Fidge v Medical Board of Australia

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0001

JULIAN FIDGE	Applicant
v
MEDICAL BOARD OF AUSTRALIA	Respondent

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JUDGES:	McLEISH, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2023
DATE OF JUDGMENT:	9 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 273
JUDGMENT APPEALED FROM:	[2022] VSC 768 (Moore J)

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PRACTICE AND PROCEDURE – Approval of medical practitioner to supervise international medical graduates – Whether decision to revoke approval constitutes condition on medical practitioner’s registration – No condition entered on register – Decision did not require or compel medical practitioner to practise in a particular way – Approval to supervise distinct from registration – Registration not altered by revocation – Leave to appeal granted – Appeal dismissed.

Health Practitioner Regulation National Law 2009.

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Counsel
Applicant:	In person
Respondent:	Ms CM Harris SC with Mr DNF Chisholm
Solicitors
Applicant:	—
Respondent:	Australian Government Solicitor

MCLEISH JA
NIALL JA
TAYLOR JA:

The applicant is a medical practitioner. He sent an intemperate and rude email to a WorkCover claims agent which resulted in a complaint to the respondent (‘the Medical Board’), followed by a disciplinary process. The Medical Board found the applicant’s conduct to have been unsatisfactory and imposed a sanction in the form of a caution for failing to display professional behaviour and also imposed conditions on his registration that required him to undertake professional development in ‘effective and respectful communications and behaviours’. The applicant could have, but did not, appeal the sanctions to the Victorian Civil and Administrative Tribunal (‘the Tribunal’).
The applicant conducts general practice from a practice in regional Victoria, which has a number of medical practitioners. From time to time he has engaged international medical graduates (‘IMGs’) to work in the practice. In broad terms, IMGs are able to obtain limited registration as medical practitioners under the Health Practitioner Regulation National Law (‘the National Law’). A condition of that limited registration is that the IMG be supervised by an approved supervisor. The requirements for supervision of IMGs are the subject of Guidelines made by the Medical Board under the National Law (‘the Guidelines’).
Pursuant to these arrangements the applicant has supervised a number of IMGs, including Dr A.
As will appear in more detail below, the Guidelines state that supervisors ‘must not have conditions imposed on their registration’. On 24 September 2020, the Medical Board wrote to the applicant referring to the Guidelines and advising him that the Medical Board had ‘determined’ that, by reason of the conditions on his registration, he was no longer approved to supervise Dr A.
The applicant appealed the ‘decision’ to revoke his approval as a supervisor to the Tribunal. The Medical Board objected to jurisdiction on the basis that it had not made a decision that was amenable to an appeal to the Tribunal. That argument turned on the meaning of ‘appellable decision’ in s 199 of the National Law. The Tribunal did not uphold the objection, finding that the decision operated, in part, ‘to impose or change a condition’ on the applicant’s registration and thus fell within s 199(1)(e) of the National Law.[1]
[1]Fidge v Medical Board of Australia [2021] VCAT 273, [49].
The Medical Board appealed to the Trial Division under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). A judge of the Court upheld the appeal on two bases:
(a)the decision did not amount to the imposition of a condition on the applicant’s registration; and
(b)in any event, the Medical Board had not made a decision because the revocation of approval as a supervisor was simply the consequence of the Guidelines and did not require the Medical Board to make any decision.[2]
[2]Medical Board of Australia v Fidge [2022] VSC 768 (‘Reasons’).
The judge declared that the Tribunal had no jurisdiction to hear the review before it, and ordered that the appeal be allowed and the proceeding in the Tribunal be dismissed.
The applicant seeks leave to appeal from the decision of the judge on 25 proposed grounds.
For the reasons that follow we would grant leave to appeal but dismiss the appeal.

