflation of suitability and "fit and proper"

1. Ground 2 complained that NCAT had erred in its statutory task and asked the wrong question "in eliding suitability for practice and whether he is a 'fit and proper' person to be registered to practise as a specialist anaesthetist". As is fairly disclosed by the heading to the first dispositive section, NCAT's reasons conflated those two concepts explicitly and repeatedly.
2. This part of NCAT's reasons commenced as follows: 78 Section 57(1)(c) provides that, an individual is eligible for specialist registration if, inter alia, "(c) the individual is a suitable person to hold registration in the health profession". The meaning of "suitable" is not defined in the legislation. The Cambridge University Dictionary definitions of "suitable" include "acceptable or right for something". Applying that definition in this case is not contra-indicated by the context in which suitable finds expression in the National Law (Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 28). The question is thus whether the Practitioner is acceptable or right to be registered to practise anaesthesia. 79 If the issue for determination in the present circumstances is whether the practitioner is "not a fit and proper person" for specialist registration, it is difficult to see how a person could be "suitable" if the person is not "fit and proper". Conversely, if a finding of suitability is made but no finding in terms of s 55(1)(h)(i) is made, the person would be entitled to the registration which he or she seeks.
3. True it is that the structure of the legislative regime is not especially straightforward, and does not deal with all eventualities. If the Board (or NCAT on appeal) is of the opinion that an applicant is not a fit and proper person for the relevant registration, and on that basis decides that the applicant is not a suitable person to hold the relevant registration, then the person will not be eligible (because one of the five preconditions to being eligible is that the person is a suitable person to hold the relevant registration), and it will follow that the Board must refuse the application. However, if the Board does not form the opinion that the applicant is not a fit and proper person for the relevant registration, it does not without more follow that the Board is (positively) satisfied that the person is a suitable person. Indeed, there is a disconnect between the authority conferred upon a Board to decide that an individual is not a suitable person, and the element of the definition of eligibility that the person is a suitable person.
4. I would regard this as a conceptual gap, or, as Kirk JA expressed it during the hearing, as an undistributed middle. Windeyer J observed in Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 at 85; [1964] HCA 21 that the fact "that an occurrence is not accidental if any one or more of certain qualities can be predicated of it does not mean that it is accidental if none of them can be predicated" involved the fallacy of an undistributed middle. The same difficulty is found in the National Law. The fact that an individual is not suitable if any of the paragraphs in s 55 are satisfied does not as a matter of strict logic mean that if none of them are satisfied the individual is suitable. However, the sensible way of reading this legislation as a whole, especially having regard to the mandatory, exhaustive structure of s 82, is that where a Board has decided that a person is not suitable, he or she cannot be an eligible person, and that in the absence of any decision that the person is not suitable, suitability is satisfied for the purposes of eligibility. That construction admittedly departs from the strict language of the provisions, but does so in order to avoid the result that there is a category of case left unaddressed, namely, where a Board has neither formed the opinion that an applicant is not suitable, nor has formed the opinion that an application is suitable. It is tolerably clear that it was not part of the purpose of the legislation that there be such a gap.
5. Returning to the distinction between an applicant being suitable and whether an applicant is fit and proper, NCAT said at [82] that it had no application in the present case: The critical issue in this case is whether the Practitioner is a suitable person to hold the registration he seeks. Being suitable may involve broader considerations than those with respect to being fit and proper, but the outcome of this appeal does not turn on such a distinction, if it exists.
6. After dealing with the absence of evidence, NCAT concluded at [88]-[90]: 88 In the circumstances, the Tribunal is satisfied that the Practitioner is not a suitable or fit and proper person to be registered to practise as a specialist anaesthetist. As recorded earlier, our determination does not involve any implied finding of impropriety, or defect of character on the part of the Practitioner. As the authorities to which we have referred make clear, it is whether the Practitioner is suitable to practise the profession of anaesthesia with which we are concerned. He may be suitable to pursue a number of other vocations, but that is not our concern. Our concern is the health and safety of the public. 89 Regrettably, the Practitioner has adduced no evidence of any attempts to regain his specialist accreditation by following the "road map" which the conditions imposed by the Tribunal in 2018, and subsequently varied, laid out for him. Not insignificantly, the Practitioner has adduced no evidence with respect to any of the conditions provided by the Tribunal's 2018 decision directed to his regaining of specialist qualifications. 90 The Tribunal is not satisfied that the Practitioner is a "suitable person" to be registered as a specialist anaesthetist. On the same grounds, the Tribunal is also satisfied that the Practitioner is not a "fit and proper person" to be so registered.
7. I agree with the appellant's submission that this approach discloses error. To be fair, counsel for the respondent candidly conceded as much at the hearing. Fitness and propriety are an element of whether the person is a suitable person. Nonetheless, fitness and suitability were elided in the reasons of the NCAT. The failure to distinguish "suitable person" and its subset notion of "fit and proper person" may be seen from the heading to this section, from the first two paragraphs, and from its conclusion.
8. To reiterate, s 55 identifies nine ways in which a Board may determine that a person is not a suitable person (in each of paragraphs (a)-(g) and in (h)(i) and (ii)). If the Board so determines, then the Board must refuse registration. One of those ways is if the Board is of the opinion that the person is not a fit and proper person for the general registration in the profession. Section 60 applies s 55 to cases where an applicant is seeking specialist registration.
9. Thus it is clear that the Board's opinion that the person is not a fit and proper person for the relevant registration will entail that the person is not suitable, with the result that the application for registration must be dismissed. That was not how NCAT approached this issue.

Is the decision vitiated by the error?

1. But it is one thing to identify legal error, and another thing to identify error which is material. Mr Jones maintained that the concededly erroneous reasoning was not material. I accept that submission, at least to the extent that [91]-[94] was an independent basis for dismissing the appeal. It is not necessary to address his more elaborate submission that the conceded error in the first basis did not vitiate NCAT's conclusion on s 55(1)(h)(i).
2. I pointed out earlier that NCAT mirrored the structure of the reasons of the Board, which relied on both subparagraphs (i) and (ii) of s 55(1)(h), and I have summarised the structure of the reasons which identified two bases. After the first section, which is summarised above, between [91] and [94] the Tribunal asked "whether the practitioner is unable to practice the profession competently and safely": 91 Section 55(1)(f) of the National Law provides that an individual may not be a "suitable person" to hold registration in a health profession if "the nature, extent, period and recency of any previous practise of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession". The Board has not relied upon that provision but on the broader basis provided by s 55(1)(h)(ii), which is an asserted inability to practise the profession competently and safely. The Practitioner adduced no evidence of his current capacity to practise the profession of anaesthesia competently and safely. The Practitioner submitted that his absence of recency was "remediable". 92 The Tribunal observes that the conditions provided by the Tribunal in 2018, and subsequently amended, provided the Practitioner with the opportunity to "remedy" the lack of recency arising from his having, by that time, not practised anaesthesia for almost two decades. The Practitioner has not practised in any capacity involving anaesthesia in accordance with the conditions of re-registration which the Tribunal imposed in 2018, or the subsequently varied conditions attaching to his registration. 93 The Practitioner has adduced no evidence of any attempts by him to maintain currency in any discipline in the practice of medicine, by study, tuition or continuing professional development since 2018. In reality, the risks which the Tribunal accepted in 2018 attended the Practitioner's re-registration have probably been exacerbated by a further period of 5 years absence of any experience or training in anaesthesia. The Tribunal need not make a finding in those terms, it being sufficient to record that the Practitioner is no more able to practise the profession of anaesthesia competently and safely now than he was in 2018. As the conditions attaching to the Practitioner's re-registration in 2018 make clear, the risks to public health and safety of the Practitioner regaining his registration were found to be substantial. There is no rational basis for finding that they are any less so now. 94 The Tribunal is satisfied that the Practitioner is "unable" to practise the profession of Anaesthesia competently and safely. He may one day be able to do so, but unless he more successfully pursues the "road map" created by the Tribunal in 2018, and subsequently varied, it is difficult to see how that would not continue to be the case.
3. The approach taken is confirmed by the immediately following paragraph, [95], under the heading "Disposition": The Tribunal is not satisfied the Practitioner is a "suitable person" and is not a "fit and proper" person to be registered as a specialist in anaesthesia and his appeal must be rejected. Even if the Tribunal did not make those findings, it would be comfortably satisfied to reject the Practitioner's appeal on the basis that he is unable to practise the profession of anaesthesia competently and safely. (Emphasis added.)
4. At one stage the appellant maintained that there were not two independent bases relied upon for dismissing the appeal: KIRK JA: A possible problem with that, Mr Rebetzke, is, at the least as regards competence and safety, even leaving aside being fit and proper, they do appear to make an independent judgment that he was not competent and safe. See paras 91 to 94. Why isn't that enough to uphold the decision, even if they've misdirected themselves in the way that you say? REBETZKE: Well, I first of all say that the finding in relation to inability to practice is subject to the recency of practice issue that we've discussed. Which doesn't answer your Honour's question, I appreciate. Well, can I answer it this way by saying that the tribunal was clearly confused as to its task. And having regard to that confusion, one could not rely upon what appears to be an independent route to a finding of that the applicant is not a suitable person. Because at least, the outcome of a discussion about competence and safety ought to arrive back at s 55. One cannot even have confidence that the test, if one refers to it as a sub-test, has been applied correctly.
5. I do not accept this response. It is open to a tribunal (or for that matter a court) to rest its decision on multiple independent bases. Of course, the mere statement that each basis is independent is not determinative of whether they are; the question is determined as a matter of substance. However, the fact that a tribunal (or court) has stated that that is the position is highly relevant to that task: see Bezer v Bassan [2019] NSWCA 50 at [97]-[110] and [140]-[142]. If there are two independent bases on which a decision rests, then an appellant will fail unless both are set aside. If a plaintiff in an action for negligence fails at trial on both breach and causation, an appeal will be dismissed unless both findings are reversed or set aside. In an appeal such as the present which is confined to questions of law, it remains necessary to establish legal error in both bases. Even if NCAT were "confused" in its reasoning on the first basis, that does not without more entitle the appellant to success.
6. I do not accept the submission that the sole basis for dismissing the appeal was the Tribunal's state of satisfaction concerning whether the appellant was a suitable person or a fit and proper person. I do not rely merely on the fact that this is what NCAT said it was doing, explicitly, at [94]. Nor do I rely merely on the way that this aspect of NCAT's reasons is structurally distinct from the first basis, although once again the way that NCAT framed its reasons also supports the conclusion that the two bases are independent.
7. When one has regard to the substance of the decision, whether a person is a fit and proper person for specialist registration in anaesthesia is distinct from whether a person is unable to practise anaesthesia competently and safely. The latter is essentially factual. That was how NCAT treated this aspect of its decision in [91]-[94]. There is no citation of authority. NCAT simply drew on the absence of evidence and the fact that the appellant had not practised for two decades, and concluded that he was unable to practice anaesthesia safely. And that was why it was accurate for NCAT to record its conclusion under s 55(1)(h)(ii) at [95] explicitly in the alternative as an independent basis for its decision.
8. Hence I conclude that ground 2 is not sufficient of itself to warrant allowing the appeal.

Ground 3: Legal error in the second basis of NCAT's decision?

1. Ground 3 was as follows: The Tribunal erred {at reasons for decision paragraph [91]-[94]} by misconstruing its statutory task, asking itself the wrong question, or misconstruing s 55 of the National Law in reaching its state of satisfaction that the appellant was "unable" to practise the profession of Anaesthesia competently and safely. Particulars A. The Tribunal failed to evaluate the recency of practice concern under s 55(1)(f) of the National Law; B. Properly construed, "unable to practise the profession competently and safely" in s 55(1)(h) does not include lack of recency of practice of the profession because recency of practice falls to be evaluated under s 55(1)(f), and the opinion required by s 55(1)(h) is expressed by the legislature to be "for any other reason". C. The Tribunal could not reasonably conclude that the appellant was unable to practice competently and safely due to an absence of evidence to the contrary. (emphasis in original).
2. Correctly, the appellant maintained that a "key reason" for its conclusion was the appellant's lack of recency in practice. Correctly, it was observed that recency was specifically addressed in s 55(1)(f) as one of the bases on which a Board or NCAT could decide that an individual was not a suitable person. The submission then proceeded: The Tribunal's reasons demonstrate that it did not consider recency of practice pursuant to paragraph 55(1)(f), nor did it consider the requirements of any relevant registration standard. Two relevant registration standards were before the Tribunal, the Recency of Practice registration standard dated 1 October 2016, and the Specialist Registration registration standard dated 15 February 2018. Neither standard was referred to by the Tribunal. The Tribunal noted the content of s 55(1)(f), but failed to consider it because of the way the respondent put its case: "The Board has not relied upon that provision but on the broader basis provided by s 55(1)(h)(ii), which is an asserted in ability to practise the profession competently and safely…" As a matter of statutory construction, the words "for any other reason" in s 55(1)(h)(ii) must be taken to preclude reasons that are the subject of a specific provision in the previous paragraphs. At the least, the Tribunal could not rationally and reasonably form the opinion referred to in paragraph 55(1)(h)(ii) that the appellant was unable to practise the profession competently and safely for "any other reason" until after a consideration of recency of practice under paragraph 55(1)(f). Without consideration of the standards that were before it, it was not possible for the Tribunal to rely upon recency of practice to rationally and reasonably form the opinion required by s 55(1)(h)(ii) that the appellant was unable to practice competently and safely. In turn, the Tribunal could not rely upon that opinion to decide that the appellant was not a suitable person to hold the relevant registration …. (Footnotes omitted)
3. The appellant then characterised this in various ways as an error of law, stating that in essence "the error is not doing that which the statute required of it to make a finding which was necessary to support a decision to refuse the appellant's application for registration". Relying upon the words "for any other reason" in s 55(1)(h), the appellant submitted that it was necessary first for the Board and the Tribunal to determine whether paragraph (f) of s 55(1) was satisfied, and only after doing so would it be open to form the opinion pursuant to s 55(1)(h). He also maintained that whether or not the applicant was able to meet the requirements specified in an approved registration standard was a mandatory relevant consideration in the event that the Board or the Tribunal turned its mind to s 55(1)(h).
4. First as a matter of fairness to the Board and NCAT, it is appropriate to note the background to this ground. It will be recalled that, initially, the Board had proposed in its decision of 9 June 2023 to rely upon s 55(1)(f), and advised the appellant of its intention to do so. In response, he (then representing himself) maintained that "nothing in any registration standard is inconsistent with me being registered as a specialist". The substance of his response was that there was no non-compliance with any approved registration standard. As will be seen, that submission was sound. The Board appears to have acceded to this submission - its final decision did not, consistently with the appellant's submission, rely on s 55(1)(f). Thereafter, in NCAT, where the appellant once again represented himself, the Board's decision was reviewed on the merits and upheld on both bases. Now on further appeal, the appellant by his counsel says that NCAT committed legal error by not addressing recency under s 55(1)(f), which is close to the opposite of the submission originally made to, and seemingly accepted by, the Board.
5. If there were merit in the ground, that would not prevent a conclusion of legal error, although it might warrant a departure from the usual order as to costs: see Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [123]. But this ground lacks merit.
6. The starting point is the standard. I have concluded that it did not apply to the unusual circumstances of the appellant. This was raised during the hearing: LEEMING JA: You took us to the standard, and you complain the tribunal didn't apply it. Suppose the tribunal had sought to apply it; how do you say it applies to your client? … You took us to the heading on 294. It's not completely clear to me that he answers that description. If he does answer that description, then I can see some problems in its application.
7. The heading to which I referred, in the "Registration Standard: Recency of Practice" dated 1 October 2016, was "Requirements for medical practitioners with non-practising registration or medical practitioners who are not registered and wish to return to practice (includes international medical graduates)". That does not on its face apply to the appellant, who was registered and did not have a non-practising registration (that form of registration is governed by Div 5 of Part 7, and although the appellant had not in fact practised, he was entitled to do so and indeed the conditions on his registration contemplated he would do so, first as an observer and then in a postgraduate capacity). Turning to the substance of the standard, which insofar as it concerns medical practitioners who have not been practising for more than 12 months is about continuing professional development and training, if it were regarded as applicable to the appellant, then he did not satisfy its requirements.
8. Ultimately, I did not understand the appellant to contend that the standard in fact applied to the appellant. But his submission was that nonetheless NCAT misconceived its task: my primary argument that it has misconceived its role. That it ought to have been, when it's considering nature, extent, period and recency of practice, it ought to have been addressing itself to the requirements of the approved standard. … My fall-back position, is that the tribunal was at least required to first consider the recency standard, and then if, upon a proper construction of para (h), it considered that there was another reason, other than what it had considered, in respect of the recency of practice standard, for denying registration, in respect of (h)(i) or (ii), then that process of evaluation by the tribunal would necessarily have been informed by the recency of practice standard
9. I do not accept these submissions.
10. In relation to the primary submission, the standard did not apply. It followed that the Board was not authorised to conclude that the applicant was not a suitable person by relying on s 55(1)(f). But that does not mean that questions of recency were forbidden from consideration under s 55(1)(h). That is a catch-all basis, and it is one which, in contrast to s 55(1)(f), turns on the formation of an opinion, as opposed to an objective fact such as meeting the requirements of a standard. There is no basis for excluding a consideration of recency from s 55(1)(h) merely because a standard which did not apply to the special circumstances attending the appellant's unusual registration addressed recency.
11. In relation to the fall-back submission, the issue is whether in forming the opinion in s 55(1)(h)(i) or (ii), the Board was bound to have regard to a standard. That is a question of statutory construction. The principles are settled: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose.
12. The statute does not expressly state that the Board is to have regard to a standard. There is no reason to discern an implication that the Board's opinion that an individual is not a fit and proper person, or is unable to practise competently and safely, is vitiated unless it has regard to any or all standards which are conceivably apposite, and despite asserting as much, the appellant did not develop any argument which might support such a conclusion.
13. In short, the unusual case of the appellant was not addressed by the standard. That did not mean that he met the standard, nor that he did not meet it. It simply did not address his circumstances. That in turn did not mean that his previous practice (or, more accurately, the absence of practice) could be disregarded for the purposes of deciding that he was not a suitable person. It was open to have regard to that previous practice, and especially the fact that he had not practised for more than two decades, in forming either of the opinions under s 55(1)(h).
14. This ground is not made out.

Grounds 4 and 5 - unreasonableness and registration subject to conditions

1. Ground 4 was that it was unreasonable or irrational for the Tribunal to conclude that the appellant was not a suitable person "because of a lack of evidence to positively assert to the contrary", when he held general registration and when the conclusion was reached "in the absence of conditions that the Tribunal had the power to impose, but did not consider imposing". Ground 5 was related, and complained that NCAT misunderstood its statutory task by failing to consider whether any conditions could be imposed on the registration. Both grounds may be addressed together.
2. Before NCAT, the appellant did not say that specialist registration should be granted subject to conditions. Indeed, in closing submissions to NCAT, he said "I'm not suggesting that the conditions be changed, the conditions are what they are, and they are perfectly acceptable". Nor in this Court did he propound suggested conditions.
3. There is no obligation to formulate conditions which are not sought by an applicant. Still less is it unreasonable or illogical or a departure from the statutory task to decide that a person is not suitable based on the only conditions that are proffered, and to fail to go on to consider other conditions. And there are two aspects of the conditions which are important and which serve to demonstrate that this complaint lacks substance. 1. The first is that Condition 1 is that he not undertake any practice in anaesthetics. It is passing strange that a person would be regarded simultaneously as suitable to hold registration in the specialty of anaesthesia but be subject to a condition that he not undertake any practice in anaesthetics. It would be apt to mislead members of the public and other members of the medical profession. 2. The second is that elaborate efforts have been directed to the suite of conditions to which the appellant's registration has been subject since 2018, but without achieving the purpose which was central to the decision of NCAT in 2018, which was a graduated closely supervised return to practice.
4. Contrary to ground 4, it was amply open to NCAT to consider that the appellant, who had not practised at all for two decades and had given no explanation for that and no account of the training and supervision which he would be subject to if he were permitted to practise on some restricted basis, was unable to practise competently and safely. Contrary to ground 5, I do not accept that there was any error at all, let alone a legal error, in the circumstances of this case, when the non-adherence to the purpose underlying the existing conditions was at the forefront of NCAT's consideration and where no conditions were put forward for NCAT to consider conditions.

Ground 1 - Onus

1. Prominent in the appellant's written submissions, but much less so in his oral submissions, were quite difficult questions of onus, which the Tribunal addressed at [28]-[32]. The problem ultimately derives from the approach taken by legislation, which is to mandate a decision to grant the type of registration or alternatively mandate the refusal of an application if the applicant is ineligible for registration. That disjunction in s 82 of the National Law at least arguably flows through to the eligibility criteria in s 55. The legislation does not in terms refer to the onus, or admitted the possibility that on the material before it, the Board may not be satisfied that the person is eligible and not be satisfied that he or she is ineligible.
2. However, at [33] the Tribunal having raised these issues stated that it did not need to determine them, because, for reasons which followed, the outcome of the case would not change irrespective of whether there was an onus of poof and whether the Board or the applicant bore that onus. In oral submissions, the respondent expressly invited this Court not to determine the point. In light of the explicit approach taken by the Tribunal, it is impossible to see that the question of onus gives rise to any question of law which could be material. Accordingly, I shall accede to the invitation from the respondent not to determine a point on which nothing turns for the purposes of this appeal.
3. It will be apparent from the above that there are deficiencies in the drafting of the National Law. Some are of relatively small moment, such as the awkwardness in determining that NCAT is the "responsible tribunal" in the case of a registered practitioner who does not practise. But others are more significant, and are likely to recur, and it is desirable that they be clarified. The apparent error in s 57(1)(c) is readily cured by amendment. The question of onus, which the Medical Council asked this Court not to decide, is important and will likely arise in the future. And notwithstanding the construction favoured in [72] above, it would be desirable for attention to be given to the apparent disconnect between the power to decide that an individual is not suitable, and eligibility insofar as that status turns on an individual being suitable. It is better for those administering the National Law, and those affected by it, not to need to read these reasons in order to understand precisely how eligibility for registration is determined.

Conclusion and orders

1. For those reasons, the conclusion reached by NCAT was correct. Although, as the respondent Board conceded, the first basis of the decision discloses legal error, there were two bases and the second is independent of the first and each was sufficient to sustain the decision. Another way of putting this is that there is no material error of law, which is to say, an error of law which vitiates the order made dismissing the appeal from the Medical Council, in the absence of a successful challenge to the second basis on which NCAT's decision rested.
2. For those reasons, the appeal should be dismissed. There is no reason why costs should not follow the event. I propose that the appeal be dismissed with costs.
3. KIRK JA: I agree with Leeming JA.
4. GRIFFITHS AJA: I agree with Leeming JA.

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