ARAKKAL and MEDICAL BOARD OF AUSTRALIA - [2016] WASAT 130

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION: ARAKKAL and MEDICAL BOARD OF AUSTRALIA [2016] WASAT 130

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS P LE MIERE (MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)

HEARD: 29 AND 30 JUNE 2016

DELIVERED : 1 NOVEMBER 2016

FILE NO/S: VR 74 of 2015

BETWEEN: JOAN FRANCIS ARAKKAL
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

National Law Specialist registration 'Qualification' - Administrative mistake

Legislation:

Health Practitioner Regulation National Law (Victoria) Act 2009, s 98(1)(a)(ii)
Health Practitioner Regulation National Law (WA) Act 2010, s 3(2), s 5, s 13(2), s 31, s 35, s 36, s 49(1), s 49(5), s 57, s 58, s 77, s 82, s 82(1)(c)(i)(I), s 98, s 107(1), s 111(2)s 112, s 112(2), s 223, s 270
Medical Act 1984 (WA), s 11AD, s 11(1)
Medical Practitioners Act 2008 (WA), s 30, s 30(1), s 38
Medical Practitioners Regulations 2008 (WA), reg 6

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant was registered as a specialist orthopaedic surgeon under the Medical Act 2008 (WA) due to an administrative mistake. She did not in fact meet the qualifications to be registered as a specialist orthopaedic surgeon. Her registration under the Medical Act 2008 was transferred under the Health Practitioner Regulation National Law (WA) Act 2010 when it took effect in 2010. Her application to renew her registration was refused. The Tribunal upheld the decision to refuse to renew her registration.

Category: B

Representation:

Counsel:

Applicant: Mr J Ley
Respondent: Mr H Quail

Solicitors:

Applicant: Tottle Partners
Respondent: Medical Board of Australia

Case(s) referred to in decision(s):

Briginshaw v Bringshaw (1938) 60 CLR 336
Pereira v Psychology Board of Australia [2014] VSC 417

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Dr Joan Francis Arakkal was registered as a specialist orthopaedic surgeon pursuant to s 112(2)(a) of the Health Practitioner Regulation National Law Act (WA) 2010 (National Law).
The resolution of Dr Arakkal's application requires a consideration of three successive Acts relating to the registration of practitioners:
a)the Medical Act 1984 (WA) (the Medical Act);
b)the Medical Practitioners Act 2008 (WA) (the Medical Practitioners Act); and
c)the National Law.
A Medical Board was established under each of these Acts. Each Board is referred to in these reasons by the name of the related Act.

The conduct of the proceeding

Both parties are to be commended for the manner in which the proceedings were conducted. The facts were almost entirely agreed. The hearing was short and focused on, and only on, the matters in issue.
The facts set out below are largely taken from the Medical Board of Australia's statement of issues, facts and contentions (BSIFC). The facts in the BSIFC were admitted by Dr Arakkal unless otherwise noted.

Dr Arakkal's competence

It is important to note that this decision is not about Dr Arakkal's competence. All of the evidence establishes that Dr Arakkal is highly competent in the work that she has done. The substantive issue is whether or not Dr Arakkal met the qualifications for registration under the National Law.

The evidence

In addition to the documents and written statements, oral evidence was given by Professor Bryant Stokes, Dr Arakkal, Professor David Fletcher and Dr James Savundra.
Professor Stokes was appointed to the Medical Act Board in 1996.
He was appointed to the Registration SubCommittee (SubCommittee) of the Medical Act Board in 1997 and Chair of the SubCommittee in 2002. The role of the SubCommittee, which usually met on a monthly basis, was to review all registration applications and to make recommendations to the Medical Act Board. He was appointed Deputy President of the Medical Practitioners Act Board on 5 December 2008. Professor Stokes remained a member of the Medical Practitioners Act Board and its SubCommittee until transition to the National Registration and Accreditation Scheme. He also regularly acted in the position of CEO/Registrar of the Medical Practitioners Act Board when the incumbent CEO/Registrar was on leave.
On 18 October 2010, the National Law came into force and the National Registration and Accreditation Scheme commenced in Western Australia. Effective from that date, Professor Stokes was appointed as a member of the Western Australian Board of the Medical Board of Australia established under s 36 of the National Law. The Registration Committee was established by the National Board pursuant to the National Law to exercise the functions and powers delegated to the Registration Committee by the National Board under s 37 of the National Law.
Dr Arakkal called two witnesses, Dr James Mohan Savundra and Dr David Rowley Fletcher, who gave evidence as to her competence. They were both credible witnesses who were impressed by what they had seen of Dr Arakkal's work. However, neither of them was in a position to assess Dr Arakkal as a specialist orthopaedic surgeon.

The specialist registration process under the Medical Act

Specialist registration was not available under the Medical Act. Medical practitioners simply held general registration.
However, the Medical Act Board kept records of some registered medical practitioners' qualifications, over and above the qualifications which were required for those medical practitioners to be registered under the Medical Act (Dr Arakkal's statement of issues facts and contentions (ASIFC) paragraph 3.2).

Dr Arakkal's background and practice under the Medical Act to 1 December 2008

Dr Arakkal obtained a Bachelor of Medicine and Bachelor of Surgery (MBBS) from the University of Madras in 1982 (BSIFC paragraph 31).
Dr Arakkal obtained a Post Graduate Diploma in Orthopaedics from the University of Calicut on 12 April 1989 (ASIFC paragraph 14).
The Royal College of Surgeons of Edinburgh awarded Dr Arakkal a Fellowship on 10 December 1993 (FRCS Edinburgh) (ASIFC paragraph 15).
In February 1995, Dr Arakkal migrated from India to Australia, and settled in the Australian Capital Territory (ACT) (ASIFC paragraph 16).
On 13 October 1995, the Medical Board of the ACT granted Dr Arakkal conditional registration to work under supervision at the Calvary Hospital in Bruce in the ACT. Dr Arakkal practised at the Calvary Hospital as a Registrar in General Surgery from October 1995 to January 1996, and as a Resident in Emergency Medicine from January to March 1996 (ASIFC paragraph 17).
In or about November 1995, Dr Arakkal applied to the Australian Medical Council (the AMC) for assessment of her specialist qualifications in general surgery (BSIFC paragraph 34).
The AMC told Dr Arakkal that she could seek to gain entry to an advanced surgical training program (Training Program) through the Lateral Entry Scheme (Scheme) of the Australian Orthopaedic Association (AOA) (ASIFC paragraph 18).
On 8 February 1996, Dr Arakkal was informed by the AMC that the Royal Australasian College of Surgeons (RACS) had completed its assessment of her application and decided the steps that must be completed in order to be recognised by the RACS and recommended for registration as a specialist practitioner. Dr Arakkal was advised that should she change her application to orthopaedic surgery:
a)she would be exempt from the Part 1 Assessment Package;
b)she would be required to undertake two years of advanced surgical training in orthopaedic surgery; and
c)she would be required to sit and pass the Part 2 Final Fellowship Examination.
(BSIFC paragraph 35)
By letter dated 21 February 1996, Dr Arakkal advised the AMC that she intended to complete the requirements of RACS for recognition as a specialist in orthopaedic surgery (BSIFC paragraph 36).
Dr Arakkal did not proceed to complete RACS's requirements (BSIFC paragraph 37). The reason for this was that:
After writing to the AMC on 21 February 1996, advising that she intended to complete the requirements of the RACS for recognition as a specialist in orthopaedic surgery, [Dr Arakkal] reconsidered her position. She decided that, instead of attending to (complete the requirements of the RACS at that time, she would first seek to be generally registered as a medical practitioner in the ACT, by sitting an examination set by the AMC (AMC examination), and completing a year of supervised clinical practice after that. [Dr Arakkal] considered that, if she was already generally registered in the ACT when she applied to gain entry to a Training Program, her prospects of gaining entry would be better.
(ASIFC paragraph 19)
It is not in issue that Dr Arakkal did not and never has completed RACS's requirements for admission to fellowship of RACS.
In October 1996, Dr Arakkal sat Part 1 of the AMC examination (ASIFC paragraph 20).
In December 1996, Dr Arakkal and her family moved from the ACT to Western Australia (WA) (ASIFC paragraph 21).
In May 1997, Dr Arakkal sat Part 2 of the AMC examination. She duly passed the AMC examination, with a Rank Order of 18/858 (ASIFC paragraph 22). Dr Arakkal was awarded the AMC Certificate (BSIFC paragraph 38).
In or around August 1997, Hollywood Hospital (Hollywood) requested that conditional registration for twelve months' supervised clinical practice be granted to Dr Arakkal under s 11AD of the Medical Act by the Medical Act Board (BSIFC paragraph 39).
On 19 August 1997, the Medical Act Board resolved to grant Dr Arakkal conditional registration for the period 19 August 1997 to 19 August 1998 (the First Extension) (BSIFC paragraph 40).
Pursuant to the First Extension from 23 September 1997 to 18 January 1998, Dr Arakkal practised as a Senior Fellow in Orthopaedics at Hollywood (ASIFC paragraph 24).
In about October 1997, Dr Arakkal applied to the Medical Act Board for an extension of her conditional registration. She provided the Medical Act Board with copies of her:
•Diploma in Orthopaedics;
•FRCS (Edinburgh); and
•AMC Certificate.
Professor Stokes' evidence was that:
[T]he FRCS University of [Edinburgh] in Orthopaedics [was] not considered an appropriate orthopaedic training program.
(T:42; 29.06.16)
On 21 October 1997, the Medical Act Board, amongst other things, approved an extension of Dr Arakkal's conditional registration for the period 18 January 1998 to 19 January 1999 with Royal Perth Hospital (RPH) as the sponsoring organisation (the Second Extension) (BSIFC paragraph 41).
An extension of Dr Arakkal's conditional registration did not amount to recognition as a specialist orthopaedic surgeon.
From 18 January to 15 September 1998, pursuant to the Second Extension, Dr Arakkal practised as a Service Registrar in Orthopaedics at Hollywood and Royal Perth Hospital (RPH) on a rotational basis at Fremantle Hospital (Fremantle), Sir Charles Gairdner Hospital (SCGH) and Princess Margaret Hospital for Children (ASIFC paragraph 27).
In or around September 1998, Dr Arakkal applied to the Medical Act Board for general registration following completion of 12 months' supervised practice (BSIFC paragraph 42).
On 15 September 1998, the Medical Act Board granted Dr Arakkal general registration pursuant to s 11(1) of the Medical Act (BSIFC paragraph 43).
The grant of general registration was only until 30 September 1998. Prior to that date, Dr Arakkal applied to the Medical Act Board for renewal of her general registration, and the Medical Act Board renewed her general registration from 1 October 1998 to 30 September 1999 (ASIFC paragraph 28).
From 15 September 1998 to 18 January 1999, Dr Arakkal continued to practise as a Service Registrar in Orthopaedics at Fremantle and SCGH (ASIFC paragraph 29).
From 19 January to December 1999, Dr Arakkal practised as a Registrar in Emergency Medicine at Fremantle Hospital (ASIFC paragraph 30).
The Medical Act Board annually renewed Dr Arakkal's general registration as a medical practitioner in Western Australia from 1 October 1999 to 30 September 2009.
In January 2000, Dr Arakkal began working on a part-time basis as a surgical assistant to various orthopaedic surgeons, performing operations in various hospitals in and around Perth (ASIFC paragraph 32).
In about July 2000, Dr Arakkal applied to the Board of Swan District Hospital (SDH) for appointment as a visiting medical practitioner, and to be granted clinical privileges at SDH as an orthopaedic surgeon. The application was made under the terms of an agreement between the State Minister of Health and the Western Australian Branch of the Australian Medical Association Inc dated 4 September 1995 (1995 Agreement). Under the terms of the 1995 Agreement, such applications were made to a Regional Clinical Appointments Committee, constituted as provided in the 1995 Agreement, which made recommendations to the Medical Act Board of SDH as to appointments (ASIFC paragraph 33).
On 3 August 2000, the General Manager of SDH wrote to Dr Arakkal informing her that she had been granted clinical privileges as an orthopaedic surgeon at SDH (SDH letter). At the same time as the General Manager of SDH sent the SDH letter to Dr Arakkal, he sent a copy of the SDH letter to the Medical Act Board (ASIFC paragraphs 35 and 36).
The grant of clinical privileges by a hospital is a matter for each hospital.
Professor Stokes' evidence was:
… what a hospital wants to do with its staff is the hospital's responsibility. It doesn't necessarily reflect what the Medical Board may decide as regards a category of registration.
(T:43; 26.09.16)
Dr Arakkal accepted the grant of clinical privileges as an orthopaedic surgeon at SDH. However, she then reconsidered whether she should apply for theatre sessions at SDH. After making some enquiries, she ultimately decided that practising as an orthopaedic surgeon at SDH would be incompatible with her career goal of combining clinical work, and, in particular, hand surgery, with research and training, and also addressing the needs of her family and, in particular, her children's education. Accordingly, she did not apply to SDH for theatre sessions and did not practise at SDH as an orthopaedic surgeon. Dr Arakkal decided to seek to gain entry to a Training Program under the Scheme, with a view to obtaining her Fellowship of the Royal Australasian College of Surgeons (FRACS) (ASIFC paragraph 37).

