2.5.2 Elements of the statutory provisions
159 Sections 6(1) and 6(2) each involve the discriminator requiring compliance with a "requirement" or "condition". The College concedes this element is established. On the evidence, it is clear that it is a requirement or condition of the College that, in order to be elected as a Fellow (necessary so that he can practice as a dermatologist), Dr Sklavos must pass the College's final examinations.
160 Section 6(1)(b) relates to cases where the disabled person is not able to comply with the requirement or condition at all, whereas s 6(2)(b) relates to cases where the disabled person is able to comply with requirement or condition but only if adjustments are made. As such, there cannot be discrimination under both ss 6(1) and 6(2). The provisions operate in the alternative.
161 In the present case, and based on the discussion above relating to the adjustments the College offered, I do not accept Dr Sklavos's case that he was or would have been able to sit the final examinations in 2012 if the College had simply done as he asked. In other words, I consider this to be a case arising under s 6(1), not s 6(2). In common with Professor Glozier, given the nature of Dr Sklavos's specific phobia, I consider that there is nothing the College could have done in 2012 or thereafter to enable Dr Sklavos to comply with the examination requirement other than waiving that requirement altogether. There is no dispute that, when confronted with the 2012 examinations, Dr Sklavos's anxiety increased as the examinations approached. He ended up in a severe anxiety state. His condition was such that he withdrew from the 2012 examinations. Given Dr Sklavos's history, the idea that he would have done so if he was in fact able to take the examinations (not suggested by the College) may be dismissed. Even if Dr Sklavos secretly believed that he was likely to fail the examinations (highly unlikely given Dr Sklavos's apparent self-belief, the psychiatrists' view about his narcissistic personality tendencies, and also not suggested by the College and certainly not conceded by Dr Sklavos), everything else in the evidence indicates that had he been able to do so he would have taken the 2012 examinations. As a result, I have no doubt that Dr Sklavos withdrew from the 2012 examinations because, by reason of his specific phobia, he was unable to take those examinations. That he might have been capable of taking the examinations at serious risk to his mental health does not, in my view, mean that he would be able to comply with the requirement.
162 In this regard it is sufficient to refer to Rees N, Rice S and Allen D, Australian Anti-Discrimination Law (2nd ed, Federation Press, 2014) at [4.3.38] where this is stated:
The issue of whether a person is unable to comply with a requirement of condition is a question of fact. While the statutory language which is used to connote 'inability to comply' with the challenged requirement or condition is not uniform, there do not appear to be any differences of substance. Most of the statutes deal with this issue by use of the words 'does not or is not able to comply'. The decision of the House of Lords in Mandla v Dowell Lee [[1983] 2 AC 548] is authority for the proposition that a person's inability to comply with a particular requirement or condition is to be judged practically. In that case the condition in question was a rule imposed by a school that students were not permitted to wear a turban whilst in school uniform. An issue in the case was whether the complainant, who was an orthodox Sikh boy, was unable to comply with that condition because he was physically able to attend the school without a turban on his head. While the precise language employed in the Race Relations Act 1976 (UK) was that the requirement or condition was detrimental to the complainant 'because he cannot comply with it' [Section 1(1)(b)], the general statements made by members of the House of Lords concerning inability to comply are of relevance when considering this fourth element of indirect discrimination in Australian anti-discrimination law. Lord Fraser of Tullybelton said:
It is obvious that Sikhs, like anyone else, 'can' refrain from wearing a turban, if 'can' is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules … The word 'can' is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976 it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the racial group' …Accordingly I am of opinion that the 'No turban' rule was not one with which the second appellant could, in the relevant sense, comply [[1983] 2 AC 548 at 565-566].
Australian courts have tended to follow this liberal approach to the question of whether the complainant is unable to comply with the requirement or condition in question.
