Elobadi v Royal Australasian College of Surgeons
[2013] WASC 29
•31 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ELOBADI -v- ROYAL AUSTRALASIAN COLLEGE OF SURGEONS [2013] WASC 29
CORAM: McKECHNIE J
HEARD: 11 - 14 SEPTEMBER 2012
DELIVERED : 31 JANUARY 2013
FILE NO/S: CIV 2353 of 2010
BETWEEN: BARAA SALH ELOBADI
Plaintiff
AND
ROYAL AUSTRALASIAN COLLEGE OF SURGEONS
Defendant
Catchwords:
Professions and occupation - Application to become a Fellow of Royal Australasian College of Surgeons - International medical graduate - Qualifications assessed as 'not comparable' - Re-assessment - Contact surgeons who supervised plaintiff - Whether rules of natural justice breached - Failure to convene appeal tribunal - Whether procedurally unfair
Legislation:
Nil
Result:
Action dismissed
Category: B
Representation:
Counsel:
Plaintiff: Ms W F Gillan
Defendant: Ms P E Cahill SC & Mr B Lloyd
Solicitors:
Plaintiff: Lawfield Legal Practice
Defendant: Gadens Lawyers
Case(s) referred to in judgment(s):
D'Souza v Royal Australia and New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42
McKECHNIE J:
Introduction
Dr Elobadi is a surgeon who trained and qualified in Iraq before travelling to Australia.
He has worked as a surgical registrar in a number of hospitals while assiduously pursuing admission to the Royal Australasian College of Surgeons (RACS).
A stumbling block has been the difference of opinion between he and RACS as to what constitutes comparability for admission.
Dr Elobadi contends that he satisfies the criteria for classification as 'partially comparable' while the RACS has repeatedly assessed him as 'not comparable'.
He is correctly classified as 'not comparable' and therefore his claim for a declaration and his claim for breach of contract must fail. Even if there has been some unfairness in the process, a further evaluation applying the guidelines of the policy must inevitably reach the same conclusion.
Dr or Mr
Consultant surgeons are courteously referred to as 'Mister'. No witness stood on ceremony and each was content to be referred to as 'Doctor'. However, in the course of these reasons I shall refer to specialists as 'Mr' and to Mr Newman as 'Professor', his correct title.
The presentation of evidence
The parties called witnesses and supported their cases with extensive documentation. The provenance of the documentary evidence was not in contention though the construction of some documents was.
The oral testimony may be conveniently divided into categories.
The plaintiff
Dr Elobadi gave direct evidence of his medical background and his attempts since 2003 to have his qualifications and experience recognised as 'partially comparable' in order to gain admission to the International Medical Graduate (IMG) programme administered by RACS.
RACS administrators
Dr David Hillis specialises in medical administration and has been the Chief Executive Officer of RACS since 2003. His evidence specifically related to his decision in 2009 not to convene the Appeals Committee following an application to do so by Dr Elobadi.
Mr Glenn Petrusch is Director of the Education and Training Administration Division of RACS. His has management responsibilities for the Surgical Education and Training (SET) programme previously known as the Specialist Surgical Training (SST) programme.
From 2007 Mr Petrusch also has management responsibilities for the IMG programme.
The assessors
Mr Andrew Roberts is a vascular surgeon, a Fellow of RACS and Clinical Director of IMG assessments. He performed two assessments of Dr Elobadi in May 2008 and in July 2009.
Mr Richard Bunton is a cardiothoracic surgeon and a Fellow of RACS, currently Chair of the College Board of Cardiothoracic Surgery.
As Deputy Chair he carried out an assessment of Dr Elobadi in 2009.
The referees
Mr Alvarez is a Fellow of RACS. Until August 2010 he was a consultant surgeon at Sir Charles Gairdner Hospital. From 2001 until he left, Mr Alvarez was the RACS supervisor for trainees of cardiothoracic surgery, having supervised many trainees. Mr Alvarez had daily contact with Dr Elobadi from his arrival in 2009 until he left Sir Charles Gairdner Hospital.
Professor Mark Newman is Clinical Professor of Surgery at the University of Western Australia and a Fellow of RACS.
He has been Director of Cardiothoracic Surgery at Sir Charles Gairdner Hospital since 1993. Professor Newman was Head of the Unit during the time Dr Elobadi worked at Sir Charles Gairdner Hospital.
The plaintiff
Dr Baraa Salh Elobadi graduated from the University of Baghdad, College of Medicine on 31 July 1992 as a Bachelor in Medicine and Surgery. After graduation he underwent post graduate study with the Iraqi Commission for Medical Specialisation, which is equivalent to RACS, and is composed of specialists who are United Kingdom graduates in their designated speciality.
Between 1992 and 1994, Dr Elobadi underwent 24 months of medical training as an intern in different medical specialties including general surgery, casualty and urology.
In January 1995, he chose the speciality of thoracic and cardiovascular surgery which was a five year course. He was accepted as post graduate student in cardiothoracic surgery in 1995 having passed the required written examinations and documentary proof of intern training. Dr Elobadi completed the first two years of this training at Saddam Cardiac Centre for cardiac surgery under Dr Emad Al Mashat. He underwent and completed the next three years, from April 1997 to May 2000, at the Ibn‑Al‑Nafees Hospital under Dr Mustafa Al Ward. He was conferred the 'Fellowship Certificate' following his graduation from the Iraqi Commission for Medical Specialisation.
In January 2001 Dr Elobadi left Iraq, arriving in Australia in August 2001. He was granted a temporary protection visa and on 17 September 2007 became an Australian citizen.
From March 2002 until December 2003 Dr Elobadi undertook full‑time studies for the Australian Medical Council exams, and clinical attachment at the Royal Melbourne Hospital in the Cardiothoracic Surgery Department.
He first made application to RACS for recognition as an overseas trained doctor in July 2003. He was seeking specialist assessment and admission as a Fellow of RACS. Dr Elobadi's qualifications have not been accepted by RACS as 'partially' or 'substantially comparable'. He brings this action after his latest application was rejected. He is now unemployed.
The defendant - Royal Australasian College of Surgeons (RACS)
The Royal Australasian College of Surgeons is a company formed in 1931 and limited by guarantee. Mr Petrusch described the College as an internationally recognised body that is responsible for, amongst other things, determining and maintaining professional standards for the practice of surgery in Australia and New Zealand. The College has established the status of Fellowship of the College and assesses and admits appropriately qualified medical practitioners to that status in different specialities. Through Fellowship comes recognition within the profession, community and government, of the practitioner's specialist status.
Pathway to Fellowship
Mr Petrusch is the Director of Education and Training Administration Division of RACS. There are two programmes through which medical practitioners can become competent specialist surgeons and achieve Fellowship of the College. They are the Surgical Education and Training Programme (the 'SET Programme') and the International Medical Graduate Programme ('the 'IMG Programme'). Dr Elobadi has applied for admission through the IMG Programme.
Both the SET Programme and the IMG Programme involve cooperation between RACS and various speciality boards. In the case of Dr Elobadi, this is the Cardiothoracic Surgery SET Programme. RACS and the Australian and New Zealand Society of Cardiac and Thoracic Surgeons (ANZSCTS') have an agreement for the administration of the Cardiothoracic Surgery SET Programme.
The SET Programme
The normal avenue through which an Australian medical practitioner gains admission to RACS and speciality practice is through the SET Programme. The policy is to be found at Exhibit 146.
The selection criteria is set out at 3.3.4:
A minimum of three selection tools must be used and these must include a structured curriculum vitae, confidential referee reports or professional performance appraisals and a semi‑structured interview.
Selection to the SET Programme is a competitive process in which an applicant is evaluated and ranked against other applicants according to the evaluation criteria. A fixed number of applicants, based on the number of vacant accredited training posts in that speciality available at that time, are admitted to the programme according to their ranking. This requires the cooperation of the participating hospitals where the training takes place. There are a finite number of positions within each speciality and RACS is not the sole determinant as to who gets access to these positions. The limitations are created by the surgical workloads, the presence of appropriate supervisors within the hospitals as well as the willingness of the hospital to employ the trainees.
The SET Programme aims to equip surgeons with the following competencies:
(a)technical expertise;
(b)medical expertise;
(c)judgment - clinical decision making;
(d)communication;
(e)collaboration;
(f)management and leadership;
(g)health advocacy;
(h)scholar and teacher; and
(i)professionalism and ethics.
RACS maintains a criteria for Minimal Operative Experience. This is set out in trial book (Exhibit 135). In each year of four, the trainee must be First assistant at 150 (coronary/valve/aortic) cases and perform a series of procedures under supervision. Thoracic surgery requirements are also set out. RACS has a policy of recognition of prior learning which can shorten the period of SET trainings. SET assessment is competency based. A trainee with competency may be able to establish competency more quickly and can progress quickly as a result.
Dr Elobadi applied for a training position in 2006 within the SET Programme in cardiothoracic and general surgery but was unsuccessful. He has not applied again but has persisted with the IMG programme.
International Medical Graduate (IMG) Programme
For medical practitioners trained overseas, such as Dr Elobadi, RACS conducts assessments to ascertain whether the applicants have a comparable level of training and expertise as those trained in Australia and New Zealand. Those who can demonstrate they have received comparable training and are functioning at a comparable level as an Australian and New Zealand trained specialist can be admitted to Fellowship without undergoing the training required of new applicants; in other words, completion of the SET Programme.
IMG Assessment Policy (Exhibit 48)
1.PURPOSE AND SCOPE
The purpose of this policy is to define the assessment of International Medical Graduates (IMGs) in Australia according to the directions of Council and taking into account the relationship between the College and the Australian Medical Council (AMC).
The purpose of this policy is to define the assessment of International Medical Graduates' suitability for independent specialist surgical practice in Australia, according to the directions of Council and taking into account the relationship between the College and the Australian Medical Council.
The normal pathway to independent specialist surgical practice involves obtaining Fellowship of the College by completing a training program and exit examination. Under these circumstances the Australian jurisdictions and public can be assured both of the quality of training and the standards of the exit examination as all aspects are under the aegis of the College.
This policy defines the process for assessing the comparability of International Medical Graduates to holders of the College Fellowship, and hence their suitability for independent surgical practice.
Any IMG seeking Fellowship of the College will be assessed in accordance with this policy.
Comment
The policy is to assess suitability for independent specialist surgical practice. The point at which a doctor reaches the required level of expertise is a point of contention between the parties. Independent specialist surgical practice is the goal. The policy recognises that goal is not necessarily reached at every prior stage, hence the possibility of assessment as 'partially comparable'.
