ACT Medical Board v Javaid (Occupational Discipline) - [2011] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ACT MEDICAL BOARD v JAVAID (Occupational Discipline) [2011] ACAT 65

AA 5 of 2009
Catchwords: OCCUPATIONAL DISCIPLINE – HEALTH PROFESSIONAL – conditional registration of specialist – suitability to practise requirements– conditional registration criteria: public interest and public safety – nature of the public interest criterion – conditional registration in the public interest

List of Legislation: ACT Civil and Administrative Tribunal Act 2008, s 82
Health Professionals Act 2004, ss 13, 20, 22, 23, 30 and 37

List of Regulations: Health Professionals Regulation 2004, ss 114, 116 and 117
List of cases: Medical Board of WA v A Medical Practitioner

[2007] WASAT 20

O’Sullivan v Farrer
(1989) 168 CLR 210

Tribunal:                  Ms L. Crebbin, General President
  Dr A. McIntosh, Member
  Mr W. Pearcy, Member

Date of Orders: 30 June 2010
Date of Reasons for Decision: 16 September 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 5 of 2009

BETWEEN:

ACT MEDICAL BOARD
Applicant

AND:

AHMAD JAVAID
Respondent

TRIBUNAL: Ms L. Crebbin, General President

DATE: 30 June 2010

ORDER

The appeal is dismissed and the decision made by the Health Professions Tribunal on 27 March 2009 is affirmed.

Sgd.………………………………..

Ms L. Crebbin
General President
for the members of the Tribunal

REASONS FOR DECISION

These reasons for decision explain why the Tribunal dismissed this appeal on 30 June 2010.
The matter came before the tribunal as an appeal against a decision that was made by the former Health Professions Tribunal (the original tribunal) on 27 March 2009. The parties and this tribunal were satisfied after some consideration, that ACAT had jurisdiction to hear the appeal. In these reasons the ACT Medical Board is referred to as the appellant and Dr Ahmad Javaid is referred to as the respondent. The appellant was the regulating board for the medical profession. The respondent is a health professional seeking to be registered in the medical profession.

The Earlier Decision

The respondent asked the original tribunal to review a decision made by the appellant to refuse to register him as a health professional on an unconditional basis. On 27 March 2009, the original tribunal made an order that approved the conditional registration of the respondent. The circumstances that led to the application and the need to consider conditional registration are set out below. The order was:
That the applicant be registered as a specialist in nuclear medicine for the period 27 March 2009 to 26 March 2010 subject to the following conditions:
1. that he practices nuclear medicine for diagnostic purposes;
2. that he practices nuclear medicine for therapeutic purposes on referral from another medical practitioner with whom there is an agreed treatment regime;
3. that he practice only in the course of his employment at The Canberra Hospital;
4. that he advise the Medical Board of any intended change of employment prior to commencing such employment;
5. that he provide such information to the Medical Board concerning his practice as required in writing by the Board;
6. that he provide to the Medical Board a signed statement from his supervisor at The Canberra Hospital attesting to his compliance with conditions one to three inclusive within 7 days before the expiration of this registration.
Although the order is expressed as an order for registration subject to various conditions, it is clear from a reading of the decision of the original tribunal that the order is one for conditional registration. The conditions referred to in the order prescribe the limits within which the original tribunal decided that the respondent should be registered to practise. Immediately before setting out the terms of the order, the original tribunal described its intended operation in this way:
We recognise, of course, that conditional registration is for a period not exceeding 12 months, and that Dr Javaid will be required to re-apply for registration every 12 months. For our part, subject to a change in circumstances, we can see no reason why that registration could not be dealt with expeditiously and renewed on the same conditions we have imposed. However, that is a matter for the Board.

The Hearing of the Appeal

At a directions hearing before the start of the appeal and again, when the hearing commenced, the appeal tribunal considered how it should deal with the appeal in accordance with the provisions of section 82 of the ACT Civil and Administrative Tribunal Act 2008. The appeal tribunal accepted the submissions of the appellant that the appeal should be dealt with as a new application. The appeal was not concerned with reviewing the decision of the original tribunal to see whether there was some error on a question of fact or law that justified setting it aside or varying it. This did not mean that the parties were required to start afresh. The appeal tribunal proposed, and the parties agreed, that the evidence and submissions that were before the original tribunal should be put before the appeal tribunal. The parties referred to and invited the appeal tribunal to rely on some aspects of the decision of the original tribunal. In addition, the parties were given an opportunity to provide further evidence and make fresh submissions.