The facts

Although the brief synopsis of the facts above is probably sufficient to expose the questions of law that arise in the matter, it is not inconvenient to provide a fuller exposition of the facts.
As already noted, on 28 May 2020 the Medical Board imposed conditions on the applicant’s registration. The applicant was notified of that decision by letter dated 29 July 2020 and provided with a schedule setting out the conditions which had been imposed on his registration. Amongst other things, the letter also informed the applicant that details of the conditions would be recorded in the public national register pursuant to s 225 of the National Law, that he would be contacted about the monitoring of his compliance with the conditions and that the decisions to issue him with a caution and to impose conditions on his registration were ‘appellable decisions’ under s 199 of the National Law. The applicant did not apply for a review of any aspect of the conduct decision, or the conditions imposed on his registration.
At the relevant time Dr A was an IMG who held limited registration and, as a condition of his registration, was being supervised by the applicant. Dr A sought from the Medical Board a change to the level of supervision from level 2 supervision to level 3 supervision. This was considered by the relevant committee of the Board (‘the Committee’) at a meeting on 3 September 2020. The agenda papers for that meeting record the following:
2. Recommendation
The Committee:
1. Decide Dr Fidge no longer meets the requirements to supervise IMGs as outlined in the [Guidelines] and revoke his approval to supervise [Dr A].
2. Approve [Dr A’s] Request for a change in circumstances to change his supervision from level 2 to level 3.
3.Require a new Supervised practice plan and supervisor’s agreement for level 3 supervision in which Dr Fidge is not listed as a supervisor.
4. Decide that an [Australian Health Practitioner Regulation Agency (‘AHPRA’)] Manager (Senior Regulatory Advisor/Officer) is authorised to approve the new plan with level 3 supervision and alternative supervision arrangements.
Under the heading ‘Reasons’, the agenda says that the Committee is satisfied that there is an objective independent assessment of Dr A’s skills and knowledge to verify his suitability to practise with level 3 supervision. Under the heading ‘Reasons — not to be released to [Dr A]’, the agenda stated:
5. As per the [Guidelines], all supervisors, including principal supervisors, co-supervisors, term co-supervisors and temporary co-supervisors, must not have conditions imposed on their registration or undertakings accepted by the Board as a result of health, performance or conduct issues.
6. The Board decided to take relevant action on Dr Fidge’s registration which has resulted in Dr Fidge being cautioned and conditions being imposed on his registration with effect from 23 July 2020.
7. Therefore, the Committee considers that Dr Fidge is no longer suitable to provide supervision to IMGs.
On 24 September 2020, the Medical Board wrote to the applicant in the following terms:
Supervision of International Medical Graduates
I refer to your current arrangement as a principal supervisor for [IMGs].
This was considered by the [Committee] at its meeting on 3 September 2020.
In considering your arrangements, the Committee notes:
(1) As per the [Guidelines], all supervisors, including principal supervisors, co-supervisors, term co-supervisors and temporary co-supervisors, must not have conditions imposed on their registration or undertakings accepted by the Board as a result of health, performance or conduct issues.
(2) The Board decided to take relevant action on your registration which has resulted in you being cautioned and conditions being imposed on your registration with effect from 23 July 2020.
(3) Therefore, the Committee considers that you are no longer suitable to provide supervision to IMGs.
The Committee has therefore determined that you do not meet the [Guidelines] and are no longer approved to supervise [Dr A] effective immediately. [Dr A] will be advised that you are no longer his approved principal supervisor but will not be advised of the reasons why.
[Dr A] is now required to provide a new Supervised practice plan and supervisor’s agreement with new supervision arrangements and will be advised this must be received by 8 October 2020, taking into consideration he has a Board approved co-supervisor.

