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Ofili v Medical Board of Australia[2016] QCAT 258

Ofili v Medical Board of Australia[2016] QCAT 258

CITATION:

Ofili v Medical Board of Australia [2016] QCAT 258

PARTIES:

Sunday Ofili

(Applicant)

v

Medical Board of Australia

(Respondent)

APPLICATION NUMBER:

OCR109-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

9 February 2016

HEARD AT:

Brisbane

DECISION OF:

Judge Suzanne Sheridan, Deputy President

Assisted by:

Dr D Evans

Dr G Powell

Mr M Halliday

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed.
  2. The respondent’s decision of 9 June 2015 is set aside. 
  3. In lieu of that decision, the applicant is granted general registration effective from 30 October 2014.
  4. The respondent is to pay the applicant’s costs of and incidental to these proceedings to be agreed, or failing agreement, to be assessed on the District Court Scale.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where an international medical graduate held limited registration in an area of need – where the practitioner applied for general registration under the Australian Medical Council’s Competent Authority Pathway for international medical graduates – where the Medical Board of Australia considered the practitioner did not meet the requirements for progression to general registration – where the Medical Board of Australia granted provisional registration subject to conditions – where practitioner appealed – whether conditions should have been imposed on the practitioner’s registration – whether the practitioner was eligible for general registration

Health Practitioner Regulation National Law Act 2009 (Qld), ss 9, 43, 52, 65, 199, 201 and 202

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20 and 24

Cruceru v Medical Board of Australia [2014] QCAT 353, applied

Pearse v Medical Board of Australia [2013] QCAT 392, applied

APPEARANCES:

APPLICANT:

Dr S J Ofili in person

RESPONDENT:

Mr M P Williams of counsel, instructed by Lander & Rogers

REASONS FOR DECISION

  1. [1]
    This is an appeal by Dr Sunday Ofili against a decision of the Medical Board of Australia (Board) to grant him provisional registration subject to conditions.

Background

  1. [2]
    Dr Ofili is an international medical graduate (IMG) who first came to Australia in July 2013.  He graduated with a Bachelor of Medicine and Bachelor of Surgery from the University of Benin in Nigeria in 2002.  He obtained full registration in the United Kingdom in January 2008, having passed his PLAB[1] examination in October 2007.  He was admitted as a member of the Royal College of Surgeons of Edinburgh in 2012.  
  2. [3]
    Dr Ofili first lodged an application for limited registration to fill an area of need in September 2012.  Eligibility for limited registration must be determined in accordance with s 65 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law), the requirements of which include the individual meeting any requirements for registration stated in an approved registration standard for the health profession.
  3. [4]
    As a prerequisite to the lodgement of his application, Dr Ofili was required to obtain a Certificate of Advanced Standing from the Australian Medical Council (AMC) and to be accepted to the IMGs’ Competent Authority Pathway (CAP) for progression to general registration.  He was required to submit a Supervised Practice Plan and Principal Supervisor’s Agreement and, as part of that plan, to be subject to Level 2 Supervision.
  4. [5]
    The Australian College of Rural and Remote Medicine (ACRRM) was accredited by the AMC to assess the period of supervised practice undertaken by registrants with limited registration on the CAP. In the agenda paper for a meeting of the Queensland Registration Committee (Committee),[2] it was stated that:

ACCRM required practitioners to undertake 12 months of satisfactory practice, complete Multi-Source Feedback and provide supervisor reports to determine eligibility.