The Material Before the Appeal Tribunal

The tribunal marked a number of documents as exhibits even though the rules of evidence do not apply to these proceedings. The marking of documents in such a way is undertaken as a matter of convenience. It makes it easier to track and refer to documents. It should not be seen as an indication that the tribunal acted on the mistaken belief that it should apply the rules of evidence.
The documents received were as follows:
Ex. 1 A folder containing a number of documents related to the proceedings before the original tribunal. The documents include the statements and affidavits that were considered by the original tribunal, transcripts of the hearings before the original tribunal that occurred on three days and the written submissions of each party;
Ex.2. a statement made by Professor Graham Buirski on 5 August 2009;
Ex 3. a statement made by the respondent on 3 September 2009 with Annexures A to F;
Ex. 4 a statement made by Dr Paul Sullivan that is undated. It is clear from the content that it was made during or after August 2009;
Ex. 5 an email from Peter Collignon dated 14 October 2008;
Ex. 6 emails from Graham Buirski dated 10 June 2009 and Charles Ngu dated 31 July 2009;
Ex. 7 a print out of the respondent’s registration details from the ACT Medical Board website;
Ex. 8 a copy of a letter from Phelps Reid Solicitors to the Joint Specialist Advisory Committee dated 18 August 2009.
The documents marked exhibits 2 to 8 were new or ‘fresh’ material that was not available to the original tribunal. In addition, Professor Buirski and the respondent gave oral evidence.
Written submissions were filed by both parties after the hearing.

The Respondent’s Background

The respondent is a medical doctor with expertise in nuclear medicine. The original tribunal described his professional background as follows:
Dr Javaid commenced his medical career in Pakistan, where he was awarded a Bachelor of Medicine, Bachelor of Surgery by the Bahauddin Zakariya University. After gaining some experience in Pakistan, Dr Javaid relocated to the United Kingdom to undertake further studies, in particular training in the specialty of Nuclear Medicine at the Kings College Hospital and Medical School. He was awarded the degree of Masters in Science in Nuclear Medicine in 1987 after the completion of clinical training, research programs, and the submission of written papers. He then commenced further study at London University, receiving a Doctor of Philosophy in Nuclear Medicine in 1992. While undertaking these further studies Dr Javaid held the position of Trainee Registrar (1986 – 1988) and Research Fellow (1988 – 1996).
On completion of his Doctorate, Dr Javaid commenced employment with the King Abdulaziz Hospital and Oncology Centre in Saudi Arabia. He was employed as a Consultant Nuclear Medicine Physician, overseeing all examinations and procedures performed in the area of Nuclear Medicine. Dr Javaid held this position from 1993 to 1996. Dr Javaid then gained employment with the King Fahad National Guard Hospital, also in Saudi Arabia, as a Consultant and Head of the Nuclear Medicine Division.
In his oral evidence, the respondent stressed that his PhD was based on clinical work rather than laboratory research. He said that several of his former colleagues with similar post graduate qualifications practise as specialists in nuclear medicine in the United Kingdom and are on the specialist register of the General Medical Council in that nation.
The respondent moved from Saudi Arabia to Canberra with his family in October 2003. He became a permanent resident and later, an Australian citizen. He came to Canberra to take up an appointment as the Director of Nuclear Medicine at the Canberra Hospital. The position was offered to him in 2002. His evidence was that at the time he accepted the appointment, he did not know that there was an impediment to his registration as a specialist medical practitioner in the ACT. At the time, the requirements for registration were set out in the Medical Practitioners Act 1930. Those requirements were replaced by provisions of the Health Professionals Act 2004 (HP Act) which commenced in November 2004.

The Legislative Scheme

The main object of the HP Act is expressed in section 13(1) as follows:
The main object of this Act is to protect the public from risk of harm by ensuring that people who provide health services are competent to provide health services and to help health professionals in professions regulated by this Act to achieve and maintain the required standard of practice.
The object is achieved, inter alia, by regulating particular health professions and by providing for a system of registration of health professionals who practise in regulated professions. The Executive may decide to regulate a particular health profession[1]. Once it does, a regulation must be made to establish a health profession board for the regulated profession. A regulation must also be made to provide for the general area of operation of the profession and the ‘suitability to practise requirements’ for the profession[2].
[1][1] Section 20, HP Act
[2] Section 22, HP Act
The regulation providing for the suitability to practise requirements is to state the requirements that a person must satisfy to be unconditionally registered to practise in the regulated profession. It must include requirements about health, qualifications, professional competency and development, and the requirements for admission to any specialist area of practice within the profession[3].
[3] Section 23, HP Act.
Section 37 of the HP Act identifies who may be registered. Sub-section (1) says that the board that is established for a profession must register any individual who, it is satisfied, meets four criteria. The criteria include the suitability to practise requirements for the profession. The board may register the person under this sub-section either conditionally or unconditionally[4].
[4][4] Section 37(4), HP Act
The suitability to practise requirements are detailed in section 114 of the Health Professionals Regulation 2004 (the Regulation). That section provides that a person is suitable to practise if the person has relevant qualifications for the health profession or for a specialist area of the profession and has successfully completed particular training and is generally competent. Relevant qualifications and training are identified in a schedule to the Regulation.
Section 37(5)(b) of the HP Act permits a regulation to be made to prescribe when a person who is not required to be registered under section 37(1); that is, a person who does not meet any of the four criteria; may be registered conditionally. The legislature clearly contemplates that it is possible for a person to be registered, albeit conditionally, if they do not satisfy the suitability to practise requirements.
Section 116 is the regulation that prescribes when a person may be conditionally registered. It sets two criteria for conditional registration. The Board may register a person conditionally if satisfied first, that it is in the public interest to do so and secondly, that registration will not endanger public safety.
Section 117 does not, of itself, authorise conditional registration although it appears to have been treated in this way in several documents before the tribunal. It assists the operation of section 116 by setting out the circumstances in which the decision maker can be satisfied that conditional registration is in the public interest. Section 117(1) identifies 8 specific circumstances. Four relate to a person undergoing training that will allow them to be unconditionally registered under section 37(1). It is in the public interest to permit conditional registration in the meanwhile. One relates to the taking up of a teaching or research position rather than a clinical practice position.