The statutory provisions

The National Law

Section 4 of Health Practitioner Regulation National Law (Victoria) Act2009 provides that the National Law,[3] as in force from time to time, applies as a law of Victoria. The National Law provides for the detailed regulation of health practitioners by AHPRA. A National Health Practitioner Board is established for each of the relevant health professions. For the medical profession, it is the Medical Board. In turn, s 36 of the National Law permits a National Board[4] to establish a committee to enable the Medical Board to exercise its functions in each jurisdiction.
[3]Set out as a schedule to the Health Practitioner Regulation National Law Act2009 (Qld).
[4]Defined in s 5 of the National Law to mean a National Health Practitioner Board continued or established by regulations made under s 31 of the National Law.
The objectives of the national registration and accreditation scheme to be established pursuant to the National Law include protecting the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; facilitating the rigorous and responsive assessment of overseas-trained health practitioners; and facilitating access to services provided by health practitioners in accordance with the public interest.[5]
[5]National Law, s 3(2).
The functions of a National Board include to:
(a)‘register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession’;[6]
(b)‘decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession’;[7]
(c)‘develop or approve standards, codes and guidelines for the health profession’, including ‘the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession’;[8]
(d)‘oversee the assessment of the knowledge and clinical skills of overseas training applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of applicants for registration in Australia’;[9]
(e)‘oversee the receipt, assessment and investigation of notifications about persons who are or were registered as health practitioners in the health profession under [the National Law] or a corresponding prior Act’;[10]
(f)‘oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners or students’;[11] and
(g)‘do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme’.[12]
[6]Ibid s 35(1)(a).
[7]Ibid s 35(1)(b).
[8]Ibid s 35(1)(c)(iii).
[9]Ibid s 35(1)(e).
[10]Ibid s 35(1)(g)(i).
[11]Ibid s 35(1)(j).
[12]Ibid s 35(1)(q).
Sections 39 to 41 deal with standards, codes and guidelines. They provide:
39      Codes and guidelines
A National Board may develop and approve codes and guidelines—
(a)      to provide guidance to the health practitioners it registers; and
(b)      about other matters relevant to the exercise of its functions.
Examples—
1A National Board may develop guidelines about the advertising of regulated health services by health practitioners registered by the Board or other persons for the purposes of section 133.
2To assist a health practitioner in providing practice information under section 132, a National Board may develop guidelines about the information that must be provided to the Board.
40Consultation about registration standards, codes and guidelines
(1)If a National Board develops a registration standard or a code or guideline, it must ensure there is wide-ranging consultation about its content.
(2)A contravention of subsection (1) does not invalidate a registration standard, code or guideline.
(3)The following must be published on a National Board’s website—
(a)a registration standard developed by the Board and approved by the Ministerial Council;
(b)      a code or guideline approved by the National Board.
(4)An approved registration standard or a code or guideline takes effect—
(a)on the day it is published on the National Board’s website; or
(b)if a later day is stated in the registration standard, code or guideline, on that day.
41Use of registration standards, codes or guidelines in disciplinary proceedings
An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.
The National Law provides for different types of registration including general registration,[13] specialist registration,[14] provisional registration[15] and limited registration.[16] At all relevant times, the applicant held general registration.
[13]Ibid s 52.
[14]Ibid s 57.
[15]Ibid s 62.
[16]Ibid s 65.
Registration as a medical practitioner allows the registered person to use the applicable ‘protected title’ and to practise and hold themselves out to be a registered medical practitioner in the relevant field. The person is thereby freed from the restrictions and prohibitions on medical practice that are contained in div 10 of the National Law.
Division 6 provides for applications for registration. Section 77 provides that an individual may apply to a National Board for registration in a health profession for which the Board is established. Section 82 empowers the National Board to decide whether or not to grant registration. Section 83(1) provides:
If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances.
The note to s 83(1) states that a failure by a registered health practitioner to comply with a condition of the practitioner’s registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.
Registration is for a defined period, and div 9 of pt 7 provides for applications for renewal. In answer to an application for renewal, a Medical Board may renew, refuse to renew or renew the registration subject to conditions.[17] The Medical Board may refuse to renew registration in various circumstances, including if the applicant contravened any condition to which the applicant’s previous registration or endorsement was subject.
[17]Ibid s 112.
Details of any condition imposed on a practitioner’s registration must be included on the national register of all currently registered health practitioners required to be maintained by the National Board and posted on AHPRA’s website.[18] A registered health practitioner who is registered on conditions must not knowingly or recklessly claim to be, or hold themselves out to be, registered without the conditions.[19]
[18]Ibid ss 222(2), 225(k), 228(1)(a).
[19]Ibid s 120(1).
Subdivision 1 of div 11 of pt 7 of the National Law deals with certificates of registration. Section 124(1) provides that, if a National Board decides, amongst other things, to register an individual in a health profession, renew an individual’s registration or ‘to impose, change or remove a condition on a registered health practitioner’s registration or otherwise change the practitioner’s registration in a material way’,[20] the Board must, as soon as practicable after the decision is made, give the registered health practitioner a certificate of registration.[21] The certificate must include certain prescribed information including ‘any condition to which the registration … is subject’.[22]
[20]Ibid s 124(1)(c).
[21]Ibid ss 124(1)–(2).
[22]Ibid s 124(3)(e).
Subdivision 2 of div 11 of pt 7 of the National Law deals with the review of conditions and undertakings. It prescribes procedures by which a registered health practitioner,[23] or a National Board,[24] may seek to change or remove a condition imposed on a practitioner’s registration.
[23]Ibid s 125.
[24]Ibid ss 126–7.
Part 8 of the National Law regulates the health, performance and conduct of health practitioners, including the making of mandatory and voluntary notifications about registered health practitioners. Division 10 of pt 8 deals with the action which may be taken by a National Board. It includes s 178 which relevantly provides as follows:
(1) This section applies if—
(a) a National Board reasonably believes, because of a notification or for any other reason—
(i) the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; or
(ii) a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment; or
…; and
(b) the matter is not required to be referred to a responsible tribunal under section 193; and
(c) the Board decides it is not necessary or appropriate to refer the matter to a panel.
(2) The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student—
(a) caution the registered health practitioner or student;
(b) accept an undertaking from the registered health practitioner or student;
(c) impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner—
(i) a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv) a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(d) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3) If the National Board decides to impose a condition on the registered health practitioner’s or student’s registration, the Board must also decide a review period for the condition.