163 Applying this approach, it is not practical that Dr Sklavos seriously compromise his mental health by forcing himself to take the College's examinations about which he has developed a specific phobia. Despite his belief to the contrary, I am satisfied also that it was not practical for Dr Sklavos to do so in 2012. As I have said, the idea that because the College did not meet all his required adjustments (albeit in the relatively minor respects I have identified once the demand for an explanation of the clinic list incident and waiver of the examinations altogether are put to one side, as they should be), Dr Sklavos experienced such severe anxiety in 2012 that he had to withdraw from the examinations - but that had all such adjustments been made he would have been able to sit for the examinations - in my view, is untenable on the evidence. Even if the College had made every adjustment sought I am satisfied that, having developed the specific phobia by January 2012, Dr Sklavos would have been unable to take the examinations in that year. Everything he experienced as the 2012 examinations approached (extreme agitation and anxiety, marked sweating, increased heart rate, dry-retching and insomnia) would have been experienced whether or not the College had agreed to all his requests about adjustments to the examination processes.
164 As such, it is s 6(1) that is potentially applicable, not s 6(2). To the extent Dr Sklavos attempted to run both cases, I consider the claims to be true alternatives in the sense that a person cannot succeed on both grounds. The sections are mutually exclusive. If I am wrong about s 6(1) applying, then my conclusions above about the three proposed adjustments (which Dr Sklavos also relied on for the purposes of s 6(2)) apply. In summary, to the minor extent that the College did not make the adjustments to the examinations which Dr Sklavos ultimately pursued, it could not be said that any such failure had the effect of disadvantaging Dr Sklavos. He would have been in exactly the same position because of his specific phobia.
165 In respect of s 6(1)(c), there cannot be any real doubt that a person who has developed a specific phobia will be at a disadvantage compared to a person without that disability in respect of the examination requirement. Accordingly, the College's examination requirement has the effect of disadvantaging persons with this particular disability.
166 The real question, accordingly, is that provided in s 6(3) - whether the requirement or condition is reasonable having regard to the circumstances of the case - in which event neither ss 6(1) nor (2) apply. By s 6(4), the College bears the burden of proving that the requirement or condition is reasonable having regard to the circumstances of the case.
167 Dr Sklavos relied on the observations in Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115]:
…
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [[1989] FCA 342;] (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission [[1991] HCA 49; (1991) 173 CLR 349], at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC [(1997) 80 FCR 78], at 112-113, per Sackville J.
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.
168 I accept that these principles continue to be relevant, despite subsequent legislative amendment.
169 In Commonwealth Bank v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, Sackville J summarised the applicable principles (albeit again in a different statutory context) as including the following (at 110-113):
First, the starting point in determining whether a requirement or condition is "not reasonable having regard to the circumstances of the case" are the observations of Bowen CJ and Gummow J in Styles (at 263) that:
"the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."
This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Dopking (No 2) [[1993] FCA 1067; (1995) 63 FCR 74], at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in AMC v Wilson [[1996] FCA 591; (1996) 68 FCR 46], at 60, per Heerey J (with whom Black CJ and Sackville J agreed).
In Dopking (No 2), at 82-83, Lockhart J said that the test
"required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s6(2) of the [Sex Discrimination] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable."
Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement. In Dopking (No 2), at 83, per Lockhart J, subjective preferences:
"may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts."
…
Fourthly, reasonableness (or non-reasonableness), for the purposes of s5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but "in a less discriminatory way": Waters, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J.
As Brennan J pointed out in Waters, reasonableness cannot be determined in the abstract (at 378):
"[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which para(a) and para(b) of s17(5) [equivalent to s5(2)(a) and s5(2)(c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable."
Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the "correct" one…
…
The fact that a distinction has a "logical and understandable basis" will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case.
170 In its defence, the College contended that the requirement that all Australian trainees must pass the College's final examinations to be elected a Fellow was reasonable given the following circumstances (see the particulars to para 60(b) in the Further Amended Defence):
i. the overall objective of the Respondent's training program is to produce dermatologists who are safe, skilled and competent in the diagnosis and management of all aspects of diseases of the skin and its appendages and able to respond to the change health needs of the Australian community;
ii. the structure of the training program over a four-five year full-time period is designed to ensure that the trainees pass through Basic Training in the initial two years and Advanced Training in the final three years. Trainees must pass through the defined stages to facilitate the progressive and cumulative acquisition of knowledge and skill;
iii. during the Basic Training, the trainee must acquire detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin. Trainees are assessed on their knowledge and competence in this area;
iv. a further aspect of training through formative assessment, aims to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Trainees must become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in:
1. interviewing skills
2. clinical examination skills
3. procedural dermatology skills
4. professional conduct
5. research skills
v. each stage of training must be completed to a satisfactory level;
vi. the training is designed to ensure that the trainees acquires skills in the treatment of complex dermatological conditions and can meet the demands of increased responsibility for patient management;
vii. the assessment is undertaken in an objective and appropriate manner to ensure that the high standards expected of trainees is meet;
viii. the Respondent currently holds an accreditation from the Australian Medical Council as the specialist medical program in Australia which allows a medical practitioner to be registered as a specialist dermatologist, conferring upon that medical practitioner the qualification of Fellowship of the Australasian College of Dermatologists.
ix. the assessment requirements of the Respondent have been accredited by the Australian Medical Council.
x. the Respondent undertakes assessment of trainees by a number of different means including both summative and formative assessments which are formulated to ensure that trainees who successfully complete the program of the Respondent are competent and safe to practise as a junior dermatological specialist.
xi. the Respondent had a Special Consideration policy which operated to permit trainees have their examinations held under alternative or varied conditions in certain situations;
xii. the Australasian College of Dermatologists Training Program Handbook 2009 at Appendix Three provides an internal appeals process for any person who claims to be adversely affected by a decision of the Board or Committee of the Respondent.
171 Other than particular vii as set out above, it was not in dispute that the evidence established the existence of each particular. The case for Dr Sklavos was that the College's objective - ensuring competence - could be satisfied by processes other than a trainee having to sit for and pass the College's final examinations. As the submissions for Dr Sklavos put it:
The College's case does not establish why it was reasonable, having regard to all of the circumstances, including Dr Sklavos's disability, to require Dr Sklavos, if he was to be eligible for Fellowship, to pass the examinations, as distinct from a modified or alternative form of assessment directed to and capable of achieving the same objective.
172 In support of this proposition, the submissions for Dr Sklavos made the following points:
(a) Dr Fischer gave some evidence that her view was that the clinical examinations are difficult to organise, meaning that it would be 'extremely difficult' to examine candidates outside the normal arrangements. Her evidence is also that the College considers the clinical examinations 'to be the best way to maintain a fair, transparent and reproducible assessment process.'
(b) Dr Shumack and Dr Corderoy gave evidence that the College's training program has been accredited by the AMC, a body required to assess and accredit specialist medical training programs. Since 2010, accreditation by the AMC has become compulsory, to ensure that trained specialists are 'safe to practise.' This overarching concern is re-emphasised by Dr Corderoy, who indicates that:
When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist?
However, no evidence has been called that suggests that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists for this key competency.
(c) Dr Corderoy makes reference to the 'Eminent Pathway' or IMG process. As already submitted, the College's method of assessing whether IMGs are suitable to be recognised as Australian specialists and eligible to apply for election to Fellowship does not necessarily require any examination to be undertaken. That is authorised by and consistent with the terms of cl 11.1.1(a)(2)(B) of the College's Constitution.
(d) Dr Corderoy gives evidence about the process of the examinations, but this evidence itself cannot speak to the reasonableness of a requirement that a trainee sit and pass all components of the examinations if they are to be assessed as eligible to be elected as a Fellow of the College.
(e) All of Dr Corderoy's evidence about the rationale for the examinations goes to the capacity of the examinations as a method of assessment to ascertain whether a person is 'safe to practise.' Nothing in this evidence suggests that another method of assessment, or a modified form of the examinations, would not be equally or even more appropriate.
(f) Professor Jolly was overwhelmingly the best qualified and most objective witness on this issue. His uncontradicted and unchallenged evidence was that examinations were a, but not the only, method of reliably assessing postgraduate medical trainees' proficiency and competence.
173 I accept that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. The College, sensibly, did not suggest otherwise. But what the College did contend was that its requirement for all Australian trainees to pass its final examinations was reasonable in all of the circumstances.
174 There is some tension in the case put for Dr Sklavos. On the one hand, he believes that his qualifications and experience qualified him for election as a Fellow in 2012. I am unable to agree. Not one of the dermatologists who deal with this question thought he should be able to practice as a dermatologist because, given that he had not passed the examinations, he had not demonstrated competence. Dr Fischer believed that as at 2010 he was not in fact competent to practice as a dermatologist, based on his performance in the clinical examinations. His failure in the 2010 clinical examinations indicates a lack of competence to practice. On the other hand, Dr Sklavos seemed to accept that it would have been necessary, even in 2012, for him to subject himself to further assessment, perhaps by way of supervised practice, so that his competence could be ensured. His current position is that while he accepts he would need to be subjected to further assessment his phobia will prevent him from undertaking this because it is the College, necessarily, that will ultimately be responsible for that assessment. The notion that, having failed the final examinations, the College would simply elect Dr Sklavos as a Fellow in 2012 is unrealistic. He had not demonstrated competence to practice as a dermatologist, irrespective of his qualifications and experience. The only possible option, which the submissions for Dr Sklavos seem to accept in some respects, is for an individualised assessment program to have been developed for Dr Sklavos, excluding examinations, after which an application for Fellowship might have been considered.
175 In this context, circumstances relevant to the reasonableness of the College's examination requirement include, first, that the AMC has accredited the whole of the College's existing training program which includes its final examinations. I do not accept that it would be open to the College to waive its examination requirements for an Australian trainee without having developed and having obtained accreditation from the AMC for the full details of an alternative assessment program to stand as a substitute for every component tested by the College's examinations. In other words, variation of its examination requirement is not within the unilateral control of the College. It would necessarily involve the AMC. The College would have to persuade the AMC that the alternative program would perform the same function as the College's examinations in all material respects. In these circumstances to say that the College has not proved that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists is to gloss over the reality that it is the whole of the College's training program, of which the final examinations form a significant part, which has the benefit of AMC accreditation.
176 Second, it is apparent from the AMC's Procedures for Assessment and Accreditation of Specialist Medical Education Programs that the requirements to obtain accreditation are detailed and rigorous. There are numerous steps involved which, it may be inferred, involve substantial time, effort and cost on the part of the body seeking accreditation. Because it is critical that every medical specialist be not just competent but demonstrably competent there is no reason to infer that the AMC would accredit a program for any doctor seeking to be registered as a medical specialist outside the scope of an accredited scheme specifically applicable to that speciality, unless plainly satisfied that the alternative program ensured competency to the same level and across all areas of theory and practice as the already accredited training scheme. This would necessarily involve the AMC itself in substantial work. Professor Jolly (whose evidence is discussed below) described the role of the AMC in accreditation of bodies, such as the College, as training providers, as follows:
The AMC accredits specialty colleges, such as the Royal Australasian College of Physicians (RACP), to train and assess trainees in a specific area of medical practice, in the case of the RACP - internal medicine. The AMC accreditation process involves a detailed evaluation of a college's curriculum, including the specified outcomes, training activities, mentoring and support processes, assessment and governance procedures. It is a comprehensive and demanding evaluation involving analysis of all documentation pertaining to a training program, and usually a visit to the institution and several training and assessment sites. It also involves interviews with trainees, supervisors, college officials, hospital employers, and others. However, the AMC has no direct role in the decision to award designation as a Fellow of the respective college, to an individual. That is left to the College's discretion, as long as they are accredited to do so by the AMC.
177 Third, it is obvious that the College's examination requirements represent an extraordinary amount of work for the dermatologists involved, work which is undertaken on a wholly voluntary and unpaid basis. Dr Fischer, who held the position of Chief Censor in 2010 has volunteered her time to the College since 2003 in respect of the College's examinations. She explained that:
21. The Chief Censor is the organiser of Board of Censors. The duties of the Chief Censor included, but were not limited to:
(a) chairing each meeting of the Board of Censors;
(b) re-marking written answers where two (2) examiners give marks for an answer to an essay question in the Fellowship examination that exceeds a 10% difference. The Chief Censor re-marks the candidate's response and then an average of the two closest marks is taken as the final result for that essay question. All written papers are de-identified.
(c) the Chief Censor oversees the creation of every question that goes into the Fellowship examination (including multiple choice questions, viva voce scenarios and essay questions); and
(d) the Chief Censor liaises with the Dead of Education and College Board regarding any issues that arose concerning the examinations.
22. The Board of Censors (now called the National Examination Committee) is responsible for overseeing the entire Fellowship Examination process each year. This involves writing the examination questions, determining the rubrics of assessment for the examinations, organising the arrangements for the examinations to be conducted and assessing the candidates. Each censor on the Board of Censors needs to be sufficiently experienced, skilled and knowledgeable to be able to write examination questions and to participate in creating an examination that will be sufficiently test all the areas in which a trainee of the College must demonstrate sufficient skill and knowledge so that they can be assessed as being safe to practice as a junior specialist dermatologist. This is the standard that must be met by a trainee before the College can assure consumers of medical care that they are considered safe to practice as a junior consultant and can be conferred Fellowship of the College.
23. The written Fellowship Examination consists of three main parts. First, a section comprising long essay questions. These are questions which members of the Board of censors have written from their own clinical experience. They are based on cases which censors have come across in their practice. As Chief Censor, I would request that each censor write a long essay question. Once each censor has written their long essay, the Board of Censors meets to discuss the questions, refine the questions, decide on an acceptable answer and then decide which questions will be used in the Fellowship Examination. This is not necessarily how every Chief Censor arranges for the long essay questions were prepared, however this is how it was done under my leadership.
24. Secondly, there are multiple choice medical questions which are done in two papers. One paper comprises questions regarding a combination of factual knowledge of dermatological conditions, investigation and treatment in one half and the other half involves problem-solving. The second paper comprises factual knowledge of dermatological surgical conditions and treatments.
25. The Fellowship examination also includes a viva voce examination which takes place after the written Fellowship examination. There are two viva voce examinations: the first is run in individual states and comprises questions on histopathology, laboratory technique and dermoscopy (dermatological microscopy). The second is a clinical viva voce examination, usually held at the beginning of August each year in one centre only, where candidates examine patients and then are required to talk about their findings to the examiners. This examination also has a surgical component where candidates need to demonstrate their competency and knowledge of dermatological surgery.
178 Dr Corderoy, who is not a dermatologist but an education specialist employed by the College, said this:
58. When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist. In this statement where I refer to the indicator, 'safe to practice', it is to this question I am referring.
59. In order to determine whether a person is safe to practice, the College has, over many years and with input of various experts (both medical and educational) and with reference to the standards set down by the AMC, developed its system of examinations as the best way in which it can objectively determine who is safe to practice and who is not.
60. The College has carefully developed a comprehensive curriculum in relation to material that a specialist dermatologist should know. It is benchmarked against international curricular, [sic] is regularly reviewed and is of course in alignment with the standards required by the AMC. The curriculum is very broad and the College must be able to assess whether a trainee has developed an adequate knowledge of the material in the curriculum. This knowledge can be tested efficiently and objectively through the examination process, using written exams to test the acquisition of knowledge and skills and clinical vivas to test the ability to apply this knowledge and skills in a simulated real world setting… The feedback of a trainee's supervisors is significant, however it ultimately is only the option of those individuals, not a standardised or an objective opinion. The examination process is a safeguard against an un-controlled subjective approach to verifying a 'safe to practice' standard has been achieved.
61. The objective assessment of 'safe to practice' is demonstrated when the examination committee sits down to look at the final result and make a decision about borderline candidates. They discuss what happened in the exam over the 2 days of the Vivas, in relation to the candidate being discussed from the perspective of each of the examiners. Given the state based nature of the exams, only a small proportion of the candidates are 'known' to the majority of the examiners. Examiners are only really familiar with candidates sitting from their own state. At this final meeting, everybody is asked for comment, 'how do you really feel about this candidate and how they performed in the cases/stations you were examining'. Discussion can be quite extended. After all of this discussion, they vote on whether they consider that person safe to practice.
62. The statistical way in which the nominal pass mark is determined is a frequently used statistical measure which takes into account, at the same time, variations in the degree of difficulty of examinations from year to year, and the variations in the cohort. Setting an arbitrary pass mark of say 75% does not take such variables into account. The AMC is satisfied with our approach in this regard.
63. After knowledge is assessed in the true/false or multi-choice papers, the written essay papers then combine that knowledge into the scenarios that are clinically based. The candidate is asked to use a written approach to display their knowledge, skills, attitude and processes. In the experience of the examinations committee, the written paper is the beast measure of how a candidate is going to go in the vivas, since it is simply an on-paper replication of a clinical situation. The written exam is like the vivas but instead of being verbally examined, the candidates are given half an hour to use the information provided to formulate a response (using text to outline a diagnosis), what they would do or how they would treat a patient, what treatment regime they might adopt and how they might manage the patient. The written exam demonstrates whether a candidate can synthesise the knowledge and the experience to write down the analysis. The written exams are a less pressurised situation than having to give a logical recount verbally, since more time is allocated than in the vivas.
64. It is in the viva exams that the College is able to reliably make a decision as to whether a candidate is safe to practice as an independent junior practitioner. The exams replicate as close as possible a real clinical situation. The candidate is observed working with patients, and going through the process of taking the history, looking through related facts, diagnosis, management plan, treatment plan.
65. The long case vivas are the best indicators of whether a candidate [can] work safely and independently in a clinical situation because they are being assessed by their expert peers operating in clinical situations. The exams are a pressure situation but are designed to mimic the pressure that the candidates will likely have to deal with in clinical practice. The candidates have to be skilled enough to synthesise their knowledge and observations made during their examination of the case quickly and make an accurate diagnosis.
66. Long cases mimic a clinical situation. The candidate goes into the examination room in which the patient is sitting, they are with that patient by themselves for 30 minutes. They are then given 5 minutes at the end of that time to finalise their notes/thoughts. They then go into the viva room where the 2 examiners sit, the two peers sit. Very often, the first question the examiners ask is to the effect, "Tell me about Mrs X". The process that the candidate has to go through in the consultation room - that is, to take a history, make a diagnosis, do some differential diagnoses, make a further examination, then think about what is the pathway, then discuss a treatment regime and management regime - all these areas are covered and it replicates the approach the candidate would take working independently in his/her own practice.
67. The examiners 'know' the patient (they have seen the patient notes/photographs previously and have their own consultation with the patient prior to the commencement of the Viva). It is during this session that they are able to check the presentation on the day and carry out a final refinement on the rubrics and marking guides that had been prepared during the setting of the vivas and at the pre-exam examiners meeting. Note that the patients are generally drawn from the state examiners practice or those of colleagues in the state. During the Viva, the examiners work their way through the candidate's process, and consider what the candidate picked up and what did they miss. Critical items on the rubric that were not picked up (for example indicators of life threatening illnesses) may lead the examiners to conclude that although a correct diagnosis was made the candidate is not 'safe to practice'. The clinical vivas also give examiners the best chance of assessing a candidate's ethics and interaction with the patient, which are difficult to assess objectively.
179 A system which has been developed and refined over many years, which has involved an extraordinary amount of work to bring it to its present standard, is not lightly to be waived. While Dr Sklavos was highly critical of the College's examinations and how they were marked, not only is the system accredited by the AMC, there is no evidence that it has been ineffective in ensuring that Australians are provided with competent dermatologists. No-one suggested the current system of assessment of the College - including the final examinations - was failing to deliver to Australia competent dermatologists. Every system will have its strengths and weaknesses but, in the case of the College's system, it has been in place for many years and must be inferred to have been working satisfactorily to obtain current accreditation from the AMC (which the College has obtained, albeit with a significant amount of work to refine its processes of assessment, including its examinations). On the evidence, Dr Sklavos appears to be the only trainee of the College who, not having passed the final examinations, has nevertheless sought election as a Fellow based on his qualifications and experience, and the only person to have sought waiver of the examinations altogether by reason of a disability. There is no evidence that other trainees of the College have been dissatisfied with the College's requirements in the same way or to the same extent as Dr Sklavos.
180 Fourth, another obvious fact is that as at 2012 when Dr Sklavos sought waiver of the examination requirement, the College did not have available to it a program which would have enabled it to assess Dr Sklavos's competency other than its final examinations. Such a program was not then (and is not now) available for application to Dr Sklavos. The assessment of international medical graduates might have been a starting point for the development of such a program (as to which, see below) but, as noted, these people are already dermatologists qualified as such overseas. Dr Sklavos was still a trainee who had not passed his own country's requirements to be a dermatologist. To contemplate waiver of the examination requirement, it is likely that the College would have had to carry out substantial work to ascertain whether it was feasible for it to ensure Dr Sklavos's competency across all the areas covered by the examinations by some alternative method.
181 Fifth, and contrary to the case for Dr Sklavos, the situation in respect of international medical graduates is not directly comparable. While it is true that the College is prepared to assess the competency of some of these graduates on a basis that does not involve examinations but, rather, workplace based assessments, each such application is considered on an individual basis. The applications are made ad hoc. The assessment proceeds from the assumption that the person has already qualified as a dermatologist in another country. It is also apparent that the AMC carries out an initial assessment of an overseas specialist in accordance with specific AMC procedures. Accordingly, the AMC itself has already accepted that for certain international medical graduates there will be no requirement to sit further examinations. However, another thing which is apparent is that some overseas dermatologists are rejected outright as non-comparable to Australian requirements, and others are required to undertake up to two years of the College's training program for Australia trainees and to pass the College's final examinations, depending on the comparability of their training overseas with Australian requirements. As Dr Baker explained in his second affidavit, since 2007/08:
11. …the process for International Medical Graduates who wished to be considered as Fellows followed a particular policy which became known as the "Specialist Recognition Assessment Pathways" program (the Pathways program)… once an application is made by an IMG, the College considers the application and, in substance, decides whether an IMG's qualifications are:
(a) "Not comparable" to those the subject of the College's program (in which case the applicant is ineligible for specialist recognition by the College);
(b) "Partially comparable" to those the subject of the College's program - in which case the College assesses the extent of qualification of the candidate, identifies what further training or assessment is required for it to be satisfied the candidate has the necessary competence to be admitted as a Fellow of the College, and then puts in place particular further requirements for the candidate, on a case by case basis. Though the extent of steps that are to be followed is devised by the College on a case by case basis (as appropriate), one example might be that the College may require an IMG to complete 2 years of the College's training program that applies to Australian based candidates, followed by requiring the candidate to complete the final Fellowship examinations; or
(c) "Substantially comparable" to those the subject of the College's program - in which case it is possible that immediately or usually after a period of supervised practice the college might make a recommendation for an IMG to be recommended for specialist recognition and admission for Fellowship of the College.
12. Therefore, over time (commencing 2007/2008), the Pathways program was used to assess the suitability for Fellowship of overseas trained specialist dermatologists who were either:
(a) From around 2007/2008, IMGs who were specialist dermatologists overseas but lacked further pre-eminent academic experience and/or qualifications - these candidates were assessed under the Pathways program and were required to complete all assessments and training requirements set by the IMG Committee (a particular education committee within the College); or
(b) IMGs who were specialist dermatologists overseas but also had pre-eminent academic experience and/or qualifications, however those candidates' applications only formerly began being considered as applications under the Pathways program from around 2011. Prior to then, they were provided to and considered by the College's board.
182 According to the material annexed to Dr Baker's second affidavit, about 82 international medical graduates have been assessed under these procedures since 2007. A table shows how those applicants were assessed:
The table below provides information on the assessment outcomes of 82 applications received over the last 7 years.
Assessment Outcomes 2007 - 2014
Not Comparable 22.2%
Partially Comparable 51.9%
Partially Comparable - 3 months 1.2%
Partially Comparable - 6 months 14.8%
Partially Comparable - 12 months 13.6%
Partially Comparable - 24 months 22.2%
Substantially Comparable 25.0%