Because of this assessment possibility Dr Elobadi cannot be assessed as if he was in all respects ready for consultant practice. If he was ready he would be assessed at 'substantially comparable' level.
The assessment process is comprehensive. At 3.1.1, documents must be verified:
3.1.2The specialist assessment of the IMG focuses on education, training, quality, quantity and scope of clinical experience, level of formal assessment including specialist qualifications in surgery, recency of relevant practice (ie practice within the last 2 years) and relevant professional skills and attributes in order to determine substantial comparability with Australian standards.
RACS considers applications under two categories. Dr Elobadi applied to be awarded recognition as a Fellow to practice as an independent specialist. A specialist assessment is principally document based. It may include a face‑to‑face semi‑structured panel interview only with IMGs who are deemed from the document based assessment to provide sufficient evidence of specialist training:
3.2Assessment standards:
3.2.1A Specialist Assessment focuses on surgical qualifications and clinical experience in order to determine substantial comparability with a surgeon who has trained in Australia.
3.2.2An Area of Need assessment focuses on surgical qualifications and clinical experience in order to determine substantial comparability with a surgeon who has trained in Australia with regard to the defined scope of practice. The level of experience of the IMG is assessed against a specified set of criteria derived from the requirements stated in the position description for the AoN position. The College will also undertake an assessment of the AoN position to make a determination on whether the position should be approved. The assessment will include a review of the workplace infrastructure and professional support relating to the position description.
There are three assessment recommendations: 'not comparable', 'partially comparable' and 'substantially comparable'. Comparability in each case is against an Australasian trained surgeon; one who has among other things completed the SET programme.
Assessment Recommendation: Not Comparable
3.3.1An IMG will be deemed not comparable if:
a.There is insufficient evidence of recency of specialist surgical practice in the relevant specialty comparable to that of an Australian or New Zealand trained surgeon in the specialty; or
b.There is insufficient evidence of completion of a comparable specialist training program to the College programs including the competencies, skills and attributes; or
3.3.2Where an applicant is deemed not comparable they will be referred to the AMC to fulfil AMC requirements for medical registration and advised to apply in open competition to enter the College's Specialist Education Training (SET) program for further training.
3.3.3An IMG may be assessed as not comparable on the basis of a document‑based assessment alone, or by a subsequent assessment interview.
An IMG must satisfy both criteria to avoid non‑comparability:
•recent specialist surgical practice comparable to an Australian surgeon;
•a comparable specialist training programme to RACS.
The first criterion is controversial in this trial. Dr Elobadi claims he fulfils the criteria at least to the extent of being classified as 'partially comparable'. RACS disputes this.
The second criterion has never been achieved. In 2003 Dr Elobadi's application was rejected because he could not satisfy the training programme requirement. He has never been through a comparable training programme.
Mr Alvarez makes good points in relation to Dr Elobadi's skill and competence. He regards the intensive mentoring he has performed with Dr Elobadi as equivalent to training. However, Dr Elobadi was unsuccessful in his application for admission into the SET programme and therefore remains 'not comparable'.
Assessment Recommendation: Partially Comparable
3.4.1Following a paper‑based assessment and an interview, an IMG will be deemed partially comparable if:
a.There is evidence of recency of surgical practice in the relevant speciality; and
b.There is evidence of completion of a specialist training program comparable to the College programs including the competencies, skills and attributes; and
c.The applicant has not completed a comparable exit examination to the College Fellowship Examination and/or the depth and scope of surgical practice in the specialty since the attainment of their surgical qualification is not of a sufficiently high standard or duration as to waive the need to sit the Fellowship Examination.
It is common ground that Dr Elobadi has not completed a comparable exit examination.
To fulfil the other criteria he is required to demonstrate:
•recent surgical practice in the relevant speciality;
•completion of comparable specialist training programme.
Fulfilment of the second criterion remains a difficulty for Dr Elobadi.
Fulfilment of the first criterion is controversial. Dr Elobadi has been an active surgical registrar. Mr Alvarez's opinion is that he has achieved the criteria for thoracic surgery and with more training will achieve the criteria of partial comparability for cardiac surgery.
Professor Newman disagrees that Dr Elobadi has fulfilled the criteria. Unlike Mr Roberts and Mr Bunton, who based their assessment on the documents, both Mr Alvarez and Professor Newman have actually observed Dr Elobadi in the operating theatre and carrying out his other duties.
Despite my caution about Professor Newman's evidence, each professional opinion commands respect and weight.
Mr Roberts and Mr Bunton had Dr Elobadi's logbooks made available to them. Mr Roberts did not think the logbooks gave him sufficient understanding of the level at which Dr Elobadi was operating which is why he spoke with Professor Newman.
Mr Roberts did not change his opinion after receiving Mr Alvarez's letter of 21 April 2010.
Mr Roberts assessed Dr Elobadi as functioning at the level of a registrar or an advanced trainee and was not at the level of an Australasian trained cardiothoracic surgeon.
The level of surgical practice at which Dr Elobadi must be assessed is a point of difference between the parties.
Mr Roberts is correct.
The essential difference between 'partially' and 'substantially comparable' is completion of the exit examination or its equivalent.
The surgical requirement is identical. On satisfactory completion of the exit examination, the surgeon must be capable of functioning immediately at specialist surgical level.
Dr Elobadi has failed to demonstrate this level of competence in surgical practice.
Mr Bunton was more flexible in relation to surgical experience. He accepted that Dr Elobadi has substantial surgical experience though he still did not consider Dr Elobadi met the criterion. Mr Bunton focussed on the other criterion; that of training. He considered that Mr Alvarez's letter did not address the criterion for comparable training noting that the SET programme goes beyond competency in surgery and covers non‑clinical areas of competency.
Dr Elobadi has failed to demonstrate completion of a comparable specialist training course.
Mr Bunton is correct.
Assessment Recommendation: Substantially Comparable
3.5.1Following a paper-based assessment and an interview, an IMG will be deemed substantially comparable if:
a.There is evidence of recency of surgical practice in the relevant speciality; and
b.There is evidence of completion of a specialist training program comparable to the College programs including the competencies, skills and attributes; and
c.There is evidence of successful completion of an exit examination comparable to the College Fellowship Examination and/or the depth and scope of surgical practice in the specialty is of a sufficiently high standard as to waive the need to sit the Fellowship Examination.
3.5.2In exceptional circumstances an IMG may be assessed as exceeding the standard of substantial comparability to an Australian or New Zealand trained surgeon within a defined scope of practice. Where the defined scope of surgical practice is considered valuable to the community and conforms to the goals of the College and speciality discipline, the IMG may be recommended to Fellowship within this defined scope of practice. Please refer to the policy on Authorisation to Approve Fellowship Pursuant to Article 21.
3.5.3Where an IMG is deemed substantially comparable they will be required to:
a.Undertake a designated oversight period of between 12 months and 24 months; and
b.Successfully complete any additional skills courses nominated by the Assessment Panel; and
c.Apply for Fellowship under Article 21.
The policy further provides for Subsequent Assessments, when an assessment is no longer valid, or though still valid the IMG submits new data or a complaint or appeal has resulted in a recommendation for re-assessment.
The IMG application process
Fees are charged for the assessment and it is not in issue that Dr Elobadi and RACS are in a contractual relationship.
Mr Petrusch sets out the typical process of an IMG application. First, the documentation submitted by the IMG applicant is checked for completeness by College administrative staff. Once all documentation has been made available to the College, the Clinical Director makes the first assessment of comparability, reviews the training records and documents submitted by the IMG that demonstrate that surgical experience including the candidate's surgical logbooks. In some cases, referees may be contacted to clarify the written reference by discussing in more detail the role that the candidate has fulfilled and to which the reference relates. The Clinical Director may also contact the Head of Unit from the hospitals for which the surgical logbooks have been submitted. This is a matter of discretion for the Clinical Director.
A representative of the Specialty Board will then make an assessment. If both assessments are that the IMG applicant is 'not comparable', the candidate is not invited to interview but is advised of the reasons why that assessment has been made. If there is consensus between the Clinical Director and the representative of the Speciality Board that the IMG is 'partially' or 'substantially comparable' the candidate is invited to interview. Where consensus does not exist the Deputy Chair will be invited to consider the material and will decide if the IMG should be interviewed.
An applicant dissatisfied with the assessment can apply to have the assessment reviewed or submit material for a new assessment. An applicant can also appeal.
First application for assessment 2003
Dr Elobadi first applied to RACS in 2003. On 11 November 2003 (Exhibit 10) RACS, through Professor Davidson, wrote to the Australian Medical Council noting the college had undertaken a specialist assessment involving review of documentation and interview and recommending that Dr Elobadi's qualifications are not 'substantially comparable' to that of an Australasian trained cardiothoracic surgeon. The letter continued:
In order to obtain substantially comparable specialist standards, it is recommended that:
1.Dr Elobadi should successfully complete the RACS Part I OSCE examination and Completion 3 skills courses - the Emergency Management of Severe Trauma (EMST) Course; the Basic Surgical Skills (BSS) Course; the Care of the Critically Ill Surgical Patient (CRrISP) Course.
2.Dr Elobadi applies, to enter and complete the entire advanced surgical training programme in the Specialty of Cardiothoracic Surgery.
3.On satisfactory completion of Dr Elobadi's advanced cardiothoracic surgical training, Dr Elobadi should present for and satisfactorily complete the RACS Part II Examination in the Specialty of Cardiothoracic Surgery.
Upon successful completion of the Part II examination in the speciality of Cardiothoracic Surgery, Dr Elobadi would be awarded a Fellowship of the College, a specialist registrable qualification in Australia and New Zealand.
Following the assessment, Dr Elobadi was employed from January 2004 to January 2005 on a full‑time basis as Senior Registrar at The Prince Charles Hospital, Brisbane, at the time Australia's largest cardiac centre. He completed a summary of Australian Operating Experience (Exhibit 17) which was generally referred to in the trial as a logbook.
In order to practise as a registrar Dr Elobadi was granted special specialist registration to enable him to undertake post graduate training in cardiothoracic surgery at Prince Charles Hospital. This was not accredited work.
Dr Elobadi then moved to Geelong Hospital between the period February 2005 to February 2006 where he was employed full‑time as a Senior Registrar in Cardiothoracic Surgery. He left after one year because he did not like Geelong weather. His logbook for the period is Exhibit 18.
On 22 May 2005 Dr Elobadi completed the Basic Surgical Skills Course according to the standards established by the Board of Basic Surgical Training; on 17 February 2006 the Care of the Critically Ill Surgical Patient; and on 15 March 2006 the Board's Basic Surgical Training Clinical Examination.