The 19 August 2000 entry

On 19 August 2000, an entry was made in the Medical Act Board's electronic database recording Dr Arakkal's specialisation as 'Surgery Orthopaedic Surgery' (the 19 August Entry) (BSIFC paragraph 44).
As noted above, at the time the 19 August Entry was made, there was no legislative basis for registration as an orthopaedic surgeon (T:34; 29.06.16).
At the time Professor Stokes was the Chair of the Medical Act Board's Registration Committee (T:33; 29.06.16). Professor Stokes described the recording of Dr Arakkal's registration as 'specialist orthopaedic surgeon' as an error (T:32, 48; 29.06.16).
Professor Stokes' evidence was that in 2000 he knew about the specialisation field in the electronic database. His evidence was that this field should have only been entered by those who held an AMC recognised specialist qualification. A FRACS (Edinburgh) was not an AMC recognised specialist qualification.
Professor Stokes' evidence was that the Medical Act Board relied on practitioners to claim a specialisation but that that there would have been a requirement for the Board to concur that the person was appropriately trained (T:35; 29.06.16). In the light of the other evidence, it appeared that the Medical Act Board did not concur in Dr Arakkal's case.
In 2001, Dr Arakkal applied to the AOA for admission to a Training Program under the Scheme. However, the AOA did not grant her an interview and, on 3 July 2001, the AOA informed her that her application had been unsuccessful (ASIFC paragraph 39).
From January to September 2002, Dr Arakkal practised as a Service Registrar in Orthopaedics at RPH and SCGH (ASIFC paragraph 41).
In early 2002, Dr Arakkal made an application to the Western Australian Branch of the AOA (WA Branch) for admission to the Western Australian Advanced Orthopaedic Training Program. On this occasion, she was granted an interview which was conducted on 24 June 2002. The interview process consisted of four separate interviews, each conducted by a panel of three senior orthopaedic surgeons (ASIFC paragraph 42).
On 29 July 2002, the AOA informed Dr Arakkal that her application had again been unsuccessful. On 9 August 2002, Dr Arakkal attended a 'feedback' session with the Chairman of the Board of Studies and another senior member of the WA Branch. At that meeting, Dr Arakkal was told, in effect, that she would never be granted entry to a Training Program (ASIFC paragraphs 43 and 44).
In the light of Dr Arakkal's decision to apply for admission to the Western Australian Advanced Orthopaedic Training Program and subsequent refusal, it is apparent that Dr Arakkal understood that the fact that she had been registered as a 'specialist orthopaedic surgeon' did not qualify her under the AOA requirements.
Between September 2002 and late 2003, Dr Arakkal continued working as a surgical assistant in orthopaedics in various hospitals in Perth (ASIFC paragraph 46).
In November 2003, Dr Arakkal was diagnosed with and treated for breast cancer. When Dr Arakkal had recovered sufficiently from her treatment in about June 2004, she returned to work, on a part-time basis, as a surgical assistant in orthopaedics at various Perth hospitals (ASIFC paragraphs 48 and 49).
In late 2007, and after having been successfully treated for breast cancer, Dr Arakkal decided to return to active clinical orthopaedics and research. She applied for a Carl Zeiss Fellowship in Hand and Reconstructive Microsurgery at the Ganga Hospital, in Coimbatore, India. She was selected as one of the two successful candidates and, in February 2008, she became a Carl Zeiss Fellow in Hand Surgery at the Ganga Hospital. She worked there for approximately eight weeks (ASIFC paragraph 54).
After completing her Fellowship in April 2008, Dr Arakkal returned to Perth, resumed her previous specialist orthopaedic research into the non-union of the scaphoid bone (research) and practised part-time as a surgical assistant in orthopaedic surgery in various hospitals in Perth (ASIFC paragraph 55).

The specialist registration process under the Medical Practitioners Act

On 1 December 2008, the Medical Practitioners Act came into force in Western Australia, replacing the Medical Act (BSIFC paragraph 45).
The Medical Practitioners Act established the requirement for a Specialist Register (BSIFC paragraph 46).
With the commencement of the Medical Practitioners Act on 1 December 2008, medical practitioners were able to obtain specialist registration with the Medical Board of Western Australia (the Medical Practitioners Act Board) for the first time.
Immediately prior to orthopaedic surgery being prescribed as a specialty under the Medical Practitioners Act, Dr Arakkal was practising as a surgical assistant in orthopaedic surgery in various hospitals in Perth and was carrying out research (ASIFC paragraph 58; BSIFC paragraph 47).

Dr Arakkal's application under the Medical Practitioners Act

In August 2009, the Medical Practitioners Act Board wrote to Dr Arakkal:
1)inviting her to apply for registration as a medical practitioner under the Medical Practitioners Act;
2)requesting her to complete an Application for Renewal of Registration Form R (Form R), which was enclosed with the Board's letter, and return it to the Board, with payment of the registration fee, by midnight on 30 September 2009;
3)enclosing a form entitled Notification of Registration Details Form P (Form P) which included, in the section headed 'Qualifications', Dr Arakkal's Diploma in Orthopaedics, FRCS (Edinburgh) and AMC Certificate;
4)asking her to consider the details in the Form P, change any details which were incorrect, sign the Form P and return it to the Board;
5)informing her that, if she intended to practise in a specialty, she must first register her relevant specialty qualifications with the Board; and
6)informing her that, to add to her specialist qualifications, she should complete and submit an Application for Registration of Additional Qualifications Form G (Form G), which it said was available on the Registration Forms page of the Board's website.
(ASIFC paragraph 59)

Dr Arakkal considered the details in the Form P and found that they were correct. Dr Arakkal also found that all her specialist qualifications were included in Form P. Accordingly, she completed and signed the Form R, signed the Form P and posted them to the Medical Practitioners Act Board together with her cheque for the registration fee (ASIFC paragraph 60).
In about October 2009, the Medical Practitioners Act Board issued Dr Arakkal with a certificate, signed by the CEO/Registrar of the Medical Practitioners Act Board, certifying that Dr Arakkal was generally registered as a medical practitioner in Western Australia, under s 30(1) of the Medical Practitioners Act, and was registered as a specialist in orthopaedic surgery in Western Australia from 1 October 2009 to 30 September 2010 (ASIFC paragraph 63).
The respondent contends that Dr Arakkal did not at any time apply to the Medical Practitioners Act Board for specialist registration (BSIFC paragraph 48).
Dr Arakkal contends that in August 2009, by completing and signing the Form R and signing the Form P, and posting both the Form R and the Form P to the Medical Practitioners Act Board, together with a cheque for the registration fee, she applied for both general registration and specialist registration under the Medical Practitioners Act (ASIFC paragraph 62).
In about April 2010, Dr Arakkal received from the Medical Practitioners Act Board, a form headed 'Updating your registration details'. In the form appeared Dr Arakkal's full name, her date of birth, her address, a note to the effect that she resided and practised in Western Australia, her registration number with the Medical Practitioners Act Board, the fact that her then registration with the Medical Practitioners Act Board would expire on 30 September 2010, and a note to the effect that, under the National Law, she would have general and specialist registration and that her specialty would be orthopaedic surgery. The instruction from the Medical Practitioners Act Board in the form was for Dr Arakkal to do nothing if the details in the form were correct (ASIFC paragraph 64).
Dr Arakkal considered the details in the form and found that they were correct. Accordingly, she did nothing with the form (ASIFC paragraph 65).
In about July 2010, Dr Arakkal applied to the Medical Practitioners Act Board, under s 30 of the Medical Practitioners Act, for renewal of her general registration as a medical practitioner in Western Australia, and also applied to the Medical Practitioners Act Board, under s 38 of the Medical Practitioners Act, for renewal of her specialist registration as an orthopaedic surgeon in Western Australia. In about August 2010, the Medical Practitioners Act Board renewed Dr Arakkal's general registration as a medical practitioner in Western Australia, under s 38 of the Medical Practitioners Act, and renewed her specialist registration as an orthopaedic surgeon in Western Australia, under s 38 of the Medical Practitioners Act, and issued Dr Arakkal with a certificate certifying that she had general registration as a medical practitioner in Western Australia and specialist registration as an orthopaedic surgeon in Western Australia from 1 October 2010 to 30 September 2011 (ASIFC paragraphs 66 and 67).
In August 2010, Dr Arakkal took up a position in the rooms of Mr Ian Skinner, orthopaedic surgeon. In that position, she saw all of those patients of Mr Skinner on whom he had operated and dealt with their postoperative care. That involved two four hour sessions per week. Dr Arakkal remained in the position with Mr Skinner until 2014 (ASIFC paragraph 61).

