Dr Schwartz, a pathologist, sought to have her registration in the State of Israel as 'an expert in the field of Anatomy Pathology' recorded as a qualification on the public register ('the Register') maintained by the Medical Board of Australia ('the Board') under s 223 of the Health Practitioner National Law 2009 (NSW) ('the National Law'). Dr Schwartz lodged an 'Application for specialist registration' with the Australian Health Practitioner Regulation Agency (AHPRA) on 14 September 2020.
An officer of AHPRA declined to make the addition to the Register sought by Dr Schwartz. That decision, and the reasons for that decision, were communicated to Dr Schwartz in an email dated 21 September 2020.
Dr Schwartz has lodged an 'External Appeal Form' seeking to appeal from the Board's decision to the Tribunal.
The Board asserts that the Tribunal has no jurisdiction in relation to the matter.
Dr Schwartz is presently registered on the Register as having a specialty in Forensic Pathology.
At the hearing of the matter, Mr Schwartz, who is Dr Schwartz's husband, appeared as her agent.
[2]
Jurisdiction
The Board argued that the decision communicated in the email of 21 September 2020 is not an 'appellable decision' under the National Law.
In her grounds for appeal, Dr Schwartz submitted that the decision is appealable in accordance with s 175 of the National Law.
The Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') provides, in s 31(1):
31 External appeal jurisdiction of Tribunal
(1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction -
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.
(4) An external appeal is an appeal to the Tribunal against an appealable external decision.
(5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following -
(a) a decision made by a person to whom the function of making the decision has been delegated,
(b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c) a decision made by any other person authorised to exercise the function of making the decision.
(6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
The only way in which the Tribunal can be given jurisdiction to hear and decide an appeal against a decision is by means of the conferral of that jurisdiction by legislation.
The National Law provides, in s 175:
175 Appellable decisions [NSW]
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision -
(a) a decision by a National Board to refuse to register the person;
(b) a decision by a National Board to refuse to endorse the person's registration;
(c) a decision by a National Board to refuse to renew the person's registration;
(d) a decision by a National Board to refuse to renew the endorsement of the person's registration;
(e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than -
(i) a condition relating to the person's qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board.
Note -
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.
(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is -
(a) for a decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(b) for a decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or
(c) for a decision in relation to another person -
(i) the responsible tribunal for the participating jurisdiction in which the person lives; or
(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
(3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board, may be given.
Note -
This section is a substituted New South Wales provision.
Dr Schwartz is registered as a pathologist. When the National Law commenced in operation on 1 July 2010, Dr Schwartz obtained specialist registration in the specialty of Pathology - Forensic Pathology under a 'registration transition plan' made under s 277 of the National Law. Dr Schwartz's registration under the National Law was the same as her registration under the statutory system the National Law supplanted.
There has not been a decision by the Medical Board to refuse to register Dr Schwartz. Accordingly, s 175(1)(a) is not applicable and does not confer jurisdiction in this matter.
Although the decision purportedly appealed from arose in the context of Dr Schwartz having lodged with AHPRA an 'Application for specialist registration', she was not actually seeking registration, because she was already registered. Rather, she was seeking the addition of a further piece of information to her registration.
Dr Schwartz placed some reliance upon s 175(1)(b) of the National Law.
The Medical Board argued, in effect, that there had not been a decision to 'refuse to endorse the person's registration'. The Medical Board's written submissions set out the argument:
16 Whilst it may be accepted that the term "endorsement" is not expressly defined in the National Law, the term is not to be construed as if 'at large'.
17 Rather, in light of the assumption that statutory language is ordinarily to be given the same meaning consistently throughout the same piece of legislation, must be construed in light of its statutory context, and is to be interpreted so as to best achieve the purpose or object of the National Law, the meaning of the term "endorsement" in s 175(l)(b) is illuminated by the specific, clearly defined provisions governing the practitioner's request for "endorsement" on registration.
18 The Board submits that these provisions are plainly not engaged in the Applicant's case.
19 Section 35(1) of the National Law provides the Board's functions include "to decide the requirements for … endorsement of registration in the health profession" and "to approve accredited programs of study as providing qualifications for … endorsement in the health profession".
20 In discharge of these functions, Division 8 of Part 7 of the National Law empowers the various National Boards established for certain specified health professions to "endorse the registration of a registered health practitioner" in certain circumstances Specifically:
(a) section 94 provides that, where permitted by the Ministerial Council, the National Boards may endorse appropriately qualified health practitioners "as being qualified to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines", being substances "included in a Schedule to the current Poisons Standard" within the meaning of the Therapeutic Goods Act 1989 (Cth)."
(b) sections 95 and 96 provide that the Nursing and Midwifery Board of Australia may endorse appropriately qualified health practitioners as "being qualified to practice" as a "nurse practitioner" or "midwife practitioner" respectively;
(c) section 97 provides that the National Boards may endorse appropriately qualified health practitioners as "being qualified to practice as an acupuncturist", and
(d) section 98 provides that where permitted by the Ministerial Council, the National Boards may endorse appropriately qualified health practitioners as "being qualified to practice in an approved area of practice for the health profession".
Examples of such 'approved area of practice' endorsements include the Dental Board of Australia's endorsement of practitioners as qualified to practice in 'conscious sedation', and the Psychology Board of Australia's endorsement of practitioners as qualified to practice in, into alia, the area of educational and developmental psychology'.
21. Applications for endorsement are governed by the provisions of subdivision 6 of division 8 of Part 7 of the National Law (ss 99-106) Relevantly, applicants must apply for endorsement in the form "approved" for that purpose, and - pursuant to s 102 of the National Law- the relevant National Board "must decide to endorse, or refuse to endorse, the applicant's registration as sought".
22 Critically, the existence of this express statutory regime governing 'endorsements' upon registration shapes the statutory 'context' in which s 175(1 )(b) falls to be construed.
23 Recalling the 'presumption of consistency noted at [17] above, the Board submits "appellable decisions" within s 175(l)(b) of the National Law ought properly to be construed as referring to those decisions made under s 102 to refuse to endorse a practitioner's registration under ss 94-98
24 So understood, it is plain that the Impugned Decision was not such a decision. The Applicant did not apply to have her Registration 'endorsed' by the Board in any of the ways, or in the manner set out above, and the Board's decision was not one to "refuse to endorse" her registration under s 102.
I agree with this analysis. The application lodged with AHPRA was not an application 'to endorse' Dr Schwarz's registration. Dr Schwartz's registration by the State of Israel is not within the scope of the term 'endorsement' under the National Law.
The National Law sets out, in s 225, the information which is to be included in the National Register and the Specialists Register:
225 Information to be recorded in National Register
A National Register or Specialists Register must include the following information for each registered health practitioner whose name is included in the register -
(a) the practitioner's sex;
(b) the suburb and postcode of the practitioner's principal place of practice;
(c) the registration number or code given to the practitioner by the National Board;
(d) the date on which the practitioner was first registered in the health profession in Australia, whether under this Law or a corresponding prior Act;
(e) the date on which the practitioner's registration expires;
(f) the type of registration held by the practitioner;
(g) if the register includes divisions, the division in which the practitioner is registered;
(h) if the practitioner holds specialist registration, the recognised specialty in which the practitioner is registered;
(i) if the practitioner holds limited registration, the purpose for which the practitioner is registered;
(j) if the practitioner has been reprimanded, the fact that the practitioner has been reprimanded;
(k) if a condition has been imposed on the practitioner's registration or the National Board has entered into an undertaking with the practitioner -
(i) if section 226(1) applies, the fact that a condition has been imposed or an undertaking accepted; or
(ii) otherwise, details of the condition or undertaking;
(l) if the practitioner's registration is suspended, the fact that the practitioner's registration has been suspended and, if the suspension is for a specified period, the period during which the suspension applies;
(m) if the practitioner's registration has been endorsed, details of the endorsement;
(n) details of any qualifications relied on by the practitioner to obtain registration or to have the practitioner's registration endorsed;
(o) if the practitioner has advised the National Board the practitioner fluently speaks a language other than English, details of the other language spoken;
(p) any other information the National Board considers appropriate.
The respondent placed some reliance upon s 225(h) of the National Law. However, s 225(h) of the National Law relates to 'the recognised speciality in which the practitioner is registered'. In s 5 of the National Law, the term 'recognised specialty' is defined:
recognised specialty means a specialty in a health profession that has been approved by the Ministerial Council under section 13(2).
I find that the registration of Dr Schwartz in the State of Israel as 'an expert in the field of Anatomy Pathology' is not a recognised specialty under the National Law. It has not been approved by the Ministerial Council.
The Tribunal has been provided with various pieces of correspondence between Mr Schwartz and Dr Schwartz, on the one hand, and the Registrar of the New South Wales Medical Board, on the other hand, in 1997, concerning a request made by Dr Schwartz under the Medical Practice Act 1992 (superseded by the National Law on 1 July 2010) for the recognition, in New South Wales, of her registration by the State of Israel as a 'Specialist in Anatomical Pathology' for the purpose of the entry of that registration as a post graduate qualification on the Register of Medical Practitioners kept under the Medical Practice Act 1992. It is clear from that correspondence that the New South Wales Medical Board, in 1997, declined to enter Dr Schwartz's registration by the State of Israel as a 'Specialist in Anatomical Pathology' on the Register of Medical Practitioners kept under the Medical Practice Act 1992. No such entry was, therefore, ever made.
Mr Schwartz, in his submissions on behalf of Dr Schwartz, spoke of their concerns about the process undertaken, particularly under the Medical Practice Act 1992, to determine whether or not an overseas 'qualification' would be recognised for the purpose of being eligible for entry upon the Register of Medical Practitioners kept under that Act. Mr Schwartz made various allegations about the lawfulness and propriety of that process. Mr Schwartz also made submissions about the relationship between State and Commonwealth Law with respect to the recognition of the qualifications of specialist medical practitioners. Those submissions are not relevant to the question of jurisdiction, and there is no need to discuss them.
Mr Schwartz also submitted that the hearing and determining of the substance of the appeal by the Tribunal would be consistent with the objects of the National Law in s 3 and s 3A, together with Schedule 7 of the National Law, particularly clause 14 and s 225. Mr Schwartz argued that, although not specifically provided for by those provisions, a right of appeal should be inferred from those provisions.
[3]
Summary and Conclusion
The National Law does not provide for a right of appeal in these circumstances. No applicable right of appeal is provided for in s 175 of the National Law, or in any other provision. I reject Mr Schwartz's argument that a right of appeal arises impliedly from the provisions that he pointed to. Given that the National Law provides expressly, in detail, for numerous rights of appeal, it is unlikely to have been intended that a right of appeal could be divined by implication from the general provisions he cites, and I determine that no such right of appeal arises by implication.
I make the following order:
The purported appeal is dismissed for want of jurisdiction.
The question of costs will be dealt with separately after the parties have had an opportunity to make submissions.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 16 August 2021