Subject to certain exceptions, a National Board is required to follow the ‘show cause process’ set out in s 179 of the National Law when it proposes to take ‘relevant action’ as defined in s 178(2) in relation to the registered health practitioner.
Division 13 of pt 8 deals with ‘appeals’. Section 199 sets out a list of ‘appellable decisions’ which can be made by a National Board or panel and in relation to which a person who is the subject of such a decision may appeal to the ‘appropriate responsible tribunal’. The ‘responsible tribunal’ in Victoria is the Tribunal.[25] Section 199(1), which is the only provision in the National Law which provides for a right of appeal against decisions of a National Board, states as follows:
[25]Ibid s 6.
Appellable decisions
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
(a)      a decision by a National Board to refuse to register the person;
(b) a decision by a National Board to refuse to endorse the person’s registration;
(c) a decision by a National Board to refuse to renew the person’s registration;
(d) a decision by a National Board to refuse to renew the endorsement of the person’s registration;
(e) a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i) a condition relating to the person’s qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;
(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h) a decision by a National Board to suspend the person’s registration;
(i) a decision by a panel to impose a condition on the person’s registration;
(j)      a decision by a health panel to suspend the person’s registration;
(ja)     a decision by a health panel not to revoke a suspension;
(k) a decision by a performance and professional standards panel to reprimand the person.

The Guidelines

The Guidelines relate to IMGs. They provide that all IMGs who are granted limited registration or provisional registration must be supervised, and that supervision is a requirement of registration for the duration of their registration.
Clause 3, which is titled ‘Principles of Supervision’, provides that the supervision arrangements that have been approved by the Board must be in place at all times when the IMG is practising. An IMG must not practise if the approved supervision arrangements cannot be met. Clause 3.2 provides:
These guidelines prescribe requirements for supervision of IMGs but also aim to be flexible where this is safe. They allow individuals to make a case to the Board if they are proposing arrangements that do not fit with the guidelines. The Board will consider each proposal on its individual merits and will only approve arrangements that it considers to be safe.
Clause 3.5 is in the following terms:
Requirements for supervisors
All supervisors, including principal supervisors, co-supervisors, term co-supervisors and temporary co-supervisors:
·must not have conditions imposed on their registration or undertakings accepted by the Board as a result of health, performance or conduct issues
·must not be a relative or domestic partner of the IMG, and
·must not be an employee of the IMG.
The Board may take into consideration the past notification history of proposed supervisors when deciding whether or not to approve them.
The Board may not grant approval or may revoke approval for a supervisor, if it receives a notification of a serious allegation about the supervisor’s health, performance or conduct.
The Guidelines require a degree of formal supervision in which the supervisor monitors and assesses the IMG’s performance within a structured framework. The Guidelines describe obligations on both the IMG and the supervisor. In relation to the latter, the Guidelines set out a non-exhaustive list of responsibilities in cl 5.2 including to:
·ensure, as far as is possible, that the IMG is practising safely and is not placing the public at risk
·observe the IMG’s work, conduct case reviews, periodically conduct performance reviews and provide constructive feedback
·address any problems that are identified
·notify the Board immediately if they have concerns that the IMG’s performance, conduct or health is placing the public at risk
·notify the Board immediately if the IMG is not complying with conditions imposed or undertakings accepted by the Board or is in breach of any requirements on registration
·verify that the IMG is practising in accordance with work arrangements approved by the Board and report to the Board if the IMG is not doing so
·ensure that approval of the Board has been obtained for any proposed changes to supervision arrangements, registration conditions or requirements before they are implemented
·inform the Board if they are no longer able or willing to provide supervision

The judge’s reasons

Although there were two grounds of appeal before the judge, he noted the overlap between them and identified, correctly, that the critical issue was whether the ‘decision’ to revoke the applicant’s approval as a supervisor of IMGs was a decision that imposed or changed a condition on the applicant’s registration and was thereby an appellable decision under s 199(e) of the National Law. In answering that question in the negative, the judge adopted the following reasoning.
First, the judge noted that the condition must be one that is imposed ‘on a person’s registration’.[26] In that respect the judge observed that registration was a ‘critical concern’ of the National Law and the Medical Board was required to maintain a register. When a decision was made to register, renew or impose a condition on registration, the Medical Board was required to give a registered health practitioner a certificate of registration containing prescribed information including any condition on which their registration is subject.[27]
[26]Reasons, [77].
[27]Ibid [79].
Based on these matters, the judge concluded that a condition on a person’s registration is to be understood as being a reference to a decision which imposes or changes a condition which expressly attaches to a person’s registration as recorded in accordance with the provisions of the National Law.[28] The judge also relied on the distinction between a practitioner’s registration and their practice, saying:
For example, in dealing with notifications about the health, performance and conduct of health practitioners, a board may, pursuant to s 178(2)(c), impose conditions on a practitioner’s registration requiring the practitioner to manage their practice in a specified ways, or requiring the practitioner to report to a specified person at specified times about their practice. Sections 132(1) and (2) also require registered health practitioners to comply with a notice issued by a board which asks the practitioner to give written notice containing certain ‘practice information’.[29]
[28]Ibid [80].
[29]Ibid [81].
Applying that approach to the decision of the Medical Board, the judge accepted that the Medical Board directed itself to the applicant’s ‘ongoing suitability to provide supervision’ to Dr A, but critically the judge held:
the Board did not direct itself at all to Dr Fidge’s registration, including by imposing or changing a condition to which his registration was subject. Neither can it be said, contrary to the Tribunal’s reasoning, that the decision operated in any way to impose or change a condition on Dr Fidge’s registration, as distinct from, for example, the manner in which he conducted his practice.[30]
[30]Ibid [84].
Next, the judge identified an alternative reason why the Tribunal did not have jurisdiction. The judge said the fact that the applicant no longer met the criteria for being a supervisor was ‘the operational effect’ of cl 3.5 of the Guidelines as distinct from any decision of the Medical Board.[31] In reaching that conclusion, the judge relied on s 40(4)(a) of the National Law, which provides that a guideline ‘takes effect’ when published by the Medical Board. The judge said that the operational effect of the Guidelines was not contingent on some further action or decision being taken by a Board.
[31]Ibid [88].
It followed, so the judge held, that the revocation of the applicant’s status as a supervisor was the consequence of the fact that the conditions had been imposed on his registration, but did not itself entail the imposition of a condition on his registration. The letter of the Medical Board did not evidence a decision but gave notice of the application of the Guidelines to the applicant.[32]
[32]Ibid [89].

Submissions

Under the heading ‘Proposed grounds of appeal’ in his application for leave to appeal, the applicant supplies 25 paragraphs. They can be grouped so as to make the following general points:
(a)the judge erred at [87]–[89] of the Reasons in concluding that there had been no decision by the Medical Board and the revocation of the applicant’s approval as a supervisor occurred by operation of the Guidelines;[33]
(b)the judge should have found that the revocation of approval amounted to the imposition of a condition on the applicant’s registration of the kind identified in ss 178(2)(c)(iii), (iv) and (vi), regardless of the fact that it was not included on the register;[34] and
(c)in making the decision, the Medical Board breached the applicant’s human rights under the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).[35]
[33]Proposed grounds 1–8, 10, 18–19.
[34]Proposed grounds 9, 11–17.
[35]Proposed grounds 22–5.
The applicant also contends that the Medical Board erred in not treating the applicant in the same way as another medical practitioner who had similar restrictions in relation to supervision imposed by way of a condition on registration.[36]
[36]Proposed grounds 20–1.
As to the first point, the applicant submits that if revocation of his approval as a supervisor was the consequence of the application of the Guidelines to the anterior decision to impose conditions on his registration, the Guidelines were invalid as an impermissible fetter on the exercise of the Board’s discretion. He also says that the Board did not simply apply the Guidelines, but made a decision to revoke his approval.
As to the second general point, the applicant submits that the judge was wrong to draw a distinction between a condition on registration and a condition that affected a practitioner’s practice. He says that the only ‘pathway’ by which the Board could have prevented him from supervising IMGs was by imposing a condition on his registration, and that supervision was a permissible activity authorised by ‘unfettered registration’.
The applicant says that ss 178(2)(c)(iii), (iv) and (vi) provide examples of conditions on registration that affect a practitioner’s practice and that they are apt to describe the effect of the Board’s decision. He says that whether or not the condition is recorded on the register is not determinative of whether a condition has been imposed and there could be ‘any number of reasons’ why a condition is not recorded. He says the issue is one of substance.
In practical terms, he says that the decision had significant consequences, including for the availability of medical services in regional centres which rely on IMGs and for his ability to run his practice. He submits that his construction is consistent with the objectives and guiding principles of the National Law, including that decisions should be transparent, accountable and fair.
The applicant makes various submissions which go to the merits of the decision to revoke his approval. They include that the decision would affect the provision of medical services in his regional town, that it was inconsistent with the public interest and that it was discriminatory. In that respect he says that in other cases, a refusal to allow a medical practitioner to supervise an IMG had been effected by the imposition of a condition.
In its submissions, the Medical Board essentially adopts the reasoning of the judge.

Decision

The purpose of registration is to ensure that health services are provided by qualified, competent and regulated persons under the supervision of a National Board. Its primary purpose is protection of the community. Although the purpose of registration is not to promote or protect the commercial interests of registered practitioners, it does entitle practitioners to practise and hold themselves out as being registered, and the private interests of practitioners, including their reputation, standing and personal interests, may be relevant to the exercise of regulatory powers by a National Board.
The National Law authorises the National Board to impose conditions upon registration and renewal, and as a form of sanction in the context of disciplinary proceedings. Consistent with its ordinary meaning, a condition operates as a limitation or qualification on registration and, in practical terms, on the ability or manner in which the registered person may engage in practice.
Assessing whether a decision of the Medical Board that affects a medical practitioner constitutes a condition on their registration involves consideration of matters of both substance and form.
Where a National Board intends to impose a condition on a practitioner’s registration, matters of form and process are involved. For example, where a decision is made to impose a condition as a sanction, the Board is required to follow a disciplinary process that will involve a show cause process. Further, having made the decision, the Board is required to record the condition on the register[37] and must decide a review period for the condition.[38]
[37]National Law, s 225(k).
[38]Ibid s 178(3).
The fact that in a given case the Board has not adopted that process and has not recorded its decision on the register may go some way to establish that it did not intend to impose a condition on the registration of the practitioner. And non-compliance with the process, including the obligation to enter the condition on the register, may mean that the decision does not operate in law to validly impose a condition.
Turning then to matters of substance, first it is important to observe that non-compliance with a condition by a practitioner is not an offence. It does not mean that the practitioner loses the protection of registration. A breach of a condition may evidence or constitute a breach of professional standards and may provide a basis on which a National Board may refuse to renew registration[39] or bring disciplinary proceedings. Further, once the condition is entered onto the register, it stands as a public statement of a limitation or qualification on registration. The consequences that attach to a condition only arise where there has been compliance with the procedural processes imposed under the National Law, including placing the condition on the register. For that reason, satisfaction of the procedural requirements is necessary in order to constitute the imposition of a condition.
[39]Ibid s 112(b).
The second aspect of substance concerns the practical effect of a putative condition. As already observed, the ordinary meaning of a condition in this context is a qualification or limitation on the registration of the medical practitioner.
It is notable that, in the course of the Reasons, the judge identified a distinction between registration and practice and appears to have regarded that distinction as significant. In drawing that distinction the judge appears to have regarded a condition of the kind referred to in ss 178(2)(c)(iv) and (v), requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice or to manage the practitioner’s practice in a specified way, as being a condition on practice rather than a condition on registration.[40] Thus the judge concluded:
Neither can it be said, contrary to the Tribunal’s reasoning, that the decision operated in any way to impose or change a condition on Dr Fidge’s registration, as distinct from, for example, the manner in which he conducted his practice.[41]
[40]Reasons, [81].
[41]Ibid [84] (emphasis added).
If, by those references, the judge was intending to convey that a condition on practice was not a condition on registration then, with respect, we are unable to agree with him. First, the introductory words to s 178(2)(c) refer to a National Board imposing conditions on the practitioner’s registration and give a non-exhaustive list of examples including a condition relating to practice. That shows that a condition regulating or limiting the manner of practice may be an example of a condition on registration.
Further, in effect, registration provides a statutory permission to engage in medical practice. Registration avoids the prohibitions on engaging in medical practice or holding oneself out as a medical practitioner. A restriction or limitation on registration in the form of a condition, may, and often will, be the means by which restrictions on aspects of professional practice are imposed. An endorsement on registration may be another.[42]
[42]National Law, pt 7 div 8.
It does not follow that every decision of a National Board that affects the way a practitioner may practise constitutes a condition on registration. It will be important to focus on the practical effect of the decision and the form which it takes.
Irrespective of the distinction to which the judge referred, from the perspective of both form and substance, the judge was correct to conclude that the decision of the Medical Board, communicated to the applicant by its letter of 24 September 2020, did not constitute a decision to impose a condition on the applicant’s registration and accordingly was not an appellable decision.
The decision did not take the form of a condition, it was not imposed on the registration of the applicant and it was not entered onto the register. Further, although it affected the applicant in his practice, the decision did not require him to do, or refrain from doing, something in connection with his practice, or to manage his practice in a specified way. The effect of the decision was that supervision by the applicant of Dr A and other IMGs would not be taken as approved supervision for the purpose of Dr A’s registration. But it did not prohibit the applicant from doing anything in his practice. It instead denied approval to Dr A and other IMGs if they sought to be supervised by the applicant.
In order to characterise the decision as a decision to impose a condition, more was required than showing that it had an adverse effect on the applicant. It may be accepted that approval of the applicant to supervise an IMG enabled the applicant or his practice to engage IMGs. No doubt this was of benefit to both the practice and to the community it serves. However, it did not qualify or limit the things that the applicant could do by dint of his registration. Registration itself did not render the applicant an approved supervisor. The decision to approve or not approve a medical practitioner as a supervisor is distinct from registration and the revocation of his approval did not alter that which registration permitted him to do.

It follows that the judge was correct to hold that the decision to revoke the applicant’s approval to supervise IMGs was not a decision to impose a condition on registration and therefore was not an appellable decision within the meaning of s 199 of the National Law.
That being so, it is not necessary to determine whether the alternative basis to allow the appeal identified by the judge was correct. It will be recalled that the judge held that the revocation of the applicant’s status as an approved supervisor did not involve a decision by the National Board but was a consequence of the Guidelines taking effect under s 40(4)(a) of the National Law.
In our view it is neither necessary nor appropriate to deal with this issue. In order to resolve the question of whether the Guidelines effected the revocation of the approval without any decision-making by the Board, it would be relevant to determine the nature and legal effect of the ‘decision’. For example, if the proper characterisation of the revocation was that it imposed a condition on the applicant’s registration, that might be relevant to assessing whether the Guidelines could validly impose a condition without the exercise of a power by the Board. On the other hand, if, as we have found, no condition on registration was imposed, there is no appellable decision regardless of how the decision was made.
We would, however, add this. To the extent that the judge’s reasons imply that s 40(4)(a), which provides that a guideline ‘takes effect’ on publication, necessarily means that no decision of the Board was required, we cannot agree. That provision identifies when a guideline will come into operation; it does not say anything about what that effect is. That issue turns on the language of the guideline in question, as construed in its statutory setting.
Finally, the applicant’s proposed grounds relating to the Charter and his allegedly differential treatment are not relevant to the question of the Tribunal’s jurisdiction, which is the only matter the subject of the decision sought to be appealed. They would, at best, be matters which might be raised before the Tribunal if it had jurisdiction. But we have found that the judge correctly held that it did not.
Although the application for leave to appeal should be granted, the appeal must be dismissed.
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[2023] VSCA 273

9 November 2023