  1. [6]
    Dr Ofili was granted limited registration on 10 April 2013 and commenced working at the Gladstone Valley Medical Centre on 1 August 2013.  In accordance with the plan submitted, Dr Weerasekera acted as his principal supervisor and Dr McGree his co-supervisor.  Dr Ofili remained in that position until late January 2014.
  2. [7]
    On 3 February 2014, Dr Ofili made a further application for limited registration for supervised practice to work at the Gladstone GP Super Clinic (Clinic).  The required Supervised Practice Plan nominated Dr Kerr as the principal supervisor and Drs Bird and Jones as the secondary co-supervisors. 
  3. [8]
    Limited registration was granted on 16 March 2014 and Dr Ofili commenced working at the Clinic on 24 April 2014. 
  4. [9]
    While he held limited registration, Dr Ofili’s supervisors were required to complete reports.  The following reports were competed and provided to ACCRM:
    1. A supervisor report (Three Month Report) from Dr Weerasekera dated 12 November 2013 for the period 1 August 2013 to 31 October 2013;
    2. A work performance report from Dr Weerasekera dated 24 January 2014 for the six month period up to 29 January 2014;
    3. A supervisor report (Six Month Report) from Dr Kerr dated 15 July 2014 for the period 24 April 2014 to 15 July 2014; and
    4. A supervisor report (12 Month Report) from Dr Kerr dated 5 September 2014.
  5. [10]
    In addition, Dr Ofili was required to complete two multi-source feedback (MSF) surveys: one at three months and one at 10 months.  The results of the surveys were provided to ACRRM. 
  6. [11]
    At the end of the 12 month period from the grant of limited registration, ACCRM was required to prepare a report on practitioners on the CAP, which report was to be provided to the Australian Health Practitioner Registration Authority (AHPRA), as an approved accreditation agency under s 43 of the National Law.  The report on Dr Ofili was given under cover of a letter dated 24 October 2014.  In the report, ACCRM advised that Dr Ofili had not met the requirements of the CAP within the 12 month period of supervised practice.  The letter contained a recommendation to the AMC and AHPRA for an extension of six months to allow the objectives to be satisfied through a proposed remediation plan. 
  7. [12]
    By further letter to AHPRA dated 5 December 2014, ACCRM said that Dr Ofili had failed to meet the following requirements under the program:
  1. To achieve the pass standard of a Summative MSF; and
  2. Three satisfactory supervision reports – (Twelve month Supervisor report has not been accepted as the satisfactory report given contrasts with the opinion of MSF assessment).
  1. [13]
    The letter of 5 December 2014 confirmed Dr Ofili was offered remediation support by ACCRM, which he had declined.
  2. [14]
    In declining the initial offer, by email to AHPRA dated 4 December 2014, Dr Ofili explained the prohibitive cost of the remediation plan.  He noted that there had been a change in the CAP and stated that he was electing to proceed under the new format of the CAP.
  3. [15]
    The new format commenced on 1 July 2014 and was aimed at streamlining the assessment process for IMGs.  The Board’s guidelines said that IMGs may be eligible to apply for general registration after they have completed 12 months of satisfactory supervised practice in a general practice position in Australia. The guidelines contained transitional provisions for practitioners currently holding limited registration.
  4. [16]
    Consistent with the statement made in the email correspondence and the new format provisions, Dr Ofili in fact lodged a further application for registration on 30 October 2014.  He included with his application a further work performance report from Dr Kerr dated 28 October 2014 for the period from 24 April 2014 to 27 October 2014.   An issue raised at the hearing was whether that application by Dr Ofili was an application for provisional or general registration.  It is not disputed that the application was made using a provisional registration form and paying the registration fees for such an application.  The relevance of the type of application will be discussed in more detail below.
  5. [17]
    In correspondence from AHPRA, Dr Ofili was required to provide a Supervised Practice Plan and principal supervisor’s agreement, before this application would be further considered.  Dr Ofili provided the plan.
  6. [18]
    AHPRA further responded to the application for registration by letter dated 8 January 2015 and requested the provision of an amended Supervised Practice Plan to address the issues which had been identified by ACCRM.  There was ongoing communication between Dr Ofili and AHPRA regarding the provision of an amended plan and the contents of that plan.
  7. [19]
    By letter dated 27 April 2015, AHPRA notified Dr Ofili of the proposal of the Committee, which included consideration of the following conditions being placed on his provisional registration.  The conditions were:
    1. The practitioner must practice in accordance with the supervised practice plan approved by the Board or its delegate.
    2. The practitioner must undertake a Communication Assessment with the Clinical Skills Development Service (CIMG) within three months of the imposition of the conditions, and provide a report to the Board within seven days of completion.
    3. The practitioner is required to complete the Board approved Client Focused Evaluations Program (CFEP) multi-source feedback (MSF) tool six months after completion of the CIMG assessment.  The practitioner authorises CFEP to provide the results of the MSF tool to the Medical Board of Australia.
    4. The practitioner must provide detailed written reports on his clinical practice to the Board after three, six, nine and 12 months of the imposition of the conditions.  These reports must be completed by the Board approved supervisor and address the areas of communication and clinical knowledge and skills.
  8. [20]
    In responding to the proposal Dr Ofili agreed to conditions 1 and 4 on the basis that they are the standard default conditions in applications for provisional registration, and as such he assumed they would not be regarded as conditions on his registration.[3]   Dr Ofili suggested he would make enquiries about undertaking the assessment referred to in condition 2 (CSDS Assessment), but objected to being subjected to any further MSF surveys. 
  9. [21]
    Under cover of a letter from AHPRA to Dr Ofili dated 22 June 2015, the Committee confirmed the decision made on 9 June 2015 to impose conditions on the grant of his provisional registration in terms of the proposed conditions set out in the letter of 27 April 2015.  The letter said the review period for the conditions was 12 months.
  10. [22]
    On 6 July 2015, Dr Ofili filed an application in the Queensland Civil and Administrative Tribunal (Tribunal) to appeal that decision.

The nature of the proceedings

  1. [23]
    Section 199(1)(e) of the National Law provides that a person subject to a decision to impose conditions on his or her registration may appeal against the decision to QCAT, QCAT being the appropriate responsible tribunal under s 199(1) of the National Law.  Pursuant to s 9 of the National Law, a reference in the National Law to an appeal to QCAT as the responsible tribunal is a reference to a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  Section 20(2) of the QCAT Act provides that the Tribunal is required to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
  2. [24]
    In Pearse v Medical Board of Australia,[4] Judge Horneman-Wren considered the combined effect of ss 9 and 20(2) established the nature of an appeal “as being a hearing de novo”.  He said:

The Tribunal is able to consider evidence of matters which have occurred after the decision under review was made.  It is not limited to hearing only evidence that bears directly upon the position as it was when the original decision was made.[5]

  1. [25]
    The purpose of the proceedings is to produce the correct and preferable decision.[6]  In this case, the appellant must establish that the decision to impose conditions was not “necessary or desirable in the circumstances”.[7]
  2. [26]
    The functions of the Tribunal in reviewing a decision are set out in s 24 of the QCAT Act and include, consistent with s 202(1) of the National Law, the decisions the Tribunal may impose after hearing the matter.  Those decisions include confirming, amending or substituting the decision.
  3. [27]
    At the hearing, the receipt by the Tribunal of further evidence was not objected to by the Board.  Whilst the written submissions of counsel for the Board and certain statements made in his oral submissions appear at odds with that position, the final position taken by the Board, quite properly, was that the Tribunal was entitled to make a fresh decision based on all the evidence that the Tribunal had before it.  It was a fresh hearing. 
  4. [28]
    In accepting that position, counsel for the Board submitted that, if the Tribunal was minded to set aside the original decision, it should not set aside the decision as though it never existed.  The Tribunal was urged to make an order that the fresh decision only take effect from some subsequent point in time.  The Board’s position remained that the conditions were necessary at the time they were imposed.  Counsel for the Board submitted that it would be contrary to the philosophy of the National Law that the health and safety of the public are paramount if Dr Ofili could say that he had never had the conditions placed on his registration.
  5. [29]
    However, absent an order, by operation of s 24(2)(b) of the QCAT Act, if the Tribunal made a fresh decision it would take effect from when the reviewable decision took effect.  Any consideration as to the appropriateness of making a contrary order, as requested by the Board, will be effected by the determination as to whether the conditions were necessary or desirable when imposed.  

Events subsequent to the decision

  1. [30]
    In his communications with AHPRA, prior to the Committee making its decision to impose the conditions, Dr Ofili agreed he would make inquiries about undertaking the CSDS Assessment.  As Dr Ofili said in evidence in these proceedings, he felt that the Board was “going to call the shots” and “they’re going to decide this”, so he thought it best just to do the assessment.[8]  On 15 June 2015, at considerable expense, he undertook the assessment.  The CSDS Assessment Report (CSDS Report) was provided to AHPRA attached to an email dated 22 June 2015 from the author of the report.  It is rather uncanny that that email bore the same date as the letter from AHPRA to Dr Ofilii confirming the decision of the Board to impose the conditions.
  2. [31]
    According to the executive summary of the CSDS Report, Dr Ofili passed every aspect of the assessment.  The following comments by the author of the report appear particularly pertinent:
  1. “Dr Ofili has excellent listening, reading and writing skills”;
  2. “The spoken assessment demonstrated that Dr Ofili is a very effective communicator.  His ability to communicate is augmented by his professional and compassionate interpersonal skills.  He has a gentle and caring manner with his patients and a lovely tone in his voice”;
  3. “Dr Ofili demonstrated insight into his communication”; and
  4. “Dr Ofili’s history taking skills were systematic and thorough.  He incorporated clarification and summarising into his consultations which ensured that he captured all significant information.”
  1. [32]
    Dr Ofili requested through AHPRA that the CSDS Report be brought to the attention of the Committee forthwith.  Dr Ofili was initially told that the review period for the conditions was 12 months.
  2. [33]
    Despite that initial communication, with continuing insistence from Dr Ofili, the issue of his registration again went before the Committee on 13 October 2015.  In addition to the material the Committee had before it at the time of making its decision on 9 June 2015, the Committee on this occasion had:
  1. The results of the CSDS Report conducted by Ms Jennifer Young, dated 15 June 2015;
  2. A further work performance report from Dr Kerr, dated 15 September 2015; and
  3. The application to this Tribunal.
  1. [34]
    Correspondence from the Board’s solicitors dated 9 September and 15 September 2015 was included in the Agenda Papers tendered during the hearing.  No reference was made to that correspondence during the hearing.  Ordinarily such correspondence would be covered by legal professional privilege.  Given that there was no reason to think that this privilege was intentionally waived, upon noticing reference to the documents in the index to the Agenda Papers, I immediately caused the letters to be placed in a sealed envelope marked “Not to be opened without an order of the Deputy President of QCAT.”  I did not read them, nor has any member of the Tribunal had access to them.
  2. [35]
    In the further work performance report from Dr Kerr dated 15 September 2015, Dr Kerr again recorded that in all areas Dr Ofili “performs consistently above the level expected”.  Under the section headed “Comments and future development plans”, she identified his strengths and weaknesses.  As one would expect, the strengths and weaknesses identified were not the same as those identified in her previous reports.  By the time of the October 2015 decision, Dr Ofili had been under the supervision of Dr Kerr for almost 18 months.
  3. [36]
    In the “Recommendations” section in this report, however, Dr Kerr stated her position in very strong language.  She said:

There is no problem with Dr Ofili’s communication skills.  We have 17 Doctors in this practice – he is equal to all the other doctors in his communication skills.  I am observing him every day and receiving feedback from staff and patients regularly.  ACCRM assessed him on the basis of some ticks in boxes without ever speaking to him.  How can this be fair and reasonable?... does not require level 2 supervision. 

