1 Decision of respondent affirmed.

2 Respondent's application for costs is dismissed.

[Note: These written reasons consist of an edited transcription of reasons given orally on 24 January 2006]

1 This is a review of a decision of the respondent, the Chinese Medical Registration Board ("the Board"), made on 14 September 2005, refusing the applicant's application for general registration as a person who is qualified to be a Chinese herbal medicine and acupuncture practitioner.

2 The applicant seeks a review of that decision. It is noted that the applicant made application for registration on or about 20 January 2005.

3 There was considerable communication between the respondent and the applicant, prior to the respondent coming to its decision, and I do not feel I need to go into that matter in any detail or at all, other than to note that such communications took place.

4 I think it is important to have some idea as to the history of the applicant and, in particular, her history in relation to the practice of Chinese medicine.

5 The applicant was born on 8 February 1965 in China. She qualified in traditional Chinese medicine at the Shandong College of Traditional Chinese Medicine and that course was studied between 1981 and 1986. Subsequent to finishing that course the applicant was given the qualification of a doctor in traditional Chinese medicine. Subsequent to obtaining that qualification, she practised for approximately 16 years as a resident doctor of an affiliated hospital of the Shandong Traditional Chinese Medicine University in China and in that time as doctor in charge of an affiliated hospital of Shandong.

6 In between 2002 and 2004, the applicant apparently resided in Birmingham, England. During those two years, she practised in Birmingham and received certificates of permission to so practise from the local council. She is a member of the Chinese Society of Chinese Traditional Medicine and a Member of the British Society of Chinese Medicine and is a registered practitioner for acupuncture in Solihull Metropolitan Borough Council, Birmingham, England.

7 Subsequent to coming to Australia, she enrolled in a course of Master of Science dealing with acupuncture at the RMIT and has completed the first year. She has also attended Holmesglen College of TAFE where she has obtained a Certificate 4 in ESL (English as a Second Language). It is noted that she obtained a qualification of Level 3 in all the disciplines of English, that is, speaking, listening, reading and writing. It is also noted that the top qualification obtainable is Level 6. I am unable to ascertain from documents put in evidence whether the applicant's English would enable her to communicate properly with future patients whom she may treat or with other medical people both in the mainstream medical system of this country to whom she may have to refer her patients or with emergency service people with whom she may have to deal. I will return to the question of her English ability at a later time.

8 The legislation which governs this matter is the Chinese Medical Registration Act 2000 (the Act). Section 5 of that Act reads as follows :

A person is qualified for general registration as a Chinese medicine practitioner or a Chinese herbal dispenser if that person -

(a) has successfully completed a course of study approved by the Board; or

(b) in the opinion of the Board, has a qualification that is substantially equivalent or is based on similar competencies to a course of study approved by the Board; or

(c) has passed an examination set by or on behalf of the Board; or

9 The applicant submits that the respondent should be of the opinion that she has a qualification that is substantially equivalent or based on similar competence to a course of study approved by the Board. I note that in 2002, the Board set Guidelines as to what was an approved course of study. Those guidelines are still in existence. Thus, it necessarily follows that for the Board (or myself standing in "the shoes" of the Board) to hold an opinion that the applicant has substantially equivalent or similar competencies as to the study approved by the Board, I need to be satisfied that the study and qualifications which the applicant has are similar to those which are approved in the Policy of 2002 to which I have referred.

10 The difficulty in this case is that the applicant completed her course in Shandong University nearly 20 years ago. I have heard considerable amount of evidence that it is difficult and perhaps well nigh impossible for the Board to conduct an inquiry from Shandong University as to the comparability of the applicant's qualification with that to which they have approved. It would at the very least be necessary for somebody from the Board to undertake a trip to Shandong. I agree with the evidence of the respondent that even if such a trip was undertaken, it would probably not be helpful because the applicant obtained her degree close on 20 years ago. It is not the level of study at Shandong University today that is important. It is the level of study 20 years ago that is relevant. It would be necessary to look at the precise courses that the applicant completed, the standard for which it was necessary to gain admittance, and the standard which was required to pass. That would be a very difficult thing to do after 20 years.

11 I have heard evidence from Professor Xue who also studied medicine in China at approximately the same time as the applicant although not at Shandong University and he is now a Professor at RMIT as well as being a member of the Board and an advisor to the World Health Organisation. He pointed to other difficulties involved in assessing the applicant. He said that in the last 20 years there has been considerable improvement and innovation in relation to Chinese medicine in the sense that there is now far stricter guidelines on the way that it is practised, in particular in the field of toxicology and infection. He pointed out that a number of herbs that were used or prescribed by Chinese medical practitioners some 20 years ago have proved to be toxic and dangerous. He also pointed out that a number of those herbs are also used to this day in China but are illegal in this country. He said that while the herbs are illegal in this country, they were nonetheless available and that a practitioner may prescribe such herbs not realising that they were illegal unless they had sufficient knowledge to realise such.

12 The applicant was questioned about this particular matter as to what herbs were toxic and she seemed to evade the question and I was not satisfied that she would have a great deal of idea as to what herbs were in fact toxic. It is also important for Chinese medical practitioners practising in this country to have a clear idea of the law pertaining to Chinese medical practitioners and the relationship to other health service providers in this country and the position of other health service providers. It is often important that there be referrals from Chinese medical practitioners to other health service providers and thus it is important that one should know the other health service providers that are practising in that field, where those health service providers are to be found and whether or not they exist.

13 A policy has been formulated in relation to non-Australian qualifications and this policy was formulated in March 2005. The important part states as follows :

The Board assesses and approved Australian course in Chinese medicine that have been accredited at degree level by a University or a State Education Authority.

Non-Australian courses conducted outside Australia do not meet the following requirements from the approval guidelines :

•

In order to support safe and effective professional practice graduates are expected to have knowledge of the theory and practice of acupuncture and/or Chinese herbal medicine, its contemporary structure and role in the Australian health care context. As primary contact health care practitioners, graduates are not only expected to be competent in the practice of Chinese medicine, but also to be conversant with the legal responsibilities, ethics, and standards of their profession. Graduates are expected to be familiar with the Australian health care system in order to make appropriate referrals and use that system in the interests of their patients.

•

A substantial proportion of clinical training must take place in an Australian clinical setting.

In addition, the assessment process usually includes a visit to the institution to view facilities and resources required for implementation of the course. The purpose of the visit(s) is to evaluate any aspects of the resources and course that cannot be assessed adequately from the written submission, or which are a source of concern in the appraisal of the course documentation received.

Therefore, applicants who are relying on non-Australian qualifications are required to sit the examinations set by or on behalf of the Board in accordance with s 5(c) of the Act and may, if they pass, be eligible for conditional registration. The minimum conditions will be :

•

Successful completion of 200 hours of supervised or mentored clinical training within Australia

•

Successful completion of an assessed course or unit covering the Australian health care context

14 I pause here to state that I am not bound by the guidelines that are set by the Board. They are something that I should take into account and indeed, I do not necessarily agree with all that has been stated. I do not agree that people with overseas or non-Australian qualifications should be obliged to sit the exam. In my view, if it could be shown that a person did have an equivalent qualification to that set by the Board that should be sufficient. However, I do agree with the policy in relation to the knowledge which a person who is seeking to be registered should have and I will not read that again. However, I think it is obviously important that the people who seek to practise in this profession, have a deep and proper knowledge of the profession with its contemporary structure and role in Australia and in particular to the Australian healthcare system. In my view, the applicant certainly has not shown that she has that requirement.

15 I was greatly assisted by Professor Xue who pointed out that without doing a detailed evaluation of the applicant's course, that in any event, her qualifications would not be equivalent to those that the Board has approved in Australia. At paragraphs 8 and forward of his witness statement, he makes this point with clarity and I intend to read what the Professor has said :

Based on the information provided, the course Ms Wang undertook in China lacks significant components required for the approval by the Board. Specifically, graduates are required to have knowledge of the theory and practice of acupuncture and/or Chinese herbal medicine in its contemporary structure and within the Australian healthcare context. Overseas courses do not cater for this requirement.

I have examined the academic transcript provided by Mrs Wang and the comparisons she makes against the Board's required areas of study. Again, it is very difficult to assess the equivalence of the courses based only on the title of subjects, especially without reference to official subject guides and an understanding of the weighting of subject areas, not to mention the natural progression of knowledge in the relevant disciplines. I have identified that there are significant deficiencies and mismatches in the following illustrative areas :

a. An improved course by the Board requires a comprehensive and in-depth study in both acupuncture and Chinese herbal medicine. It is obvious Mrs Wang majored in Chinese herbal medicine and that her study in acupuncture was largely inadequate. (I pause here to state that Mrs Wang cross-examined the Professor in detail about this matter and after such cross-examination I was quite convinced that the statement made by the Professor in his statement is indeed accurate). In the 1980s it was common for only approximately 100 to 120 hours of study to be allocated for acupuncture theory and practice for Chinese herbal medicine major students. In addition, graduates from a 'Chinese herbal medicine major' normally did not work in the acupuncture department. Thus, Mrs Wang's course would not have provided adequate clinical experience in acupuncture as well.

b. It is obvious that the subjects of Dispensing Chinese Medicinal Substances and Phytochemistry were not completed by Ms Wang as these subjects are/were part of the Chinese herbal pharmacy degree in China. Chinese medicine doctors in China do not dispense herbal medicines in China. However, it must be emphasised that this is an integral part of practice for most Registered Chinese Medicine Practitioners in Victoria and thus it has major implication on public safety.

c. For all clinical medicine subjects, there is no evidence to indicate that clinical acupuncture and Chinese herbal medicine were equally emphasised. In addition, there is no evidence that modern literature concerning safety and efficacy was incorporated into teaching and practice training that embedded an evidence based approach.

d. In relation to Chinese medicine health preservation and enhancement, there is insufficient evidence that adequate study in dietary, exercise therapy and clinical application of these approaches was completed by Mrs Wang.

e. In relation to the clinical training facilities in Chinese medicine available in China, clinical training was largely focussed on hospital based clinical practice. This is different to the Board's requirements that clinical training focus on individual clinical practice upon graduation. Thus, components such as managing patient records, managing equipment in clinics, dispensing herbal medicines and offering referrals were generally not covered in clinical training in China.

f. It is clear that that the subject of toxicology was not covered in Mrs Wang's course of study. It is important to note that herbal toxicity has been a growing concern in the western community and that it imposes significant public risks.

g. Research methods: Mrs Wang did not complete studies in research methodology on evidence-based research and literature evaluation, which has since been core element of healthcare practice.

h. Professional issues: these areas of study cover specific topics that are not addressed by overseas courses. Examples of these include legal requirements for clinical practice, infection control guidelines/clean needling techniques, relevant regulations such as herbal medicine and medicines in the Australian Therapeutic Goods Register, and toxic herbs management. In addition, there is inadequate evidence of studies on non-specific but evolving issues such as ethical matters and endangered species that are relevant to clinical practice, especially Chinese herbal medicine. Finally, there was no evidence of continuing professional studies provided by the applicant. (I pause here again to mention that the applicant was also cross-examined about whether she knew what endangered species were and what the herbal medicines were that were endangered. She seemed to have no idea of this matter).

16 The Professor also has in paragraphs 10, 11, 12 and 13 of his statement made a number of important points, particularly relating to new standards of the practice of Chinese medicine that have only come into being in the last 20 years. I incorporate those paragraphs into these reasons by reference.

17 Thus I am satisfied that the qualifications of the applicant are not substantially equivalent or based on similar competencies to a course of study approved by the Board. It was submitted by the applicant that because it is either impractical or the Board refused to undertake detailed examination of overseas courses that s 5(b) of the Act would have no effect and therefore it should be read down so as to give the sub-section some purpose. However, Professor Xue made the point that, at the present time, there are negotiations going on between the respondent Board and Hong Kong teaching institutions to develop reciprocal arrangements. One would imagine that if a proper reciprocal arrangement is established, then indeed, s 5(b) would have effect. Also, I note that Professor Xue said that if an applicant was able to produce proper course outlines with some notes that they had taken during lectures and the entry standards to the course, it may well be that that course could then be properly assessed by the respondent in Australia. Thus, I do not accept the submission that s 5(b) of the Act by itself has no operation.

18 For the sake of completeness, I should mention the type of inquiry that would be necessary to be made in order for the Board to be able to ascertain whether the person has the qualifications required by s 5(b) of the Act. It seems quite clear to me that the decision-maker should have to do no more than look at the material that is placed before it and make whatever reasonable inquiries it could make. Reasonable inquiries in this sense do not mean spending many thousands of dollars, or may be even tens of thousands of dollars, sending a person or team to China or Shandong University in order to ascertain what type of course may have been undertaken 20 years ago. Reasonable inquires may mean a telephone call to a local institution. Professor Xue gave evidence that calls had been attempted to universities in China and had met with basically no response or where there had been a response, there had been no more than what the person actually had passed. I refer to Minister For Immigration And Multicultural And Indigenous Affairs And Another Ex Parte Applicants [2003] CLR 211. In that case the High Court examined the question of duty to inquire in the context of the Migration Act 1958. Section 65 of the Migration Act obliged the Minister to grant a visa if satisfied, amongst other things, the criteria for these visas prescribed by the Act or Regulations have been satisfied. The majority of the High Court held that a failure to obtain further information did not constitute a breach of procedural fairness or jurisdictional error. I also note that Ms Hubble, who appeared for the respondent, submitted that the limited duty to inquire has on occasions been implied into statutory power, that such limited duty is a duty to act reasonably. I agree with that submission. In Prasad v Minister of Immigration & Ethnic Affairs (1985) 6 FLR 155 Justice Wilcox held that a decision-maker acts unreasonably if unreasonably failing to ascertain relevant facts which he knew or would be readily available to him. It was not readily available to the Board to make inquiries from the Shandong University. As I have said, in my view, having to make such inquiries, would be unreasonable and more than likely would meet with no further information than what it deduced already.

19 I also note that the applicant has been offered an examination pursuant to s 5(c) but has refused and she has also been offered specific registration pursuant to s 7 where she could start practising immediately upon undertaking that she would enrol and complete the courses in Bachelor of Science at RMIT, such courses being Herbal Medicine BSc and Acupuncture BSc. However, the applicant has also refused that offer.

20 It was also submitted on behalf of the applicant that the Board has acted improperly by applying a policy which came into being in March 2005 which was some months after she applied for registration. I do not agree with this submission. The fact is the Board applied the Act and the policy is only a guideline to those that are applying under the Act and it does not alter the provisions of the Act in any way. There was also considerable submissions put to me in relation to the fact that the respondent had breached the Freedom of Information Act 1982. However, in my view, such submissions are misconceived. The Freedom of Information Act 1982 refers to the publishing of documents and makes an obligation on Government agencies to publish those documents (see ss 8 and 9 of the Act). However, the word "publishing" in that sense in fact means distributing. An institution cannot be expected to publish a document that is not in existence and I have no reason to believe that the policy that was published in March 2005 came into existence very much before it was published, in other words it was not hidden away from the public. In any event, even if there was breach by the respondent of the Freedom of Information Act, it would make no difference to this application.

21 Therefore, I find that the applicant is not entitled to registration pursuant to s 5(b) as she does not have a qualification which is substantially equivalent or based on similar competencies to a course approved by the Board.

22 As I said, the submission in relation to the Freedom of Information Act 1982 leads me into s 94 of the Act. That clause provided for a grandparenting situation where qualified people were able to obtain registration in a much easier way than pursuant to s 5. However, it was common ground between the parties that that clause expired on 31 December 2004. It will be remembered that the applicant made her application on 20 January 2005 which was a number of days after the expiration of that clause. It was a clause that came into being so that people who had previously been practising under the old non-registration system were able to obtain registration and clearly, under those circumstances, it is normal to have a grandparenting clause. However, as the applicant's application for registration was made subsequent to the expiry of that clause which was on 31 December 2004, in my view, that clause has no effect. The applicant attempted to submit that the clause should have effect because if the guidelines had been published prior to the expiration of 31 December 2005, she would have known to make application earlier. However, I find that submission difficult to follow because s 94 is clear on its face and if the applicant had read s 94, it would have been apparent that she was obliged to make her application within three years after the Act came into being, therefore the last day to apply was 31 December 2004. Thus, the applicant is not entitled to gain qualification pursuant to s 94. In any event, even if I am wrong in relation to what I have said in relation to s 5 or s 94 of the Act, in my view, the applicant will still have difficulty.

(2) The Board may refuse to grant registration to an applicant on any one or more of the following grounds -

(g) that the applicant's competency in speaking or otherwise communicating in English is not sufficient for that person to practise as a registered practitioner;

24 The Board in its guidelines which were ratified in February 2005 at clauses 2.3 and 2.4 set out what other guidelines were necessary for proper communication in English. They state :

2.3

Need for Effective Communication

Before an applicant will be granted general registration under section 6 the Chinese Medicine Registration Act 2000, the Chinese Medicine Registration Board must be satisfied that :

Appropriate arrangements will be in place at all times during a consultation and/or treatment to ensure effective two-way communication with patients, and

Appropriate arrangements will be in place at all times during practice to ensure swift and effective contact can be made in English with emergency services (medical and non-medical) by telephone.

Guideline 1: Effective Communication with Emergency services

A registered practitioner, who was registered under the grandparenting provisions and is not competent in speaking in English, must have 'appropriate arrangements' in place at all times during practice to enable swift and effective telephone contact in English with emergency services (medical and non-medical).

'Appropriate arrangements', for the purposes of contacting emergency services, 'appropriate arrangements' are that :

a) the registered practitioner is competent (ie of at least average skill) in SPEAKING English and in communicating by telephone swiftly and effectively, or

b) a person appointed by the registered practitioner is present at the clinic who is competent (ie of at least average skill) in SPEAKING English and in communicating by telephone swiftly and effectively.

Guideline 2: Effective Communication with Patients

Any registered practitioner must have 'appropriate arrangements' in place at all times during a consultation/treatment to ensure effective two-way communication with the patient, in particular, to enable :

• An adequate patient history to be taken;

• The patient to understand the information and advice given in relation to their medical condition;

• The patient to understand the instructions given in relation to their treatment regime, in particular, the administration of herbal medicines; and

• Swift and effective communication with the patient in emergency situations (medical or non-medical).

'Appropriate Arrangements' for the purposes of consultation/treatment, 'appropriate arrangements' are that :

a) the registered practitioner and the patient are both competent in communicating in a common language; or

b) a suitable interpreter is present throughout the consultation/treatment.

25 I have stated that I have some difficulty in trying to interpret the certificate from the Holmesglen College of TAFE that has been tendered in evidence before me. However, I have had the advantage of being able to listen to the applicant giving evidence over the last two days of this hearing. During that time, she attempted for a considerable time to speak in English. While I was able to understand her on some occasions, there were many occasions on which I was not able to understand what she was saying or what she was trying to communicate. Thus, eventually, I had to ask an interpreter to interpret everything that the applicant was saying for fear that I may not understand her case. If I was unable to understand what the applicant was saying in this proceeding, it would, in my view, be very difficult for a patient who is a non-Chinese speaking patient, ie Mandarin Chinese, to understand what the applicant was saying, and it would be virtually impossible for any emergency service person whom she may contact to understand what she was saying unless by chance that person happened to speak Mandarin Chinese. Further, in Chinese medicine, as with any other medicine, it is on occasions necessary for the practitioner to give referrals to other practitioners whether it be a general practitioner or specialist doctors. Such referrals must go into detail about the patient's case history. Such referrals often have to be done verbally over the telephone in an emergency. Under those circumstances, in my view, the applicant would not be able to make such communication. Thus, I find that she does not have the necessary competence to communicate in English, she is a person who, if she was registered, would have enormous difficulty and, as a result, the patients may suffer. I make this finding inspite of evidence given on behalf of the respondent that it was now satisfied with the applicant's ability to communicate in English as a result of her completing in November 2005 her first year of Master of Science (acupuncture) at RMIT.

26 I noticed that s 6(2)(g) uses the word "may". This is obviously something that would give me a discretion. However, were it would be envisaged by myself that patients could be at risk because of the lack of English, in my view, that discretion should be exercised against the applicant.

27 In conclusion I will affirm the respondent's decision. I am not satisfied that the applicant has made out the ground in s 5(b) of the Act. Section 94 of the Act does not apply and, in any event, because of the applicant's lack of ability in English, I will exercise my discretion against her pursuant to s 6(2)(g) of the Act.

28 At the conclusion of the reasons for decision, which I gave a short while ago, Ms Hubble, on behalf of the respondent, made an application for costs of the second day of the hearing.

29 The basis of the application was that the applicant was warned yesterday and on several occasions today that pursuing cross-examination and indeed, address, in relation to the respondent not complying with the provisions of the Freedom of Information Act 1982 and not publishing their policy document earlier caused the problem. I, at a very early stage, identified this matter as having no relevance to the hearing before me and informed the applicant that this was not a hearing into the conduct of the Board but was a hearing as to whether the applicant should be registered. However, Ms Hubble when asked if she was of the view that this application would have gone into a second day regardless of the time that was spent on cross-examination and address of the points that I mentioned, she said that that was what her client was concerned with and that was why they were only applying for costs of the second day. However, in my view, regardless of the time wasted, the hearing would have gone into a second day. Under those circumstances, costs will not be awarded against the applicant. I also note that s 109 of the Victorian Civil and Administrative Tribunal Act 1998 deals with the power to award costs and sub-section (1) says that each party should bear their own costs. However sub-section (2) says that in certain circumstances, the Tribunal may order a party to pay costs. One of those circumstances is vexatiously conducting the proceeding and the other is other matters that the Tribunal considers relevant. Clearly, it is relevant that a party has conducted a proceeding in such a way as to unduly lengthen the proceeding. While the proceeding was lengthened as a result of the unnecessary conduct, in my view, it did not cause the hearing to go into an extra day and from the way the application was put, I presume the respondent's costs did not increase on the basis that it would have gone into an extra day in any event. Under those circumstances, I will not award costs and I will make an order that the respondent's application for costs is dismissed. I emphasise here that that does not mean that the same attitude will be taken in all cases where there has been a delay, then it is likely that there may be an order for costs in the future.