Section 117(1)(f) identifies approval to fill a position in an area of unmet need, as a matter of public interest. Section 117(1)(h) says that it will be in the public interest to permit conditional registration if a person’s general competence or competence to practise is limited.
Section 117(2) makes it clear that the specific circumstances identified in

section 117(1) are not exclusive. It contemplates that there may be other times when conditional registration may be in the public interest and leaves that issue to be determined as a matter of discretion. Section 117 provides:
117 When is conditional registration in public interest?
(1) It is in the public interest to register a person conditionally if—
(a) the person would be entitled to apply for unconditional registration if the person had completed a period of supervised training (which may include internship) that the person has started; or
(b) the person’s registration in a local jurisdiction is subject to a condition; or
(c) the person is a graduate from an institution other than an institution approved by a national organisation that represents the health profession, and registration would allow the person to undertake postgraduate training that the board considers suitable for the person; or
(d) the person is a candidate for an examination required under the Act and the health profession board has approved the person to undertake a period of supervised training to help the person become unconditionally registered; or
(e) the person wishes to take up a teaching or research position; or
(f) the person is approved by the board to fill a position that is in an area of unmet need; or
(g) the person is not trained in a local jurisdiction and, if registered, the person could undertake additional training before the person is examined or assessed in the ACT or a local jurisdiction; or
(h) the person’s general competence or competence to practise the profession is limited and conditional registration is required in the public interest.
(2) This section does not limit when it is in the public interest to register a person conditionally.
Note: A person may only be registered for up to 1 year at a time (see s 120), so a condition will only last for a maximum of 1 year, unless renewed.

How the Registration Scheme Applies to the Respondent

The appellant is the relevant health profession board for the respondent. The respondent’s area of practice is nuclear medicine. This is not identified as a specialist area of practice in the schedule that sets out the qualifications necessary for a person to be suitable to practise. It is a sub-speciality in the area of practice of diagnostic radiology and a sub-specialty in the area of practice of adult medicine.
The qualification necessary for diagnostic radiology is fellowship of the Royal Australian and New Zealand College of Radiologists. This in turn requires a primary qualification in radiology. The qualification necessary for adult medicine is fellowship of the Royal Australian College of Physicians. Fellows are required to have a primary qualification in internal medicine. Because the respondent’s primary and advanced qualifications are both in nuclear medicine, he cannot be accepted for fellowship of either college. As a result, he does not meet the relevant qualification criteria set out in the Schedule of the Regulation for suitability to practise. He is a person who, in the terms of section 37(5)(b), is not required to be registered under section 37(1) of the HP Act. His registration falls to be considered for conditional registration under section 116 of the Regulation.

The Respondent’s Applications for Registration

The history of the respondent’s attempts to secure registration is of some relevance. It is a complex history that, generally speaking, is agreed between the parties. What follows is mostly drawn from a statement of reasons prepared by the appellant in early 2007[5] and from the statements and oral evidence of the respondent.
[5] Ex 1, Tab C2
The Canberra Hospital (TCH) initially applied for registration for the respondent in February 2003 several months before he took up his appointment. Registration was sought on the basis that he was required to fill a position in an area of unmet need under the equivalent of section 117(1)(f) of the Regulation. The application was approved and he was registered on that basis until Jan 2004. The approval provided that he was to practise nuclear medicine under supervision at TCH, that he was not to sign death certificates and that further renewals would be limited to a period of

13 months unless he successfully completed the Australian Medical Council (AMC) examination or qualified under a “specialist pathway”. The respondent’s evidence was that he became aware that he only had conditional registration, what the conditions were and that registration had been sought on the basis that he was filling an unmet need, after the event. He was surprised. He says, and this was not disputed, that when he was advised of the condition that required him to be supervised, he raised his concerns with the person who was to be his supervisor. He was re-assured that this was a first step towards recognition of his existing qualifications locally[6].
[6] Ex 1, Tab A4
He was unable to commence work at TCH because of other commitments until October 2003. He was permanently appointed to the position of Director of Nuclear Medicine in January 2004.
He made immediate application to the AMC for recognition as a specialist in nuclear medicine. The AMC referred his application to the RANZCR for assessment.
In the meanwhile, the appellant considered an application for renewal of conditions because the initial period had expired. On 14 May 2004, it decided that he should be registered for the period from 19 January 2004 to 16 January 2005. There was no mention of his registration being related to unmet need. There were conditions requiring that he practise nuclear medicine under supervision, that he not undertake medical practice in clinics or as a locum outside of the employment that had been approved and that further renewals were to be limited to a period of one month without successful completion of the AMC exam or the specialist pathway. It was noted that this was subject to annual review.
In June 2004, the AMC advised the respondent that the RANZCR noted that he had a masters degree and a doctorate in nuclear medicine from the University of London, but that because he did not hold a specialist qualification in radiology, it could not proceed with its assessment[7].
[7] Ex 1 Tab A2 Statement of respondent Ann. F
At some date that is not clear, his application was referred to the RACP for assessment.

In August 2004, the Health Insurance Commission wrote to him to say that the Specialist Recognition Advisory Committees for NSW and the ACT had recommended that he be recognised as a specialist in the speciality of Nuclear Medicine. This entitled him to use particular item numbers in the Medicare Benefits Schedule. It noted that in order to attract Medicare benefits for nuclear medicine imaging, he would need to be credentialed by the Joint Nuclear Medicine Credentialing and Accreditation Committee of the RACP and RANZCR. He applied for credentialing in October 2004 but his application was not accepted because it was not complete. He gave evidence about this at the hearing.
In December 2004, the respondent wrote to the appellant requesting a 12 month extension of his registration because the RACP assessment process had not been completed. His application was supported by a letter from his then supervisor. On

21 January 2005, the appellant renewed his registration to January 2006. There was no mention of unmet need. Registration was made subject to conditions that he practise nuclear medicine under supervision at TCH and that he not engage in medical practice outside his employment. It was noted that there would be no further renewals without successful completion of the AMC exam or the specialist pathway and that the registration was subject to annual review.
Between May and August 2005, there was correspondence between the appellant, the TCH, the respondent, the RACP and the AMC about various aspects of the assessment process and his registration, including the arrangements for his supervision following the retirement of the original supervisor and whether his registration was still sought in relation to an area of need.
The conditions of his registration were amended by the appellant in August 2005 to indicate that he was registered in accordance with section 117(1)(h) of the Regulation. The section relates to competence. There was no material before the tribunal that explained the reason for the reference to this sub-section. We assume it was because the absence of a base qualification limited the clinical competence of the respondent to matters of nuclear medicine. There was no evidence of any concern about the respondent's competence as a health professional within the specialty of nuclear medicine. He was registered to January 2006, he was required to practise as a Registrar in Nuclear Medicine under the supervision of Dr Sullivan and it was said that there would be no further renewals unless the respondent provided evidence that he had commenced the “AMC process”. The respondent made an application to the original tribunal in relation to this decision.
Registration was further considered on 2 September 2005 in response to a letter from TCH seeking registration on the basis of an area of unmet need while the AMC conducted a peer review process. The appellant’s response indicated that conditional registration was again permitted in accordance with section 117(1)(h). The conditions were amended to show that the respondent was registered to practise as a consultant under Dr Sullivan’s supervision rather than as a Registrar.
In the meanwhile, the AMC requested that the respondent lodge a further application for assessment by the RACP as a specialist in an area of unmet need. As part of this process, he was required to undertake a 12 month period of peer review.
On 3 March 2006, the original tribunal ordered that registration be extended until

31 December 2006. The peer review was successfully completed in August 2006.
On about 21 December 2006, the Manager of the Overseas Trained Practitioner Assessment Unit of the RACP wrote to TCH setting out its position in relation to the respondent[8]. The letter was copied to the respondent and to the appellant amongst others. The letter relevantly said:
I write in follow up …regarding Dr Javaid’s Area of Need appointment as Director of Nuclear Medicine – Senior Staff Specialist in Nuclear Medicine at The Canberra Hospital. As you know, the College approved to Dr Javaid for the position in August 2005 and he has since completed the required period of 12 months practice under peer review in the position…
The College’s position regarding Dr Javaid’s training and experience is that he has completed specialty training in nuclear medicine that would be considered comparable to that which would be undertaken by an Australian trained physician in nuclear medicine during the advanced training program of the physician. The College notes that Dr Javaid has not yet satisfied other requirements that would allow him to be eligible for Fellowship of the College (FRACP).
The College does, however, support Dr Javaid to work in the position as Director of Nuclear Medicine - Senior Staff Specialist in Nuclear Medicine at The Canberra Hospital.
[8] Ex 1, A2, Annexure I
In December 2006, the respondent lodged a further application for unconditional registration as a specialist with the appellant. The appellant considered the application at a meeting on 19 January 2007. It did not accept the respondent’s application for unconditional registration. It decided to continue conditional registration for a further short period only by reference to section 117(1)(f). Its Statement of Reasons[9] sets out the documents and matters that it took into consideration. The statement says:
The Board took into consideration the RACP letter dated 21 December 2006 and the length of time he have (Sic.) acted in the current area of unmet need position. The Board noted that the ACT Health policy provides that area of need positions in the ACT are only valid for a total of two years. The Board resolved to continue Dr Javaid’s area of need registration until the end of the two year period and amended his conditions of registration to the following:
Registered as an Area of Need practitioner at The Canberra Hospital in accordance with R 117(f) subject to the following conditions:
Registered for the period 1 January 2007 to 26 June 2007.
To practise as a consultant in Nuclear Medicine under the supervision of Dr Paul Sullivan at The Canberra Hospital.
No further renewals without successful completion of the AMC process.
[9] Ex 1, Tab C2
This is the decision that was the subject of the respondent’s application to the original tribunal.