Moving from Geelong Dr Elobadi was employed full‑time as a Senior Registrar in Cardiothoracic Surgery for two years, from February 2006 to January 2008 at the Canberra Hospital, completing a logbook (Exhibit 34).
During the period when he was employed from 2004 to 2008, Dr Elobadi said that he gained experience, including providing in‑patient care in the surgical wards, consultation with pre‑op and post‑op patients, reviewing patients in the out‑patient clinic, ICU duties, assisting in many cardiothoracic surgical procedures and performing many on his own, attending clinical conferences, scientific meetings, presenting audits and journal club articles and providing an appropriate level of supervision to the resident medical officers.
Application for Re-assessment - 6 September 2006
This application for re‑assessment is Exhibit 21. Dr Elobadi provided five reasons for re-assessment:
1.According to my Australian logbook that I provided to you, I completed more than 70% of operative requirements for the advance surgical training in cardiothoracic surgery in Australia.
2.I haven't provided my overseas logbook when I had my assessment in 2003, it wasn't available for me because of communications problems with overseas. I provide it to you now. If you consider my overseas operative experience, in which large numbers of procedures had been done by me, it will exceed the operative requirements for the advance surgical training in cardiothoracic surgery in Australia. My Australian logbook is an extension for this logbook.
3.I completed all the requirements of part I which had been requested from me when I had my assessment in 2003.
4.Application for AST program in cardiothoracic surgery will not give any advantage for my operative experience, and the interview is uniform questions for all the applicants, in which my previous performance will not be considered and will not be assessed. The reassessment process is more transparent than the application for AST in which my experience will be considered.
5.My referee reports that I provided to you with the logbook, and after discussion with my supervisors, I don't think I need to do more training in Cardiothoracic surgery for my specialist degree to be recognized.
Of importance, Dr Elobadi noted under 'Contact referees' (Exhibit 22) the following:
I elected the following Australian referees, their reports are attached. I prefer to be informed if you want to contact any referee who are not nominated in this list to eliminate any comments or report that is personal or discriminated.
This acknowledgement that there may be consultation with referees who are not nominated shows Dr Elobadi's knowledge that such a course might be implemented in this action. Dr Elobadi complains in these proceedings that his application was discussed with Professor Newman and Dr French but not discussed with Mr Alvarez.
The re‑assessment (Exhibit 23) commented:
Has not yet fulfilled requirements of SST [the predecessor of SET].
The review of the re‑assessment documents was by Mr Skillington who reported to RACS by letter on 6 November 2006 (Exhibit 25):
[He] claims that his qualifications are now comparable to that of an Australian RACS Trainee who has sat the FRACS. Whilst his log book statistics have improved, this does not alter the situation at all, and his training is definitely not comparable to an FRACS Trainee. Most of the surgeons who are accepted under oversight have worked in a consultant position in Australia, and he has not done this. ...
In addition, he applied in open competition for a training position this year, and was unsuccessful, being in the lower quartile.
The Censor In Chief wrote on behalf of the RACS to Dr Elobadi on 9 November 2006 (Exhibit 27) as follows:
The College has undertaken a document-based review Specialist Assessment.
On the basis of the information supplied, in order to obtain substantially comparable specialist standards to an Australian and New Zealand trained cardiothoracic surgeon it is the recommendation of the College that you apply to enter and complete the Surgical Education Training (SET) Program. The College recognises that you have completed many of the requirements of SET 1 and thus consideration may be given for 'prior learning'.
Further feedback was provided by RACS to Dr Elobadi on 13 November 2006 (Exhibit 28):
•You have fulfilled the requirements of Basic Surgical Training.
•You have not undergone a Specialist Surgical Training program comparable to the Royal Australasian College of Surgeons Specialist Surgical Training program.
•You have not passed an exit examination comparable to the College Fellowship examination.
•Your recent experience over the last three years is not that of an Independent practicing Specialist in the field of cardiothoracic surgery.
Over the last three years you have held the following positions:
•Cardiothoracic surgery registrar, Prince Charles Hospital, Jan 2004 - Jan 2005
•Cardiothoracic surgery registrar, Geelong Hospital, Feb 2005 - Feb 2006
•Cardiothoracic surgery registrar, Canberra Hospital, March 2006 - present.
These positions are service positions and do not form a part of the Royal Australasian College of Surgeons training program in cardiothoracic surgery. These are not accredited training posts and you have not been accepted into the cardiothoracic surgery training program during this time.
The College has undertaken a thorough review of your education, training and experience and the Recommendation that you are not comparable to an Australian trained Specialist Surgeon is based on objective criteria that are applied to all post graduate medical practitioners applying to obtain Fellowship of the Royal Australasian College of Surgeons.
Dr Elobadi complained about the assessment and RACS convened a Censor In Chief Decision Committee to review the complaint. The results are expressed in a letter to Dr Elobadi dated 13 December 2006 (Exhibit 29):
The Committee upheld the Cardiothoracic Board's decision concerning your application to the Cardiothoracic training program process for the following reasons:
•The College processes were followed.
•The decision was that of the Board not the Chair.
•The selection process was numerical and objective and not subjective.
•You were assessed fairly and properly.
The Committee upheld the International Medical Graduates (IMG) Assessment Panel's recommendations concerning your specialist assessment for the following reasons:
•The College processes were followed.
•The Clinical Director and the Board Chair independently determined that you are not substantially comparable to an Australian trained surgeon.
•The 3 employment positions held by you were not comparable to training positions.
•You were assessed fairly and properly.
Dr Elobadi was cross‑examined about his knowledge of what he understood:
You asked for some feedback about your 2006 reassessment, didn't you?---Absolutely I did.
At page 156 through to 157, that's the letter that gives you the feedback?---Yes.
You understood that that was an explanation of why you were not deemed partially or substantially comparable in 2006?---That's absolutely right.
...
[Y]ou understood when you read this letter, didn't you, that the college's position was that you didn't have comparable training to an Australasian-trained surgeon?---I understood that, (ts 191).
...
[T]hey didn't think the training in Iraq that you had had was comparable. You understood that?---I did understood that, yes.
They also took the view that the work that you had done in Australia after you had arrived here didn't amount to comparable training either?---I did understand, yes.
Either independently or together with your Iraq training?---I did, yes.
You also knew from this letter, didn't you, that the college took the view that your experience in Australia over the last three years was not equivalent to an independent practising specialist?---I understood that was the college opinion but I don't agree with that (ts 193).
...
I have some reservation (indistinct) because I did practise not as a consultant level. I did operate under supervision.
...
If it's specialist consultant and independent practice (indistinct) answer, this wasn't my position. I was in a position of a senior registrar (ts 194 ‑ 195).
...
So once again, you well understood didn't you that from the college's position, through the appeals committee, the logbooks were deficient: they weren't sufficient to demonstrate comparability? I know you disagree with that, but you understood that was their position didn't you?---I understood that was the position of the board of the cardiothoracic surgery (198).
After being taken to Dr French's letter, in cross‑examination:
[I] did appreciate I wasn't doing much independent surgeries at that time when Mr Bruce [French] wrote this letter because I was very new to the hospital and all the time when you go for hospital, depend on your expectation, depend on your supervisor. You may take some time before you take over control and operate independently, but I was very confident that this segment that wrote by Mr French - that I will achieve independent operator in probably the second half of the year (ts 202).
Dr Elobadi exercised his right to appeal against the decision and the appeal Reasons for Decision form Exhibit 30. Dr Elobadi appealed against both the decision not to select him to the Advanced Surgical Training Program and not to grant re-assessment as an IMG. After noting several flaws in the procedure, the committee concluded:
Dr Elobadi also produced evidence, through log books and other material, to suggest that he should be regarded as equivalent to an Australian trained surgeon. However, the evidence before the Appeals Committee indicated that the level of procedures confirmed in Dr Elobadi's log books were not at the level expected of a fully trained Australian candidate, and therefore would not be considered comparable.
In addition, evidence before the Appeals Committee confirms that Dr Elobadi's experience in Australia in a service position is not equivalent to years spent in the College's Training Program, due to the lack of structured education and training, supervision, regular assessment and mentoring that occurs in a structured training program. Years spent simply in a service position do not automatically equate to the number of years that may have been spent in the Surgical Training Program.
Accordingly, the Appeals Committee confirms that, based on the material available to the Board, and now available to the Appeals Committee, Dr Elobadi would not be regarded as comparable to an Australian trained surgeon, and that therefore reassessment was not appropriate in the particular circumstances.
Comment
This second last passage neatly encapsulates the fundamental difference between the parties. Dr Elobadi, in his application in 2006, and indeed in the application in 2009, which is the subject of this action, seems to equate more experience with more training. Hence, his reliance on the logbooks. But he was assessed as 'not comparable' in 2003, again in 2006 and all that has changed is that he has now had more experience. A basic reason for non‑comparability has not changed. Dr Elobadi has not completed a training programme.
Further employment
From January 2008 to January 2009 Dr Elobadi was employed full‑time as a Senior Registrar in Cardiothoracic Surgery at Liverpool Hospital in New South Wales. His logbook is an attachment to the Application for Speciality Assessment (Exhibit 53).
Re‑Assessment 2008
Dr Elobadi applied for re-assessment on 26 May 2008 (Exhibit 38). RACS responded on 10 July 2008 requiring further information and more details from referees (Exhibit 39).
On 30 July 2008 Dr Elobadi was advised that RACS had agreed to undertake a re-assessment as a paper‑based assessment (Exhibit 42). A paper‑based assessment is permitted. The re‑assessment was provided by Mr Andrew Roberts (Exhibit 44). The assessment shows under the heading Logbooks the comment 'No Audit supplied. He is functioning at registrar level and not in Specialist Practice'. The recommendation is 'not comparable' and:
Comments
The recent additional material provided including log book and updated Curriculum Vitae do not provide grounds for alteration of the original assessment.
Consideration of 'prior learning' as indicated in letter dated 9/11/2006 by then CIC, Ian Gough, still applies.
These reasons by Mr Roberts were essentially the same as reasons given to Dr Elobadi by the Censor in Chief of RACS on 21 August 2008 (Exhibit 49).
Comment
Again this highlights the essential difference between the parties. The evidence establishes that Dr Elobadi is functioning well at registrar level and gaining experience. However, to achieve a classification of 'partially' or 'substantially comparable', his training and experience must be at a much higher level than he has demonstrated.
Further employment
From January 2009 to January 2011 Dr Elobadi was employed as a Senior Registrar in Cardiothoracic Surgery at Sir Charles Gairdner Hospital.
Re‑assessment application - 29 June 2009
This is the re‑assessment which forms the basis of the claim for a declaration and damages for breach of contract. On 29 June 2009 Dr Elobadi made application for re‑assessment submitting comprehensive documents in support.
The assessment by Mr Roberts (Exhibit 67) recommended at Recommendation 1 is 'not comparable'. The reasons given by Mr Roberts, the Clinical Director, are in a letter dated 6 August 2009 (Exhibit 75):
•Specialist surgical training undertaken is not of comparable standard to the training program of the College.
•A comparable exit examination has not been completed.
•Evidence of recency of active specialist surgical practice is not comparable.
•Logbook numbers not comparable to an Australasian Cardiothoracic trainee.
The letter continued:
If you wish to obtain substantially comparable specialist standards to an Australian and New Zealand trained Cardiothoracic Surgeon you will need to undertake further training.
Dr Elobadi's subsequent request for an appeal was denied and this forms the second part of his claim for a declaration.
On 26 August 2009 solicitors for RACS wrote (Exhibit 89):
Under the Appeals Policy, the Chief Executive of the College is not to convene the Appeals Committee unless he is satisfied that there are valid grounds for appeal. Given that there is no new material in your recent assessment, and therefore no new material applicable for an appeal, the Chief Executive has reached the conclusion that there are no valid grounds for an appeal. The same issues considered by the Appeals Committee in 2008, apply in this case. It would amount to a re‑hearing of the same matter.
Comment
To be comparable with an Australian trained doctor, Dr Elobadi would have to provide evidence that he has either been through the SET programme or possesses knowledge, training and experience equivalent to the SET programme. This he has consistently been unable to do. His overseas qualifications and experience were assessed as 'not comparable' as long ago as 2003. This is a fundamental stumbling block to success of his claim either in this court or upon re-assessment.
Mr Petrusch explained that a logbook which achieves or even exceeds the numbers out of the SET programme does not satisfy the requirements of the SET programme because the procedures would not necessarily have the educational value of procedures which have been performed in an appropriate training environment (Exhibit G at par 13).
A logbook outside the (SET programme) is different to a logbook inside the programme:
I'm saying there that a logbook outside the [SET] program is different to a logbook inside the program and it depends on the classification of what the surgeon or the trainee has undertaken, and it is not just a numbers game.
Okay, because what the logbook is meant to show, what the logbook is meant to be a demonstration of is having achieved particular levels of surgical competency isn't it?---Surgical experience.
Experience, yes?---Competence is judged through the assessment, through regular assessments and the observation of the supervisor.
...
[T]he SET program is designed to teach a trainee competence as a surgeon, taking into account the numbers of operations they've done, the quality of their performance and the non-technical such as how they relate to the patient, to the staff; all those activities, but it is a competence.
Those non-technical aspects and the ability as a surgeon are reported to the college by the SET supervisors, aren't they?---Yes.
And Dr Alvarez was a SET supervisor. You are aware of that, aren't you? For 11 years?---I am aware, yes, that he supervised trainees.
...
During that time in 2009, Sir Charles Gairdner was a hospital at which cardiothoracic trainees in the SET program were sent for training?---It would have had an accredited post, yes (ts 335 ‑ 336).
Dr Elobadi disagrees with assessment as 'not comparable' because he considers that he does fulfil the criteria. Exhibit 135 is the Criteria for Minimal Operative Experience. Dr Elobadi says:
My log book for the 2009 assessment (for Australian and overseas operations) establishes the following:
93.1For coronary by-pass operations I have performed 85 such operations referred to in the log book submitted for my 2009 assessment. The RACS minimum standard is 75 such operations. I have performed more than 15 such operations on my own (without having a surgeon scrubbed with me).
Of the 85 operations, 75 have been in Australia and 10 in Iraq.
93.2For heart valve surgery, I have performed 35 operations; the RACS minimum standard is 15.
Of the 35 operations, 30 have been in Iraq and 5 in Australia.
93.3For major thoracic operations I have performed 108; the RACS minimum standard required is 55.
93.4For paediatrics operations I have performed 48 such operations; the RACS minimum standard requirement is 10.
None of those major thoracic or paediatric operations have been in Australia.
Dr Elobadi asserts:
95.I have been undertaking precisely the same work as an RACS trainee on units accredited by the RACS. Mr French was the RACS‑appointed Supervisor at the Liverpool Hospital, NSW, in 2008 and I worked under his supervision. Mr Alvarez was the RACS-appointed Supervisor at Sir Charles Gairdner Hospital, WA, from 2001 until August 2010 and I have worked under him from January 2009 to August 2010. Dr John Dunning is internationally recognised in the cardiothoracic area and is one of most eminent and highly credentialed cardiothoracic surgeons. He was leading QLD state in heart and lung transplant surgery. I worked under his supervision in 2004. He was not an RACS-appointed Supervisor at this time. Mr Dunning was appointed Medical Director of the Prince Charles Hospital in 2006.
Mr John Tharion is also a very highly credentialed well-known eminent surgeon and I worked under him at ACT.
Accordingly, I have worked under either Supervisors appointed by RACS or very well-known, highly credentialed eminent surgeons.
Letter in RACS file (Exhibit 57):
In regard of Liverpool Hospital logbook, I believe Mr French has outlined in his letter my operative experience, I will only provide you with logbook if I operated entire cases on my own, and I haven't done this yet at Liverpool hospital while I have done it in other hospitals as it appeared in my previous logbook that had provided to you before.
Dr Elobadi was cross‑examined about his training.
In 2003 Dr Elobadi was not seeking admission to the Fellowship to become a consultant:
I was seeking at that time maybe some recognition of my Iraqi practice, maybe doing a couple of years under supervision and sit the fellowship exam.
...
I was seeking some recognition of my training and then doing maybe couple of years sitting the exam and looking for the Australian experience in cardiothoracic surgery and then take it from that (ts 75).
He was aware of pathways. But as he was not going back to Iraq to bring his material, the only source for the new material was to provide it from Australia, which was why Dr Elobadi went with the subsequent assessment and College policy:
So in my opinion is I have to do three more years of practice in Australia, then submit new material (ts 76).
Dr Elobadi agreed that in the course of his interview in 2003 he was asked about the nature of training in Iraq and gave information about it. He understood the assessors were trying to examine his performance and experience and compare it with the Australian standard. He understood they were looking at both training and also experience as a specialist in Iraq:
And that they had determined that in those areas you were not substantially comparable?---Yes. (ts 78).
Dr Elobadi understood that RACS was focusing on determining whether or not he was comparable and that he needed to satisfy both criteria - training and experience. He was recommended to undertake some courses which he has done (ts 79).
When working at Prince Charles Hospital, Dr Elobadi knew that he had not been admitted to a training programme accredited by RACS. He disagreed with the significance of this. He said:
I believe that my practice, although I wasn't on the college training program, but I was doing the job exactly, or even I say more because I am already loaded with overseas experience (ts 82).
Application for SET Programme
Dr Elobadi applied to the SET programme. There were 18 candidates and he was ranked 18 out of 18. He has made no further application to the SET programme.
Dr Hartley thought Dr Elobadi might need to get into the SET programme. Mr Skillington disagreed (ts 102).
2009 application
I did understand that I have given two option, either to go in the direction of the SET program or to go in the direction of the IMG, and the college welcome to take both option (indistinct) and they are welcome for me to go to the IMG program applications (ts 191).
This is what he understood from the letter (Exhibit 26):
So your preference was to go down the IMG route?---It's my preference and the college also acknowledge and they accept application on a few occasion and the application were processed and they have never denied any application to me through the IMG pathway.
Comment
I accept Dr Elobadi's evidence generally. I do not accept his evidence about the issue of referees. He did not nominate Mr Alvarez as a referee and the probabilities are he did not expect Mr Alvarez would be treated as a referee because he signed the logbooks or operation notes. He ought to have known Professor Newman may be asked for an opinion.
I think Dr Elobadi has a sensitivity and genuinely feels the RACS has discriminated against him. From his point of view, this is understandable. I find though that RACS has not discriminated. It has applied the policies fairly. There has been a failure of communication concerning the assessment of Dr Elobadi's Iraqi training. Neither party is to blame. It is one of those things that happen. But this breakdown in communication is one of the things that had led to repeated applications and, probably, this litigation.
In the course of cross‑examination Dr Elobadi at times equivocated with apparently plain questions by counsel, such as, whether he knew what 'independent surgical experience' meant.
I have assessed the evidence carefully. In this respect, I am not comfortable with the conclusion Dr Elobadi was deliberately dissembling even though that is an impression gained. Although he speaks English fluently, it is not his first language and I think allowance has to be made for that. I also gained the impression, at times, that Dr Elobadi was being particularly pedantic in respect of counsel's questions or the meaning of documents. Precision is no flaw in a surgeon, and it may be personality rather than obfuscation.
Dr Elobadi's responses to cross‑examination as to why he did not nominate Mr Alvarez as a referee or provide a letter from Mr Alvarez but nevertheless considered he was a referee because he had signed the logbook are unconvincing. I reject his evidence on this respect. I also reject his evidence that he did not need to provide a reference letter from anybody working with him in Perth as unconvincing. It is contrary to his past practice of providing written references from surgeons who were supervising him.
Also unconvincing was his explanation (ts 226) as to why he submitted a surgical audit nominating two supervisors, Mr Mark Newman and Mr John Alvarez but did not regard Professor Newman as a supervisor.
The evidence suggests to the contrary in any event. The operation sheets show 25 operation sheets, 12 of which have nominated Mr Alvarez with Dr Elobadi and the rest are Professor Newman:
Let me understand this: you say that the college ought to have contacted Mr Alvarez?---They would have contact him, but they haven't.
No. You say that they should have?---Yes, they should have.
But they should not have contacted Prof Newman?---I agree with that.
...
You say that the reason why they should have contacted Mr Alvarez but not Prof Newman was because Mr Alvarez was more involved in your supervision than Prof Newman?---That's absolutely right, yes (ts 229 ‑ 230).
...
There were no new referees that you provided?---No, there was a new referee.
Who was that?---Mr John Alvarez.
You did not provide Mr Alvarez as a referee, did you?---As a hard copy, no, but Mr Alvarez signed logbook so if they contacted Mr Alvarez, Mr Alvarez's information would have been made available to them if they would have contacted him.
You say the fact that he signed the logbook was amounting to a referee?---Definitely. There is no doubt about it.
You are nominating him as such?---Yes.
...
So all of the people who had previously signed your logbook should be contacted as well, should they?---Absolutely right.
That's what you always understood?---This is college policy, not my policy, madame.
It's a policy, is it?---It's a policy (ts 220 - 221).
RACS requested the applicant to provide a minimum of three referee letters. Dr Elobadi agreed he only provided one reference. It was not a hard copy letter to them or electronic:
"The letter provided by the referee needs to be original, dated on letterhead and bearing the referee's signature." You didn't provide that?---No (ts 223).
The issue of damages: Loss of a chance
Dr Elobadi does not have general registration. He had a fixed term contract with Sir Charles Gairdner Hospital starting on 26 January 2009.
111.In or about June 2010 I was offered and accepted the position of a Senior Registrar in Cardiothoracic Surgery by Professor Newman on behalf of Sir Charles Gairdner Hospital. This type of position, in any hospital, is applied for by June/July in any year, and the contract then commences in January/February the following year. By June/July/August the positions available at hospitals for the following year have generally been filled.
112.On 25 August 2010, my solicitors issued this proceeding in the Supreme Court on my behalf.
113.On or about 1 September 2010, I was approached by Professor Newman when I was at work at Sir Charles Gairdner Hospital. In the conversation which took place between Professor Newman and I, he withdrew the employment position I had accepted for February 2011 at Sir Charles Gairdner Hospital. He told me he was extremely angry I had issued proceedings against RACS and he had been dragged into those proceedings. He told me because of this he would not employ me at Sir Charles Gairdner Hospital from February 2011 onwards.
Procedures of the Board: Mr Petrusch
Mr Petrusch is the Director of the Education and Training with RACS and his evidence as to the programmes has been previously detailed.
Cross‑examination
When Mr Petrusch was asked:
How many international medical graduates are going through the program at the moment?
I can't give you exact figures, but during the year we assess about 100 to 120 IMG applications and at any given time there's approximately 60 to 70 who would be under supervision or oversight (ts 327).
In 2006, when Dr Elobadi applied for the SET programme he was eligible to apply and qualified selection but missed out because there were not enough places (ts 332).
In cross‑examination, Mr Petrusch was asked about the consequences of an assessment of partial comparability and why Dr Elobadi was perceived as a sensitive case:
When someone is found to be partially comparable or substantially comparable, it is the IMGs responsibility to find a position in which they can be assessed (ts 337).
...
Why was Dr Elobadi a sensitive case?---Sensitive case in that Dr Elobadi had made a number of applications and had also made a number of appeals, so we were sensitive to the fact that had happened but it didn't change any way that the process was applied.
Was there anything at all to preclude Dr Elobadi, in a policy sense, from bringing a fresh application or making a fresh appeal in 2009?---No (ts 343).
The decision not to convene the Appeal Committee
Dr Hillis is a medical doctor with a specialisation in Medical Administration. He is the Chief Executive officer of RACS and has held this role since 2003. As CEO he is the Senior Manager of RACS and advises to the various boards of the RACS. He is answerable to RACS council. His day‑to‑day activities do not usually involve individual involvement in the applications of individuals to the specialists assessment policy for the IMG or SET programmes. Both programmes fall within Mr Petrusch's responsibility as Director of Education, Training and Administration Division.
His evidence mainly related to the claim for relief in respect of the failure to convene the Appeals Committee.
Following receipt of an email on 11 August 2009 from Dr Elobadi requesting Dr Hillis to convene the Appeals Committee (Exhibit 77), there were further emails from Dr Elobadi to various people. Within RACS there were a number of email communications including one from Mr Petrusch dated 13 August 2009 (Exhibit 142) which indicated Mr Petrusch's view that 'there appears to be no grounds for an appeal' but asking that the matter be reviewed by the recipient.
Dr Hillis explained the process he goes through when an application for an appeal is made. He reads the file. He usually discusses the matter with Mr Petrusch and may discuss it with RACS' solicitor before making a decision as to whether the Appeals Committee should be convened. He says:
18.My focus in evaluating whether the matter should be referred to the Appeals Committee is the process employed and whether the criteria set by the Appeals Policy has been fulfilled. I understand that criteria to be whether all appropriate avenues of review or the original decision have been exhausted and whether on the basis of supporting material submitted there are valid grounds for appeal. I do not perform a complete re-assessment of the candidate and do not evaluate the logbooks in the sense of examining the surgical information and the level of practice that demonstrated.
He testified the process was different in Dr Elobadi's case because it was the first time he had been called on to decide on the referral of a matter to the Appeals Committee where two previous appeals had taken place. Dr Hillis, as CEO, reached the conclusion he would not refer the matter to the Appeals Committee because:
21.1I formed the view that the material considered was relevant and the decision was not based upon or significantly influenced by information which was irrelevant. In making that conclusion the Appeals Committee reasons in 2008 which recorded in the second paragraph following the numbered paragraphs on the second page (TB 564).
21.2Is also considered the final paragraph on page 3 of the reasons of the Appeal Committee (TB 565).
21.3I understood from these documents, that the Appeals Committee had advised Dr Elobadi that more years of doing registrar work in Australian hospitals would not lead to fellowship and that Dr Elobadi needed to apply for and be accepted onto the training program.
21.4I considered that instead of taking this pathway, Dr Elobadi had applied for a re-assessment on the basis of the provision of the further cumulative log books which only demonstrated further clinical activity which the Appeals Committee had previous decided was not capable of altering the outcome from that achieved following previous assessments. Having regard to the Appeals Committee decision the further operative experience this material summarises was irrelevant.
21.5I could not see any error of law or due process in the formulation of the original decision. The processes and Policies of the College had been followed and the information submitted by Dr Elobadi had been properly considered by the assessors.
21.6I was not concerned about the contact made by the College with Dr Elobadi's previous referee and consultants he had worked with. My view was and is that obtaining this information is appropriate as it gives a better understanding of the level of surgical activity than surgical log books can and are a sensible means of verifying and interpreting the information set out in log books. I looked at this in the context of the information it sought to clarify namely the meaning of cumulative log books and level of practice.
21.7I believed all information submitted by Dr Elobadi had been considered.
21.8I concluded there was no information upon which I could base a conclusion that either of assessors had a conflict of interest in carrying out the assessment. I did not believe that contacting persons with whom Dr Elobadi worked could not be a conflict of interest simply because they had a different interpretation of the level of his work than he may have. The issue of whether that was by phone was immaterial in my evaluation.
21.9The decisions made by the assessors were, in my opinion, consistent with the evidence before them and there was no basis for me concluding that the decision was made for an improper purpose.
21.10No further significant information had been submitted by Dr Elobadi since the re-assessment that would change this view. The only information that would give the College any basis to find other than it previously had found would be evidence of further formal training of the level required or completion of a comparable examination. There was no such information.
Subsequently, Dr Hillis received a letter from Mr Alvarez dated 21 April 2010 (Exhibit 90). Had he received the letter it would not have changed his opinion because:
(a)Dr Elobadi was functioning as a Senior Registrar rather than a consultant specialist indicating that Dr Elobadi was operating a lower level than as an independent consultant or specialist;
(b)Dr Elobadi was 'directly supervised' by Dr Alvarez throughout the time when they were scrubbed in together;
(c)Dr Elobadi functioned at the level of an advanced trainee in these types of surgery;
(e)Dr Elobadi needs regular exposure to cardiac surgery under the usual degree of supervision by a proper supervisor.
In Dr Hillis' opinion, the points made by Mr Alvarez all support the views of those evaluating in Dr Elobadi's assessment, namely, that Dr Elobadi's training and experience is 'not comparable' to an Australian or New Zealand trained surgeon.
Dr Hillis was cross‑examined as to the number of discussions he had and why he did not take notes. He regarded the meetings as routine. Dr Hillis conceded that he did not read the 2006 paper in detail and did not read in detail what Dr Elobadi had submitted in support of his 2008 application so he could not tell whether the material was different. When challenged as to what he turned his mind to, he said:
I turned my mind to the appeals policy where I had to be satisfied that there was grounds for an appeal; and yes, you're quite right, I did turn myself to the previous two appeals that Dr Elobadi has done, has had (ts 317).
He is familiar with the policy for specialist assessment of IMG surgeons. Dr Hillis formed his view that there was no new material of substance in the application as a consequence of discussions with Mr Petrusch and Mr Roberts and these discussions were undocumented. He would have looked at the material but not all the detail.
When asked what steps did he take to satisfy himself that there was no new material above the material previously submitted he responded:
The steps I took was to refer back to the appeals committee decision on 21 October 2008 to be clear in that, that the appeals committee, which is actually the most senior committee in the college looking at these issues, were quite clear in direction, which was that Dr Elobadi needed to apply for training to progress inside the college structures and that the appeals committee noted that more years and work as a registrar was not the way that he had actually obtained assessment satisfaction through the college. He needed to apply for training. Based on those two issues, I confirmed that the material that he put forward was quite literally that, again of ongoing years of experience but not at formal training level, and that he had not applied for training. They were the two key issues out of that last appeal that I focused on very strongly.
...
Had you gone and assessed Dr Elobadi's log books yourself? You hadn't, had you?---I was aware that Dr Elobadi had been working in a hospital and would assume that he was getting more cases performed - that's what doing work in a hospital would determine - and that the outcome of the assessment by Dr Roberts was that it was continuation of his previous roles in - and I'm quoting the words - it's cumulative years' experience; it is not formal training. As I said, I went back to the previous appeal very carefully (323).
He explained why he took the previous decision:
The appeals committee is an incredibly directive committee at the college. It is a very - the most senior committee apart from council, which is the overarching board of governance. It is made up of very senior members. I take their directions incredibly tightly. If they make those comments, the college actually changes things based on the opinion of the appeals committee. I took these directions very clearly.
...
The direction here is that - and in the appeals committee meeting of 2008, if he actually continues to undertake work in the same type of roles that he has, which is not independent practice - I need to stress that; it is not independent practice - just doing more years of that will actually not have him with a different outcome in the assessment process. The outcome that he needs is to apply for surgical education and training, a formal application.
How does someone achieve an independent practice? What's the category of independent practitioner?---He needs to be independently practising in his - in essence, external to the hospital and the hospital's oversight structures. If you went to see a surgeon in private rooms, they are independently practising. They are totally responsible for the care of a patient. They make independent decisions. It is not under the oversight of other people. They are actually fully responsible for the care of the individual in front of them. That is independent practice.
So that's your understanding of the standard applied by the college?---We look for people who have been independently practising, and Dr Elobadi is working as a supervised registrar in a hospital, and as the assessments that you've taken me through have confirmed, it is regarded as an early registrar training position, not a highly advanced one (ts 323 - 324).
Comment
Despite the lack of notes, I have no reason to doubt the evidence of Dr Hillis as to how he reached the decision to apply the policy against allowing an appeal. I have had regard to the points sought to be made in cross‑examination. However, I conclude that Dr Hillis was meticulous in his consideration whether the policy permitted an appeal. He took account of all appropriate matters and his decision not to convene an Appeal Committee was one well open for him to make. His decision was not (to use a loose analogy from administrative law) a jurisdictional error. Dr Hillis took into account matters he was required to and reached a decision that was procedurally appropriate and fair.
The assessors
Mr Andrew Roberts
Mr Roberts is a vascular surgeon and Clinical Director of IMG Assessment within the Education and Training Administration Division of RACS. He was directly involved in the re-assessment of Dr Elobadi. Mr Roberts described his role and his assessment of Dr Elobadi (Exhibit D):
7.The Clinical Director's role is to conduct the documentary assessment of applicants to the IMG program and to generally liaise with the speciality boards of the College and Council members and the College CEO on IMG matters. The Clinical Director provides a link between the College Administration and the Specialty Boards. As the College administers a number of different specialities the Clinical Director ensures that a consistent approach is used regardless of the area of speciality of the application.
8.The specialty board IMG representative assesses the comparability of an applicant within the particular specialty to an Australasian trained specialist in that specialty. In IMG assessments a separate document assessment is performed by both the Clinical Director and the Specialty Board IMG representative.
9.The Specialist Assessment policy required to me assess surgical qualifications and clinical experience in order to determine comparability with a surgeon who has trained in Australia and New Zealand (Clause 3.2.1). The assessment focuses on education, training, quality, quantity, and scope of clinical experience, level of formal assessment, including specialist qualifications in surgery, the recency of relevant practice and relevant professional skills and attributes in order to determine comparability with Australian Standards. The outcomes of the assessment may be that the IMG is assessed as being:
(a)'Not Comparable';
(b)'Partially Comparable';
(c)'Substantially Comparable'; or
(d)'Suitable for an Area of Need Position'
...
12.It is my normal practice to thoroughly review the College file as part of undertaking an assessment. It was also my normal practice to attempt to speak to some of the referees or consultant surgeons with whom the applicant had worked in order to gain a better understanding of the level at which the applicant was functioning. I did this because there is a considerable difference between surgery being performed by an IMG where he or she acts an assistant only, performs surgery as Principal Surgeon with the consultant present in theatre and scrubbed, acts a Principal Surgeon with consultant present but not scrubbed, or is Principal Surgeon with the consultant available but elsewhere on the floor or within the hospital. A trainee in the SET program would gradually move through these stages gaining greater autonomy as they progressed through their assessment. When assessing whether the IMG applicant was functioning as a surgeon at a comparable level to an Australasian surgeon I would take into account the exact nature of the supervision the IMG applicant was subject to. An applicant who was operating as Principal Surgeon but required, or was regularly subject to, direct supervision would not to be functioning at a level comparable to an Australasian trained consultant surgeon. My practice of speaking to referees and consultant surgeons within the hospitals where the applicant worked was to get the clearest understanding I could of the level at which the IMG applicant was functioning. A log book itself does not always provide the complete picture. Log books often do not clearly show what level of consultant participation and what level of supervision actually takes place in the surgery performed.
13.In speaking to, and attempting to speak to, the referees and senior consultants at the hospitals at which IMG applicant had practised my aim was to have as much information as possible in order to obtain the most complete picture I could about the IMG's level of practice and their comparability to an Australasian surgeon. From time to time I may be unable to make contact with a referee or a consultant surgeon within a reasonable time. If that occurred I would frequently endeavour to speak to another senior consultant within the unit in which the IMG applicant had worked. In such cases I would then make a decision as best I could with the information I had available to me.
14.I have performed two assessments of Dr Elobadi under the Specialist Assessment Policy. The first was commenced in May 2008. The second was commenced in July 2009.
Mr Roberts conducted the assessment in 2008. After reviewing the documents he contacted Dr Bruce French and believed he also spoke with Dr John Farrian. The conclusion he reached was that Dr Elobadi was 'not comparable'.
Application for re-assessment - 6 July 2009
Mr Roberts described his process on this occasion:
26.I was provided with document entitled Log Book or Surgical Log -Cardiothoracic Surgery (TB 699-758) which was the material submitted by Dr Elobadi in addition to that provided for his 2008 assessment to the College to support his application for reassessment made 6 July 2009. That document comprised of logbooks for Australian and Overseas experience, cumulative log books, operation summary sheets, and a powerpoint presentation entitled surgical audit and updated curriculum vitae and certificate or Registration from the Medical Board of Western Australia. The bundle of documents which I was asked to assess upon is TB 759‑874. I also had access to the complete College File.
27.As well as the documentary material I considered I also had several conversations with referees or persons referred to in Dr Elobadi's materials. The conversations were as follows:
(a)On 8 July 2009 I contacted Professor Mark Newman, Director of Cardiac Surgery and head of unit at Sir Charles Gairdner Hospital. I contacted Professor Newman in order to assist me assess the Surgical Logbooks relating to Dr Elobadi's experience at the Sir Charles Gairdner Hospital. As I am not a Cardiothoracic surgeon it was not clear exactly Dr Elobadi's role was in the operations performed. I also did not understand some of the comments set out with the tables of surgeries performed. To assess whether Dr Elobadi was operating at the level of a specialist surgeon I needed to understand whether he was involved in the decision making for the surgery or whether he was being directed by the supervising consultant and how closely he was supervised by that supervising consultant during those surgeries. From reading the log book alone I was not able to gain this understanding. I made a note of my discussion with Professor Newman on a post-it note. That note is at TB 893.
(b)I believe that I also attempted to speak with Dr John Alvarez who had worked with Dr Elobadi at the Sir Charles Gairdiner Hospital. I was not able to make contact with Mr Alvarez until well after the assessment was completed. Mr Alvarez was not put forward as referee but did appear in the surgical log books and in the operation sheets considered in the course of the assessment which is what led to my attempts to communicate with him.
28.On 15 July 2009 I carried out a documentary re-assessment of Dr Elobadi's application for Assessment as IMG. I considered the documents referred to in the paragraph 26. I filled out the standard form as I conducted the Assessment (TB 875-879).
29.I reached my conclusion about the Plaintiff being at a senior registrar level by considering the log book and the comments of Mr Newman. I reached the conclusion that there was no evidence in the material submitted by Dr Elobadi that he had sat and passed a comparable exit examination to the FRACS examination in cardiothoracic surgery. I considered the degree to which Dr Elobadi was involved in planning and conducting the surgery and the degree of supervision he was subject to in performing the surgical procedures. I reached the conclusion that Dr Elobadi was Not Comparable because there was no information that suggested that Dr Elobadi was operating unsupervised at a comparable level as a Fellow in this specialty. I reached the conclusion that Dr Elobadi had not completed comparable training elsewhere as required by the Specialist Assessment Policy. I reached that conclusion because the information provided did not satisfy me that he had undergone comparable training. In assessing the comparability of the training I considered his appointments since obtaining his medical degree, the details of hospital rotations undertaken in the course of his training, information provided regarding his surgical experience during his training and the method of assessment both during and at the completion this training (including the examinations undertaken.) In such circumstances I believed the only conclusion open to me was that Dr Elobadi was Not Comparable. College policy in such circumstances does not require that an interview be undertaken. The suggestion that Dr Elobadi should enrol for admission into the SET Program arose because that is the only other pathway of gaining Fellowship if an applicant did not fulfil the criteria for entry through the IMG process.
Subsequently Mr Roberts was provided with the letter from Mr Alvarez (Exhibit 90). He deposes:
32.... If I had that information at the time it would not have changed my assessment as it confirmed to me that Dr Elobadi was functioning at the level of a registrar or an advanced trainee and was not at the level of an Australasian trained cardiothoracic surgeon. It confirmed that Dr Elobadi was under the supervision of Dr Alvarez and would benefit from further training under supervision. That type of supervision is provided in the SET training program.
33.In his letter Mr Alvarez gives an opinion that Dr Elobadi is comparable in the area of thoracic surgery and partially comparable in the area of cardiac surgery. Furthermore, he states that Dr Elobadi is functioning at a level of an advanced trainee. In my opinion this confirms my assessment as the process of the IMG assessment was to establish is comparability not to trainee but to a practising Australasian cardiothoracic surgeon.
In cross‑examination Mr Roberts was taken to the assessment in 2006 which he would have reviewed and asked about the exit exam. He was concerned there had not been a comparable exit exam to the Australasian exam in cardiothoracic surgery.
He was then taken to the assessment he performed which is an online document:
So that means that your concern with Dr Elobadi's educational specialist training was only the failure to provide a comparable exit examination?---No, that's not what I said. I think it concerned the content of the syllabus that he had submitted and the training that he had back in Iraq. The exit examination is but one component of the duration of the training, the nature of the training, the nature of the in-training assessment as people progress through that training. I would have taken all of those things into regard.
You would have? You say now that you would have. Where do you record that in this form that you had concerns about those things?---The only way I have recorded by saying is I did not consider he had completed the appropriate exam or - - -
That's right?---And looking at the other comparable specialist training; and (b), of recommendation 1.
Where do you record that you take particular issue or you were addressing your mind to recommendation 1 in part (b)?---I do it in every IMG assessment that I undertake (ts 148).
Mr Roberts had read the decision of the Appeal Committee. He expected he would have read the Special Assessment of IMGs in Australia Policy. He cannot specifically remember.
Mr Roberts noted that the exit examination is exactly the same as the Fellowship examination. The candidate is not entitled to take the examination. They are assessed by their trainers to see if in fact in their opinion it is appropriate that they do apply for and sit the examination. Immediately prior to sitting the exit examination a trainee will not have a specialist surgical practice. They would not likely be working as a senior registrar, more likely to achieve a Fellowship position. He agreed with Mr Bunton:
Mr Bunton told us this morning that it's often the case that IMG applicants have a variety of experience when they make their application and some are close to or practising at a consultant level and others are not so close to practising at a consultant level and you would agree that was the case, wouldn't you?---Yes, I agree with that (ts 153).
He agreed there is a wide variation in the way in which the assessment of IMGs was undertaken and that there are some that are found to fall into the 'partially comparable' division who are not operating at the level of an independent specialist.
Mr Roberts pointed out that he was a vascular surgeon which is why he relied on the Speciality Board because he is not a cardiothoracic surgeon. To the best of his knowledge no IMG is automatically deemed to be equivalent. Each individual IMG is looked at and each individual training program is looked at.
Mr Roberts noted:
[B]ecause after all the paper-based documentation submitted by any given IMG will document a large amount of what they have done. Their logbooks attest to that and it may be quite possible to make a determination on the basis of the information they've provided: the exams they have done, the method of their assessment and the others matters to which I have referred. So it may be possible to reach a conclusion on the basis of that alone (ts 155).
In cross‑examination Mr Roberts was taken through Dr Elobadi's Iraqi qualifications. Mr Roberts did not keep a file note or could not find a file note of his discussion with Mr French. Mr Roberts gave evidence that he repeatedly tried to contact Mr Alvarez by phone. He did not send him an email or fax.
Professor Newman was cross‑examined. In cross‑examination it was established that Dr Elobadi was an 'area of need' doctor, registered and employed as such. All his reports showed an adequate performance. Professor Newman agreed that in order to determine who was in fact the primary surgeon in an operation one would normally go to the operation sheet rather than TMS.
Considerable time in cross‑examination was directed to show that in quite a number of operations Dr Elobadi was the principal surgeon. In general terms Professor Newman disputed this or conceded only that Dr Elobadi may have performed some of the less complex parts. Professor Newman was adamant that in cardiothoracic surgery, if the consultant surgeon was at the operating table he is assumed to be the primary operator. In this respect, his views align with Mr Alvarez who accepts responsibility for the patient at all times.
Did Professor Newman deny that he had spoken to Mr Roberts
Professor Newman said he received a phone call from Mr Roberts towards the middle of 2009. He said at no stage did he have a conversation with Dr Elobadi where he denied to him that he had spoken with Mr Roberts. Dr Elobadi's evidence is to the contrary and supported to a degree by a letter he wrote the next day. While it might have some minor bearing on credibility of either witness, one way or the other, in the scheme of things, it is inconsequential. That said, I detected throughout Professor Newman's evidence a general animus towards Dr Elobadi which made me more cautious in considering his evidence as to Dr Elobadi's abilities.
In the end though, neither the contrary opinions of Mr Alvarez or Professor Newman bear substantially on the issue of Dr Elobadi's comparability unless this is a merit based review. The IMG process requires a paper based assessment or document based assessment and that was what was carried out.
Did Dr Elobadi lose an employment opportunity?
Professor Newman denied Dr Elobadi's account that he had offered Dr Elobadi a job and later withdrew it when he heard about these proceedings. This is another conflict in the evidence that I do not need to resolve. It is relevant to the question of damages and the loss of an opportunity to practice as a consultant surgeon from a particular date.
Whether or not Dr Elobadi was offered a job, the offer was later withdrawn, the reason for its withdrawal was not due to Dr Elobadi being assessed as 'not comparable'. On Dr Elobadi's evidence it was because Professor Newman was angry that these proceedings had been commenced. On Professor Newman's evidence he was looking at ways to get rid of Dr Elobadi not re‑employ him. In either case, Dr Elobadi had a contract which came to its natural end. Whatever the position, the cause was not attributable to RACS.
Professor Newman, as I have remarked, allowed a certain dislike or animus towards Dr Elobadi to show during his evidence. I have taken that carefully into account and approached his evidence with caution. That said, Professor Newman was in a good position to observe Dr Elobadi. Notwithstanding my concern, I accept his evidence as to Dr Elobadi's non‑comparability, supported as it is by other surgeons such as Dr French, some years before.
The conflict between Professor Newman with the evidence of Mr Alvarez is a conflict of opinion and views about comparability. The conflict is immaterial in the claim for a declaration. It may have some materiality in the claim for breach of contract and damages for the loss of a chance. In this respect I do not think Mr Alvarez's evidence goes so far as to suggest that Dr Elobadi is 'partially comparable' in every respect.
If it does, I have regard to the preponderance of evidence and in particular the evidence of Professor Newman who I find was in as good a position as Mr Alvarez to make an assessment of Dr Elobadi's skill and competence. I am not persuaded on the balance of probabilities on Mr Alvarez's evidence that Dr Elobadi should have been assessed as 'partially comparable' in 2009.
The pleadings
Dr Elobadi mounts his case in seeking declaratory relief and damages for breach of contract.
Parts of the statement of claim are not contentious and deal with the assessment process. Paragraph 10, which is admitted, says:
10.The application was assessed by the Board of Cardiothoracic surgery representative and the Defendant's Clinical Director and the Plaintiff was found by them not to be not comparable with an Australian trained surgeon on the basis that:
(a)Specialist surgical training undertaken is not of a comparable standard to the training program of the College.
(b)A comparable exit examination has not been completed.
(c)Evidence of recency of active specialist surgical practice was not comparable.
(d)Logbook numbers not comparable to an Australasian Cardiothoracic trainee.
Complaint about assessment in 2009
The heart of the claim is par 11:
11.In assessing the Plaintiff's application the Defendant failed to accord the Plaintiff due process by failing to accord natural justice, taking into account irrelevant material, failing to take into account relevant material and failing to accord procedural fairness.
This claim is particularised:
a.The Defendant purported discussed the Plaintiff's application with Professor Mark Newman and with Dr Bruce French but did not advise the Plaintiff of the outcome of those discussions so as to enable the Plaintiff to address any concerns that they may have raised.
b.The Defendant purportedly discussed the Plaintiff's application with Professor Mark Newman even though the Plaintiff had by the time of the assessment only been operating with Professor Newman 2 or 3 times per month.
c.The defendant did not discuss the Plaintiff's application with the Plaintiff's referee and then primary supervisor Dr John Alvarez with whom the Plaintiff was working closely.
d.For the purpose of assessing the Plaintiff's recency of specialist surgical practice the Defendant rigidly applied a policy by taking the view that surgeries performed by the Plaintiff the subject of the Plaintiff's surgery log book were not to be assessed as if those surgeries were the same as surgeries performed under the College training programme.
Further particulars of par 11 were sought and provided:
2.The Plaintiff says as follows:
a.As to request 2(a): That the irrelevant material taken into account by the Defendant was:
i.The opinion of Dr Bruce French which was, at that time, out-dated as the Plaintiff had not then operated with Dr French for more than 6 months and he could not then comment on the Plaintiff's current surgical practice.
ii.The opinion of Professor Mark Newman with whom the Plaintiff had only operated on a limited basis and who had not reviewed the Plaintiff's logbook and was not familiar with its contents.
The defence admits par 11(a) as follows:
10.2admits that, when conducting previous assessment of the Plaintiff, the Clinical Director spoke with Dr Bruce French, Head of Cardiothoracic Surgery, Liverpool Hospital, and says further that the Plaintiff had provided a reference from Dr French dated 21 May 2008 and had previously requested that the College make direct contact with Dr French;
Particulars
The request was in writing, and was contained in a letter from the Plaintiff to Dr Ian Civil, Censor in Chief of the College, dated 26 May 2008, a copy of which is available for inspection at the offices of the College's solicitors.
The conversation took place on or about the last week of July or first week of August 2008. In the conversation Dr French confirmed the content of the reference and stated that the Plaintiff was functioning at a trainee level and that the Plaintiff did not have substantial experience in Thoracic Surgery.
Complaint about not convening the Appeal Committee
The plaintiff's claim in relation to Dr Hillis' failure to convene the Appeal Committee is in par 13 particularised in further and better particulars:
3.The Chief Executive Officer did not comply with clause 5.1.3 of the Appeals Mechanism Policy by:
a.Not giving the Plaintiff an opportunity to submit grounds of appeal;
b.Forming the view that there was no valid grounds of appeal without having considered what the Plaintiff's grounds of appeal were or might be;
c.Forming the incorrect view that there had been no new material supporting the application over and above material previously supporting an earlier application in 2008 when that was patently wrong for the reasons that:
i.The Plaintiff had new employment with Sir Charles Gairdner Hospital in 2009; and
ii.The Plaintiff had performed considerably more surgeries in 2009 than he had in 2008;
d.Forming the incorrect view that the refusal of an earlier application in 2008 was relevant to the determination of whether there were grounds of appeal from the application made in 2009; and
e.Forming the incorrect view that there were no grounds of appeal without taking into account that the Defendant had not accorded due process as pleaded in paragraph 11 of the Amended Statement of Claim and those matters would have formed the grounds of appeal.
The claims for relief
15.The Plaintiff seeks declaratory relief from the Court in the following terms:
a.That the decision of the Defendant in assessing the Plaintiff as not being comparable or partially comparable with an Australian trained surgeon was reached:
i.without due process;
ii.contrary to natural justice;
iii.after taking into account irrelevant material;
iv.without taking into account relevant material; and
v.after the rigid application of a rule or policy and without taking into account the merits of the application; and
b.The decision of the Defendant not to convene the Appeal Committee was reached contrary to the Defendant's Appeals Mechanism Policy.
16.Further, and in the alternative, the Plaintiff repeats paragraphs 1 to 10, 12 and 14 above and says that in the course of assessing the applications, request for appeal and request for reconsideration pleaded at paragraphs 9, 12 and 14 the Defendant was discharging a contractual obligation that it owed to the Plaintiff.
Particulars of Contract
By his application to the Defendant and the payment of the required fee for assessment the Plaintiff and the Defendant entered into a contractual relationship the terms of which included that the Defendant would assess his application and in doing so act in accordance with its adopted policies.
The pleading in par 11: Why the claim fails
Particular a: Discussions with Professor Newman
The Defendant purported discussed the Plaintiff's application with Professor Mark Newman and with Dr Bruce French but did not advise the Plaintiff of the outcome of those discussions so as to enable the Plaintiff to address any concerns that they may have raised.
Dr Elobadi's case in evidence was that he had not nominated Professor Newman as a referee. However, his evidence on this subject generally is unconvincing. As long ago as 2003 he knew that persons other than nominated referees might be contacted:
If you want to read logbook for any candidate, you submit application to the college. If you don't contact the surgeon who signed this logbook, you will never ever get into the depth of the truth (ts 84).
I think the college usually, and most of their practice, and my experience with all the assessment that I did is they have this policy and I agree with them, is they contact the person who signed the logbook (ts 86).
...
But do I understand you correctly then, it is quite usual for registrars to move around every couple of years?---Every two years, yes. Sometime every three years. Depend. There is no rigid rule. It depend on people preferences.
But you don't have a registrar usually typically sitting in a job for 10 or 20 years?---No, (ts 87)
...
You thought it was possible, didn't you, that when the college assessed this application, it might - - -?---Yes.
People who were assessing it might want to contact someone who you had worked with previously who wasn't one of your nominated referees; yes or no?---The answer is yes (ts 98)
...
So you knew that in relation to the 2006 reassessment that the college had in fact - despite what you had said was your preference, they had contacted somebody at the Canberra Hospital and spoken to them about your application?---That's right, madam (ts 99).
His objection is not necessarily who he nominated:
So it's not necessarily just who you have nominated. It's a person who supervises you, you say?---You are right, yes.
Has been involved directly in a fair number of surgical cases with you?---Yes (ts 100).
Moreover, on his evidence he had nominated Mr Alvarez simply because he had listed him in the logbook and Mr Alvarez had signed as surgeon. However, Professor Newman had also been listed in the logbook and had signed. On the operation sheets it appears that Dr Elobadi had worked about the same number of times with each consultant.
As to Dr French, there is no evidence that Mr Roberts spoke with Dr French in 2009. Mr Roberts said he may have spoken with him but has no note of it.
He certainly did speak in 2008.
The opinion of Dr French was no so much outdated, rather relevant only to the time at which he spoke. That it was relevant for 2008 only would have been obvious to Mr Roberts and Mr Bunton.
Even accepting there was a natural justice requirement to advise Dr Elobadi of Dr French's comments, Dr French's comments were neutral. Mr Roberts said:
In my conversation with Mr French, which I believe took place on or about the last week of July or the first week of August 2008, he confirmed the content of the written reference that he told me that Dr Elobadi was functioning at a trainee level.
The letter that Dr French himself supplied, dated 21 May 2008, indicates that Dr French had discussed the reference and would be sending him a copy of it. The letter concludes:
I would be more than happy to talk to you or any member of the Board about my reference to Dr Elobadi if you thought this would be helpful when you consider his reapplication for recognition
In the letter Dr French says:
I have provided feedback to Dr Elobadi in the context of his training plan.
...
It is obvious that Dr Elobadi has well developed surgical skills. He has not performed independent open heart surgery in our unit to this stage but he has performed most of the components of the coronary bypass operation and appears to have satisfactory skills. Our plan is to have him operating on entire cases under supervision before the end of this year and I have no reason to suspect this will not be able to be easily achieved.
...
Dr Elobadi has not personally performed enough surgical procedures to be involved in independent audit
There is no basis for concluding that Dr Elobadi did not receive procedural fairness in respect of the conversation with Dr French, a conversation Dr Elobadi knew might occur.
The conversation with Professor Newman
The argument that Professor Newman should not have been contacted is unsustainable. On Dr Elobadi's evidence, those who signed his logbook should or ought to have been considered referees. In any event, I see nothing wrong in an assessor seeking clarification from either persons nominated as referees or someone who could be supposed to have active knowledge of the applicant. Professor Newman's evidence in relation to the conversation was (Exhibit E):
28.In that conversation Andrew asked me about Dr Elobadi and at what level he was functioning. I gave Andrew my opinion that Dr Elobadi was working at a registrar level and not an independent consultant level. I told him that I did not think Dr Elobadi would be partially comparable because in my opinion he needed Australasian training. I told him of what I knew about Dr Elobadi and his reputation for having conflict issues although those issues were not strictly relevant to the question of comparability.
Mr Roberts' post‑it note of the conversation records that he spoke with Professor Newman on 8 July 2009:
He feels 'not partially comparable' ... and needs Australian training.
The comment that Professor Newman made (which Mr Roberts did not record) concerning conflict issues is one that should have been brought to Dr Elobadi's attention for comment. It was an adverse comment. Had it been brought to Dr Elobadi's attention, he no doubt would have done what was done at trial and referred to the fact that Professor Newman had raised no formal complaints with either the hospital or the Western Australian Medical Board concerning the issue. No other supervisor over the year ever raised it as an issue.
That said, there is no evidence that the adverse comments played any part in the minds of the decision‑makers, Mr Roberts and Mr Bunton.
Particular b.
The Defendant purportedly discussed the Plaintiff's application with Professor Mark Newman even though the Plaintiff had by the time of the assessment only been operating with Professor Newman 2 or 3 times per month.
I have already dealt with this in detail. It was open for RACS to speak with Professor Newman and on his own evidence, Dr Elobadi ought to have expected them to have done so. I find that Professor Newman had a substantial supervisory role over Dr Elobadi.
Particular c.
The defendant did not discuss the Plaintiff's application with the Plaintiff's referee and then primary supervisor Dr John Alvarez with whom the Plaintiff was working closely.
It would have been prudent for Mr Roberts to have spoken to Mr Alvarez. Mr Roberts, himself, concedes this because he said he tried to telephone Mr Alvarez a number of times. If they were going to speak with Professor Newman, who had partially supervised Dr Elobadi, it would be logical to speak also with Mr Alvarez. That said, both Mr Roberts and Mr Bunton have read Exhibit 90 which would have been, one assumes, what Mr Alvarez would have told them. It would have made no difference to their assessment. That has to be correct because the fundamental difficulty which has always confronted the plaintiff throughout this action is the 2003 assessment based on his Iraqi qualifications. Moreover, although he has developed significant experience over the last decade, he still has not completed the equivalent of the SET programme to justify partial comparability with an Australasian trained surgeon. There is unfortunately no getting around these two difficulties so that even if there was a breach of the rules of natural justice or failure to accord procedural fairness as alleged (and there has not been) it would, in the end, do him no good.
Particular d.
For the purpose of assessing the Plaintiff's recency of specialist surgical practice the Defendant rigidly applied a policy by taking the view that surgeries performed by the Plaintiff the subject of the Plaintiff's surgery log book were not to be assessed as if those surgeries were the same as surgeries performed under the College training programme.
The requirement not to rigidly apply policy is part of the RACS' policy but is odd and unclear. If it allows the exercise of discretion it would be better to say so directly. I suspect a court would be reluctant to grant declaratory relief simply because a policy was applied correctly, though rigidly. However, I do not need to examine these potentially interesting concepts further as there is no evidence that the policy was rigidly applied in the sense that it was applied without regard to the substantial merits of Dr Elobadi's application and circumstances. The assessment of 'not comparable' was achieved by fair, not rigid application of policy.
I return to the specialist assessment policy (Exhibit 48). The purpose of the policy is to define assessment for suitability for independent specialist practice:
3.3.1:An IMG will be deemed 'not comparable' if:
a.There is insufficient evidence of recency of specialist surgical practice in the relevant specialty comparable to an Australian or New Zealand trained surgeon in the specialty.
It is therefore appropriate to have regard to the SET training programme as a comparator.
Dr Elobadi has never completed a comparable specialist training programme to the College programmes (s 3.3.1.b). He will never be regarded as 'partially comparable' until he does. The policy has not been rigidly applied but properly applied.
The appeals process - The refusal to convene the Appeal Committee
In view of my findings, the inevitable result of an appeal would have been a dismissal.
In fact Dr Hillis applied the appeals policy appropriately in determining there was no basis for an appeal. There had been an earlier appeal and there had been little change in the factual circumstances of Dr Elobadi apart from him acquiring more experience. Dr Hillis made the correct decision in accordance with the policy.
Claim for breach of contract
If the claim for a declaration fails the claim for a breach of contract also fails. Nevertheless, I will deal briefly with one aspect.
The claim for loss and damage in its final form at trial is as follows:
19.As a consequence of the defendant's breach of contract the plaintiff has suffered loss and damage by:
(a)being delayed in being able to seek admission to Fellowship of the Defendant.
Ms Gillon submitted (ts 391) that I should accept Mr Alvarez's evidence that Dr Elobadi was comparable at a thoracic level, 'partially comparable' on a cardiac level as opposed to something that is put up and unsubstantiated by Professor Newman. Mr Roberts and Mr Bunton performed their assessment on the documents.
It's important for this reason, your Honour, because it goes to the plaintiff establishing the loss of a chance (ts 391).
Even if I had found procedural unfairness, and given the declaration sought by the plaintiff, the most that could have been achieved is a further re‑consideration. In view of all the evidence from 2003, including the fact that Mr Bunton and Mr Roberts have both given evidence, which I accept, that Mr Alvarez's opinion does not cause them to change their mind, Dr Elobadi would be left in the same position; namely assessed as 'not comparable'. In other words, he has not lost any chance of being assessed as 'partially comparable'.
The plaintiff's counsel closed with a plea that I should find Mr Elobadi 'partially comparable'. I cannot do so. Firstly, I am not a surgeon or a medical specialist. This is not a merits review. I can find procedural error and declare the need for re‑evaluation but cannot undertake that re‑evaluation on the evidence. Nor does the claim for a declaration require me to do so. The only evidence of partial competency is from Mr Alvarez and he is, with great respect, somewhat dismissive of the strictures of the document based evaluation. While there is some sense in what he says, of course, about the power of actual observation, it is not the basis set out in the criteria. In saying this, I mean no criticism of the criteria for admission. They are lawful and reasonable.
The relief sought by declaration is very specific and does not include a declaration for partial comparability.
Such a finding could be part of a finding on damages for breach of contract but that is hardly front and centre of the case RACS has come to meet.
The finding of partial comparability is the first step in the finding of a loss of a chance. Without making any finding of comparability, I am satisfied that overall Dr Elobadi was accorded procedural fairness. The result is that RACS' decision stands.
As I have earlier found, RACS did not cause Dr Elobadi's employment to come to an end. To establish the loss of a chance it would have to be assumed that Dr Elobadi should have been assessed as 'partially comparable' in 2009. He would have found continuing employment (his responsibility) as a registrar. He would complete a structured training regime. In due course, he could pass an exit examination and be admitted as a Fellow. The imponderables at each step do not even make the assessment of a loss of a chance an educated guess.
No significant legal principles
On the facts before me, I have reached the firm conclusion that the plaintiff's claim must be dismissed before examining some of the legal issues which Dr Elobadi would face if I found facts in his favour.
The defendant concedes declaratory relief is available in appropriate circumstances to declare invalid for procedural fairness a decision of a private or domestic body. This concession is appropriate and is correct even if the arrangement between the parties is a contractual one.
A relevant circumstance in the present case is that the decisions of RACS have a real and substantial impact on the ability of the plaintiff to carry out his profession. He must be a member of RACS to practise as a consultant surgeon.
RACS raises issues as to the availability of declaratory relief in circumstances where there is a private association, an appellate procedure and a contract between the parties. The defendant relies on D'Souza v Royal Australia and New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42. The case has some similarities to the present case but these matters are not entirely settled although the preponderance of authority would suggest that relief is available in the appropriate cases. Exploring the principles against a hypothetical case that a plaintiff had succeeded in establishing significant procedural unfairness but should still be refused declaratory relief would be an exercise in futility.
Result
The plaintiff's claim is dismissed.
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