Garanovic v Queensland Nursing Council
[2003] QDC 416
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- Unreported Judgment
- Garanovic v Queensland Nursing Council[2003] QDC 416
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Garanovic v Queensland Nursing Council[2003] QDC 416
Garanovic v Queensland Nursing Council[2003] QDC 416
DISTRICT COURT OF QUEENSLAND
CITATION: | Garanovic v Queensland Nursing Council [2003] QDC 416 |
PARTIES: | NEDZAD GARANOVIC Appellant v QUEENSLAND NURSING COUNCIL Respondent |
FILE NO/S: | BD2275/2003 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 19 November 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 November 2003 |
JUDGE: | McGill DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – Appeal from administrative authority – Nursing Council – recognition of foreign training qualification – whether decision shown to be wrong. Nursing Act 1992 s 54(2). |
COUNSEL: | The appellant appeared in person P D Lane for the respondent |
SOLICITORS: | The appellant was not represented O'Shea Corser & Wadley for the respondent |
- [1]On 17 May 2002 the appellant applied to the respondent for registration under the Nursing Act 1992 (“the Act”) as a registered nurse. On 7 December 2002 the respondent decided to reject the application. That decision and the reasons for it were communicated to the appellant by a letter of 12 December 2002.[1] There was then further correspondence from the appellant in which he sought reconsideration, and in March 2003 the respondent reconsidered and affirmed its decision. Notice of that and the reasons for it were set out in a letter to the appellant of 11 March 2003.[2] Subsequently the appellant appealed to the District Court against the decision of the respondent to refuse his registration as a registered nurse, pursuant to s 137 of the Act. The appeal is by way of rehearing on the material before the Council: s 137(3)(c).[3] Briefly, the respondent’s position was that the appellant’s training as a nurse was not sufficient to justify registration as a registered nurse without his first undergoing further training.
Background to the decision
- [2]The appellant was born on 17 October 1961 in Zenica[4] in what was then Yugoslavia and received training in Yugoslavia which qualified him to work as a nurse in that country.[5] He subsequently resided for a time in Germany where he worked as a nurse and, after completing some preliminary period which presumably involved some supervision and may have involved some training, was on 25 July 1994 recognised in Germany as a krankenpfleger, which from the document he showed me has been translated as male nurse. The German authorities have indicated that that qualification remains current so far as they are concerned, and indeed is of unlimited duration.
- [3]I do not know whether under the German system for regulation of nursing a krankenpfleger is the equivalent of a registered nurse under the Queensland system, as the appellant asserts. The Queensland system recognises that a person may be registered as a registered nurse, enrolled as an enrolled nurse, authorised as a midwife or otherwise authorised to practice nursing.[6] A qualification as a registered nurse in Queensland is regarded as a superior qualification to that of an enrolled nurse. The appellant worked in Germany until 1995, and subsequently came to Australia, and began to investigate whether and how he could obtain the appropriate authorisation to work as a nurse here.
- [4]It follows that he faces a problem which is often faced by those who come to Australia and wish to continue to pursue a career which had been previously pursued overseas, on the basis of qualifications obtained overseas. Where the career is one admission to which is subject to government regulation, the regulations are usually framed by reference to qualifications obtained locally, although there is commonly some mechanism in place for recognition to be given to some or all qualifications obtained overseas. In general however qualifications obtained overseas are not automatically recognised and accepted in Australia, and it appears that in this respect the regulation of nursing in Queensland follows the usual pattern.
Legislation
- [5]By s 58 of the Act, the respondent must register a person as a registered nurse if the applicant complies with the requirements of subsection (1). One of those requirements is that the applicant be qualified to be a registered nurse. Whether the person is so qualified depends on s 54: s 54(1). By s 54(2) the applicant must satisfy the respondent that the applicant has successfully completed an appropriate accredited nursing course in Queensland, or that the applicant:
“(i) has successfully completed an appropriate nursing course conducted outside Queensland for the purposes of registration or enrolment as a nurse that, in the council’s opinion, is based on, and would enable achievement of, competencies similar to those in, and acquired by, accredited nursing courses conducted in Queensland; and
(ii) has gained registration or enrolment as a nurse in a place outside Queensland.”
- [6]There is however an alternative available for an applicant who cannot satisfy either requirement of subsection (2). By subsection (4), in those circumstances “the Council may permit the person to comply with subsection (2) by undertaking any or all of the following to the council’s satisfaction –
- “(a)a written examination approved by the council relating to the practice in Queensland of registered or enrolled nurses;
- (b)an assessment approved by the council on the clinical practice of registered or enrolled nurses;
- (c)a period of nursing practice (whether or not supervised by a registered nurse) determined by the council;
- (d)a re-entry course approved by the council.”
There is also a requirement that the Council be satisfied that the applicant is competent and fit to practice nursing (subsection (2A)), which involves having a sufficient command of the English language: subsection (3)(b).
History of the appellant’s applications
- [7]This was not the first application for registration by the appellant, who has been attempting to obtain registration here since 1996. He applied to the Nurses Board of Victoria, which on 1 August 1995 advised[7] that in order to gain registration “as a nurse in Division 1 of the Registry in this state” he was required to pass an occupational English test, and complete an approved pre-registration program for overseas nurses or undertake three months supervised experience in an approved hospital and obtain a satisfactory report on completion. There is a letter of 27 December 2002 in the material from the appellant’s sister, who had similar qualifications from Yugoslavia, and who obtained registration as a nurse after attending a three months supervised experience course at a hospital in Victoria. Although her letter does not say so, presumably she also demonstrated sufficient knowledge of the English language. However, the appellant did not follow that procedure; it appears that instead he came to Queensland.
- [8]In February 1996 the respondent received an initial enquiry from the appellant about registration. On 11 July 1996 the appellant was advised by the respondent that before he could be registered as a nurse in Queensland it was necessary for him to complete a bridging course for overseas nurses conducted by the Queensland University of Technology, and an occupational English test which the respondent said must be passed within 12 months of successfully completing the bridging course for overseas nurses. He was also asked to arrange for verification of his registration in Germany to be forwarded to the respondent. The following day he signed and lodged an application for registration. Obviously at that time he had not completed the bridging course or the language course, and ultimately the application lapsed, following a failure to advise that those courses had been completed.[8]
- [9]On 13 December 1996 the respondent was provided with a determination from the Australian Nursing Council Inc, to the effect that his nursing qualifications overseas did not meet the requirements for registration as a nurse in Australia, and identifying the steps required to be taken, in a way which was consistent with the advice already provided by the respondent in its letter of 11 July 1996.
- [10]On 30 January 1997 the applicant lodged a further application for registration as a nurse in Queensland. He was again advised, by letter of 5 February 1997, that it was necessary for him to complete the bridging course and the occupational English test. He completed the bridging course on 2 May 1997, and the respondent was advised that he had passed by letter of 9 July 1997, although there was some concern expressed about his English skills, and some concern about skill development in the context of work in higher acuity areas. It appears from Exhibit SFY10 that the respondent was concerned about this, and was disposed to require some further demonstration of skill before it would approve registration. The issue remained hypothetical at that stage however because the appellant had not completed the occupational English course. That did not occur until September 1999; meanwhile, the second application lapsed in August 1998.
- [11]On 15 October 1999 there was a further application from the appellant. In response on 28 October 1999 the respondent advised that, although he had passed the occupational English test, he had not passed it within the time specified in the original letter, and his application had lapsed. In relation to the new application, it was necessary for him to comply with the then current requirements of the respondent regarding English language competence. Two ways were set out in the letter by which this could be satisfied, but, in essence, because the respondent had raised its standard for an ability to communicate in English, it was now necessary for the applicant to demonstrate proficiency in English to this higher standard. This letter made no reference to the previously expressed concerns about whether the results obtained for the bridging course were sufficient, in conjunction with his overseas training, to satisfy the vocational training requirement. In any case, there was at that time no further response from the appellant, and on 28 April 2000 the respondent advised him that it regarded his application as having lapsed.
- [12]In the meantime, the registration committee, one of the committees of the respondent contemplated by s 43 of the Act, considered the issue of recognition of the nursing qualifications obtained in Yugoslavia. By then the former nation of Yugoslavia had to some extent broken up, and that led the respondent to speak of “the former Yugoslavia”. Ms Fox-Young presented a briefing paper to the committee, which noted there were different approaches elsewhere in Australia, and that the issue was to be discussed at a collaborative advisory panel in February 2000. As she understood the position, the ordinary course of training was a secondary/vocational course rather than a tertiary course, and led to qualifications of “nurse technician” or “medical nurse”, or some similar title. Entry was at age 14 to 15. In other respects the course was not regarded as the equivalent of nursing training in Queensland leading to registration as a registered nurse.
- [13]She therefore recommended, and the subcommittee subsequently accepted, that the registration policy be amended to provide that applicants from the former Yugoslavia be required to show evidence of completion of further study/assessment to become a “qualified nurse” in their country of origin in order to be eligible for assessment for competence for enrolment in Queensland. In effect this meant that the position of “qualified nurse” in Yugoslavia was being equated with the position of “enrolled nurse” in Queensland, rather than the position of “registered nurse”. That was a change in policy; it was apparently adopted in order to bring Queensland into line with what was understood to be the position in New South Wales. It appears that further information had become available, as a result of which the respondent had concluded that an earlier willingness to recognise that course as being the equivalent, or close to the equivalent, of a nursing course in Queensland leading to registration as a nurse was unjustified, and that the course could at most provide a basis for qualification as an enrolled nurse. It follows that the respondent has now in two respects changed its policy, in a way which would make it more difficult for someone such as the appellant to achieve registration in Queensland, since his initial application.
- [14]On 17 May 2002 the respondent received the fourth application for registration from the appellant. It subsequently received a verification from Germany of the registration in that country of the appellant as a male nurse, thus satisfying the requirement of s 54(2)(b)(ii). On 18 October 2002 the respondent sought from the appellant evidence that he had successfully completed the professional skills examination in what was then Yugoslavia. A further letter was sent by the appellant dated 22 October 2002, which referred to some of the steps and qualifications mentioned earlier but which did not provide any further information about qualifications in Yugoslavia. A further letter was sent by the respondent on 24 October 2002. This set out in more detail the respondent’s understanding of the nursing course which the appellant had undertaken as discussed above. There were certain additional steps required to be followed in order to justify the applicant being treated as an enrolled nurse, but the course from Yugoslavia could not be the basis directly of registration in Queensland as a registered nurse.
- [15]The letter went on to note that the appellant had now met the respondent’s requirements for English language competence. The letter advised that he should provide evidence of completion of the professional skills examination, and demonstrate nursing competence through the competence assessment service. Once that had been done he would be eligible for enrolment as an enrolled nurse, but he could obtain registration as a registered nurse only by completing a Queensland course of pre-registration training, that is by satisfying s 54(2)(a) of the Act. It would be a matter for the university conducting that course to determine whether credit should be given for any earlier training received overseas.
- [16]The appellant provided some additional information but did not provide evidence from Yugoslavia (or Bosnia) that he had passed the professional skills examination, nor did it appear that he had passed the professional skills examination in Germany in connection with his qualification there.
- [17]On 12 December 2002 the acting executive officer of the respondent advised that the respondent had decided to accept completion of the internship in Germany in lieu of passing the professional skills examination in Yugoslavia, but that he was still not qualified for registration as a registered nurse because the Yugoslav course was not treated as the equivalent of the Queensland pre-registration course. On 5 January 2003 the appellant wrote to the respondent seeking a review of the decision. He pointed out that a large number of other nurses trained in Yugoslavia had been registered and were now working as registered nurses in Australia, and referred in particular to the letter from his sister. The matter was referred again to the registration committee.
- [18]The respondent, on the recommendation of its registration committee, decided not to change its previous decision, and remained of the view that registration should not be conferred because the course of training undertaken in Yugoslavia was now regarded as not the equivalent of the course of training leading to registration as a registered nurse in Queensland. It was regarded as being relevant to enrolment as an enrolled nurse, subject to demonstrating continuing clinical competence as assessed through the competence assessment service. That decision was advised to the appellant on 11 March 2003, and is the decision subject to the present appeal.
- [19]The appellant subsequently provided evidence that he had in July 1981 commenced a bachelor of nursing course at the University of Sarajevo, and had passed examinations in eight subjects during the first two semesters. However, there was no evidence that he had successfully completed the degree course. Had he completed a two year course and gained recognition as a “higher nurse – medical technician” in Yugoslavia, that would have been recognised as the equivalent of pre-registration training in Queensland, but it does not appear that the appellant had proceeded that far.
Analysis
- [20]I can understand the appellant’s being upset about the present situation. From his point of view he qualified to work as a nurse in Yugoslavia, and indeed completed one year of a more advanced level of training, although he did not finish that more advanced course and did not obtain a formal qualification for it. He then worked as a nurse in Germany where he was recognised as a nurse, and indeed worked for a time in a supervisory position. When he first applied in Queensland, he was told that there were two requirements for recognition as a registered nurse in Queensland, and he has subsequently completed both of those requirements. Unfortunately, it took him so long to complete them that those requirements are no longer current. In relation to one of them, the standard of English, by the time he passed the course the level of English proficiency required had been increased. However, either he has subsequently demonstrated a higher level of English proficiency, or the respondent is no longer concerned about this issue, because the effect of the decision under appeal was that the appellant was not required to provide any further evidence of proficiency in English.
- [21]The other change has been that the respondent has subsequently found out more about the nature of the professional training achieved by the appellant, and others in a similar position, in Yugoslavia, and has revised the view that it formerly held as to whether that professional training was the equivalent of a pre-registration course in Queensland, so as to satisfy the requirements of s 54(2)(b)(i) of the Act. It does appear that at one time the respondent took the view that it did, but more recently, after the initial advice was given to the appellant but before the application the subject of the current appeal was made, it received additional information about the nature of that course and has changed its mind. On the material available to it, it has concluded that that course was not one which satisfied this requirement of the Act. It follows that the earlier decisions in the case of particular applications by others who held that qualification were wrong, although the respondent may well have honestly believed that they were correct at the time those decisions were taken. Hence the proposition, which may well be right, that there are large numbers of nurses trained in Yugoslavia who had similar qualifications accepted as a basis for registration as nurses in Australia.
- [22]The respondent’s position, however, is that it has to decide applications on the basis of its understanding of the nature of the training received at the time the application is dealt with. The fact that in the past other applications have been approved on the basis of an assumption about the nature of the training in Yugoslavia which has subsequently been shown to be incorrect is not a reason why further applications can now be approved. If it be the case that the course in Yugoslavia really is not one which satisfies the requirements of s 54(2)(b)(i) of the Act, it is in my opinion a correct application of the Act for the respondent not now to recognise persons with that qualification as satisfying that requirement, even though it may well have recognised other persons with the same qualification in the past. The fact that it has mistakenly treated a particular course as satisfying that requirement in the past does not justify continuation of that error in the future.
- [23]Whether a particular course satisfies the requirements of s 54(2)(b)(i) of the Act is by that provision made dependent on the Council’s opinion. There is therefore a limited basis upon which that decision would be capable of review on appeal. It is however unnecessary for me to decide whether there is any and if so what basis for a review of the decision of the Council to form that opinion, and whether a decision taken in relation to applicants generally could be subject to challenge by an appeal under s 137 in respect of the rejection of a particular application for registration, because there is no material before me to suggest that the decision in this respect was wrong, other than assertion from the appellant and his sister. There is no independent or objective evidence about the nature and quality and content of the training course undertaken by the appellant in Yugoslavia which could even be the basis of an argument that the decision in that respect was wrong, even if such an argument can be advanced in an appeal of this nature.
- [24]The matter is complicated by the fact that there are two levels of nursing recognised under the Act, registered nurse and enrolled nurse. I do not know whether the nursing professions are similarly divided in Yugoslavia, or for that matter in Germany. There is no evidence before me that the applicant’s qualifications would be regarded in either Yugoslavia or Germany as being the equivalent of the qualifications of a registered nurse in Queensland, other than from the appellant, and then only by way of assertion. The respondent is prepared to recognise the appellant’s qualification as being equivalent to a qualification as an enrolled nurse, but not as a registered nurse.
- [25]The appellant certainly believes that his qualification is that of a registered nurse, and appears to be unwilling to take the steps necessary, and apparently fairly readily available, to achieve enrolment as an enrolled nurse, on the basis that this would amount to a demotion. It does appear that the appellant has as well a certain amount of experience working as a nurse, but the difficulty lies in the absence of formal qualification of an equivalent standard to the nursing training in Queensland, which is the specific requirement identified in s 54(2)(b)(i).
- [26]There is also no material before me on the basis of which I could reasonably form a conclusion that an appropriate course in the present case was to accept such qualification as the appellant has in conjunction with one or more of the additional steps referred to in s 54(4). The appellant was seeking a decision that he has already satisfied whatever is required for registration as a registered nurse in Queensland, and the respondent’s position is that he is not qualified, although he can by demonstrating appropriate professional competence qualify as an enrolled nurse. There is no evidence relevant to, and no argument directed to, the question of whether I should exercise the power available to the Council under s 54(4). Indeed, there was no evidence before me as to whether any and what options, which might satisfy that subsection or any part of it, are available in Queensland at the present time, or what option or combination of options would establish qualification to an appropriate standard equivalent to that of a Queensland pre-registration course. There is therefore no basis upon which I could on appeal permit the appellant to undertake any or all of the steps identified in s 54(4).
- [27]I can sympathise with the appellant’s position, and understand that he will feel frustrated and upset by what has occurred. He has been refused recognition essentially because the goalposts have moved, but on the material presently available the respondent was entitled to reassess its attitude to the significance of the Yugoslav training course. Perhaps once it had further information about the relevant course it was obliged to do so. The appellant has not shown that the current attitude towards that course is in error, nor has he shown that the respondent has misunderstood the situation in some relevant respect, or that he is entitled to registration on some basis consistent with the Act. The problem for him really is that he took too long to satisfy the requirements initially notified to him. Indeed, I was told during the hearing that it is now so long since he completed the bridging course at QUT that his completion of that course would no longer necessarily be recognised. He is also facing the additional difficulty that it has been so long since he has worked as a qualified nurse that the significance of his earlier experience is diminishing.
- [28]On the face of it the court on appeal has wide power under s 137(8), but the width of that subsection was no doubt because of the wide range of matters in respect of which appeals can be brought to this court under s 137. In an appeal of this nature, in my opinion it would not be appropriate for the court on appeal to make an order which ought not to have been made by the respondent in response to the appellant’s application. The respondent’s response to the application in the decision the subject of the present appeal has not been shown to be wrong. Indeed, on the material presently available to me, it appears to have been the correct response. It follows that the appeal must be dismissed.
Costs
- [29]In relation to the question of costs, at the time when the appeal was instituted the power in relation to costs in s 137(10) was in these terms: “If an appeal under this section is upheld, the judge may order that the costs of the appeal be paid by the council.” Recently that subsection was amended, by the Health Legislation Amendment Act 2003, which relevantly commenced on assent on 22 October 2003. The current provision is: “The judge may make any order about the costs of the appeal the judge considers appropriate.” The latter provision would on its face permit an order for costs in favour of the respondent if the appeal is dismissed. I am not at all sure that the appellant, having instituted an appeal before the Act was amended, did not have a right to have that appeal heard and determined without being exposed to the risk of an order for costs against him in the event of the appeal being unsuccessful. However, it is unnecessary to determine that question, because, assuming that I have power to order costs against the appellant in the present circumstances, I will not do so.
- [30]I can understand the appellant’s frustration and disappointment at the difficulties he has been experiencing, and indeed can sympathise with him. The respondent was, quite properly, in some of its correspondence drawing the appellant’s attention to the existence of a right of appeal. Bearing in mind that the appeal raised the issue of the significance of a change in attitude on the part of the respondent, it may be thought to have some potential broader application than simply resolving this issue between the parties. Presumably any other person who had qualified as a nurse by the same course of training in Yugoslavia and who had not achieved registration as a registered nurse prior to the change in policy would be in the same position as the appellant, so that to some extent this appeal could be seen as a test case. In all the circumstances, I would not be disposed to make an order against the appellant in relation to the respondent’s costs of the appeal.
- [31]The order will be that the appeal is dismissed.
Footnotes
[1] Affidavit of Fox-Young filed 18 August 2003, Exhibit SFY24.
[2] Affidavit of Fox-Young, Exhibit SFY31.
[3] The nature of the appeal was considered in more detail in Barry v Queensland Nursing Council [2001] QDC 146.
[4] Affidavit of Fox-Young Exhibit SFY3.
[5] He was a medicinski tehnicar: affidavit of the appellant filed 21 July 2003 para 12.
[6] See s 137(1)(a)(i) of the Act.
[7] Affidavit of Fox-Young Exhibit SFY1. The other correspondence referred to in this section was also exhibited to her affidavit filed 18 August 2003.
[8] They were completed in May 1997 and September 1999 respectively, which was not within the time frame originally required by the Council: Affidavit of Fox-Young Exhibit SFY4.