What the Tribunal was Asked to Consider

The original tribunal was asked to review the appellant’s decision on the basis that the respondent no longer sought unconditional registration. This tribunal proceeded on the same basis. That was an appropriate concession by the respondent because it is clear that he does not meet the requirements of the legislative scheme for unconditional registration.
The respondent’s application needs to be considered as one for conditional registration under section 116(1) of the Regulation. The tribunal must consider two questions: is it satisfied first, that conditional registration of the respondent is in the public interest and secondly, that his conditional registration will not endanger public safety.
Both the original tribunal and this tribunal were asked to consider the public interest under section 117(2) of the Regulation. The respondent did not press an argument that he was filling a position in an area of unmet need or that he satisfied any other paragraph of section 117(1).

Section 116(1)(a) - The Public Interest

Public interest is a concept used frequently in legislation, usually for the purpose of providing a general discretion to a decision maker. Its use in section 117 is typical of legislation relating to licensing or regulation. Discussing the phrase in the context of an application relating to liquor licensing legislation, the majority of the High Court said:
Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made…th(is) Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest,” when used in a statute, classically imparts a discretionary value judgment to be made by reference to undefined factual matters confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable…See Water Conservation and Irrigation Commission (NSW) v Browning (1947) CLR 492 per Dixon, J at 504-505.[10]
[10] O’Sullivan v Farrer (1989) 168 CLR 210
The respondent’s counsel submitted that the tribunal should approach its consideration of public interest in the context of section 117(2), by looking at the intention of the legislation. She identified the intention as protecting the public from those whose practice of medicine might place them at risk. Section 30 of the HP Act states this as the main object and identifies competence and the need to achieve and maintain the required standard of practice, as the means by which protection of the public should be sought. The registration provisions set out in the Regulation support a conclusion that the focus of the legislation is public protection.
We accept that the tribunal’s consideration of the public interest should be guided by the purpose of the HP Act and the Regulation, but within that context, there is a broad general discretion.
We assume that the legislature intended that the broad general discretion have some meaningful application beyond the specific circumstances identified in section 117(1), although the specific circumstances may assist to identify the sorts of factual considerations that are considered to be relevant. It is in the public interest to facilitate the practice of people who have yet to complete training or who have skills or knowledge for which there is a demand. It is in the public interest to facilitate the registration of those who want to teach or undertake research, but who may not meet requirements of registration for clinical practise. It may be in the public interest to allow the registration of a person with limited competence. Placing conditions on registration in that context assists to manage public safety concerns that arise from the limitations on competence.
Sub section 117(1)(f) facilitates registration in an area of unmet need. Much of the evidence and submissions before the original and this tribunal concerned this issue. ACT Health has a specific policy about the engagement of overseas trained practitioners under this provision.[11] In summary, the policy promotes the conditional registration of medical practitioners from overseas for 12 months initially and then a further 12 months where “the International Medical Graduate has performed satisfactorily and has commenced the process to obtain a qualification recognised by the ACT Medical Board...”. The policy may guide, but cannot govern all the circumstances in which section 117(1)(f) might apply.
[11] Ex. 1, A12
There is a distinction between the interests of the public and that of an individual. The interest of an individual might coincide with the public interest, but where it does not, the public interest must prevail.

Section 116 (1)(b) – Not Endanger Public Safety

If the conclusions set out above are correct, it is difficult to see what this sub-section adds to a consideration of the circumstances in which a health professional may be conditionally registered to practice. Either it simply reinforces the importance of public safety, or it supports a conclusion that an enquiry about public interest is not limited by public safety considerations. Given the stated object of the legislation, the former is a preferable interpretation.

Evidence

Dr Stephen Judd submitted a statement and gave evidence before the original tribunal[12]. He was a member of the Board of Censors for the RACP. He was involved with the assessment of the respondent by the RACP. At the time of the original hearing, the Board had been replaced by the Overseas Trained Practitioner Assessment Unit (the Assessment Unit). Dr Judd described the work undertaken to assess the respondent’s qualifications and to undertake an assessment of his suitability to carry out his duties at the TCH. This was in the context of whether the respondent could fill an area of unmet need. He said that the RACP had been provided with the respondent’s curriculum vitae and a description of his position. The respondent was interviewed. For 12 months, the RACP received feedback reports about the work of the respondent from supervisors who held Fellowships with the RACP and another college. The RACP was satisfied that the respondent was doing his job in the way that it should be done and that he was able to do the job without supervision. It was

Dr Judd’s view that that would remain the case, as long as the responsibilities of the respondent’s job did not change. When asked specifically about any concerns for public safety, he responded by indicating that the respondent’s training had been very good, as was his experience and, so long as the respondent worked within his job description, there should not be a safety problem.
[12] Ex. 1, A11 and B2
Dr Judd was asked about the steps that the respondent would need to take to meet the RACP requirements for qualification. He described it as an unlikely scenario that would take some years. He thought that it would not be practicable for the respondent to continue his work while undertaking the relevant training. Dr Judd was asked to comment on whether the respondent would be in a better position to perform his duties if he did further study. His opinion was that the respondent’s duties are well within his current capabilities and that the respondent did not require any additional clinical training for that purpose.
The view of the RACP as described by Dr Judd was confirmed in a number of letters from the Assessment Unit dated 21 December 2006, 18 July 2007, 16 August 2007, 31 August 2007 and 25 August 2009.[13] Those letters confirm that the view of the RACP had not changed over three years. The letters include the following comments:
The College also notes that Dr Javaid has completed subspecialty advanced training in Nuclear Medicine that would be considered comparable to that which would be undertaken by an Australian trained physician in Nuclear Medicine.
The College has previously approved Dr Javaid to work in the position of specialist in Nuclear Medicine at the Canberra Hospital. This is due to the appropriate training Dr Javaid in the specialty of Nuclear Medicine. (18 July 2007)
and
…the RACP supports Dr Javaid to work in the position applied for ..as a nuclear medicine specialist as this specific position involved a nuclear medicine focus only and did not involve Dr Javaid being exposed to the broad based areas of consultant physicianly practice. (16 August 2007)
and
My previous letter of the 16^th August 2007, describes the position of the Royal Australasian College of Physicians with respect to comparability of Dr Javaid’s training and experience in Nuclear Medicine, relative to that of a FRACP in Nuclear Medicine. For the reasons we have described, Dr Javaid is not eligible for FRACP.
Notwithstanding this, the RACP recognises that the qualification---issued by the University of London is a recognised pathway for training in Nuclear Medicine in the UK and that this enables Dr Javaid to practise in the particular focussed manner that is required of him in his current position as a Consultant Nuclear Physician in the ACT. (31 August 2007)

Dr Paul Sullivan

[13] Ex. 1, A2 Ann.1; Ex.1, A15 Doc. 5, Doc. 9 and Doc. 14 and Ex. 3, Ann. F

Dr Sullivan swore an affidavit on 15 February 2009 and provided an undated witness statement made in about September 2009. Dr Sullivan holds formal post graduate qualifications in nuclear medicine and is a Fellow of the RACP. At the time of this hearing he was employed as a 0.5 full-time equivalent staff specialist.
In relation to future work, he said that if Positron Emission Technology (PET) were available at TCH he would consider taking up a full time position and that he anticipated three full-time nuclear medicine specialists would be required.

Professor Buirski’s Evidence

Professor Buirski gave oral evidence before the original tribunal and the appeal tribunal. He provided a witness statement dated 5 August 2009.[14]
[14] Ex. 2
He is the Director of the Medical Imaging Unit at TCH and the respondent’s supervisor in respect of administrative, rather than clinical matters. In summary, his evidence was:
·That the respondent is ‘without question’ a competent practitioner and a respected and very competent nuclear physician who can fulfil his nuclear medicine staff specialist requirements. Professor Buirski is “very happy with Dr Javaid’s work”.
·His duty statement is appropriate for his position and the work that he performs. His duties form about 95% of the work of a qualified Nuclear Medicine Physician
·Before the original tribunal Professor Buirski gave evidence that the hospital was unable to bill Medicare for some of the work performed by the respondent and that this created financial difficulties for the hospital. He also gave what the original tribunal described as ‘speculative evidence’, about the arrangements that could be put in place if the respondent was unable to continue work at TCH.
·These matters were the subject of further evidence by Professor Buirski at the hearing before this tribunal. He said that TCH was unable to bill for the respondent’s services through Medicare because he did not have a specialist provider number. About seventy percent of the Nuclear Medicine department work is outpatient work billed through Medicare. The revenue makes a significant contribution to the hospital’s revenue. An arrangement had been in place under which the respondent’s work was signed off by another specialist working in the area. That practise ceased because of a concern about the extent to which it was necessary for the specialist to have a personal involvement, rather than a supervisory involvement, in the work. He said that this had limited the work that the respondent could be assigned and had led to rostering difficulties and a ‘doubling up of personnel.’ It was not clear why Medicare had not issued the relevant provider number to the respondent following the original tribunal’s decision that allowed his conditional registration as a specialist.
·Evidence was given about a restructuring of the Medical Imaging Department that had led to a change in title for the respondent and a loss of the allowance he received for managerial work. He was no longer required to undertake administrative duties relating to tasks such as budgetary work and ordering of equipment.
·Professor Buirski anticipated that TCH would shortly be able to install a Positron Emission Technology (PET) service. This is a new technology that would attract both a significant demand for services and an interest from specialists who want to work with the new technology. He believed that the respondent would not be able to obtain the accreditation required to use the technology. This, in turn, would further reduce the respondent’s effectiveness as a member of staff and would result in a significant detriment to TCH.
·If the respondent was not a member of staff, a full time nuclear physician specialist would need to be recruited. If he remained a member of staff, Professor Buirski thought that a current .5 position would need to be converted to a full time position. There was detailed evidence about the process that would need to be followed to recruit for a new position and the possibility of a junior staff member who was going interstate for training for two years, returning to seek employment in the ACT. Professor Buirski was asked about the enquiries that he had made about the employment market. In his witness statement he said that he thought that there should be no difficulty recruiting other specialists. His answers indicated that this statement was made on the basis of very preliminary inquiries. The respondent’s counsel correctly characterised his evidence as speculative.
·He confirmed that the respondent is involved with research and teaching as would be expected of a staff specialist in a teaching hospital and described the respondent’s work as of benefit to the hospital and to the broader environment.

The Respondent’s Evidence

The tribunal had statements made by the respondent dated 8 May 2007, 15 February 2008, 19 February 2009 and 3 September 2009.[15] He gave oral evidence before the original tribunal and this tribunal. In addition to the information about his training and his applications for registration referred to above, he gave evidence about the duties described in his duty statement, the actual work he performs and his future intentions. In summary, he relevantly said:
·He wishes to practise as a specialist in nuclear medicine only and that he has no interest in any other area of practice. As a result, he is content to have a condition placed on his registration limiting his practise to nuclear medicine only;
·He has no role in the direct treatment of patients rather, he reports to treating doctors to aid their diagnosis of a patient;
·He reviews patients referred by others, identifies nuclear medicine tests and imaging procedure required to assist diagnosis, carries out the relevant tests and procedures and reports back to the referring doctor;
·In addition to the work described above, he has been involved in research, co-authored several peer reviewed papers, been able to obtain a new machine at no cost for TCH, been involved in the replacement of important equipment and overseen an improvement in clinical service delivery. Both Dr Sullivan and Professor Buirski confirmed the respondent’s involvement in non-clinical duties including registrar and student training.
·He intends to practise in Canberra until his retirement and is willing to work within TCH and within the terms of his duty statement.
·He said that he had not taken any steps to undertake training for qualifications that would meet the requirements for fellowship of a college and did not intend to do so because he is satisfied that he had done everything required to practise nuclear medicine.
·He commenced the process for obtaining a Medicare provider number but did not progress it after the decision of the original tribunal because this appeal had been lodged. He saw no point in doing so.

Submissions

[15] Ex. 1, A2; Ex. 1, A3; Ex. 1, A18 and Ex. 3

The respondent has a clear personal interest in conditional registration, but his personal interest is not a relevant consideration. His submissions stressed that he did not seek to rely on those circumstances. Both the appellant and the respondent stressed that the tribunal should also not take account of the respondent’s employment status at TCH or his ability to continue that employment. We accept that this is also not a relevant consideration.
The appellant submitted that conditional registration of the respondent would require the appellant to assess the respondent’s fitness to practise annually and to determine whether his actual duties were still confined by his duty statement at TCH. This is not necessary for other specialists who “come with a raft of skills and competencies certified by the relevant college and refreshed by a process of continuing education ...sanctioned by the relevant college ... The base level of qualification required of other specialists in the respondent’s area of practice is simply not present.” The tribunal accepts that this is so, but notes that there is nothing in the legislation that indicates an intention to prohibit conditional registration of professionals who do not have the base level of qualification. Section 37(5) of the HP Act and sections 116 and 117 of the Regulation, clearly envisage that conditional registration can be available to health professionals in those circumstances. The question that the tribunal needs to consider is, notwithstanding the lack of a base level qualification, is this particular health professional one in respect of whom conditional registration is in the public interest and does not represent a danger to public safety? Clearly, the appellant can and has relied on the relevant college for the purpose of peer review and to comment generally on the respondent’s qualifications. The response of the college has been supportive of the respondent’s registration, on the condition that he practices within the ambit of his duty statement, notwithstanding that he lacks the base qualification needed for fellowship of the College.
The appellant was critical of the respondent seeking to circumvent the policy that applies to those who are registered to practise because they meet an area of need and setting himself apart from a process of accreditation that applies to every other specialist. Regardless of whether there was a misunderstanding initially, it was submitted that he has made no attempt to bring himself into line with the position of others by undertaking or even considering further training.
The appellant said:
To allow ...conditional registration on the basis of alleged staff shortages is to allow him to circumvent that national scheme and to place him in a position of advantage over the many hundreds of doctors who have come to Australia and who have had to accept the discipline of conforming to local accreditation processes. The performing of the duties of a position designated as an area of (unmet) need no matter how competently and for whatever period of time cannot give rise to an expectation that the occupant will be exempted from fulfilling the suitability to practice requirements that would otherwise apply under the HP Act and the HP Regulation.
This is on the face of it, a powerful contention. It is true to say that a health professional who does not meet the suitability to practise requirement cannot have an expectation of unconditional registration. The legislative scheme does not allow it. But the respondent does not seek unconditional registration and there is nothing in the legislative scheme that limits conditional registration in the way contended by the appellant. The scheme provides a broad general discretion constrained by considerations of public safety. The respondent’s position is not necessarily advantageous when compared with others who have “conformed to local accreditation processes”. He will never be able to achieve unconditional registration. The conditions imposed by the original tribunal and endorsed by this tribunal, impose substantial limits on the respondent’s ability to practise medicine where and how he likes. He chooses to accept those limits, but it is difficult to characterise them as giving him an advantage over others.
Finally, the appellant contends that there is a serious doubt as to whether the respondent’s continued employment at TCH is in the public interest. On the other hand, the appellant says that the Tribunal should not be concerned with the employment needs and budgetary position of TCH, unless the respondent seeks to rely on an assertion that he is meeting an area of otherwise unmet need. That is not the basis on which we understand the respondent to advance his case.
The respondent submitted that it is in the public interest that he be conditionally registered because first, nuclear medicine is an area of specialist practise in which there is a shortage, particularly in the public arena, and the respondent is a person who is recognised as having advanced training in this area and as being competent in this area. He also wishes to practise in the public health system. The appellant criticised this submission as raising an area of need argument “by the back door”. We accept the respondent’s submission that it is not, because it is put on a broader basis than the more specific consideration of “area of unmet need” as enunciated in the relevant policy document. In any event, there is no basis for restricting consideration of need and available supply of practitioners to meet a need, to those applications that specifically call on section 117(1)(f) of the Regulation in aid of an application for conditional registration. Consideration of ‘public interest’ involves a broad general discretion that is not limited by the circumstances set out in section 117(1)(f). We agree that the evidence, particularly of Professor Buirski, demonstrates that this is area of practice in which the recruitment of readily available practitioners is a challenge. We accept that this is a factor that the tribunal is entitled to consider in the context of its exercise of the broad general discretion.
Secondly, the respondent submitted that there is no evidence that the respondent practices or has practised in a way that puts members of the public at risk, and that there is positive evidence that his practice of medicine is safe for members of the public. His initial merit based recruitment, successful peer review, absence of any adverse event recorded in respect of him and the support of the RACP for his registration to practise nuclear medicine in the position he holds; were referred to in support of this submission. We accept that this is the case – the appellant does not contend otherwise.
Thirdly, the respondent submitted that the appellant’s decision not to conditionally register the respondent was based on a theoretical concern linked to maintaining the integrity of the registration system for its own sake, rather than for the necessary protection of the public. It was said that there is no actual concern about the respondent linked to public interest. We accept that the evidence establishes that the respondent is a competent nuclear physician and that there is no actual concern about the quality of his professional practice.
Further, the respondent submitted that the availability of an experienced medical practitioner is in itself matter of public interest. The decision of the WA State Administrative Tribunal in the matter of Medical Board of WA v A Medical Practitioner [2007] WASAT 20 was referred to as the authority for this proposition.
The appellant rejected the reliance on this decision for this contention. It is a decision concerning the conditional registration of a medical practitioner who had a depressive illness and who had been the subject of disciplinary proceedings because of his misuse of drugs. The practitioner in that case contravened conditions imposed on his practice and was suspended from practise as a result. In deciding to lift the suspension so as to allow the practitioner to return to work under conditions, the tribunal said at [47]:
Recognising that the respondent is a well-trained (and prior to his difficulties emerging in 2000), a successful country general practitioner, we think that his return to the workforce is itself in the public interest. If that return is achieved in a way which enables close monitoring and supervision of his conduct, then that is in fact, serving the public interest.
This decision does, in our view, support a proposition that the public has an interest in having well-trained and successful practitioners available for practise. The decision in this case is typical of many decisions concerning conditional registration of practitioners whose clinical or general personal competence has been found to be deficient. Sub-section 117(1)(h) makes it clear that conditional registration in such circumstances is in the public interest. The fact that the use of conditional registration to facilitate the availability of a medical practitioner who has some limit on competence is regarded as being in the public interest, supports a conclusion that a practitioner who is well-trained and competent but in respect of whom there is some other impediment to registration, should be able to be conditionally registered provided that conditions can be identified to address any risk to public safety. The respondent is a health professional in this position.
On balance, the tribunal is persuaded by the respondent’s contentions that his conditional registration is in the public interest and that conditional registration does not endanger public safety. There is no evidence of a risk or danger to the public. The conditions proposed by the original tribunal comprehensively address the areas of potential concern. It is appropriate for this tribunal to adopt them.

………………………………..

Ms L. Crebbin
General President
for the members of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AA 5 of 2009
PARTIES, APPLICANT:	AHMAD JAVAID
PARTIES, RESPONDENT:	ACT MEDICAL BOARD
COUNSEL APPEARING, APPELLANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPELLANT	ACT GOVERNMENT SOLICITOR
SOLICITORS FOR RESPONDENT	PHELPS REID
TRIBUNAL MEMBERS:	Ms L. Crebbin, General President Dr A. McIntosh, Member Mr W. Pearcy, Member
DATES OF HEARING:	18 September 2009
PLACE OF HEARING:	CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: