Tanious v Australian Medical Council Limited and ; Australian Health Practitioner Regulation Agency

The statutory scheme

1. Section 31 of the Health Practitioner Regulation National Law (NSW) (2009 No 86a) ("the National Law") establishes a number of National Health Practitioner Boards for particular health professions. These include the Medical Board of Australia ("MBA") which is the Board established for the medical profession.
2. By operation of the National Law there is in force, in each State and Territory of Australia, a national registration and accreditation scheme for health practitioners. Two of the stated objectives of that scheme are: 1. to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and 2. to facilitate the rigorous and responsive assessment of overseas trained health practitioners.
3. Section 35 of the National Law provides that the functions of a National Board such as the MBA shall include: 1. registering suitably qualified and competent persons in the health profession and, if necessary, imposing conditions on the registration of persons in the profession; 2. deciding the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession; 3. developing or approving standards, codes and guidelines for the relevant health profession (in the case of the MBA, the medical profession) including: 1. approval of accreditation standards developed and submitted to it by an accreditation authority; 2. development of registration standards for approval by the Ministerial Council; and 3. development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession.
4. Section 53 of the National Law provides that an individual is qualified for general registration in a health profession if: 1. the individual holds an approved qualification for the health profession; or 2. the individual holds a qualification which the National Board established for the relevant health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or 3. the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or 4. the individual - 5. holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and 6. was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.

The first defendant

1. The first defendant is a company limited by guarantee and is appointed by the MBA, pursuant to s. 43 of the National Law, as an external accreditation entity for the medical profession. In that capacity, the first defendant conducts (inter alia) examinations of persons who have trained as medical practitioners overseas, who wish to seek registration to practice in Australia, and who are not able to obtain registration through some other pathway. For that purpose, the first defendant conducts two examinations, a multiple choice examination and a clinical assessment.
2. The general objective of the clinical assessment is to evaluate the clinical competence and performance of a candidate in terms of his or her medical knowledge, clinical skills and professional attitudes, with a view to ensuring the safe and effective clinical practice of medicine in the Australian community. The clinical assessment includes an assessment of the ability of a candidate to (inter alia) take a history, conduct a physical examination and, by integration of the information obtained, engage in a reasonable discussion of the diagnosis and management. The assessment also focuses on the candidate's ability to communicate effectively with the patient.
3. The clinical assessment requires a candidate to demonstrate to the satisfaction of the examiners, at a level equivalent to that of a graduating final year medical student about to commence the pre-registration intern year, an understanding of basic concepts across a broad range of clinical disciplines. In particular, the candidate is required: 1. to be familiar with the concepts of disease processes as they apply to the more common and important diseases in the Australian community; 2. to have some awareness of other diseases in the Australian community; 3. to be able to discuss relevant symptoms, signs, clinical features, morphological changes and pathological appearances; and 4. to be familiar with indicators for, mechanisms and actions of, and adverse effects of, major therapeutic agents.

The second defendant

1. The second defendant is established under s. 23 of the National Law.
2. Section 25 of the National Law sets out the functions of the second defendant which, in essence, involve the provision of administrative assistance to various organisations (including the MBA). That assistance includes establishing procedures for the development of relevant accreditation standards, as well as establishing procedures for receiving, and dealing with, applications for registration as a health practitioner.

The plaintiff's clinical assessment

1. The plaintiff has undertaken the examinations referred to in [8] above. There is no issue that he passed the multiple choice examination. The present proceedings arise from the plaintiff's performance in the clinical assessment.
2. The structure of the clinical assessment is that a candidate is presented with a series of scenarios at a number of individual "stations" and is assessed according to various criteria. The scenarios presented to the plaintiff at his clinical assessment ranged from writing up a medication chart to diagnosing and treating various conditions including salmonella gastroenteritis, a cervical disc prolapse, a major depressive episode, and a nose bleed.
3. In respect of each scenario the criteria against which the plaintiff was assessed included his: 1. familiarity with the relevant test equipment; 2. taking of a history; 3. formulation of a diagnosis; 4. formulation of a management plan; and 5. general approach to the patient.
4. In respect of each criteria, the plaintiff was ascribed a grade within the following range: GRADE LEVEL OF PERFORMANCE Very satisfactory Covered all essential aspects completely - minimal errors or omissions (pass) Satisfactory Major elements covered, some minor omissions or inaccuracies (pass) Unsatisfactory Demonstrated significant errors of omission or significant flaws of procedure (fail) Very unsatisfactory Serious omissions or errors, incorrect diagnosis, inadequate explanations, failure to respond to prompts, dangerous or life threatening practice, critical errors (fail)

1. The plaintiff undertook the clinical assessment on 20 July 2013. This appears to have been the fourth occasion on which he had done so. He was assessed in respect of a total of 16 stations, 15 of which he failed. In 12 of those 15 stations that he failed the plaintiff was ascribed a grade of "very unsatisfactory" in respect of at least one of the criteria against which he was assessed. The plaintiff was advised of the result of his assessment by letter of 1 August 2013 sent by the Chairman of the Board of Examiners of the first defendant. He was advised by letter of 17 October 2013 that there were no grounds which warranted the results of the assessment being set aside.
2. It should be noted that the plaintiff has made no relevant application to the second defendant. Further, the second defendant played no role in any aspect of the plaintiff's clinical assessment.

Submissions of the first defendant

1. It was submitted on behalf of the first defendant that the Summons commencing the proceedings sought orders: 1. that the result of the clinical examination be set aside; 2. that the plaintiff be awarded a pass; and 3. that the first defendant change the system of clinical examination.
2. It was submitted that to grant any of these orders would be tantamount to the Court embarking upon an adjudication and determination of academic standards. It was submitted that there was no proper foundation for doing so and that it was inappropriate for the Court to impose its view about the process of assessment upon those who were responsible for overseeing it, particularly in circumstances where those persons were better qualified to perform that function. It was further submitted that this was not simply a case in which the pleadings were ill-expressed, or where the shortcomings in the plaintiff's case could be rectified by the summons being re-pleaded.
3. It was further submitted that if the Court was to construe the plaintiff's application as an application for judicial review, r. 59.10 of the Rules required such proceedings to be brought within three months of the date of the relevant decision. On the assumption that for these purposes the relevant decision was that conveyed in the correspondence of 1 August 2013, it was submitted that the proceedings were out of time.

Submissions of the second defendant

1. Counsel for the second defendant, whilst generally adopting the submissions made on behalf of the first defendant, raised a more fundamental issue. Put simply, counsel submitted that the second defendant had played no role in the clinical assessment about which the plaintiff was aggrieved. It was pointed out that the functions of the second defendant did not include any function connected with that assessment and that accordingly, the second defendant was not a relevant decision maker. In these circumstances, it was submitted that there was simply no cause of action available against the second defendant.

Submissions of the plaintiff

1. The plaintiff's written submissions made repeated references to "misconduct" said to have been associated with the clinical assessment. Those allegations were not further particularised. The plaintiff's allegations of misconduct also extended to the second defendant and the system of registration. His submissions also criticised the fact that some of the stations in the clinical examination involved "very rare diseases", apparently suggesting that the examination was in some way unfair.
2. Finally, the plaintiff asked that I indicate to him what part(s) of the Summons required amendment, so that such amendments should be effected under the Court's "supervision".

The relevant provisions of the rules

1. Both the first and second defendants have moved for dismissal of the proceedings pursuant to r. 13.4 of the rules which is in the following terms: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. Both the first and second defendants relied upon para. 13.4(b).

Consideration

1. Where an application for dismissal of the proceedings is brought under r. 13.4, it is open to the Court to make the order sought on an examination of the pleadings if that examination demonstrates that there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 90. However, it must be recognised that the nature of the power in r. 13.4 is exceptional. It is only appropriately exercised where the plaintiff's claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130.
2. The nature of the orders sought by the plaintiff is set out in [19] above. Orders to that effect would, if made, involve the Court in adjudicating upon: 1. academic and/or examination standards; 2. the accuracy of the results of the clinical assessment undertaken by the plaintiff and, perhaps more specifically, the accuracy of the grades assigned in the course of that assessment.
3. In Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 Davies J (at [26]) observed that issues of that nature are ordinarily unsuitable for adjudication by a Court. One of the authorities cited by his Honour in support of that proposition was Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 where Sedley LJ observed (at 1992): "There are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified".
4. In the same case, Lord Woolf MR said (at 1996): "The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations".
5. The decision in Clark was cited with approval by the plurality (Gummow, Callinan and Heydon JJ) in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [58] and by Buchanan J in Walsh v University of Technology Sydney [2007] FCA 880, both of which were also cited by Davies J in Chan.
6. In Walsh Buchanan J said (at [80]): "At the heart of Mr Walsh's claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments. In addition, his claim is that the Court enforce its own view directly. In the circumstances revealed by the present case I can discern no legal foundation for doing so".
7. The judgment of Buchanan J in Walsh was applied by Harrison AsJ in Shvetsova v the University of New England [2014] NSWSC 918 at [30].
8. The plaintiff's application for relief against the first defendant seeks to involve this Court in the process of clinical assessment generally, and specifically in the determination of a candidate's performance and the assignment of specific grades to particular aspects of that assessment. The plaintiff is, in effect, asking this Court to substitute its own views for those of the appropriately qualified representatives of the first defendant who supervised the assessment and who assessed the plaintiff's performance. As Buchanan J observed in Walsh there is no legal foundation for doing so. No reasonable cause of action is disclosed against the first defendant.
9. The shortcomings in the plaintiff's case against the second defendant are even more fundamental. The second defendant played no part in the clinical assessment about which the plaintiff is aggrieved. The second defendant has made no decision or determination in respect of the plaintiff at all. It follows that no reasonable cause of action is disclosed against the second defendant.
10. For all of these reasons, and even allowing for the exceptional nature of the power contained in r. 13.4, the relief sought by the first and second defendants should be granted.
11. I note that at the conclusion of the hearing the solicitor for the first defendant submitted that whatever the outcome of the notices of motion, costs should follow the event. Counsel for the second defendant indicated that she wished to be heard on the question of costs once judgment was delivered.

ORDERS

1. I therefore make the following orders: 1. The proceedings against both the first and second defendants are dismissed. 2. I will hear the second defendant on the question of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2015