  1. [37]
    Dr Kerr was making it very clear as to what she thought of the decision of the Board made in June 2015.
  2. [38]
    At the meeting of the Committee on 13 October 2015, the Committee decided to remove the conditions it had imposed on Dr Ofili’s provisional registration pursuant to s 127 of the National Law.  In the letter from AHPRA to Dr Ofili dated 4 November 2015, Dr Ofili was notified of the Committee’s further decision.  It was said that decision was the result of the new information and, having regard to that new information, the Committee had decided to remove the conditions.  It was said:
  1. (a)
    your communication skills have been assessed as excellent in the required Communication Assessment completed by Ms Jennifer Young, CSDS.  Ms Young stated that you have “excellent listening, reading and writing skills” and that you are an “effective communicator”.  The Committee reasonably believes there has been a material change in your circumstances in which to review the conditions before the end of the review period; and
  1. (b)
    you have further provided a work performance report of Dr Lola Kerr, Supervisor, which shows an assessment of your performance and the position as “Performs consistently above the level expected”.
  1. [39]
    In the letter, it was also stated that as Dr Ofili had now been granted unconditional provisional registration, he was deemed qualified to apply for general registration.  The Committee advised Dr Ofili to make an application for general registration.  The letter stated that as Dr Ofili held only limited registration at the time of the Committee decision on 9 June 2015, and as he had not at that time completed the CAP, he was not qualified for general registration. 
  2. [40]
    As requested, Dr Ofili lodged the application for general registration.  At its meeting on 24 November 2015, the Committee determined it would grant Dr Ofili general registration with an effective commencement date of 26 November 2015.  Under cover of the letter from AHPRA to Dr Ofili dated 2 December 2015, the letter noted that the reason for the decision was that the Committee determined that “you had completed 12 months of satisfactory supervised practice and therefore met the eligibility requirement for general registration.”
  3. [41]
    Notwithstanding the subsequent action of the Board to approve Dr Ofili’s general registration, as he is entitled to do, Dr Ofili wishes to pursue his appeal of the Board’s decision of 9 June 2015 to impose conditions on his provisional registration. 

The Board’s decision of 9 June 2015

  1. [42]
    The process undertaken by the Board in reaching its decision is clearly set out in the formal notice of conditions dated 22 June 2015 (formal notice).[9]  The documentation the Committee had before it is detailed in that document, together with the reasons for the Committee’s decision.
  2. [43]
    By reference to the formal notice, the Committee had before it a further report from Dr Kerr, being the report dated 28 October 2014, which report had been lodged with the application for provisional registration.  The period of supervision covered by the report extended from 24 April to 27 October 2014.  
  3. [44]
    In addition to that documentation, this Tribunal has the material filed in these proceedings, in particular the formal Statement of Reasons dated 25 January 2016, the CSDS Report, the further report of Dr Kerr and the affidavits of Dr O'Dwyer, as the Chair of the Committee, together with the oral evidence given by Dr Ofili and Dr O'Dwyer.
  4. [45]
    The role of this Tribunal is to consider that material and decide whether the conditions imposed when granting Dr Ofili’s provisional registration should have been imposed.  This Tribunal must make its own decision, but in doing so, the approach taken by the Board as to how it formed its decision can inform the Tribunal’s  considerations.[10]
  5. [46]
    By reference to the formal notice and the evidence given by Dr O'Dwyer, it is clear that in making its decisions the Committee relied heavily on the recommendations of ACCRM.  The recommendations of ACCRM had placed significant reliance on the results of the MSF survey, specifically recording that the supervising doctor’s 12 Month Report could not be accepted as it contrasted “with the opinion of MSF assessment”.[11]
  6. [47]
    The Committee’s Agenda Papers for its meetings on 14 April and 9 June 2015 give some insight into the approach it was proposed the Committee should take:
    1. In the “Background” sections of each paper, there is reference to Dr Ofili having been assessed as satisfactory in the two six month reports; that is, the Six Month Report from Dr Weerasekera and the 28 October 2014 report from Dr Kerr;
    2. In the “Matter requiring decision” section of each paper, there is no discussion of those reports but only reference to ACCRM having advised that Dr Ofili failed to meet the requirements of passing the MSF assessment and obtaining three satisfactory supervisor reports;
    3. There is no attempt in the papers to analyse the failures as stated by ACCRM against the comment in the “Background” section of the two supervisor reports being satisfactory;
    4. The “Recent” and “Previous” decisions section of each paper does not refer to there having been any detailed consideration of the supervisor’s report or indeed the survey results.  It is stated that ACCRM did not accept the supervision reports, “as they were in contrast to the MSF result.”
  7. [48]
    Interestingly, the Committee were not provided at either meeting with a copy of the 12 Month Report referred to in the ACCRM Recommendation; being the report said by ACCRM not to have been accepted.  Rather, the Committee had before it the later report of Dr Kerr dated 28 October 2014.
  8. [49]
    Dr O'Dwyer, as the Chair of the Committee, gave evidence.  She was not present at the meeting on 14 April 2015 but was present for the critical meeting of 9 June 2015.  She also attended the meetings in October and November 2015.
  9. [50]
    Dr O'Dwyer’s evidence was that the Committee did consider the supervisor’s feedback.  Indeed, she even acknowledged that feedback was “quite glowing”.  She said the Committee was aware that both the six month and 12 month reports said “satisfactory performance”.  However, she said that feedback conflicted with the patient and colleague feedback.  She referred to ACCRM as having considerable expertise in the assessment and development of IMGs and said the Committee takes into consideration ACCRM’s deliberation on the matter and how they came to their conclusion.
  10. [51]
    ACCRM, however, had clearly ignored Dr Kerr’s 12 Month Report in its entirety.  In doing so, ACCRM had chosen to completely disregard the comments of the very doctors who had been approved to provide the daily supervision and training of Dr Ofili.  As part of the supervision plan, those doctors were required to provide Level 2 Supervision. 
  11. [52]
    In her later work performance report dated 28 October 2014, being the report before the Committee, Dr Kerr described in very clear terms the nature of the supervision:

Dr Ofili’s supervision was determined to be at level 2 and has been carried out as such.  It has been a combination of face to face teaching, directly observed consultations with immediate feedback, case discussions, case note audits/reviews.  He has been working full-time and the supervision has been full-time on-site.  With a change of practice at 6 months, he did a brief re-orientation when he commenced at the Superclinic.  He has sit-ins with both supervisors before his actual day of commencement.

It is of particular relevance that, as stated in the 28 October 2014 report, both Dr Kerr and her co-supervisor met with Dr Ofili before his actual work day commenced and directly observed consultations and provided immediate feedback. 

  1. [53]
    In that report, in all categories of performance Dr Ofili was assessed as having performed “consistently above the level expected”, including in all communication categories.  In that report, which was completed almost two months after the 12 Month Report, Dr Ofili’s performance had again improved, resulting in him now being assessed as performing “consistently above the level expected” in all categories.  Unfortunately, the fact of that improvement could not have been realised by the Committee as the Committee were not provided with the 12 Month Report; despite it being the report before ACCRM.
  2. [54]
    In the 28 October 2014 report, in the section headed, “Comments and future development plans”, Dr Ofili’s strengths were described as:

Strong clinical knowledge base.

Surgical training and good procedural skills. 

Careful and considered use of antibiotics and narcotic analgesics.

Review of points set out previously in training plan show he has performed well against these benchmarks.

In this same section, his weaknesses were described as:

Continue communication with professional colleagues to know which specialist/allied health services are available and what local facilities can accept referrals.

  1. [55]
    In that same report, the supervisor was asked to list the issues to be addressed; that is, addressing weaknesses and development needs.  The supervisor in fact referred to the MSF survey and commented, “Good responses, all reviewed and addressed.”  In this section, it was further reported that Dr Ofili has joined the Overseas Trained Doctor National Education Training in order to prepare for the Fellowship exams.  In the section headed “Recommendations”, the supervisor stated:

Continued professional development in all relevant areas of General Practice.

Networking with professional colleagues in local area.

  1. [56]
    The supervisor had clearly given careful thought in answering each section of the report.  Given the structure of the report, even where a doctor’s performance had been “satisfactory”, it was still to be expected that there would remain matters which needed to be addressed.  As stated in the Board’s “Guidelines: Supervised Practice for IMGs”, supervision introduces and promotes a culture of continuous learning and professional development.[12]
  2. [57]
    It is apparent that in attempting to resolve the conflict to which Dr O'Dwyer referred, the Board through the Committee made no effort to contact Dr Kerr to obtain a firsthand report about Dr Ofili before they, like ACCRM, simply disregarded her conclusions.
  3. [58]
    It is also apparent from the evidence of Dr O'Dwyer that in resolving that conflict, the Committee did not attempt to analyse the various supervisor reports nor the survey results.  In terms of the supervisor reports, there is no reference to details within the 28 October 2014 report; a report provided after the ACCRM recommendation.  This is clear from the stated reasons for the subsequent decision of the Committee on 13 October 2015 that Dr Ofili had now been assessed as performing in all categories at “above the level expected”, when he had in the report before them at the 9 June 2015 meeting already been assessed at that level. Rather, the Committee simply took the approach at that meeting that the MSF results of Dr Ofili fell below the national mean.
  4. [59]
    In terms of the MSF results, the Committee relied on the summary section of the survey results and had no regard to the individual feedback.  Without conducting their own analysis, the Committee accepted the comment that Dr Ofili “scored below the national mean performance band.”  Dr O'Dwyer described the report as a “stand out”, but when directed to the actual individual results, it was clear that she had never reviewed them.  She was unable to explain the statistical analysis conducted by the authors of the report.  Dr O'Dwyer said the Committee were trying to grapple with working out where the true situation lay, but it is clear that the Committee had blindly accepted the MSF results.
  5. [60]
    Having regard to what appeared to this Tribunal to be the very artificial nature of the MSF survey, it is perhaps not surprising that under the new format, the use of the survey has been abandoned.  In fact, the AMC and ACCRM have no continuing role in the assessment of IMGs on the CAP.  The reliance in determining eligibility of IMGs for registration is now on the satisfactory completion of the 12 month period of supervised practice.  Whilst there were transitional provisions in place, that new process commenced on 1 July 2014; some 11 months prior to the Committee’s decision.
  6. [61]
    By the date of the 9 June 2015 decision, the Committee had before it reports disclosing that Dr Ofili had completed “the 12 months of satisfactory supervision” required.  In fact, as was apparent in the evidence given to this Tribunal, Dr Ofili had at all times continued practising subject to supervision from Drs Kerr and Bird, even after the expiry of the 12 month period in October 2014.  In those circumstances, the MSF results would need to have been very closely analysed and considered in view of the glowing supervisor reports and the clear improvements which had been made during the period of supervision.  Clearly they were not.  In any event, the 28 October 2014 report of Dr Kerr should not have been disregarded.
  7. [62]
    The Board through the Committee had no proper basis to impose the conditions that it did impose on 9 June 2015.  In fact, subsequent events made that very clear, with Dr Ofili returning excellent results from the CSDS Assessment and his supervisor confirming in very strong language her earlier position, and with the Board determining on 2 December 2015 that Dr Ofili had completed 12 months of satisfactory practice and had therefore met the eligibility requirements for general registration.
  8. [63]
    Accordingly, I allow the appeal.  As at the date of the Board’s decision, Dr Ofili had successfully completed in excess of 12 months of supervised practice.
  9. [64]
    The next question is what decision should be substituted for the one that was made by the Committee.  The practitioner contends that he should have been granted general registration.
  10. [65]
    In determining that issue, it is necessary to have regard to the provisions of s 52 of the National Law, which sets out the requirements for eligibility for general registration.  These include a requirement for the individual to be qualified for general registration and to have completed any period of supervised practice required by an approved registration standard.
  11. [66]
    The effect of the transitional arrangements from 1 July 2014 was to deem practitioners who qualify for the CAP and lodge their applications after 1 July 2014 to be qualified for general registration.[13]  For practitioners who hold limited registration, the transitional provisions provided that the decision does not take effect from 1 July 2014, but rather from the date of their application for provisional or general registration.
  12. [67]
    The Board submitted that, at the time of the decision in June 2015, Dr Ofili was not entitled to general registration but rather only provisional registration.  That position appears to be on the basis that at that time he had not completed 12 months satisfactory supervised practice.
  13. [68]
    By reference to the transitional provisions and in view of the decision of this Tribunal, at the time of the 9 June 2015 decision, Dr Ofili had qualified on the CAP, had 12 months supervised practice and had lodged an application for registration.  In terms of the deeming provisions, it does not seem to matter whether that application was an application for provisional or general registration.  The arrangement was that medical practitioners who held limited registration or whose applications for limited registration had been received by the Board and who are qualified for the CAP as at 30 June 2014 were deemed to be qualified for general registration, relevantly, from the date of their application for provisional or general registration.[14]
  14. [69]
    That application was lodged on 30 October 2014, and as at that date Dr Ofili had completed 12 months of satisfactory supervision.  Pursuant to the transitional provisions, Dr Ofili was deemed qualified for general registration from that date. The substituted decision will be to grant Dr Ofili general registration effective from 30 October 2014.
  15. [70]
    Dr Ofili has also asked for other relief as a consequence of the decision made.  The claim by Dr Ofili includes an amount for damages and costs, including opportunity costs relating to the CSDS Assessment and these proceedings, and loss of income relating to the CSDS Assessment and these proceedings.
  16. [71]
    This is an appeal under s 199 of the National Law.  The remedies available to a practitioner are limited to those set out in s 202, namely confirmation, amendment or substitution of a decision and s 201, namely costs.  In these proceedings, the Tribunal has no power to award damages or opportunity costs or loss of income. 
  17. [72]
    In terms of costs, s 201 gives to the Tribunal a very broad discretion.  In the exercise of that discretion, it is relevant whether the decision was reasonable when made.
  18. [73]
    Given the observations already made by the Tribunal, the Tribunal does not accept the decision was reasonable when made.  Therefore, the Tribunal orders that the Board pay Dr Ofili’s costs of the proceedings as agreed, or in default of agreement, as assessed on the District Court scale.

Footnotes

[1] The Professional and Linguistic Assessments Board.

[2] Agenda Paper for Meeting on 14 April 2015.

[3] The response appears to be unsigned and undated but contained as document number 24 in the amended bundle of documents.

[4][2013] QCAT 392.

[5]Pearse v Medical Board of Australia [2013] QCAT 392 at [37].

[6] QCAT Act, s 20(1).

[7]Cruceru v Medical Board of Australia [2014] QCAT 353 at [27].

[8] T1-35 LL 33-40.

[9] A copy of the decision was provided to Dr Ofili under cover of a letter from AHPRA dated 22 June 2015.

[10]Pearse v Medical Board of Australia [2013] QCAT 392 at [48].

[11] Letter ACCRM to AHPRA dated 5 December 2014.

[12] Medical Board of Australia, 4 January 2016, p. 2.

[13] T1-55 LL 43-46 and T1-56 LL 3-15.  See “Competent Authority Pathway – Transitional Arrangements”, annexed to Dr Ofili’s initial Application. 

[14] Ibid.

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Editorial Notes

  • Published Case Name:

    Ofili v Medical Board of Australia

  • Shortened Case Name:

    Ofili v Medical Board of Australia

  • MNC:

    [2016] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Judge Suzanne Sheridan, Deputy President

  • Date:

    05 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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