Specialist registration under the National Law

The National Law commenced in Western Australia on 18 October 2010 (BSIFC paragraph 2).
The Medical Board of Australia was established pursuant to s 31 of the National Law and has the functions referred to in s 35 of the National Law.
The Medical Board of Australia established committees (a State or Territory Board) for participating jurisdictions which were committees of the National Board. The members of a State or Territory Board are appointed by the responsible Ministers for the participating jurisdiction: s 36 of the National Law. The Western Australia Board of the Medical Board of Australia (State Board) was appointed as the Committee for Western Australia (BSIFC paragraph 5).
Under the National Law, specialist registration is available to medical practitioners who are eligible for specialist registration under s 57 of the National Law.
The Australian Health Workforce Ministerial Council has approved a list of specialities, fields of specialty practice and specialist titles (BSIFC paragraph 12).
Orthopaedic surgery was approved as a specialty by the Ministerial Council under s 13(2) of the National Law, effective 1 July 2010 (BSIFC paragraph 13).
FRACS was approved as a qualification for the specialty of orthopaedic surgery by the National Board under s 49(1) of the National Law on 1 July 2010 (BSIFC paragraph 14).
FRACS is the only approved qualification for the specialty of orthopaedic surgery and is included in the list published by the Australian Health Practitioner Regulation Agency (AHPRA) under s 49(5) of the National Law (BSIFC paragraph 15). Regulation 6 of the Medical Practitioners Regulations2008 (WA) (the Regulations) prescribed that for the specialty of orthopaedic surgery, the qualification was a FRACS.
In addition to the transitional provisions of s 270 of the National Law, which is referred to in detail below, a range of other medical practitioners were included on the specialist register upon transition to the National Registration and Accreditation Scheme (NRAS) as a 'oneoff' grandfathering arrangement (BSIFC paragraph 26).
These included:
a)medical practitioners on the general practice vocational register on 30 June 2010;
b)medical practitioners recognised as specialists by a State or Territory Medical Board; and
c)medical practitioners who had been recognised by Medicare Australia as specialists after being assessed by a Specialist Recognition Advisory Committees (SRACs) or an Overseas Specialist Advisory Committees (OSACs).
As this was a transitional arrangement, no other medical practitioners are eligible to be recognised as specialists through these routes after 18 October 2010 (BSIFC paragraph 28).
In about December 2010, Dr Arakkal applied to the State Board under s 77 of the National Law for general registration and specialist registration as an orthopaedic surgeon under the National Law (ASIFC paragraph 69).
On 15 December 2010, pursuant to s 270(2) of the National Law, the State Board granted Dr Arakkal general registration and specialist registration as an orthopaedic surgeon under the National Law and issued Dr Arakkal with a certificate certifying that she had general registration and specialist registration as an orthopaedic surgeon under the National Law from 18 October 2010 to 30 September 2011 (ASIFC paragraph 70).
Following transition to the NRAS, Dr Arakkal's name appeared on the Medical Board of Australia's specialist register, established pursuant to s 223 of the National Law (BSIFC paragraph 51).
Dr Arakkal's specialist registration was renewed in 2011, 2012 and 2013 (BSIFC paragraph 52; ASIFC paragraphs 7278).
Professor Stokes' evidence was that Dr Arakkal's specialist registration under the Medical Practitioners Act was transitioned over into the National Law as an administrative decision and that the Registration Committee was not consulted in the decision. Dr Arakkal's specialist registration was renewed administratively thereafter until an investigation was made by AHPRA as a result of a letter from the Australian Orthopaedic Association.
Professor Stokes' evidence was that Dr Arakkal was not qualified for registration as an orthopaedic surgeon under the Medical Practitioners Act (T:5556; 29.06.16).
On or around 12 August 2014, Dr Arakkal again applied to renew her specialist registration with the National Board (BSIFC paragraph 54).
On 21 January 2015, the State Board:
a)considered Dr Arakkal's application for renewal of her specialist registration (Renewal Application);
b)determined that Dr Arakkal was ineligible for specialist registration; and
c)decided to:
i)propose to refuse the Renewal Application under s 112 and s 82(1)(c)(i)(I) of the National Law; and
ii)under s 111(2) of the National Law, invite Dr Arakkal to make a written or verbal submission about the proposal.
(BSIFC paragraph 55)
On 18 March 2015, Dr Arakkal made verbal submissions to the State Board's proposal and tabled a number of documents in support (BSIFC paragraph 56).
On 18 March 2015, the State Board:
a)considered the Renewal Application, together with Dr Arakkal's verbal submission and documents in support;
b)determined that Dr Arakkal was ineligible for specialist registration as an orthopaedic surgeon under s 82(1)(c)(i)(I) of the National Law; and
c)decided to refuse the Renewal Application.
(BSIFC paragraph 57)
By letter dated 27 March 2015, AHPRA advised Dr Arakkal that her Renewal Application had been considered at a meeting of the State Board on 18 March 2015 and that the Renewal Application had been refused (Decision).
The letter also stated that:
a)Dr Arakkal was not eligible for specialist registration under transitional arrangements in the National Law because:
i)she was not on the general practice vocational register;
ii)she had not been recognised by Medicare Australia as a specialist after being assessed by a Specialist Recognition Advisory Committee or an Overseas Specialist Advisory Committee; and
iii)whilst she was on the specialist register maintained by the former Medical Practitioners Act Board, she was on the register in error.
b)Dr Arakkal was not eligible for specialist registration under s 57 of the National Law, as she was not qualified for registration under s 58 of the National Law because:
i)she did not hold an approved qualification leading to specialist registration;
ii)she did not hold a qualification that was substantially equivalent or based on similar competencies to an approved qualification;
iii)she had not completed an examination or other assessment contemplated by s 58(c) of the National Law; and
iv)whilst she was previously registered under a corresponding prior Act, she was registered in error and not on the basis of holding a qualification that qualified her for specialist registration.
(BSIFC paragraph 58 and 59)
On 10 April 2015, Dr Arakkal applied for a review of the Decision to this Tribunal (BSIFC paragraph 60).
The respondent alleges that there is a ground on which registration of Dr Arakkal could be refused. Therefore, the onus is on the respondent to prove that matter to the standard of Briginshawv Bringshaw (1938) 60 CLR 336. If the Tribunal is not satisfied that there is a ground on which registration of Dr Arakkal should be refused, then there is no proper basis to refuse to renew Dr Arakkal's specialist registration under the National Law (ASIFC paragraphs 94 and 95).

Matters not in issue

There is no dispute between the parties that:
a)between 1 October 2009 and 17 October 2010, Dr Arakkal was registered as a specialist orthopaedic surgeon by the Medical Practitioners Act Board pursuant to the provisions of s 38 of the Medical Practitioners Act;
b)s 270(1) of the National Law provides that s 270 of the National Law applies if:
i)immediately before the participation day for a participating jurisdiction, a person was a specialist health practitioner in a specialty in a health profession under the law of that jurisdiction; and
ii)from the participation day, the specialty is a recognised specialty in the health profession under the National Law;
c)s 270(2) of the National Law provides that from the participation day, the participation day for Western Australia was 18 October 2010, the person is taken to hold specialist registration in the recognised specialty in the health profession under the National Law;
d)immediately before the participation day, and by virtue of her specialist registration under the Medical Practitioners Act, Dr Arakkal was registered as a specialist health practitioner in orthopaedic surgery under the law of Western Australia;
e)from the participation day, orthopaedic surgery was a recognised specialty in the health profession of medicine under the National Law;
f)prior to the participation day, the respondent, the Medical Board of Australia, agreed that as a 'one-off' transitional arrangement on the participation day, medical practitioners who did not have a fellowship of a specialist college that was accredited by the Australian Medical Council (AMC) but who were recognised as specialists by a State or Territory Medical Board, would be included in the specialist register under the National Law (the transitional arrangement) (see respondent's Statement dated 13 April 2012 Exhibit C, Tab 39, page 222);
g)immediately before the participation day and by virtue of her specialist registration under the Medical Practitioners Act, Dr Arakkal was a medical practitioner recognised as a specialist by the Medical Board, which was a State medical board;
h)from the participation day:
i)pursuant to s 270(2) of the National Law, Dr Arakkal was taken to hold specialist registration as an orthopaedic surgeon under the National Law; and/or
ii)pursuant to the transitional arrangement, Dr Arakkal was included in the specialist register under the National Law;
i)in December 2010, pursuant to either or both s 270(2) of the National Law and/or the transitional arrangement, the National Board granted Dr Arakkal specialist registration in orthopaedic surgery under the National Law; on 18 October 2010 the National Law came into force in Western Australia and WA became a participating jurisdiction of the NRAS;
j)the National Board renewed Dr Arakkal's specialist registration in orthopaedic surgery under the National Law from 1 October 2011 to 30 September 2014; and
k)On 18 March 2015, the State Board considered Dr Arakkal's application for renewal of her registration and determined that Dr Arakkal:
i)does not hold an approved qualification leading to specialist registration for the purposes of s 58(a) of the National Law, being a FRACS;
ii)does not hold a qualification that is substantially equivalent or based on similar competencies to an approved qualification, for the purposes of s 58(b) of the National Law as the RAGS has previously assessed her FRCS as not substantially equivalent to a FRACS; and
iii)has not completed an examination or other assessment contemplated by s 58(c) of the National Law.

The objectives of the National Recognition and Accreditation Scheme

In interpreting the provisions of the National Law the Tribunal has had regard to the objectives set out in the National Law, particularly in relation to the National Recognition and Accreditation Scheme.
The objectives of the National Recognition and Accreditation Scheme as set out in s 3(2) of the National Law are:
a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
b)to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
c)to facilitate the provision of high quality education and training of health practitioners; and
d)to facilitate the rigorous and responsive assessment of overseastrained health practitioners; and
e)to facilitate access to services provided by health practitioners in accordance with the public interest; and
f)to enable the continuous development of a flexible, responsive and sustainable Australian Health workforce and to enable innovation in the education of, and service delivery by, heath practitioners.

Standard registration as a specialist under the National Law

Section 57 of the National Law provides for a practitioner to register as a specialist. It provides:
1)An individual is eligible for specialist registration in a recognised specialty in a health profession if
a)the individual is qualified for registration in the specialty; and
b)the individual has completed
(i)any period of supervised practice in the specialty required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession; or
(iii)any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the specialty;
and
c)the individual is a suitable person to hold registration in the health profession; and
d)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the specialty; and
e)the individual meets any other requirements for registration stated in an approved registration standard for the specialty.
Section 58 of the National Law provides that an individual is qualified for specialist registration in a recognised specialty in a health profession if the individual:
a)holds an approved qualification for the specialty; or
b)holds another qualification the National Law established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the specialty; or
c)holds a qualification, not referred to in paragraph (a) or (b), relevant to the specialty and has successfully completed an examination or other assessment required by the National Board for the purpose of registration in the specialty; or
d)the individual
(i)holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and
(ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty.
FRACS was approved as a qualification for the specialty of orthopaedic surgery by the National Board under s 49(1) of the National Law on 1 July 2010.
FRACS is the only approved qualification for the specialty of orthopaedic surgery and is included in the list published by AHPRA under s 49(5) of the National Law.

What is a 'qualification'?

A significant issue in the resolution of Dr Arakkal's application is the meaning of the word 'qualification' as it appears in s 58 of the National Law.
The word 'qualification' is used in each of subsections 58(a) to (d).
In subsection 58(a) the word is used in the phrase 'holds an approved qualification'.
Although the word 'qualification' is not defined in the National Law, guidance as to its construction is to be found in the definition of 'approved qualification'.
Section 5 of the National Law provides:
approved qualification
(a)for a health profession, means a qualification obtained by completing an approved programme of study for the profession; and
(b)for endorsement of registration in a health profession, means a qualification obtained by completing an approved programme of study relevant to the endorsement[.]
An 'approved qualification' is obtained after an 'approved programme of study'. A qualification is gained after a programme of study. The word 'approved' does not qualify the meaning of 'qualification', it simply draws attention to the fact that a qualification must be obtained after an approved course of study and not any course of study. It is apparent that a qualification is gained after a course of study.

Clearly, in s 58(a) a qualification is obtained after a course of study.
In s 58(b) the relevant phrase is 'another qualification the National Board … considers to be substantially equivalent, or based on similar competencies, to an approved qualification'.
The use of the words 'similar' or 'substantially equivalent' make it clear that the term 'qualification' is referring to a qualification obtained after a course of study.
In s 58(c) the relevant phrase is, 'holds a qualification not referred to in paragraph (a) or (b)'; that is, it refers to a qualification not obtained after an approved course of study and not similar to or substantially equivalent to a qualification obtained after an approved course of study.
In each of subsections 58(a) - (c) the term 'qualification' consistently refers to a qualification obtained after a course of study. It follows that the use of the 'qualification' should also be construed as a qualification obtained after a course of study.
For the reasons stated above, the Tribunal does not accept Dr Arakkal's submission that 'qualification' is used in four different senses in s 58. Further, it would be contrary to most tenets of statutory construction to suggest that one word is used in four different senses within the same section.
Dr Arakkal's submissions seem to have equated an approved qualification with a course of study rather than an approved course of study.
Dr Arakkal's submissions further rely on the current edition of the Oxford English Dictionary which defines 'qualification' as:
A quality or accomplishment which qualifies or fits a person for a certain position or function[.] …
Dictionary meanings are not determinative of the meaning of a word in a statute. A word is primarily to be determined in the context of the Act. The Tribunal does not accept that the Oxford English Dictionary definition applies to displace the word in the context of the Act.
Kyrou JA in Pereira v Psychology Board of Australia [2014] VSC 417 (Pereira) at [38] stated that, in the context of s 98 of the National Law 'qualification' was:
... intended to be confined to competencies gained by a course of study or membership based on formal assessment by a recognised educational body, rather than competencies gained merely from stand-alone practical experience ...
Dr Arakkal submitted that Pereira does not apply because his Honour considered the word in a different context. She argued that in that case his Honour was considering the term as it appears in s 98(1)(a)(ii) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (which is replicated in s 98(1)(a)(ii) of the National Law), which is very different from the context in which the term appears in s 58(d). The Tribunal does not accept that the term as used in s 98(1)(a)(ii), is used in a different context to s 58(d) by reason of the construction that it places on 'qualification' in s 58.

