GEORGE and NURSING AND MIDWIFERY BOARD OF AUSTRALIA - [2013] WASAT 202

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

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

CITATION: GEORGE and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2013] WASAT 202

MEMBER: MR M SPILLANE (SENIOR MEMBER)
MR T CAREY (MEMBER)
MS E PAVLOS (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 17 DECEMBER 2013

FILE NO/S: VR 61 of 2013

BETWEEN: DINOL GEORGE
Applicant
AND
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Respondent

Catchwords:

Health Practitioner National Law Nursing and Midwifery Board of Australia Registration under Health Practitioner National Law Registered nurse Graduated or trained overseas Approved qualifications Similar qualifications

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 11, s 49, s 52, s 52(1), s 52(1)(a), s 53, s 199(1)(a)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Appealable decision is confirmed
Application is dismissed

Summary of Tribunal's decision:

Ms Dinol George resides in India and qualified as a nurse there in 2006.
In June 2011 Ms George applied to the Nursing and Midwifery Board of Australia for registration as a registered nurse and midwife in Australia.
In October 2012 the Nursing and Midwifery Board of Australia refused Ms George's application for registration in Australia and she sought to review that decision at this Tribunal.
Following orders made on 20 August 2013 the matter was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The issue to be determined was whether Ms George was entitled to general registration as a registered nurse and registered midwife under the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
Ms George contended that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification, and that when the application was submitted, she had achieved all of the standards of the Nursing and Midwifery Board of Australia.
As for Ms George's contention that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification, the Tribunal found, as it had in previous cases, that such a comparison with other applicants is of no value and that the real question was whether, as at the date of her application, Ms George held an approved qualification.
As for the applicant's second contention that when she had submitted her application she had achieved all of the standards, Ms George had put no evidence before the Tribunal to show that was the case.
Following an examination of the submissions filed, the Tribunal found that there was no evidence to show that Ms George was qualified through any of the four possible routes by which an individual can be qualified for general registration in Australia.
In the circumstances the Tribunal confirmed the decision of the Nursing and Midwifery Board of Australia and dismissed the application for review.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Ms A Farnworth

Solicitors:

Applicant: N/A
Respondent: Australian Health Practitioner Regulation Agency

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

Akpan v Nursing and Midwifery Board of Australia (7 June 2013)
Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78

REASONS FOR DECISION OF THE TRIBUNAL:

Background

By application dated 24 June 2011, Ms Dinol George (applicant), a resident of India, applied for general registration (graduated or trained overseas) as a registered nurse and registered midwife with the Nursing and Midwifery Board of Australia (respondent or National Board).
The applicant provided a copy of the following documents with her application:
•Curriculum Vitae;
•copy of passport;
•copy of Diploma in General Nursing and Midwifery issued by the Kerala Nurses and Midwives Council;
•copy Certificate of Registration from the Kerala Nurses and Midwives Council certifying that the applicant had taken the course of Diploma in General Nursing and Midwifery at the School of Nursing, Malik Deenar Charitable Hospital, Kasaragod, from January 2003 to January 2006, and passed the final examination in September 2006;
•copy of the applicant's Secondary School Leaving Certificate examination results;
•copy of the applicant's Certificate of Marriage;
•copy of a letter from Dr Mammen John, consultant nephrologist;
•copy of a letter from the Chairman of Malik Deenar Charitable Hospital;
•copy of a letter from the School of Nursing, Malik Deenar Charitable Hospital, outlining the hours completed;
•copy of a letter from the Principal, School of Nursing, Malik Deenar Charitable Hospital;
•copy of a letter from St Augustine's Higher Secondary School confirming that the applicant had completed her 'Higher Secondary' from that school and had been taught and assessed in English; and
•copy of a certificate from the Government of Kerala, Board of Higher Secondary Examination, showing examination results.
Following an initial assessment of her application, the National Board contacted the applicant by email dated 1 August 2011 requesting additional information following which the applicant provided additional documents.
In its submission to the Tribunal, the respondent confirmed that following receipt of those additional documents the respondent dealt with the matter in the following manner:
…
8.At a meeting of the Western Australia[n] Registration Committee of the Nursing and Midwifery Board of Australia (Committee) held on 8 June 2012, the Committee, as delegate of the Nursing and Midwifery Board of Australia (National Board), proposed, pursuant to s 82(1)(c)(i)(I) of the [Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law)], to refuse the Applicant's application for registration as a registered nurse, on the basis that she did not hold a qualification that was substantially equivalent, or based on similar competencies, to an approved qualification for the purpose of section 53(b) of the National Law.
9.By letter from AHPRA dated 6 July 2012, the Applicant was:
9.1advised of the Committee's decision; and
9.2invited to make a written or verbal submission to the Committee in relation to their proposal to refuse her application for registration by 6 August 2012.
10.In or about August 2012, the Applicant provided a submission to the Committee, in which she requested that the Respondent reconsider her application and submitted that:
10.1the Respondent had previously accepted the same level of qualification;
10.2her application was submitted before 8 June 2012 and at that time, she met all of the Respondent's standards; and
10.3she had provided all of the documents that were requested.
11.At its meeting on 14 September 2013, the Applicant's application for general registration as a registered nurse was refused, in accordance with s 82(1)(c)(i)(I) of the National Law, on the basis that she did not hold a qualification that was substantially equivalent, or based on similar competencies, to an approved qualification for the purpose of section 53(b) of the National Law. The Committee considered that the Applicant had not provided any further information in her submission which would cause the Committee to reconsider its decision.
12.The Applicant was advised of the Committee's decision, by letter dated 5 October 2012.
In the respondent's letter dated 5 October 2012 under the heading 'Reasons for Decision', the respondent stated:
When considering an application from an overseas trained nurse or midwife, the Committee uses the Framework for the Assessment of Internationally Qualified Nurses and Midwives for Registration. Criterion three of the Framework outlines that the requirement for a registered nurse or midwife is met when the applicant has a minimum qualification of a Bachelor degree, or qualification combined with experience that is comparable in duration and content to the nationally agreed minimal educational standard for nursing and midwifery in Australia.
Your qualification from [the] School of Nursing Malik Deenar Charitable Hospital has been determined to be not equivalent to an approved qualification for registration purposes (pursuant to section 53(a) of the National Law). Therefore, in accordance with the Framework, your qualification from [the] School of Nursing Malik Deenar Charitable Hospital combined with your experience in nursing in India and Saudi Arabia have been reviewed together to see if they can be considered substantially equivalent, or based on similar competencies, to an approved qualification (pursuant to section 53(b) of the National Law).
When reviewing experience, the Committee takes into account the length and depth of the experience, together with the country in which the experience was acquired. When making an assessment as to whether the experience gained matches the experience which would have been gained by an Australian graduate, only experience in certain countries has been identified as being substantially equivalent. Experience from the following countries is considered to be substantially equivalent as the health systems in place in the following countries is seen to be similar:
United Kingdom
Republic of Ireland
New Zealand
United States of America
Singapore
Canada
In accordance with section 81(2)(b) of the National Law, you were invited to make a written or verbal submission to the Committee.
On 14 September 2012, the Committee reviewed your submission received recently in support of your application for a Registered Nurse.
Having reviewed the information provided in relation to your qualification from [the] School of Nursing Malik Deenar Charitable Hospital, your nursing experience from India and Saudi Arabia and your submission provided recently, it has been determined that these, taken together, cannot be considered to be substantially equivalent, or based on similar competencies, to an approved qualification.
…
On 18 March 2013 the applicant applied to this Tribunal seeking a review of the Committee's decision, stating:
(a)I kindly request you to consider my application
(b)please issue a Decision letter from Australian Health Practitioner Regulation Agency (AHPRA)
And under 'Grounds', the applicant stated:
I have received a letter from N.M.B.A recived [sic] my application for registration with the Nursing and Midwifery Board Australia dated on 286-2011.
I have recived [sic] a letter from Georgia Neindorf Registration, Communication Client Support Officer on 7-2-2012 was stated we have recived [sic] all the documents.
I kindly remind your Nursing Board of Australia already accepted the same level of qualification I have submitted my application form about [a] year back.
A meeting of the Western Australia Registration Committee of the NMBA only 14-Sep 2012.
In a covering letter accompanying her application, the applicant stated:
…
I am writing you to appeal about refusal of my application for registered nursing and midwifery board of Australia.
1.I have received a letter from A.H.P.R.A (Australian Health Practitioner Regulation Agency) on 28/06/2011, was stated my application form has been received. Requested to send following documents.
a.Certified evidence of my nursing qualification.
b.Certification of good standing.
c.An employer signed statement of service.
d.Kingdom of Saudi Arabian Registration.
I would like to mention you, I have send all the documents which you have requested I have received a letter form [sic] Mr. Georgia Neimdort [sic] (registration communication and client support officer) on 07/02/2012 was stated we have received all the documents.
I kindly remind you, nursing board of Australia already accepted the same level of qualification. I have submitted my application form about [a] year back (before 14^th of September 2012). I would like to remind you when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia.
I kindly request you to reconsider my application, I look forward to hearing from you in the near future regarding same. Whether you have any more clarification please do not hesitate to contact me.
…
Initial directions by the Tribunal were held in the matter on 9 April 2013, with a number of further directions and mediations over the preceding months with the applicant attending on occasion by teleconference.
Following the unsuccessful mediation of the matter, a final directions hearing was held on 20 August 2013 when the following orders were made:
1.On or before 3 September 2013 the applicant is to file and send to the respondent submissions setting out why she contends that her application should be granted.
2.On or before 17 September 2013 the respondent is to file and serve any submissions in response.
3.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
4.The respondent is to file and serve a section 24 bundle on or before 27 August 2013.
In compliance with order 1 the Tribunal received an email at 7.24 pm on 4 September 2013 on behalf of the applicant which attached a letter addressed to the Tribunal stating:
…
Subject: Registration with the NMBA
Reference: Order of Justice Chancy [sic] on 20^th August 2013
1.My application form registration with the nursing and Midwifery board of Australia received on 28-06-011 [sic]
2.My registration fee and all documents are submitted the same day
3.I have loss [sic] some of Amount approximately &5000 [sic] Australian Dollars.
4.So please give me the registration with the NMBA.
Yours Sincerely
Dinol George
The respondent filed a statement of issues, facts and contentions dated 16 September 2013 in compliance with order 2, and filed a section 24 bundle in compliance with order 4 on 27 August 2013.

Issue

The issue for determination by the Tribunal is whether, based on the facts set out and the documents provided by her, the applicant is entitled to general registration as a registered nurse and registered midwife under the National Law.

Consideration

Section 199(1)(a) of the National Law allows a person who disagrees with a decision of the National Board to appeal that decision to the appropriate responsible tribunal, and s 11 provides:
A reference in the Health Practitioner Regulation National Law (Western Australia) to an appeal against a decision is, for an appeal to the State Administrative Tribunal as the responsible tribunal, a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3.
The Tribunal is satisfied that the applicant is entitled to bring the application for review to this Tribunal as the responsible tribunal.
Section 52 of the National Law states:
Eligibility for general registration
(1)An individual is eligible for general registration in a health profession if
(a)the individual is qualified for general registration in the health profession; and
(b)the individual has successfully completed
(i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession;
and
(c)the individual is a suitable person to hold general registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a coregulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
…
A person is therefore eligible for general registration as a registered nurse if they meet each of the five criteria identified in that section.
Section 53 of the National Law sets out the qualifications for general registration and states:
Qualifications for general registration
An individual is qualified for general registration in a health profession if
(a)the individual holds an approved qualification for the health profession; or
(b)the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or
(c)the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or
(d)the individual
(i)holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and
(ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.
In Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78 (Palatty), this Tribunal, when dealing with a similar application from an applicant who also resided in India and had similar qualifications to the applicant, namely, a Diploma in General Nursing, considered the relevant provisions of the National Law and confirmed that in the case of every application for general registration as a registered nurse, applicants must meet each of the five criteria identified in s 52(1) of the National Law to be eligible for general registration.
In respect of s 52(1)(a) of the National Law, namely, whether the applicant is qualified for general registration, this Tribunal stated at [47] of Palatty:
Section 53 identifies four possible and alternative routes by which an individual can be 'qualified for general registration' so as to meet the first of the five eligibility requirements for general registration identified in s 52(1)(a) of the National Law set out above. Broadly speaking, they are:
1)the individual actually holds an approved qualification (which is a term defined by the National Law and to which the Tribunal will return) a specified and defined qualification;
2)the individual actually holds a qualification that the National Board considers substantially equivalent (in terms of the substantive competencies of the qualification) to an approved qualification a comparable qualification in substance to the specified and defined approved qualification;
3)the individual does not hold an approved qualification or a comparable qualification but has 'successfully completed' an examination or other assessment 'required by the National Board for the particular health profession an identifiable 'bridging', 'reentry' or 'refresher' qualification nominated by the National Board; and
4)the individual does not hold an approved qualification or a comparable qualification but does hold a qualification which under the National Law (in substance) qualifies the individual or which qualified the individual by reason of the law as it was prior to the enactment of the National Law and the individual was previously registered either under the National Law or the law prior to the enactment of the National Law what has been described as the 'grandfathering' provision.
And at [49] stated:
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law?

This Tribunal agrees with, and adopts that position in this matter and confirms that the question is whether the applicant, as at the date of her application for general registration, in this case 24 June 2011, was qualified for general registration by one of the four routes identified in s 53 of the National Law.

Route 1 approved qualification (s 53(a))

The applicant holds qualifications similar to the applicant in Palatty, namely, a 'Diploma in General Nursing and Midwifery'. It is for the applicant to satisfy the National Board, or alternatively this Tribunal, that the qualifications she holds are approved qualifications for general registration in Australia as at the relevant date. The list of approved qualifications, approved by the National Board, appears, in accordance with s 49 of the National Law, on the Australian Health Practitioner Regulation Agency's (AHPRA) website.
The applicant holds a Diploma in General Nursing and Midwifery obtained from the School of Nursing, Malik Deenar Charitable Hospital, India, during the period January 2003 to January 2006.
The applicant's qualification does not appear on the AHPRA list. Therefore, the applicant does not hold an approved qualification for the purposes of s 53(a) of the National Law.

Route 2 qualification substantially equivalent to approved qualification (s 53(b))

The respondent referred the Tribunal to a decision of the Northern Territory Health Professional Review Tribunal in Akpan v Nursing and Midwifery Board of Australia (delivered 7 June 2013) dealing with similar issues, which stated at [44] to [46]:
This is a case where the appellant needs to demonstrate that her qualifications and experience are substantially equivalent or based on similar competencies.
As it is her appeal Mrs Akpan has the onus to prove her claim.
The mere assertion of equivalency and the invitation to compare job descriptions and subjects in courses is not sufficient to discharge that onus.
This Tribunal agrees with that proposition, and notes that in the present case the applicant has made no submissions in respect of any approved qualification under the National Law with which any qualification she holds is comparable, nor has she made any effort to demonstrate that her qualifications and experience are substantially equivalent or based on similar competencies. She has merely asserted in the penultimate paragraph of her covering letter (set out earlier) received on 18 March 2013:
I kindly remind you, nursing board of Australia already accepted the same level of qualification. I have submitted my application form about [a] year back (before 14^th of September 2012). I would like to remind you when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia.
In respect of the first assertion in the applicant's letter that the 'nursing board of Australia already accepted the same level of qualification', this Tribunal dealt with that issue in Palatty, and stated at [48] and [49]:
… [A] comparison with other applicants is of no value because their full circumstances are unknown and because the respondent has conceded that various State Boards may have not interpreted the National Law correctly in the case of some applicants.
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law?
As for the second assertion that 'when I submitted my application form I have achieved all the sanders [sic] of nursing and midwifery board of Australia'. On the assumption that 'sanders' is a reference to 'standards', we repeat our observation that it is necessary for the applicant in this review application to demonstrate that she fits within one of the four routes identified in s 53 of the National Law.

Route 3 has successfully completed an examination or other assessment required by the National Board (s 53(c))

There is no evidence that the applicant has undertaken any examination or assessment that the National Board requires to be successfully completed for the purposes of s 53(c) of the National Law.

Route 4 qualified under previous law and previously registered (s 53(d))

The applicant does not rely upon this route and no evidence to support its application has been produced.

Conclusion

For the above reasons, the Tribunal is not satisfied that the applicant holds the necessary approved qualification for general registration within the meaning of that term for the purposes of s 52(1)(a) of the National Law. The decision of the Nursing and Midwifery Board to refuse the applicant's application for registration will be confirmed and the application for review will be dismissed.

Costs

At paragraph 35 of its submission, the respondent submitted that if the Tribunal found in its favour, costs should be awarded, and at paragraphs 36 and 37 the respondent went on to outline the reasons why it believed it was appropriate for the Tribunal to exercise its discretion in respect of costs in its favour. The respondent did not claim any particular amount of costs, nor provide any other particulars of costs claimed.
The applicant's submissions were drafted and filed prior to the respondent's submissions, and consequently she has not addressed the issue of the respondent's costs . She should be given an opportunity to do so.
The Tribunal's order indicates the manner in which the respondent's costs claim will be managed through to its determination.

Orders

1.The decision of the Nursing and Midwifery Board of Australia to refuse the applicant's application for registration is confirmed.
2.The application is otherwise dismissed.
3.The respondent shall by 17 January 2014 file and serve a schedule of costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded.
4.The applicant may on or before 31 January 2014 file any submissions she wishes to make in respect of the respondent's application for costs.
5.The Tribunal shall, on or after 1 February 2014, determine the respondent's application for costs on the documents, and if costs are awarded, shall fix the amount of such costs.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER