The decision under review is set aside. In substitution thereof the Tribunal finds that Dr Renton shall be unconditionally registered as a specialist intensivist in Queensland under the Medical Practitioners Act 2001.

MUTUAL RECOGNITION - medical registration of specialists - applicant registered as medical practitioner in New South Wales but practices as specialist in New South Wales - no specialist register in New South Wales - whether applicant can be registered as specialist in Queensland under the Mutual Recognition Act 1992 - decision set aside

Mutual Recognition Act 1992

Medical Practitioners Registration Act 2001 (Qld)

Medical Practitioners Registration Regulation 2002

Private Health Facilities Act 1999

Medical Practice Act 1992 (NSW)

Re Renton and Medical Board of Queensland [2004] AATA 590

Medical Board of Queensland v Senior Member McCabe of the Administrative Appeals Tribunal [2004] FCA 801

Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900

Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560

Rowe and NSW Police Service (1997) 47 ALD 442

Dr James Renton is registered as a medical practitioner in New South Wales and Queensland. He has worked in hospitals in both states as an intensivist, or intensive care specialist, although he does not have formal qualifications in that specialist discipline. Dr Renton applied to the respondent for registration as an intensivist in Queensland under s 19 of the Mutual Recognition Act 1992 (the MRA) on the basis that he is registered for an equivalent occupation in NSW. The Medical Board of Queensland ("the Board") told Dr Renton on 6 May 2004 that he is not eligible for registration in this state as a specialist in intensive care. Dr Renton has asked the Tribunal to review that decision pursuant to s 34 of the MRA.

With the agreement of the parties, I have dealt with the question in two stages. In the first stage, I consider whether a person in the applicant's position is eligible to be registered in Queensland. The respondent says such a person is not technically eligible for registration as an intensivist in Queensland under the MRA because the applicant is not registered in NSW as an intensivist. NSW does not maintain an official register of specialists, whereas Queensland does.

This aspect of the dispute raises important questions about the operation of the MRA scheme where two states regulate the same occupation in different ways. If the Tribunal accepts the Board's decision, the clear intent of the MRA will be frustrated because specialist doctors from most other states and territories will be unable to rely on the MRA to obtain registration in specialist disciplines in Queensland. If I accept Dr Renton's view, it appears - at least at first glance - that Queensland's system of medical registration contained in the Medical Practitioners Registration Act 2001 will be undermined. That is the respondent's fear.

For reasons I will explain, I think a person in Dr Renton's position is eligible to be registered as an intensivist in Queensland pursuant to the MRA. I am satisfied this conclusion does not undermine the registration scheme in Queensland.

In the second stage, I consider whether Dr Renton should be registered as an intensivist, and - if so - whether his registration should be subject to any conditions. In my view, Dr Renton should be registered as an intensivist in Queensland without the imposition of any conditions.

I note the Board's decision has been stayed until the dispute can be resolved by the Tribunal. The stay decision and the reasons are dealt with in Re Renton and Medical Board of Queensland [2004] AATA 590 (affirmed on appeal in Medical Board of Queensland v Senior Member McCabe of the Administrative Appeals Tribunal [2004] FCA 801).

The Tribunal was provided with the documents compiled pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following material was also tendered in evidence:

• An affidavit of the applicant including annexures dated 8 September 2004;

• A letter from the Royal Australian College of Physicians dated 12 August 2004;

• A letter from the Joint Faculty of Intensive Care Medicine dated 13 August 2004;

• A letter from the Australia and New Zealand College of Anaesthetists dated 2 September 2004;

• A letter from the Australasian College for Emergency Medicine dated 8 August 2004;

• A letter from the applicant to the Registrar of the NSW Medical Board dated 7 May 2004;

• The applicant's letter of appointment from the Gold Coast Hospital dated 8 March 1994;

• Two reports of AMWAC:1999.1; 2003.6;

• A letter from Kym Worth of the NSW Medical Board to the applicant dated 19 January 2005;

• Temporary VMO contract of sessional service dated 7 July 2004;

• Job specification details of the Northern Rivers Health Service;

• A letter from Northern Rivers Health Service to the applicant dated 11 October 2004;

• A letter from Northern Rivers Health Service to the applicant dated 11 January 2005;

• Notes of credentialing meeting - Gold Coast Hospital dated 3 August 1994;

• A letter from Dr Robert Hitchins, Chairman of the Credentialing and Clinical Privileges Committee of the South Coast Regional Health Authority, to the applicant dated 7 August 1994;

• A letter from Dr Robert Hitchins to the applicant dated 2 September 2004;

• A bundle of letters from the Medical Defence Association of Victoria Limited to the applicant dated 27 December 2003;

• A letter from Jan Karling of the Health Insurance Commission dated 20 January 2005;

• NSW Health Policy for Implementation - regarding delineation of clinical privileges for visiting practitioners and staff specialists issued March 2005;

• Curriculum Vitae of Dr James William Renton;

• A letter from Dr Renton to Dr Rigby dated 29 November 2004;

• A letter from Dr Rigby to Dr Renton dated 30 November 2004;

• A letter from Ms Samin to Dr Renton dated 18 February 2004;

• A letter from the Queensland Medical Board to Alamanda Private Hospital;

• A letter from Ms Thorne certifying credentialing of the applicant at Pindara Private Hospital dated 20 February 2003;

• A letter from Queensland Medical Board to Pindara Private Hospital dated 1 September 2004;

• A letter from Gilshenan and Luton to Mr Dix dated 3 September 2004;

• A letter from Mr Dix to Gilshenan and Luton dated 7 September 2004;

• Criteria for foundation fellowship of the Joint Faculty of Intensive Care Medicine;

• A letter of Dr Hawker to Dr Stephens dated 4 October 2002;

• Certificate of Dr Renton's medical degree from the University of London dated 15 July 1983;

• Dr Renton's Certificate of Membership of the Royal Colleges of Physicians of the United Kingdom dated 26 July 1988;

• Dr Renton's Certificate of Fellowship of the Australasian College for Emergency Medicine dated 31 October 1992;

• Dr Renton's Certificate of Service from Queensland Health dated 18 September 2001;

• Dr Renton's application to the Joint Faculty of Intensive Care Medicine Board dated 23 June 2002;

• A letter from the Joint Faculty of Intensive Care Medicine to Dr Renton dated 18 July 2002;

• A letter from the Joint Faculty of Intensive Care Medicine to Dr Stephens dated 4 October 2004;

• Extract from the Minimum Standards for Intensive Care Units published by the Joint Faculty of Intensive Care Medicine;

• Dr Renton's Statement of Registration from the NSW Medical Board dated 19 March 2004;

• A letter from Mr Dix to Dr Renton dated 19 May 2004;

• A letter from Dr Stephens to Dr Renton dated 21 May 2004;

• A letter from Dr Renton to the NSW Medical Board dated 1 July 2004;

• A letter from Mr Dix to Dr Renton dated 14 July 2004;

• Dr Renton's Certificate of General and Specialist Registration from the Queensland Medical Board dated 10 August 2004;

• A letter from Dr Stephens to Dr Bell dated 16 February 2004;

• A letter from Dr Renton to the Human Resources Manager of Gold Coast Hospital dated 9 February 1994.

Dr Renton gave evidence on his own behalf. He also called the following individuals to give evidence at the hearing:

• Dr Barry Rigby;

• Ms Chris Samin;

• Ms Lisa Thorne;

• Dr Gordon DeCean;

• Dr James Fratzia; and

• Dr Hugh Stephens.

The respondent called the following individuals to give evidence:

• Mr Andrew Dix;

• Professor Gary Phillips; and

• Dr Richard Lee

The applicant represented himself. Mr O'Gorman of counsel appeared on behalf of the Board.

Dr Renton graduated from the University of London with bachelors' degrees in medicine and surgery in 1983. He is a member of the Royal Colleges of Physicians in the United Kingdom. He is also qualified in emergency medicine: he became a fellow of the Australasian College of Emergency Medicine in 1991. He does not hold any formal qualifications in intensive care medicine. He is not, for instance, a member of the Joint Faculty of Intensive Care Medicine (the Joint Faculty). Dr Renton has extensive experience as an intensivist in Queensland hospitals. He was appointed a staff specialist in intensive care at the Gold Coast Hospital in 1994. He worked there until January 2001. He has also worked as an intensivist at private hospitals on the Gold Coast for nearly ten years. He has recently been appointed as an intensivist working in public hospitals in northern NSW. Dr Renton conceded in his evidence (and Dr Rigby confirmed) that up until March of this year he only worked on one weekend at Tweed hospital pursuant to that contract. Dr Rigby said the position was a real one and Dr Renton could be called upon at any time.

Dr Renton told the Tribunal at the first hearing that the Health Insurance Commission (the HIC) recognised him as a specialist intensivist. As a practical matter, that means the HIC recognises he is able to charge for specialist services in intensive care under the Medicare scheme. The Board subsequently contacted the HIC and expressed its concerns. The HIC has since acknowledged that Dr Renton does not have the formal qualifications required to be registered as a specialist in Queensland. In its letter of 20 January 2005, the Specialist Recognition Advisory Committee of the HIC reserved its right to recommend that Dr Renton not be recognised as a specialist intensivist for the purposes of the Health Insurance Act 1973 if the proceedings before the Tribunal were not decided in favour of the applicant.

The applicant was registered as a general medical practitioner in Queensland in 1989. He was conditionally registered as a medical practitioner in NSW on 16 March 2004 pursuant to the MRA on the basis of his registration in Queensland. The conditions attaching to his registration in NSW were lifted on 18 May 2005.

Dr Renton accepts he would not be immediately eligible to be registered as an intensivist in Queensland if he were applying from within the state on the basis of his formal qualifications (although he might be eligible for registration as an emergency medicine specialist given he is a Fellow of the Australian College of Emergency Medicine). But he is not applying from within the state. He is seeking registration in Queensland as an intensivist pursuant to the MRA on the basis that he is eligible to do (and indeed is doing) the equivalent job in NSW.

Most medical practitioners in Queensland hold general registration under Part 3 Division 2 of the Medical Practitioners Registration Act 2001. Queensland maintains a separate formal register of specialists administered by the Board: see Part 3 Division 9 of the Act. In order to be registered as a specialist in a particular discipline, one must possess the qualifications specified in Schedule 1 of the Medical Practitioners Registration Regulation 2002. Section 6 of the Medical Practitioners Registration Act 2001 acknowledges the Act does not affect the operation of the MRA - which means an applicant seeking registration relying on the MRA might not satisfy the formal requirements imposed under the Queensland legislation and still be eligible for registration here if he or she satisfies the requirements imposed in another state.

Specialist registration has practical significance. Section 158(5) provides:

A person must not use the word 'specialist' or 'specialty' in circumstances that indicate, or could be reasonably understood to indicate, the person provides professional services in an area that is not a specialty.

There are also some limits on the range of a general registrant's practice. In Queensland, only registered specialists are permitted to do some types of work: for example, as a result of requirements imposed by the Queensland Department of Health under the Private Health Facilities Act 1999, private hospitals must ensure doctors working in an intensive care unit are registered as intensivists or work under the supervision of a registered intensivist. Although the Medical Practitioners Registration Act 2002 itself does not prevent general registrants from doing specialist work, the limits imposed pursuant to the Private Health Facilities Act 1999 are nonetheless imposed by reference to the nomenclature used in the registration legislation. The restrictions imposed pursuant to the Private Health Facilities Act 1999 therefore constitute a limit on the activities of a general registrant under his or her registration.

Queensland and South Australia are the only states that maintain a separate register of specialists. NSW has a different regulatory approach. In that state, one is registered by the New South Wales Medical Board as a medical practitioner if one satisfies the requirements of s 4 of the Medical Practice Act 1992 (NSW). The legislation provides for general and conditional registration, but the distinction is unrelated to the question of specialisation. There is no express prohibition on doing specialist work if one does not possess formal qualifications. It appears many doctors in rural areas do all manner of work done by specialists in the cities, for example. The law forbids a doctor from holding himself or herself out as a specialist if doing so would amount to misleading or deceptive conduct.

Section 99 of the Medical Practice Act 1992 says registered medical practitioners may practise medicine. The dictionary in the Act does not elaborate on the meaning of the expression except to say that medicine includes surgery. It also presumably includes other specialist disciplines. It follows that a registered medical practitioner is authorised to provide intensive care services in NSW public and private hospitals under the terms of his registration if he or she is appointed by that hospital to its staff. The breadth of that authority can be contrasted with the authority of a general registrant in Queensland who is unable to provide intensive care services in a private hospital without supervision.

NSW has recognised specialists, including specialist intensivists. The Tribunal heard from several of them during the course of these proceedings. It appears a doctor ordinarily becomes recognised as a specialist intensivist in NSW when a hospital accredits him or her as such, most obviously by appointing the doctor to the hospital's staff with specialist privileges. A hospital would ordinarily do that after satisfying itself the doctor in question possessed the appropriate qualifications, training, experience and character expected of doctors in those positions. In most cases, the hospital will look for the same qualifications required under the Queensland Medical Practitioners Registration Regulation 2002 (eg, membership of the Joint Faculty in the case of intensivists). But there is some variation between different hospitals and area health authorities. The Tribunal heard from Dr Lee, the Censor of the Joint Faculty and an intensivist at the Royal North Shore hospital in metropolitan Sydney. He suggested his hospital would only hire intensivists who were members of the Joint Faculty. He said that was the position in most public hospitals in the metropolitan area. Dr Fratzia is one of the exceptions. He is the head of intensive care services at Hornsby hospital and the chair of the intensive care interest group within the Australian College of Emergency Medicine. Dr Fratzia is not a member of the Joint Faculty and yet he had practised as an intensivist since 1993 and directed an intensive care unit in a major public hospital. It seems many doctors working as intensivists in hospitals outside the metropolitan area are not members of the Joint Faculty. That is apparently the case in the Northern Rivers Area Health Service, where the Tweed Hospital is located. Dr Rigby is the director of the intensive care unit at the Tweed hospital. He confirmed he had the discretion to appoint an intensivist who was not a member of the Joint Faculty. He pointed out he is not a member of the Joint Faculty himself: like Drs Renton and Fratzia, Dr Rigby is a fellow of the Australian College of Emergency Medicine.

The explanation for the variations in approach within NSW is clear enough: regional hospitals in particular have had difficulty attracting intensivists. Dr Rigby said a significant proportion of doctors working in intensive care units in non-tertiary hospitals were not members of the Joint Faculty. He said Dr Renton was the only candidate for the position which he took up at the Tweed hospital. While Dr Rigby acknowledged he would prefer to have the opportunity to appoint members of the Joint Faculty to the intensive care unit at Tweed hospital, he was pleased to secure the services of Dr Renton.

Dr Renton is entitled to work as an intensivist in NSW as a result of his appointment. It is likely that he can hold himself out as a specialist intensivist in that state as a result.

Mr O'Gorman did not take serious issue with the applicant's account of the way in which one came to be a specialist in NSW. The respondent did not introduce any evidence to contradict the applicant on this point. I note a letter from the NSW Medical Board to the respondent's solicitors dated 7 September 2004 supports the applicant's explanation of the arrangements in NSW. The applicant's account also appears to be consistent with the scheme of the NSW legislation.

In any event, the respondent argues that being recognised as a specialist in the sense that one might be eligible for an appointment to a hospital as a specialist or be able to hold one's self out in NSW in that capacity is not the same as being registered as a specialist in Queensland. Indeed, that is the respondent's whole point: there is no comparison between recognition as a specialist in NSW and registration in Queensland because NSW does not register specialists.

The Commonwealth proposed mutual recognition legislation in 1992. New South Wales and Queensland passed legislation in 1992 referring power to the Commonwealth to enact the proposed bill, which became the Mutual Recognition Act 1992 (Cth). The Commonwealth Act was subsequently adopted by other states and territories which referred power to the Commonwealth for that purpose. The MRA was designed to reduce barriers to commerce within and between the states. As the minister explained in the course of his second reading speech (weekly Hansard No 15 1992 at p 2433), the legislation was based in part on the principle:

If someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.

The Queensland parliament apparently shared this intention when it referred the power to pass the MRA to the Commonwealth. As the minister explained in the course of his second reading speech in the Queensland parliament on 12 November 2002 (Hansard, at 640):

The principal aim of mutual recognition is to remove the needless artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories. Mutual recognition is expected to greatly enhance the international competitiveness of the Australian economy and is a major step forward in the achievement of micro-economic reform. It involves a recognition by heads of government that the time has come for Australian to create a truly national market...

The legislative history of the MRA and the constitutional basis of the scheme were explained by French J in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900.

Part 2 of the MRA deals with goods, while Part 3 deals with occupations that face registration requirements in each jurisdiction. The interpretation of the provisions of Part 3 is informed by the general principle set out in s 29(1). That sub-section says:

An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by the imposition of conditions).

Section 29(2) says conditions may be imposed on registration on the second state where necessary in order to "achieve equivalence between occupations in different States." The power to impose conditions gives the registration authority in the second state the power to ensure an applicant is not able to do more than he or she would be able to do in the first state because of minor differences in the way an occupation is categorised in each state. The Tribunal is empowered to make a declaration that persons registered in a particular occupation in one state may or may not be registered in that occupation in another state: s 31.

30.

I note the Board is entitled to impose conditions on a specialist registrant where it is necessary to ensure the applicant practises competently and safely: s 121 of the Medical Practitioners Registration Act 2002. A specialist registered subject to conditions must not hold himself or herself out as a specialist without referring to the conditions: s 165.

Section 20 of the MRA says a person who lodges a notice under s 19 with a registration authority in one state is entitled to be registered in the occupation supervised by the authority if that person is already registered to carry on an equivalent occupation in another state. To use an example suggested in s 18(3), that means a legal practitioner admitted to practice in NSW will be entitled to seek admission to practice in Queensland. The entitlement arises because the work a solicitor must be registered to do in NSW is essentially the same as the work he or she would perform as a solicitor in Queensland.

The expression registration is defined in s 4 of the MRA. It clearly includes registration as a medical practitioner under the Medical Practitioners' Act 1992 (NSW) and registration under the Medical Practitioners Registration Act 2001 (Qld).

Dr Renton says registration as a medical practitioner in NSW entitles him to practise medicine in that state. The practice of medicine includes the provision of specialist services like intensive care. The applicant concedes he would not ordinarily get a job as a specialist in NSW or describe himself in those terms merely because he was registered to practise medicine. He acknowledges he must have more experience or qualifications (or both) in order to be recognised as a specialist. But the decision to accredit him as a specialist is a matter for the hospitals and their local area health authorities that employ specialists under the deregulated scheme in place in NSW. It is not a matter for the NSW Medical Board.

The respondent says that argument would enable every medical practitioner in NSW to register as a specialist in Queensland in every specialist discipline. Mr O'Gorman says that cannot have been the parliament's intention.

Mr O'Gorman is arguing, in effect, that specialists in Queensland are not registered in the same occupation as medical practitioners in NSW. The expression occupation is defined in s 4 of the MRA, which says occupation:

...means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted. [emphasis added]

In cases such as this, the Tribunal must compare the occupations (medical practitioner in NSW and registered specialist in intensive care in Queensland) and determine whether they are equivalent. That obligation arises out of s 29(1) of the MRA which says occupations are equivalent:

...if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

Determining equivalence of occupations is not a scientific process. As Davies J explained in Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560 (at 565):

The [MRA] should be applied in a practical, commonsense manner, regard being had to the substance of the matter and to the substantial equivalence of the occupations.

In Rowe and NSW Police Service (1997) 47 ALD 442, Deputy President Forgie considered the proper approach to the application of the test set out in s 29. The Deputy President said (at 444):

It is clear from [s 29] that there are, in practical terms, five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities authorised to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations.

The Rowe approach provides a convenient framework for analysis in this case. It was endorsed by French J in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900 (at paragraph 68) who emphasised judgements about equivalence "must be made by reference to the terms and statutory context of the registration in each State."

As I have already explained, s 99 of the Medical Practice Act 1992 authorises a person registered as a medical practitioner to practise medicine in NSW - which includes practising in specialist disciplines like intensive care. It is true the applicant may not hold himself out as being a specialist merely because he or she is registered as a medical practitioner, but that is irrelevant in circumstances where the test in s 29 of the MRA focuses on activities authorised under the applicant's registration, not titles.

It is the next two steps identified in Rowe that create uncertainty because Queensland breaks up the practice of medicine into several categories of practice which are separately registered.

There is no question that Dr Renton could register as a general registrant in Queensland if he were applying to be registered in that role under the MRA. Medical practitioners in NSW are clearly permitted to undertake all of the activities undertaken by a general registrant in Queensland. But as I have already explained, medical practitioners in NSW are authorised under their Act to practise all kinds of medicine, which includes all of the activities carried out in Queensland by specialists.

The analysis is complicated somewhat by the fact that even general registrants in Queensland are not prevented by the Medical Practitioners Registration Act 2001 from practising in specialist disciplines like intensive care - although the Act makes it clear a general registrant may not hold himself or herself out as a specialist. Dr Renton is a good example: he has been practising in intensive care in Queensland for a number of years without specialist registration.

I do not think I am confined to the Medical Practitioners Registration Act 2001, however. Where other legislation imposes limits on the activities that a general registrant may carry out, I think those limits must be taken into account for the purposes of the analysis contemplated in Rowe. I have already referred to one limit: general registrants may not work as intensivists in private hospitals without supervision by a registered specialist in intensive care as a consequence of rules made pursuant to the Private Health Facilities Act 1999.

If an individual is authorised under the terms of his or her registration in one state to carry out the same range of activities that another state divides between two registered occupations, I think the individual from the first state may be eligible to be registered in the second state in both of those occupations. To find otherwise would lead to a failure to apply the MRA "in a practical, commonsense manner": Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560 at 565 per Davies J.

After comparing the relevant occupations in NSW and Queensland, I am satisfied a person in the applicant's position is eligible to apply for registration as an intensivist in Queensland.

I do not think the Board's concerns over the threat to the system of specialist registration in Queensland are justified. The Board retains the power to impose conditions on interstate practitioners where necessary: s 121 of the Medical Practitioners Registration Act 2001. The power to impose conditions should be exercised having regard to the facts of each case.

I told the parties of my conclusion that the Board should consider Dr Renton's application and resumed the hearing so I could hear evidence and submissions in relation to that application.

Dr Renton arranged for a number of doctors with knowledge of his work to give evidence about his suitability to be registered as an intensivist.

Dr Hugh Stephens has known Dr Renton since the applicant was a junior doctor at the Gold Coast hospital. Dr Stephens was the director of the intensive care unit when the applicant started work there. Dr Stephens has subsequently assumed (through his company, Australian Critical Care Services Pty Ltd) management of intensive care units at two busy private hospitals on the Gold Coast where Dr Renton has worked. Dr Stephens spoke highly of Dr Renton's work, capacity and experience. Dr Stephens said other doctors regularly approached Dr Renton for advice. Dr Stephens said the applicant was a good educator: Dr Stephens recalled a proposal that Dr Renton be appointed to oversee training in intensive care services at the Gold Coast hospital. (He noted the Joint Faculty did not agree, presumably because Dr Renton was not a member of the Joint Faculty.)

Dr Stephens agreed that while he was ultimately responsible for what occurred in the units under his control, he did not feel obliged to closely supervise the work of senior clinicians like Dr Renton. He said Dr Renton acted as a director of the intensive care units at the Gold Coast hospital and the private hospitals on a number of occasions. Dr Stephens added the new rules under the Private Health Facilities Act 1999 requiring him to supervise Dr Renton more closely were surprising, unwelcome and totally unnecessary.

Dr Barry Rigby says he has known Dr Renton professionally for a number of years. He explained that patients from Tweed hospital were sometimes transferred to the Gold Coast hospital or to the private hospitals where Dr Renton worked. Dr Rigby said he was happy with the standard of care the patients received in those units. He agreed he was happy to appoint Dr Renton to the Tweed hospital's intensive care unit. Dr Rigby appeared to share Dr Stephens's high regard for Dr Renton.

Dr Rigby acknowledged that specialist intensivists were not closely supervised when they carried out their work. They were expected to work independently. He also said Dr Renton's position at the Tweed hospital would not be affected if his application to be registered as an intensivist in Queensland were unsuccessful.

Dr Gordon DeCean was the director of medical services at the Tweed hospital when Dr Renton's appointment was approved. He oversaw recruitment and appointments within the hospital. He said Dr Renton was a desirable and appropriate appointment to the intensive care unit.

There was some dispute over the extent of the overlap in training between members of the Joint Faculty and fellows of the Australian College of Emergency Medicine. Dr Renton says he does not wish to join the Joint Faculty because doing so would require him to complete training that he has already done on the job, and which he has provided to others. Dr Fratzia downplayed the differences in training, while Dr Lee emphasised the differences. That is unsurprising given each man's position within their respective professional colleges. I think the best evidence on the point was provided by Dr Rigby, who is also an associate professor at Griffith University and Bond University medical schools. Dr Rigby said members of the Joint Faculty undertook a superior and specially designed program of study. Even so, he clearly did not believe that being a member of the Joint Faculty was essential if an applicant for a position in intensive care had other qualities or experience.

It was also apparent from the evidence of Professor Phillips and Dr Stephens that some of the older members of the Joint Faculty had not undertaken the specialist training undertaken by doctors who have qualified for membership more recently. It seems that fellows of the Royal Australasian College of Physicians and the Australian and New Zealand College of Anaesthetists who practised in intensive care were admitted to membership under generous transitional rules when the Joint Faculty was established. Dr Stephens was admitted to membership of the Joint Faculty on this basis. Other intensivists who were not members of the two colleges that founded the Joint Faculty (like Drs Renton, Rigby and Fratzia) were not admitted to membership on the same generous terms. Dr Fratzia gave evidence that he negotiated with the Joint Faculty on behalf of the Australian College of Emergency Medicine to see if an accommodation could be reached in respect of fellows of the College of Emergency Medicine who had not made the transition to the Joint Faculty. The talks were unsuccessful in that respect, although they did achieve an agreement about recognition of training received by candidates for fellowship of the College of Emergency Medicine.

Dr Lee opined (and Dr Rigby appeared to agree) that membership of the Joint Faculty would become more common in the regional areas of NSW as the Joint Faculty's training programs proceeded. But that does not help the diminishing but still significant pool of practitioners like the applicant who are doing important work in intensive care units now, and whose services are clearly in demand.

Dr Lee is not familiar with Dr Renton's work or reputation. Dr Fratzia was not familiar with the applicant's reputation, although they have had contact in relation to the work of the College of Emergency Medicine. Mesdames Thorn and Samin said nothing that caused me to doubt Dr Renton's competence.

There are two other matters. Mr O'Gorman referred to a letter from Dr Robert Hitchins who was head of the Clinical Privileges Committee of the South Coast Regional Health Authority. The letter is dated 2 September 2004. The letter raises questions about Dr Renton's application for privileges in intensive care. Mr O'Gorman questioned Dr Renton about the import of the letter. Dr Renton pointed out the letter was incorrectly dated: it must have been written in 1994 at the time of his original (successful) application for privileges. It is unclear if the date was entered in error at the time of writing by the author, or if it was changed subsequently by someone else. Once the error was pointed out, Mr O'Gorman quite properly desisted from that line of questioning. Mr O'Gorman also questioned the applicant about his insurance. The applicant is insured by the Medical Defence Association of Victoria. He is insured as a "procedural physician". Mr O'Gorman asked Dr Renton why that was so. Dr Renton says he was advised by his insurer that intensive care specialists were insured under that heading because they did not have their own heading. Given the uncontradicted explanation, I do not think that evidence is of any assistance in determining the question under review.

The evidence confirms Dr Renton is a competent and highly regarded doctor with extensive experience in the provision of intensive care services in a number of different hospitals. He is capable of working unsupervised within a unit, and there is no reason to doubt he is capable of directing a unit in light of his experience as an acting director. He is, by all accounts, an excellent intensivist.

Section 114 of the Medical Practitioners Registration Act 2001 requires that the Board "consider the application and decide to register, or refuse to register, the applicant as a specialist registrant in the specialty." On review, the Tribunal steps into the place of the Board to make a decision: see s 34 of the MRA and s 40 of the Administrative Appeals Tribunal Act 1975.

Section 20(1) of the MRA provides:

A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

The applicant has already lodged a notice under s 19 of the MRA. Given my conclusion that this applicant's registration in NSW as a medical practitioner is a sufficient ground for registration in Queensland as an intensivist, I am satisfied he should be registered as an intensivist in Queensland. That registration is unconditional: there is no basis for restricting his right of practice in light of the breadth of the applicant's experience and the glowing testimonials of his professional colleagues.

The public is entitled to expect the Medical Board of Queensland will diligently scrutinise applicants for registration. Allowing an inappropriate person to practise can have disastrous consequences. While the Board vigorously opposed Dr Renton's application in these proceedings, it is clear there is no basis for questioning Dr Renton's fitness for practice. The Board's real concern appears to be that registering Dr Renton under the MRA will undermine the effectiveness of the system of registration established by the Medical Practitioners Registration Act 2001.

I have already explained that I am satisfied the registration scheme will survive Dr Renton's registration as an intensivist, although I readily acknowledge the tool used to make that system work - the ability to impose conditions on registration in appropriate cases - is inelegant. But it is less offensive than the alternative view, which is to accept that Queensland has a closed system which will not accommodate specialist medical practitioners from interstate seeking registration pursuant to the MRA when s 6 of the Medical Practitioners Registration Act 2001 expressly preserves the operation of the MRA.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:

Associate: Sam J Appleton

Dates of Hearing 14 September 2004

19 April 2005

20 April 2005

Date of Decision 24 June 2005

The applicant appeared in person.

The respondent was represented by Mr O'Gorman.