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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Nowlan v Medical Board of Australia (No 3)  QCAT 287
MEDICAL BOARD OF AUSTRALIA
Occupational regulation matters
11 August 2020
On the papers
Judicial Member D J McGill SC
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – application for provisional registration – applicant not holding qualifying university degree – exclusion from course by University – applicant passed remaining subjects during provisional enrolment before appeal dismissed – applicant not passed clinical examination – whether discretion to grant provisional registration subject to conditions – whether discretion should be exercised
Health Practitioner Regulation National Law (Qld) s 3(2)(a), (c), s 3A, s 4, s 52, s 53, s 62
Allesch v Munch (2000) 203 CLR 172
Chinese Medicine Board of Australia v Lee  QCA 149
Freckleton v Victorian Building Authority  VCAT 69
Linquist v Nursing and Midwifery Board of Australia  NSWCATOD 183
Nigah v Medical Board of Australia  QCAT 204
Pearse v Medical Board of Australia  QCAT 392
P C Williams; K J Horsley.
J Horton QC instructed by Clayton Utz solicitors
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is an appeal from the decision of the respondent Board to refuse to register the applicant provisionally as a medical practitioner. On 9 August 2018 the Board received an application from the applicant seeking provisional registration as a medical practitioner. On 24 January 2019 the Board refused that application. The applicant is entitled to appeal to the Tribunal against that decision. The appeal is a hearing de novo of the applicant’s application to the Board. The obligation of the Tribunal is to arrive at the correct or preferable decision as at the date of hearing.
- The application to review was filed in the Tribunal on 28 February 2019. Directions were given on 12 April 2019, 17 May 2019, 30 August 2019, 4 October 2019 and 28 February 2020. On 18 February 2020 the Deputy President determined that this matter was to be decided by a judicial member without the assistance of assessors. His Honour’s reasons for that decision set out more details about the applicable legislative provisions.
Background to the decision
- The applicant began the course of study for the degrees of Bachelor of Medicine, Bachelor of Surgery at the University of Queensland in January 2012. Those degrees are a programme of study from that University which the Board has accredited as providing a qualification for the purposes of general registration as a medical practitioner. It is a course of study ordinarily completed in four years.
- In Semester one of 2012 the applicant passed four subjects, although a pass in Medical Science 1 was achieved on supplementary assessment. In Semester two he passed three subjects but failed Clinical Skills 2, despite being accorded supplementary assessment. No subjects were studied in 2013, and in 2014 the only subject studied was Clinical Skills 2 in Semester two, which he passed. In each semester in 2015 he passed four subjects, although in the case of Clinical Science 2 only after supplementary assessment. In Semester one of 2016 he failed Medicine in Society, and passed General Practice only after supplementary assessment; he passed both subjects in Semester two. In Semester one of 2017 he failed Paediatric and Child Health, and passed surgical specialities only after supplementary assessment.
- After failing the third course, the University refused further enrolment because of unsatisfactory academic progress. It does not appear from the material before me what the University’s standard is for academic progress in these degrees, but this was the third subject failed in (effectively) three and a half years, and for the seven semesters when the applicant had a grade point average, this ranged from 3.33 to 4.5, with an average of 4.1. An academic record this bad must be unusual in the Medical School, since there is considerable competition for places and usually only the best students qualify for admission.
- The applicant appealed to the Senate Appeals Committee against the decision to exclude him. It appears to have taken until September 2018 for that appeal to be decided. The applicant was granted provisional enrolment until that appeal was decided, and on that basis completed, over two Semesters, the remaining four subjects of the course, including Paediatrics and Child Health. In Semester two of 2017 he received a grade of five in the one graded subject; in Semester one of 2018 his grade point average was 4.5.
- The applicant’s appeal was dismissed by the Appeals Committee. As a result, the University did not give him credit for the four subjects passed at a time when he had only provisional enrolment. So far as the University is concerned, he was excluded from enrolment without qualifying for the degrees of Bachelor of Medicine, Bachelor of Surgery. On the strength of those subjects he did pass, he was awarded a degree of Bachelor of Medical Studies. That degree is not recognised as a qualification for the purposes of general registration as a medical practitioner.
- The registration of medical practitioners is governed by the National Law. The object of the law is to establish a national registration and accreditation scheme for the regulation of health practitioners: s 3(1). The objectives of that scheme include 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 to facilitate the provision of high quality education and training of health practitioners: s 3(2)(a), (c). The guiding principles of the scheme include that it is to operate in a transparent, accountable, efficient, effective and fair way: s 3(3)(a). The main principle for administering the law is that the health and safety of the public are paramount: s 3A. Entities with functions under the law are to exercise those functions having regard to the objectives and guiding principles of the scheme, and that paramount guiding principle: s 4.
- The National Law provides for the establishment of National Boards, with functions including to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession: s 35(1)(a). Registration is dealt with in Part 7 of the Law, which provides for general registration, specialist registration, provisional registration, limited registration and non-practising registration. The applicant applied for provisional registration.
- Eligibility for general registration is dealt with in s 52, as follows:
- (1)An individual is eligible for general registration in a health profession if –
- (a)the individual is qualified for general registration in the health profession; and
- (b)the individual has successfully completed –
- (i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
- (ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and
- (c)the individual is a suitable person to hold general registration in the health profession; and
- (d)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and
- (e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
- (2)Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
- Eligibility for provisional registration is governed by s 62 which provides as follows:
- (1)An individual is eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession, if –
- (a)the individual is qualified for general registration in the profession; and
- (b)the individual is a suitable person to hold provisional registration in the profession; and
- (c)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for, or being registered in, the profession; and
- (d)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
- (2)Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for provisional registration in the health profession by imposing conditions on the registration under section 83.
- It is immediately apparent from these provisions that the purpose of provisional registration is to enable an applicant who is qualified for general registration except for a failure to satisfy a relevant requirement under s 52(1)(b)(i) to achieve a form of registration to enable the person to practice the health profession, so as to be able to practice under supervision in order to satisfy that requirement for general registration. This is apparent from the fact that all the requirements for general registration except those in s 52(1)(b) also apply to provisional registration, and from the introductory words in s 62(1).
- These provisions also distinguish between “eligibility” and “qualification”. Whether a person is qualified for general registration is set out in s 53, as follows:
An individual is qualified for general registration in a health profession if –
- (a)the individual holds an approved qualification for the health profession; or
- (b)the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or
- (c)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
- (d)the individual –
- (i)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
- (ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.
- The applicant does not hold any of the qualifications listed in s 53. The degrees of Bachelor of Medicine, Bachelor of Surgery from the University of Queensland are an approved qualification for the purposes of s 53(a). The degree of Bachelor of Medical Studies is not. The applicant therefore does not satisfy the requirements of s 53, and therefore does not satisfy the requirement of s 62(a) for eligibility for provisional registration.
- The applicant’s argument in response to this is that he did, eventually, pass all the subjects required for the degrees of Bachelor of Medicine, Bachelor of Surgery, and the Board could act under s 62(2) by imposing conditions on his registration, so that he would be eligible for registration. Leaving aside the question of whether this is how the Law operates, there are two difficulties with this argument. The first is that, apart from passing a list of subjects, a requirement for the degrees is that the student pass a practical examination, the Year 4 Objective Structured Clinical Examination. He has not passed this, and will not be able to pass it, since it is organised by the University Medical School, and he has been excluded from the course. It is therefore not correct to say that he has satisfied all the requirements for the degrees.
- Apart from that, there is the difficulty that he was excluded from the course for “unsatisfactory academic progress”. That was the conclusion reached after Semester one in 2017, and it was upheld by the University appeal system. The Tribunal cannot review that decision of the University, and must accept it at face value. It is a doubtful basis on which to claim the equivalent of completing an approved course of study, if the body conducting that course regards the academic progress in it as unsatisfactory.
- The argument also overlooks the provisional nature of his enrolment pending the appeal. That was no doubt granted to protect his position in case the appeal was allowed, but it was dismissed. Once that occurred, the University was quite entitled to disregard any results achieved during that period of provisional enrolment. What the applicant is asking the Tribunal to do is to treat him as being in the same position as if the appeal had been allowed. There is no reason to do so.
Court of Appeal decision
- The applicant’s submissions focused on the decision of the Court of Appeal in Chinese Medicine Board of Australia v Lee  QCA 149. In that matter the respondent had been refused registration as a practitioner of Chinese medicine by the appellant, on the basis that his course of study, at an institution called the Australian College of Eastern Medicine, did not satisfy the requirements of the Standard adopted by the Board in 2012, when it was set up. The respondent had previously graduated from that institution, and applied for registration under a Grandparenting pathway, along with some others. At some point the Board changed its attitude to that institution and its graduates, and refused to register the respondent, although other applicants had been registered, subject to conditions.
- The respondent appealed to the Tribunal where the decision was set aside, and registration was granted subject to a condition of a period of supervised practice. The Board appealed and the Court of Appeal allowed the appeal, and remitted the matter to the Tribunal to be dealt with according to law. The Tribunal’s decision was challenged on the basis that s 52(2) did not override s 52(1), so as to allow eligibility for registration by the imposition of conditions, and on the basis that the Tribunal erred in taking into account what the Board had done with other graduates of that institution. In essence, the Court rejected the former argument, but accepted the latter.
- The Court also held that the Tribunal erred in failing to consider that the respondent’s application invoked the second limb of s 303(1)(b) of the Law, a provision not relevant in the present matter. That was a transitional provision, and it was held that that paragraph permitted a person who had completed training which the Board did not consider was adequate for the purposes of practising the profession to be qualified for general registration if the person has completed any further study, training or supervised practice required by the Board. The Court noted that the limitations in s 53 did not apply to s 303(1)(b): .
- The Court said that s 52(2) applied to all parts of s 52(1), including paragraph (a), as well as s 303(1): . The Board accepted the existence of that discretion, but argued that it should be exercised only in extraordinary circumstances, a proposition the Court rejected: . It went on to say at :
The use of the word “may” in s 52(2) clearly gives a Board a discretion which it can exercise to decide if someone is eligible by the imposition of conditions. However, that discretion is not unconstrained. It would have to be exercised by reference to relevant, and not to irrelevant, considerations, and within the framework of the National Law and its objects. However, until the Grandparenting provisions of s 303(1) expire, the discretion to impose conditions in s 52(2) has at least two areas of operation, namely:
- (a)where an applicant seeks to demonstrate that they are qualified under ss 52(1) and 53, the Board’s consideration is whether to impose conditions that relate to a qualification that comes within s 53; put shortly, that relates to qualifications that are approved by a Board, or where the Board recognises in one way or another that the qualifications are substantially equivalent to an approved qualification;
- (b)for those applicants who seek to demonstrate qualification under s 303(1), the discretion relates to the imposition of conditions in respect of a qualification falling outside those that the Board considers are adequate for the purposes of practising the profession, or in relation to training in the profession which falls outside what the Board otherwise considers adequate.
- The Court there was speaking of a situation where s 303 applied. Where it did not, paragraph (b) above would not apply, so it would be necessary for the Board to approach the matter as indicated in paragraph (a): the conditions must relate to qualifications that are approved by the Board, or which are recognised as substantially equivalent to an approved qualification. Further, the discretion is not unconstrained. It has to be exercised within the framework of the National Law and its objects. That includes the objectives in s 3(2)(a) and (c), and the main principle in s 3A.
- The decision in Lee was followed by a Principal Member of the NSW Civil and Administrative Tribunal in Linquist v Nursing and Midwifery Board of Australia  NSWCATOD 183, where it was held that there was a discretion under s 52(2) to register as a nurse an applicant, who did not satisfy the recency of practice requirements, by the imposition of conditions under s 83, although whether to exercise that discretion was not then decided. On appeal that decision was set aside on the ground that in making it the Principal Member did not constitute the Tribunal, so the decision was made without jurisdiction: Nursing and Midwifery Board of Australia v Linquist  NSWSC 978. The matter was remitted to a properly constituted Tribunal, and subsequently Ms Linquist was given leave to reopen her case: Linquist v Nursing and Midwifery Board of Australia  NSWCATOD 185. What (if anything) has happened subsequently does not appear.
- The decision of the Court of Appeal is binding on me, and I accept that the Board, and therefore, in this proceeding the Tribunal, has a discretion under s 52(2) which is to be exercised subject to the constraints set out by the Court in  above. Strictly speaking, the respondent Board in this case was acting under s 62, in relation to provisional registration, not under s 52, in relation to general registration, but the wording of s 62(2) is the same as the wording of s 52(2), and subject to one matter, the analysis of the Court of Appeal applies to s 62(2) as well.
- The one qualification is that referred to earlier, as to the nature of provisional registration: it exists to enable a person qualified and otherwise eligible for general registration to obtain a period of supervised practice necessary to qualify for general registration. That does not mean that the discretion does not apply to s 62(1)(a); I accept from the decision of the Court of Appeal that the discretion would apply to all parts of s 62(1). The position is just that it would be meaningless to impose a condition for supervised practice in the exercise of the discretion, since that form of registration would not permit unsupervised practice anyway.
- Approaching the matter in the way indicated by the Court of Appeal, the applicant does not have a qualification that is approved by the Board, and it is clear that he is not going to get one from the University of Queensland. I do not regard his academic record as substantially equivalent to an approved qualification. He has demonstrated what the University regarded as unsatisfactory academic progress in pursuit of the course, having failed three subjects and having passed another four only after supplementary assessment. As far as the University is concerned he lacks four subjects to complete the course, because they were completed only on the basis of provisional enrolment. Further, he has not even sat, let alone passed, the Year 4 Objective Structured Clinical Examination. I do not know the content of that examination, but from the name it sounds like the sort of thing designed to test the student’s capacity to function as a doctor in a clinical setting. That strikes me as a matter of some significance in deciding whether someone should receive even provisional registration as a medical practitioner.
- Further, it is not obvious how any conditions which could be imposed would overcome these deficiencies in the applicant’s academic qualifications. He cannot sit the University examination, having been excluded from the course, and there was no evidence before the Tribunal of any equivalent examination which he would be able to take, and which if passed would demonstrate a substantially equivalent level of clinical ability. Even if that could be overcome in some way, it is not obvious how any condition can make up for his unsatisfactory academic progress. Whether this was due to a lack of ability or a lack of diligence, or both, it is hardly consistent with giving paramount consideration to safeguarding the health and safety of the public, and ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, to register such a person, even only provisionally.
- At no point has the applicant identified any conditions which if imposed could effectively overcome his academic deficiencies. The applicant in his application for provisional registration asserted that he could meet the requirements for registration stated in the standard by the imposition of conditions, although he did not suggest any particular conditions. In his application to the Tribunal, the applicant sought that he be registered as a medical practitioner “on condition that he passes the proper examination.” If this was a reference to the Year 4 Objective Structured Clinical Examination, the condition would appear to be futile, because that is something arranged by the University and he has been excluded. In his written submissions, he sought that the Tribunal provide him with provisional registration “subject to any conditions that the Tribunal sees fit.” This is unhelpful. I cannot identify any conditions which I would regard as rendering the applicant fit for provisional registration.
- These issues were not addressed in the submissions of the applicant, which were focussed on demonstrating an error in the decision of the Board, in failing properly to apply the decision of the Court of Appeal in Lee. But I am not concerned with identifying error in the decision of the Board. This is not a process of judicial review, or an appeal by way of rehearing; it is an appeal by way of hearing de novo. What matters is whether it is appropriate in the circumstances of this case for me to exercise my discretion, to overcome the lack of appropriate academic qualifications of the applicant by imposing conditions on his provisional registration. There is no evidence before me that this can be effectively overcome by any particular conditions. I do not consider that there is any good reason to do so. I consider that to do so in this case would be inconsistent with the objectives of the National Law, and would involve my acting contrary to the requirements of s 4 of the National Law.
- The applicant asserted in submissions that his training was adequate (para 45) and that he was competent and adequately trained: para 55. These are matters of mere assertion. What is clear is that his training has not been up to the standard required by the University at which he studied, and that he did not complete an apparently significant requirement for graduation. I regard that as demonstrating that his training was inadequate, and it has not been shown that that inadequacy can be overcome by the imposition of any conditions on his registration. Accordingly, the applicant’s application for provisional registration is rejected. I will give directions for submissions in writing as to costs.
 Health Practitioner Regulation National Law (Qld) s 199.
 Pearse v Medical Board of Australia  QCAT 392 at , .
 Nigah v Medical Board of Australia  QCAT 204 at  – .
 Nowlan v Medical Board of Australia (No 2)  QCAT 38.
 The academic transcript of the applicant annexed to his application to the Board, Hearing Brief p 89.
 In Semester two of 2014 the only subject taken, Clinical Skills 2, was not graded, but pass or fail.
 The Health Practitioner Regulation National Law (Qld), applied as a law of Queensland by the Health Practitioner Regulation National Law Act 2009.
 The decision was also followed in Freckleton v Victorian Building Authority  VCAT 69 at , , .
 The applicant’s submission, that failing to sit this examination does not matter because there is no specific tuition associated with it, misses the point.
 Letter from applicant to AHPRA 8 August 2018, Hearing Brief p 86. He offered to discuss what those conditions might be.
 Allesch v Munch (2000) 203 CLR 172 at .
- Published Case Name:
Nowlan v Medical Board of Australia (No 3)
- Shortened Case Name:
Nowlan v Medical Board of Australia (No 3)
 QCAT 287
Judicial Member D J McGill SC
11 Aug 2020