Does Dr Arakkal qualify under s 58(d) of the National Law?

Dr Arakkal accepted that she was not eligible for registration under s 58(b) - (c) of the National Law and that she can only be qualified for specialist registration under s 58 if she satisfies the requirements of s 58(d) of the National Law.
To repeat, s 58(d) of the National Law provides:
the individual
i)holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and
ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty.
The 'corresponding prior Act' was the Medical Practitioners Act.
Section 38(1) of the Medical Practitioners Act provided that the Medical Practitioners Act Board was to register an applicant as a specialist in a specialty if it was satisfied that the applicant had complied with a set of requirements in subsections (2), (3) or (4).
Subsections (2), (3) and (4) of s 38 provided:
(2)A set of requirements for registration as a specialist is that -
a)the applicant is registered under s 30; and
b)the applicant -
i)has an Australian or New Zealand qualification, in the specialty, that is prescribed by the regulations for the specialty; or
ii)has a qualification in a specialty that the Board considers is substantially equivalent to, or based on similar competencies to, a qualification prescribed under subparagraph (i).
(3)A set of requirements for registration as a specialist is that -
a)the applicant is competent to practise in a specialty (that is, the applicant has sufficient physical capacity, mental capacity and skill to practise the specialty); and
b)the applicant has a sound knowledge of the English language and possesses sufficient skill in the expression of that language, both written and oral, for the practice of the specialty; and
c)the applicant is a fit and proper person to be registered as a specialist; and
d)the applicant has not been convicted of an offence the nature of which renders the person unfit to practise as a specialist; and
e)the applicant -
i)has an Australian or New Zealand qualification, in the specialty, that is prescribed by the regulations for the specialty; or
ii)has a qualification that the Board considers is substantially equivalent to, or based on similar competencies to, a qualification prescribed under subparagraph (i);
and
f)has successfully completed a period of supervised clinical practice approved by the Board in writing or prescribed by the rules.
(4)A set of requirements for registration as a specialist is that the applicant -
a)is registered under s 30; and
b)has practised in a specialty in the period immediately preceding the day on which the specialty was prescribed under s 37; and
c)is competent to practise in the specialty (that is, the applicant has sufficient physical capacity, mental capacity and skill to practise the specialty); and
d)has knowledge of, and experience in the practise of, the specialty that the Board considers are sufficient as a basis for specialist registration in the specialty.
As Dr Arakkal notes subsections (2) and (3) above require that the applicant have 'an Australian or New Zealand qualification in the specialty, that is prescribed by the regulations for the specialty'.
Dr Arakkal correctly submits that the set of requirements in s 38(4) did not include a requirement that the applicant have such a qualification. It required only that the applicant:
a)was generally registered as a medical practitioner under the Medical Practitioners Act;
b)had practised in a specialty in the period immediately preceding the day on which the specialty was prescribed under the Regulations;
c)was competent to practise in the specialty (that is, the applicant had sufficient physical capacity, mental capacity and skill to practise the specialty); and
d)had knowledge of, and experience in the practise of, the specialty that the Medical Practitioners Act Board considered were sufficient as a basis for specialist registration in the specialty.
Again, as Dr Arakkal submits, a practitioner could 'qualify' for specialist registration under s 38(4) of the Medical Practitioners Act without holding a formal qualification such as a FRACS. Dr Arakkal then submits that this reinforces the argument that the term 'qualification', as it appears in s 58(d) of the National Law, should not be narrowly construed to mean only something gained after the completion of a program of study but should be construed in its natural meaning. In fact, the use of the term 'qualification' in s 38 of the Medical Practitioners Act cuts against Dr Arakkal's argument. The fact that the term 'qualification' is not used in s 38(d) makes it clear that the 'experience' route to registration as a specialist requires something other than a 'qualification'.

Registration under the transitional provisions

Section 270 of the National Law is a transitional provision relating to specialist registration. It provides:
1)This section applies if
a)immediately before the participation day for a participating jurisdiction, a person was a specialist health practitioner in a specialty in a health profession under the law of that jurisdiction; and
b)from the participation day
(i)the specialty is a recognised specialty in the health profession under this Law; or
(ii)a recognised specialty in the health profession under this Law includes, or is equivalent to, the specialty.
2)From the participation day, the person is taken to hold specialist registration in the recognised specialty in the health profession under this Law.
3)In this section
corresponding purpose means a purpose that is equivalent to, or substantially equivalent to, a purpose for which limited registration may be granted under this Law;
specialist health practitioner, in a specialty in a health profession, means a person who held specialist registration in, or was endorsed or otherwise authorised to practise, the specialty in the health profession but does not include a person who held registration to practise the profession only for a corresponding purpose.

Renewal of specialist registration

Section 107(1) of the National Law provides:
A registered health practitioner may apply to the National Board that registered the practitioner for renewal of the health practitioner's registration.
Section 112 of the National Law provides:
1)After considering an application for renewal of registration and any submissions made in accordance with a notice under s 111, a National Board may decide to renew, or refuse to renew, the applicant's registration or the endorsement.
2)The National Board may refuse to renew the applicant's registration or any endorsement on the applicant's registration -
a)on any ground on which the Board could refuse to grant the registration or endorsement under s 82 or 102 if the application were for a grant of registration or endorsement[.]
Section 82 of the National Law provides the following:
(1)After considering an application for registration and any submissions made in accordance with a notice under s 81, a National Board established for a health profession must
a)decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or
b)decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or
c)decide to refuse to grant the applicant registration in the health profession if
i)the applicant is ineligible for registration in the profession under a relevant section because the applicant
I.is not qualified for registration; or
II.has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or
III.is not a suitable person to hold registration; or
IVis disqualified under this Law from applying for registration, or being registered in the health profession; or
Vdoes not meet a requirement for registration stated in an approved registration standard for the profession;
…
(2)In this section
relevant section means s 52, 57, 62, 65 or 73.

Effect of Dr Arakkal's specialist registration pursuant to s 270(2) of the National Law or the transitional arrangement

Section 270(2) is a transitional provision. It requires no great imagination to understand that to require the National Board and its State committees to undertake a review of all specialists registered under the previous Act would have been a major undertaking. It is also the case that in most cases it would be expected that a specialist practitioner under the previous Act would obtain specialist registration under the National Law. Under s 112, upon an application for renewal, most specialists would be renewed and if a problem arose then the eligibility for registration would be open to examination.
It is important to bear in mind that a decision to renew a specialist practitioner's registration is discretionary. The National Law clearly contemplates that there may be specialist practitioners who were registered under the previous Act but who do not hold the necessary qualification under the new Act. The fact that a person did not hold a qualification is not a bar to the renewal of a person's registration. The discretion may be exercised in that person's favour so as to enable registration to continue even if he or she does not hold the necessary qualification under s 58 of the National Law. It is not the case that having obtained registration under the National Law a person must necessarily lose specialist registration upon a renewal if they do not hold the qualification required for a new application for specialist registration.
However, Dr Arakkal submits that, in effect, once a person who held a specialist registration under the previous Act obtained registration under the National Law, that registration would be indefeasible and not subject to a determination of whether a renewal be refused on the ground that he or she was not eligible for specialist registration under s 57, because he or she was not qualified under s 58.
It is important to note, as the respondent submitted, that the phrase used in s 270 of the National Law is that a person 'is taken to hold' specialist registration at 1 July 2010. It is a transitional provision that deemed practitioners who held specialist status prior to the National Law to continue to hold it afterwards, until the first requirement of renewal.
The respondent submits that s 270 of the National Law cannot overcome the task imposed by s 112. If practitioners were to be exempted from the express terms of s 112 by reason of their registration under s 270(2) of the National Law, one would expect that to be made clear in a prominent way in the legislation. It has not been. To the contrary, the express words of s 112 operate generally in relation to all specialists seeking renewal. Deemed transitional registration does not protect the applicant from scrutiny on each renewal according to the terms of s 112. This is particularly so given the terms of s 58, which is engaged by s 112. Section 58, the substantive provision dealing with specialist registration, authorises the State Board to consider an applicant's registration under a prior Act in s 58(d). It is not to be expected that s 270 would, through transitional deeming, displace this substantive requirement.
Dr Arakkal submits that while the legislation may not say expressly that practitioners granted specialist registration under s 270(2) of the National Law are exempted from refusal of renewal of their registration under s 112, what it does make clear is that a practitioner who immediately before the participation day is registered as a specialist under the law of a participating jurisdiction, that practitioner is taken to hold specialist registration under the National Law. That must exempt the practitioner from a refusal to renew his or her specialist registration under s 112(2) of the National Law on the ground that he or she is not eligible for registration under s 57 because he or she is not qualified. Equally, the terms of the transitional arrangement must exempt a practitioner from a refusal to renew his or her specialist registration on that ground.
The respondent's submission is correct. It would be an unusual result if registration obtained under s 57 of the National Law were open to review on renewal but not registration obtained under s 270. Dr Arakkal has not advanced any rationale for such a result.
The respondent further submitted that it is inconsistent with the objectives and protective purpose of the National Law to permit a deemed registration under s 270 to preclude a National Board from later considering the eligibility of a person for renewal of registration. Such an interpretation would mean that registration errors could not be corrected by the National Board and that all aspects of a person's eligibility would never be substantively considered under the National Law. The Tribunal agrees with the respondent's submission.
As Dr Arakkal submitted, before the State Board granted Dr Arakkal specialist registration as an orthopaedic surgeon under the National Law in December 2010, pursuant to either or both s 270(2) of the National Law and/or the transitional arrangement, it did not require Dr Arakkal to satisfy it that she was either qualified for specialist registration under the provisions of s 58 of the National Law, or that she was eligible for specialist registration under the provisions of s 57 of the National Law. That was because specialist registration under s 270(2) and the transitional arrangement did not depend upon a practitioner's qualification or eligibility for specialist registration under the National Law, but depended only upon the practitioner being a specialist under the law of a participating jurisdiction or being recognised as a specialist by a State or Territory Medical Board immediately before the participation day.
That submission is entirely consistent with s 270 being a transitional provision to cover a one-off movement of specialist practitioners from the State Register under the Medical Practitioners Act to the National Register under the National Law.
Dr Arakkal then submits that specialist registration under the law of a participating jurisdiction prior to the participation day, or recognition as a specialist by a State or Territory Medical Board prior to the participation day, performed the same function as the various qualification criteria in s 58 of the National Law and the various eligibility criteria in s 57. It both qualified and made eligible a practitioner for specialist registration without any further requirement being necessary.
Dr Arakkal's submission is too broad. Section 270 of the National Law does not both qualify and make eligible a practitioner as a specialist. Section 270 simply provides that a person is taken to hold specialist registration.
Dr Arakkal submits that the terms of the transitional arrangement suggest that practitioners who were granted specialist registration under the transitional arrangement would not be qualified for specialist registration under s 58 or eligible for specialist registration under s 57 of the National Law. Accordingly, it would be inconsistent with the provisions of s 270 of the National Law and the terms of the transitional arrangement, if upon the application by a practitioner who was granted specialist registration under s 270(2) of the National Law and/or the transitional arrangement for renewal of his or her specialist registration under s 112 of the National Law, for his or her application to be refused on the ground that he or she was not eligible for specialist registration under s 57 because he or she was not qualified under s 58 of the National Law.
There is nothing inconsistent in a practitioner being eligible for registration under a transitional provision, s 270 of the National Law, and that registration being subject to assessment on renewal. It is a transitional provision, not a permanent provision. It is difficult to see why a renewal should be subject to examination despite being registered under s 57 but not when the registration is obtained under s 270 of the National Law.
Alternatively, if the provisions of s 270 of the National Law and/or the terms of the transitional arrangement do not of themselves prevent a refusal to renew specialist registration under s 112 of the National Law on the ground that the applicant is ineligible for specialist registration, because he or she is not qualified under s 58, they must at least be powerful factors against the exercise of the discretion to refuse renewal.

Is Dr Arakkal qualified for specialist registration under s 58 of the National Law?

It is not in issue that Dr Arakkal could only qualify under s 58(d) of the National Law.
By satisfying one of the sets of requirements in s 38(2), (3) or (4) of the Medical Practitioners Act, Dr Arakkal would have met the requirements for registration under that Act. It does not follow that because an applicant meets the requirements for registration under s 38(4) that she held a qualification it simply meant that she was entitled to registration.
Dr Arakkal's evidence was that the first time that she applied to be registered under the Medical Practitioners Act was in August 2009, for the period from 1 October 2009 to 30 September 2010. She received Form R, an 'Application for Renewal of Registration', and a Form P, a 'Notification of Registration Details Form P'. Dr Arakkal said that, in the Form P, her name, registration number and date of birth were already completed. In addition, her qualifications were listed in the 'Qualifications' box as 'MBBS, Diploma in Orthopaedics, FRCS (Edinburgh) and AMC Certificate'.
Dr Arakkal completed the Form R and sent it and an unchanged Form P to the Medical Practitioners Board.
Dr Arakkal said that some time after 28 August 2009 she received from the Medical Practitioners Act Board her certificate of registration for the period from 1 October 2009 to 30 September 2010 which showed that she was generally registered under s 30(1) of the Medical Practitioners Act and that she was also registered as a specialist in orthopaedic surgery.
Dr Arakkal submits that on the evidence, the circumstances in which the Medical Practitioners Act Board registered her as a specialist in orthopaedic surgery in Western Australia under s 38 of the Medical Practitioners Act, for the period from 1 October 2009 to 30 September 2010, are not clear.
Dr Arakkal submits that although there is very little evidence as to the circumstances in which the Medical Practitioners Act Board granted Dr Arakkal's specialist registration as an orthopaedic surgeon in Western Australia under the Medical Practitioners Act for the period from 1 October 2009 to 30 September 2010, it should be inferred, from the oral evidence given by Professor Stokes at the hearing, that the Medical Practitioners Act Board did that after considering Dr Arakkal's specialist qualifications, which Dr Arakkal had provided to the Medical Act Board in October 1997, and satisfying itself that Dr Arakkal complied with one of the sets of requirements in s 38(2), (3) or (4). As Dr Arakkal did not hold a FRACS, it should be inferred that the Medical Practitioners Act Board was satisfied that she complied with the set of requirements in s 38(4). The Tribunal is not prepared to draw such an inference.
Although the circumstances in which Dr Arakkal was registered are not entirely clear, some matters are:
a)Neither Dr Arakkal, at the time, or the Medical Practitioners Act Board, ever regarded her return of Form P as constituting an application under s 38(4) (T:49; 29.6.16).
b)Dr Arakkal never submitted any evidence or information to the Medical Act Board or the Medical Practitioners Act Board as to her experience, she only submitted evidence as to her qualifications.
c)Dr Arakkal did not give any evidence of ever having made an application under s 38(4) of the Medical Practitioners Act.
d)Dr Arakkal did not give any evidence that she understood the return of Form P to constitute an application under s 38(4) of the Medical Practitioners Act.
e)There is no evidence of the Medical Practitioners Act Board ever having a meeting at which any application by Dr Arakkal under s 38(4) of the Medical Practitioners Act was ever considered.
Professor Stokes was an entirely credible witness. His evidence at the hearing was:
a)Dr Arakkal does not have the requisite qualifications to hold specialist registration as an orthopaedic surgeon (T:36, 50, 57, 58; 29.06.16).
b)If an applicant did not hold a FRACS, they would need to have their qualification assessed by the Royal Australasian College of Surgeons as being substantially equivalent to an approved qualification, in order to obtain a fellowship (T:38; 29.06.16).
c)The decision of a hospital in relation to specialist privileges would not influence the Medical Act Board's decision in relation to specialist registration (T:40; 29.06.16).
d)Dr Arakkal's initial entry onto the specialist register was made in error (T:43, 44, 48; 29.06.16).
The Tribunal accepts that as a result of his longstanding involvement with the registration of medical practitioners in Western Australia (from 1996 to present Exhibit A page 3), Professor Stokes was clearly well qualified to give evidence regarding the specialist registration process, both prior to and post transition to the National Law.
Dr Arakkal's submissions were critical of aspects of Professor Stokes' evidence. His evidence simply reflects the uncertainty as to how the administrative mistake was made rather than putting in doubt any of the aspects of his evidence set out above.
Although Professor Stokes' evidence was that Dr Arakkal could have qualified as a specialist without formal qualifications under s 38(4), his evidence did not suggest that it was possible that she in fact did.
Dr Arakkal stated that she first became aware that she held registration as a specialist orthopaedic surgeon in 2000 (T:62; 29.06.16).
Despite this, Dr Arakkal continued to pursue a FRACS and applied for admission to the training program in 2001 and 2002 (T:67; 29.06.16), when, by her own admission, she had achieved her career goal of obtaining recognition by the Medical Act Board as a specialist orthopaedic surgeon (T:66; 29.06.16).
Dr Arakkal also gave evidence that, notwithstanding her belief from 2000 that she held registration as a specialist orthopaedic surgeon, she:
a)only held professional indemnity insurance (PII) for private work during the period 1999 to 2010 for surgical assisting (T:69, 70; 29.06.16);
b)did not conduct theatre sessions as a specialist orthopaedic surgeon in private practice during the period 1999 to 2010 (T:71; 29.06.16);
c)did not work as a principal orthopaedic surgeon during the period 1999 to 2010 (T:72; 29.06.16);
d)only worked in a public hospital setting as an assisting surgeon in orthopaedics (T:72; 29.06.16);
e)accepts that the appointment she held as an assistant surgeon, was able to be held with general registration (T:73; 29.06.16);
f)admits that in 2008, she was not a primary principal surgeon, running her own lists and having her own patients (T:77; 29.06.16);
g)it was not until 2010 that the applicant obtained PII as a general surgeon. However, that cover was limited to consulting (T:77; 29.06.16), as notwithstanding her specialist registration status, the applicant was unable to practise as a specialist orthopaedic surgeon in the private sector (T:78; 29.06.16);
i)her appointment at Fremantle Hospital in 2011 was as a supervised orthopaedic surgeon, which required someone to 'keep an eye on [her] work' (T:79; 29.06.16); and
h)in 2000, she was advised by Peter Hales, an orthopaedic Surgeon who specialised in hand surgery, that without a FRACS, she would not be able to practise in hand surgery (T:66; 29.06.16; see also T:8486; 29.06.16).
The Tribunal accepts the respondent's submission that Dr Arakkal has never practised in Australia as a specialist orthopaedic surgeon:
a)running her own lists;
b)having her own patients;
c)practising orthopaedic surgery as an independent, registered specialist orthopaedic surgeon; and
d)conducting orthopaedic surgery, including hand surgery, without supervision.
The inferences to be drawn as to whether Dr Arakkal qualified under s 38(4) of the Medical Practitioners Act are all against her.
The Tribunal finds, on the balance of probabilities, that Dr Arakkal was not registered as a specialist pursuant to s 38(4) and her registration came about, most likely, due to an administrative mistake. There is no evidence that she ever applied for and was granted registration as a result of any decision of the Medical Act Board or the Medical Practitioners Act Board. Therefore, the only reasonable explanation as to how she could have been entered on the register is that it was due to an administrative mistake.
It is not clear how that administrative mistake occurred. There is simply no evidence as to how Dr Arakkal's name was entered on the register as an orthopaedic surgeon.

Conclusions

The Tribunal finds that Dr Arakkal's specialist registration as an orthopaedic surgeon under the Medical Practitioners Act for the period from 1 October 2009 to 30 September 2010, occurred without an application by Dr Arakkal for registration without the Medical Practitioners Act Board considering if she had complied with the set of requirements in s 38(4), much less determined that it was satisfied that she complied with the set of requirements in s 38(4). The Tribunal finds this according to the Briginshaw Standard.
Dr Arakkal did not hold a 'qualification' under the Medical Practitioners Act even if Dr Arakkal met the requirements of s 38(4) of the Medical Practitioners Act. She simply met the requirements under s 38(4), a path to registration that is no longer open to registration under the National Law.
The Medical Practitioners Act Board did not at any time consider an application from her registration as a specialist orthopaedic surgeon and therefore she was not registered under the National Law or a corresponding prior Act on the basis of holding a qualification for the speciality.
Dr Arakkal is not qualified for specialist registration under s 58(d) of the National Law.
Although the respondent's submissions raised issues about the safety of the public in relation to Dr Arakkal's registration as a specialist, those considerations are not relevant to the resolution of her application.
Dr Arakkal did not and is not qualified as a specialist orthopaedic surgeon.
In those circumstances, the correct and preferable decision is not to renew Dr Arakkal's specialist registration.

Order

1.The application is dismissed.

I certify that this and the preceding [176] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT