George v Dental Board of Australia
[2022] QCAT 5
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
George v Dental Board of Australia [2022] QCAT 5
PARTIES: ROY GEORGE (applicant)
v
DENTAL BOARD OF AUSTRALIA (respondent)
APPLICATION NO/S:
OCR121-19
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
3 February 2022
HEARING DATE:
12 February 2021
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
Assisted by:
Dr Peter Marshall,
Dr Sharon Timoney,Ms Margaret Ridley
ORDERS:
1. The decision of the respondent to refuse the applicant specialist registration as an endodontist is set aside.
2. The applicant be granted registration as a specialist in the specialty of endodontics forthwith, on condition that he remain at least as closely involved with the course for the degree of Doctor of Clinical Dentistry (Endodontics) at Griffith University as he was during the calendar year 2020, until the first student or students graduate with that degree on completion of that course.
3. The review period for the condition is eighteen months from the date of this decision.
4. Any question of costs is reserved pending further submissions, if any.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – LICENCSE AND REGISTRATION – QUALIFICATIONS AND EXPERIENCE – application for review of decision of respondent to refuse specialist registration as an endodontist – where the applicant qualified as an endodontist overseas – whether strict adherence to accreditation standards is appropriate – where the applicant is presently teaching the degree which is the approved Australian qualification for endodontics – whether it is appropriate to act under section 57 of the National Law
Acts Interpretation Act 1954 (Qld), s 32C(a)
Health Practitioner Regulation National Law (Qld) s 57(2), s 58(b), s 83, s 199(1)(a)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Briginshaw v Briginshaw (1938) 60 CLR 336
Chinese Medicine Board of Australia v Lee [2014] QCA 149
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Pearse v Medical Board of Australia [2013] QCAT 392Queensland Building Services Authority v Meredith [2010] QCATA 50
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
M Brooks instructed by Minter Ellison
REASONS FOR DECISION
The applicant is registered as a dentist, and has been for some years. On 3 October 2017 he applied to the respondent for specialist registration as an endodontist, a recognised dental specialty in Australia.[1] On 9 March 2019 the respondent refused to register the applicant.[2] The applicant has applied to the Tribunal to review that decision; such a decision is reviewable by the Tribunal under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 199(1)(a). The appeal is a hearing de novo of the applicant’s application to the Board.[3] The obligation of the Tribunal is to arrive at the correct or preferable decision.[4]
[1]Affidavit of Keith filed 4 March 2020, Exhibit BK-9.
[2]Affidavit of Keith filed 4 March 2020, Exhibit BK-21. Quite a bit had happened in the interim, but the details do not matter for present purposes.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]; Pearse v Medical Board of Australia [2013] QCAT 392.
[4]Section 20 actually used the expression “correct and preferable decision”, but that was a drafting error: Queensland Building Services Authority v Meredith [2010] QCATA 50 at [5].
Legislation
The National Law provides in s 57 and s 58:
57 Eligibility for specialist registration
(1)An individual is eligible for specialist registration in a recognised specialty in a health profession if—
(a)the individual is qualified for registration in the specialty; and
(b)the individual has successfully completed—
(i)any period of supervised practice in the specialty required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the specialty; and
(c)the individual is a suitable person to hold registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the specialty; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the specialty.
(2)Without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by imposing conditions on the registration under section 83.
58 Qualifications for specialist registration
An individual is qualified for specialist registration in a recognised specialty in a health profession if the individual—
(a)holds an approved qualification for the specialty;[5] or
(b)holds another qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the specialty; or
(c)holds a qualification, not referred to in paragraph (a) or (b), relevant to the specialty and has successfully completed an examination or other assessment required by the National Board for the purpose of registration in the specialty; or
(d)the individual—
(i)holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and
(ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty.
[5]There are currently five such approved qualifications in Australia for endodontics, including the Doctor of Clinical Dentistry (Endodontics) at Griffith University, of which the applicant is Director of Studies: Affidavit of Keith filed 4 March 2020, Exhibit BK-6.
The issue for the applicant is whether he satisfies s 57(1)(a); that is, whether he satisfies one of the requirements listed in s 58. There are five approved programmes of study for the specialty in Australia, but the applicant has not completed any of them, so he cannot satisfy s 58(a). He has not completed an examination or other assessment required by the respondent for the purpose of registration, because the respondent does not have an established examination or other assessment for that purpose,[6] and has not offered to arrange such a thing for the applicant, so he cannot satisfy s 58(c). He has not previously been registered on the basis of his holding a qualification for endodontics, so he cannot satisfy s 58(d). He sought to satisfy the respondent that a qualification he holds is substantially equivalent, or based on similar competencies, to an approved qualification, but was unable to do so.
[6]Affidavit of Keith filed 4 March 2020, para 18.
Background
The applicant obtained a degree of Bachelor of Dental Science from Mysore University in India in 1994, and was registered as a General Dental Practitioner in India in 1995. He practiced as a dentist in Kerala in 1995 and 1996, then studied at the Bapuji Dental College and Hospital which was associated with the Rajiv Gandhi Health University in India for a degree of Master of Dental Science, which he obtained in 1999. This degree was in Conservative Dentistry and Endodontics, and as a result he was registered in India as a specialist in Endodontics in 1999.[7]
[7]Transcript p 1-14. This registration was not renewed after he left India, but he said it could be renewed if he returned to practice there.
The applicant practiced as such in India until August 2001, apart from eight months spent in Kuwait in 2000, then returned to academia in India, where he attained a position of Assistant Professor before coming to Queensland at the beginning of 2006, to the dental school at the University of Queensland where he worked as a sessional tutor while undertaking research for his doctorate. In 2008 he obtained a position as senior lecturer at Griffith University, where he remains, later as an Associate Professor, although after he obtained his PhD in 2009[8] he also obtained a position as an adjunct senior lecturer at the University of Queensland. Since November 2008 he has been the discipline lead in Endodontics at Griffith University Dental School, and since the hearing he has become a Professor there.
[8]Awarded for research into the use of lasers in endodontics.
The applicant obtained a Postgraduate Certificate in Higher Education from Griffith University in 2014. Throughout his academic career, he has taught in the field of endodontics, at the undergraduate and post-graduate levels. In 2019 the Dental College of Australia approved a three year course of study for the degree of Doctor of Dental Studies at Griffith University as a qualification for registration as a specialist in endodontics. The applicant was closely involved in setting up that course and obtained that approval, and is the Director of Studies for it. For the last two years, his duties have included teaching students undertaking that course.[9]
[9]Transcript p 1-20.
He was a founding member of the Association of Kerala Endodontics in 2002, and has been made a life member; he was made a life member of the Indian Endodontic Society in 2002. In 2006 he joined the Australian Society of Endodontics, and in 2010, the Academy of Laser Dentistry in the United States. He is a member of the Royal Australasian College of Dental Surgeons, and became a Member of the Royal Australasian College of Surgeons in Endodontics in 2010, joined the Australian Association of Laser Dentistry in 2013, and became a Fellow of the Royal College of Surgeons Edinburgh in August 2019. He is the Editor in Chief of the International Journal of Dental Clinics and the Associate Editor of Laser in Medical Sciences.
The applicant has had seventy-seven articles published in peer-reviewed journals,[10] and co-authored a chapter dealing with laser assisted endodontics in a book, Laser in Dentistry, published in 2017. Apart from his teaching work, he has been practising dentistry within the Griffith Dental School, and also has a separate private practice.[11] He said his work is mostly in the field of endodontics, although he is also at times consulted about cases in other areas where his research is relevant.[12] That has been going on for about the last ten years.
[10]Based on his CV in the hearing book, probably now out of date.
[11]Transcript p 1-15.
[12]His registration as a dentist entitles him to practice in endodontics, but not to call himself a specialist endodontist.
Respondent’s assessment
The respondent assessed the applicant’s application by reference to a “Qualification Equivalence Pathway” (“the QEP”) which it has adopted as the basis for assessment of applications for consideration of registration relying on s 58(b).[13] This sets out six criteria which must be met by a particular qualification relied on by an applicant for that qualification to be regarded as satisfying the requirements of s 58(b). The criteria appear to have been formulated for the purpose of assessing courses of study undertaken outside Australia in order to determine if such a course is substantially equivalent, or based on similar competencies, as one of the approved qualifications. I was told it is the practice to assess such qualifications by reference to the current standards, rather than the standards applicable at the time the relevant qualification was obtained.[14] Such an approach is likely to disadvantage a candidate whose qualification was obtained some time ago.
[13]Affidavit of Keith filed 4 March 2020, para 21.
[14]Hearing Book p 1059. See also transcript p 1-26. I refer to pages in the Hearing Book as “HB”.
The respondent’s approach was to assess the Master of Dental Surgery qualification against the QEP, on the basis that each of the other qualifications clearly did not satisfy the QEP.[15] This was based on the use of the singular “another qualification” in s 58(b), although it occurs to me that, as a general proposition, the use of the singular in a statute is taken to include the plural.[16] Assume for example that an applicant had obtained at institutions outside Australia two qualifications, one of which covered the theoretical work undertaken in an approved qualification, and one of which covered the practical work. It is not obvious to me that such an applicant should be rejected as not satisfying s 58(b) simply because the applicant was relying on two qualifications rather than one. That particular situation does not arise here, but that that submission was made by the respondent does suggest that the respondent has adopted an excessively technical approach to the application. In fact the reasons for the decision of the Board indicated that the applicant’s PhD was accepted as satisfying (indeed, more than satisfying) the research requirements for equivalence. That was the correct approach.
[15]In his application for specialist registration, the applicant relied on this degree and his PhD: Affidavit of Keith filed 4 March 2020, Exhibit BK-9.
[16]Acts Interpretation Act 1954 (Qld) s 32C(a).
It must be remembered that the statutory test requires the formation, in each particular case, of an opinion by the respondent. In general, where a statute establishes a test involving a matter of discretion or judgment, the decision making body can establish guidelines or general policies as to how the test will be applied, but should not (in the absence of statutory authority) adopt rules which are then applied mechanically in determining whether the test has been satisfied. This is regarded as fettering or confining the statutory discretion or judgment, and amounts to an error of law.
The respondent’s submissions included that the applicant should not be allowed to rely on his own assertion, or non-contemporaneous documentation, to establish satisfaction with the criteria in the QEP, and that the approach to proof in Briginshaw[17] should be applied in determining whether the applicant had established satisfaction with the statutory criteria. There are some passages in Briginshaw which would apply, but those passengers discussing the proof of criminal, wrongful or dishonourable conduct are not in my opinion relevant here. The applicant was not cross-examined on his material, and his credit has not been put in issue, and in those circumstances there is no reason not to accept his factual statements if apparently plausible. There is no reason why a non-contemporaneous document from an apparently reliable source which contains relevant information should not be accepted at face value.
[17]Briginshaw v Briginshaw (1938) 60 CLR 336.
The QEP requires the following of the qualification relied on:
1. The qualification specifically prepares the applicant for practice in a single specialty.
2. The qualification is three – four equivalent full-time years following completion of a minimum of a four year qualification in general dentistry.
3. The education institution where the applicant studied was externally accredited during the period when he/she undertook his/her studies. That is, during the time he/she studied the education institution must have been:
·Subject to regular review by an external quality assurance agency; and
·Registered or accredited by that agency.
4. The program of study was externally accredited and provided successful graduates with a qualification in the dental specialty for which the applicant is applying for registration in.[18] That is, during the time he/she undertook the program of study:
[18]Sic. Presumably this means: “in the dental specialty in which the applicant is applying for registration.”
·The program of study must have been subject to regular review within a system of external accreditation implemented by the relevant dental regulatory authority or agency;
·The program of study must have been accredited or recognised by that authority or agency; and
·The system of external accreditation included the application of accreditation standards specific to dental specialist education that are comparable to the current dental accreditation standards and system in Australia.
5. The qualification is comparable to a Board approved specialist program at AQF Level 9 Masters Degree (Extended).[19]
6. The curriculum of the program of study included the following components:
·Didactic component;
·Clinical and/or professional practice component; and
·Research component.
[19]This provides no information as to the content of this criterion, but refers to that part of the Australian Qualification Framework dealing with Masters Degrees, and to one of the three categories of Masters Degrees covered by the specification: Affidavit of Keith filed 4 March 2020, Exhibit BK-5. That qualification is in general terms, and not specific to dentistry. It appears to require that the relevant degree of the applicant be of equivalent content and rigour to an approved course.
The respondent submitted that the Master of Dental Surgery degree did not meet criteria 1, 3, 4, 5 and 6 of the QEP. The respondent submitted, as to 3, that the institution, the Bapuji Dental College and Hospital, has not been shown to have been externally accredited at the relevant time, and as to 4, that the applicant had not established that the programme of study was externally accredited in 1999.
As to 1, 5 and 6, the respondent relied on the evidence of an expert who had examined the programme of study and considered that it was not specific to the specialty of endodontics, but included significant aspects of conservative dentistry and restorative dentistry. Further, there were many topics covered by the equivalent course in Australia which were not covered by the Masters Degree, and it was said that there was an absence of detail concerning the clinical component of the course to enable it to be assessed as the equivalent of a Board approved course.
As to criteria 3 and 4, at the relevant time accreditation of dental schools was undertaken by the Dental Council of India, in accordance with the Dentists Act 1948 (Ind) under the general supervision of the Government of India. A document provided by the applicant dated 17 February 1972 confirmed this, and that the Council was responsible for maintaining uniform standards of Dental education in India.[20] This involved the Council inspecting the institutions to detect and report on any deficiencies. The Council had prerequisites which had to be satisfied for the recognition of the qualifications of students.
[20]HB 1233.
The applicant’s application was rejected in this respect on the ground that, in 2014, the University to which the Dental School was attached was not accredited by the National Assessment and Accreditation Council, an institution of the University Grants Commission. But that was not to the point, because the Bapuji Dental College and Hospital, which issued the degree, was accredited then, as shown by the certificate of accreditation issued (for five years) in March 2011 by the NAAC, which gave it the grading of “very good”. In any case, this accreditation system seems to have come in after the applicant completed his degree. At the relevant time, the accreditation was by the Dental Council of India, and seems to be in order. The applicant has produced documents that show that both the Dental College and the Course were accredited at the relevant time by the Dental Council. I note that the Letter to the applicant from AHPRA of 22 March 2019 setting out the reasons for the decision to reject his application for registration did not refer to this matter. I consider that criterion 3 was met.
It follows from what I have just said that most of the requirements of criterion 4 were also met, on the basis of accreditation by the Dental Council of India. This is also shown by the fact that he was subsequently registered by the Dental Council as an endodontist on the strength of that degree. One aspect relied on by the respondent was that the applicant had not shown that the Dental Council’s “accreditation included the application of accreditation standards specific to dental specialist education that are comparable to the current dental accreditation standards and system in Australia.” As the applicant pointed out, the difficulty here is that someone in his position is going to be able to show the fact of accreditation, but is not going to be in a position now to show the detail of the accreditation standards used by the Dental Council at that time, so as to show that they are comparable to the standards applied now in Australia.
There is the further difficulty here that the process of comparison of some form of accreditation standard in the late 1990s with the current Australian standard is likely to introduce some unfairness. Apart from anything else, the science (or art) of educational accreditation jargon has developed a good deal in the subsequent decades.[21] It is likely that any accreditation standard today will at least be worded very differently from any standard applicable then, and there is no particular reason why the approach to accreditation in another country should parallel the Australian approach, of then or now. There is no reason to assume that the Dental Council of India did not at that time apply an appropriate accreditation standard. To require more appears to be an exercise in seeking to exclude overseas qualifications.
[21]I was involved at one time as a member of the Barristers Board with the formulation of an educational standard for barristers, and much later (and more peripherally) as a member of the Rules Committee with the formulation of the educational qualifications for practice as a barrister under the Legal Profession Act.
As to the proposition that the Masters degree was not a qualification that prepared a student for a single specialty, the degree did achieve this, because once he obtained it the applicant was registered in India as a specialist endodontist. The applicant stated that the term “Conservative Dentistry” in the title to the degree as a feature inherited from British practice, and that such a degree is the recognised qualification in India for registration as an endodontist. He said that the summary of the content of the course was similar to the summary of the content of endodontics in the Board’s publications. Whatever the course content, there was no evidence that it qualified the holder for any other specialty. Criterion 1 was met.
The reasons set out in the letter from AHPRA of 22 March 2019 do not give any great confidence in the assessment process. For example, one of the deficiencies mentioned, that there was no indication that clinical supervision in the programme of study was undertaken by a person with specialist registration in endodontics,[22] was wrong. Attached to the applicant’s response to the initial decision of the Board was a letter from the principal of the Dental College about the applicant’s Masters degree, which confirmed that qualified specialists in the field supervised him during the full length of this Masters programme.[23] Another example was that sweeping statements were made about an absence of evidence of various skills, and the application of knowledge and skills, which, as descriptions of the Indian degree, were as impossible to substantiate as to refute, and, as comments on the competence of the applicant, were plainly wrong.[24]
[22]HB 1312 para 2(b).
[23]HB 1292. There is no reason to doubt that this is a reference to the relevant specialty.
[24]HB 1310, 1311. I do not propose to waste time analysing this in detail.
Another reason given was that the panel noted a lack of contemporary training and education in the use of operating microscopes, rotary nickel-titanium instrumentation and cone beam computed tomography in the application.[25] This reason was ambiguous, as it is not clear whether the problem was an absence of these matters from the Masters degree course, or a failure to demonstrate familiarity with them now.
[25]HB 1312 para 2(c).
As to the former, as the applicant pointed out in his response submission, cone beam imaging was introduced only in 1996, so it would not be a part of a course then under way, and has become common in endodontics only in the last ten years.[26] The use of rotary instruments was part of his Masters course, although their use has become more common now. The applicant has published a paper on an aspect of their use, and is accredited as a trainer on the machines of a particular supplier.[27] The applicant also has experience in the use of operating microscopes, has done research in this field, and has trained students in their use. I accept that the applicant has now an adequate level of familiarity with operating microscopes, rotary instrumentation and cone beam CT technology.
[26]HB 1220. He has been using cone beam imaging regularly for over ten years, and has published a paper on an aspect of it. See also applicant p 1-12.
[27]HB 1220; HB 1297.
This points up the inherent unfairness in the approach adopted by the respondent, of assessing overseas qualifications by reference to the current content of the equivalent Australian training course. Such an approach is almost inevitably going to exclude any applicant whose qualification is not recent, even if the applicant has been successfully practising as a specialist in the relevant field in the interim.[28] This unfairness is aggravated by the fact that there is no easy way for such an overseas trained specialist to demonstrate an appropriate level of competence after arriving in the country. There is no system of assessing the learning and competence of such an applicant,[29] unless the applicant can satisfy the strict and limiting requirements of the QEP adopted by the respondent. Whether the intention was to limit competition in the specialty by excluding those trained overseas, that looks to be the effect.
[28]The respondent’s expert witness acknowledged that the current system is quite unfair: p 1-43.
[29]Transcript p 1-7.
The applicant is not able to produce now the log books and case reports that he provided to the Dental School in connection with his final exams for the Masters Degree, since he was not able to retrieve them after he received his degree, and in time they were destroyed by the Dental School.[30] It is unreasonable to expect him now to be able to produce such material.
[30]HB 1292.
The respondent’s expert suggested in oral evidence initially that the respondent could adopt the final examination for one of the postgraduate degree courses which is accepted as a qualification for the specialty as a means of testing such applicants to assess their competence,[31] but then backed away from that, because part of that exam involves the assessment of a number of case reports, reports of procedures done during the course, and hence under the supervision of an endodontist. Short of doing some (or ideally all) of the course so that the reports would be of cases done under supervision, he seemed to abandon this idea, and to revert to the proposition that to demonstrate competence the foreign specialist should have to do another qualifying course in Australia. I agree with his assessment that this approach is quite unfair.
[31]Transcript p 1-44. See the qualification at p1-46-8.
As to criterion 6, the concern expressed here was that the research component of the degree was deficient. This was not a point taken by the respondent in its reasons, on the basis that the applicant’s PhD was more than sufficient to cover the research requirement.[32] I agree. As I have said, I do not consider that each individual qualification needs to be assessed alone as the relevant qualification.
[32]HB 1312.
The quality of the Masters degree
The substantial issue in my view is whether the fifth criterion was met, as to the quality of the degree. The respondent relied on the evidence of an expert, a specialist endodontist who is also a Professor at the Melbourne University Dental School. In his report[33] he stated that he did not consider the applicant’s Masters degree to be substantially equivalent to, or based on similar competencies as, the approved Australian qualifications. He analysed the curriculum of the applicant’s master’s degree course, and concluded that there was a substantial component of non-endodontic clinical instruction in the course, and that the number of endodontic clinical cases required to be completed was much lower than the number completed in the approved Australian courses.[34] There did not appear to be any requirement for submission of a case portfolio or logbook of case reports of cases completed. There was only one final exam, whereas at his University exams were held every semester, and there was continuous assessment. As well, he said that the number of formal case reports and presentations were much lower than the number in an Australian degree, and that the literature reviews and seminars were more frequent in Australia, and all were focused on endodontics.
[33]Report dated 7 February 2020, exhibited to his affidavit filed 4 March 2020. HB 1319+.
[34]HB 1324, 1325.
The expert also referred to the material relied on to show competence in the field, but largely dismissed it as irrelevant to the assessment of the Indian degree, which was understandable. He was also somewhat dismissive of this material as demonstrating clinical expertise in endodontics, to an extent which was much less persuasive. He said that the reference to publications and citations were relevant to academic and research work, but not to clinical specialist practice, and that the documents presented did not represent peer-reviewed evidence of high-level clinical practice in endodontics.[35] He was also dismissive of the significance of his teaching endodontics, as this was not shown to be teaching at the required standard.[36] It is true that much of his teaching has been at undergraduate or masters degree standard, but since the approval of the Griffith DCD degree, he has been teaching in that course.
[35]HB 1326, 1327. He did not explain how this could be achieved, other than by doing an approved degree course.
[36]The applicant said that this was just wrong: HB 1679. I accept the applicant’s evidence that he teaches in the Griffith DCD course, the approved qualification.
The expert was not even prepared to accept that teaching that course would show that he had the necessary level of clinical expertise, saying that the dental schools had to make do with the instructors they could get.[37] The answer to that is that the respondent approved the course with the applicant teaching part of it, and so is taken to have approved the quality of the instruction provided by it. He also said that an analysis of the item numbers used by the applicant (generated for Medicare from his work in the dental school) did not show a specialist practice. One of the assessors said that the item number analysis was not the pattern produced by a general dental practice: p 1-34. The expert’s response was that the use of particular item numbers alone did not demonstrate a specialist level of treatment: p 1-39. That may be true in the strict sense, but it does demonstrate a pattern of work consistent with a specialist practice.
[37]Transcript p 1-39.
The applicant said in response that the minimum requirements identified in the material were only a benchmark, and that in fact far more than the minimum number of procedures were undertaken as part of his degree. As well, the academic week was more intensive at that time, covering six days a week and about twice the number of hours of clinical work per week than occurs in the Australian course,[38] so that even if not all the time for the Master’s degree was relevant to endodontics, the hours devoted to endodontics were be similar to the hours in the current degree. At the time, the Australian qualifying degree was a two year degree.[39] For years he has been practising very largely in endodontics in the dental hospital, and teaching endodontics at all levels of the dental school.
[38]HB 1711. See also transcript p 1-21.
[39]The response of the expert was that there was a prerequisite for enrollment which was a one-year course, although apparently not all dental schools required this.
The expert also did not accept that the Bapuji Dental School had been accredited at the relevant time, which in my view was just wrong. Overall, I was wary about his approach, which seemed to be that nothing different from the DCD from the Melbourne University Dental School was a sufficient qualification. The presence of the word “substantially” in s 58(b) should not be overlooked. On the other hand, the applicant’s case as to the substantial equivalence of his degree with the Australian approved qualifications does depend solely on his own evidence. It would be better to have available some independent evidence providing some support for this. Despite my doubts about the evidence of the expert, I am not willing to reject it completely.
There is also the consideration that it may well be that the quality of teaching in the Bapuji Dental School was not comparable to the quality of teaching in the currently approved Australian degree courses, even if it was comparable to that of the contemporaneous Australian courses. Despite the unfairness involved in comparing past courses with current courses, the wording of s 58(b) suggests that the comparison is to be made with the approved qualifications referred to in s 58(a), which are the courses currently approved. That means that the qualification under s 58(b) has to be substantially equivalent, or based on similar competencies, to the current approved courses. If the passage of time has affected this, it is necessary to show that there is still substantial equivalence, or similar competencies. On the material currently available, I am not persuaded that that has been shown by the applicant.
Registration under s 57(2)
It follows that the Tribunal is not prepared to overturn the decision of the respondent that the applicant has not shown that he holds a qualification within s 58(b) of the National Law. There is however another pathway to registration, under s 57(2), where registration to the appropriate specialty can be granted by the respondent, and in this review by the Tribunal, by imposing conditions under s 83 of the National Law. That section provides as follows:
(1) 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.
(2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition.
An analogous provision, s 52(2), was considered by the Court of Appeal in Chinese Medicine Board of Australia v Lee [2014] QCA 149. In that matter the appellant had refused to register the respondent as a practitioner of Chinese medicine, on the basis that his course of study, at an institution called the Australian College of Eastern Medicine, did not satisfy the requirements of the Standard adopted by the Board in 2012, when it was set up. The respondent had previously graduated from that institution, and applied for registration under a Grandparenting pathway, along with some others. At some point the Board changed its attitude to that institution and its graduates, and refused to register the respondent, although others in his position had been registered, subject to conditions.
The respondent appealed to the Tribunal where the decision was set aside, and registration was granted subject to a condition of a period of supervised practice. The Board appealed to the Court of Appeal which allowed the appeal, and remitted the matter to the Tribunal to be dealt with according to law. The Tribunal’s decision was challenged on the basis that s 52(2) did not override s 52(1), so as to allow eligibility for registration by the imposition of conditions, and on the basis that the Tribunal erred in taking into account what the Board had done with other graduates of that institution. In essence, the Court rejected the former argument, but accepted the latter.
The Court also held that the Tribunal erred in failing to consider that the respondent’s application invoked the second limb of s 303(1)(b) of the Law, a transitional provision. It held that that paragraph permitted a person who had completed training which the Board did not consider was adequate for the purposes of practising the profession to be qualified for general registration if the person has completed any further study, training or supervised practice required by the Board. The Court noted that the limitations in s 53 did not apply to s 303(1)(b): [41]. That provision is not relevant in the present matter.
The Court said that s 52(2) applied to all parts of s 52(1), including paragraph (a), as well as s 303(1): [46]. The Board accepted the existence of that discretion, but argued that it should be exercised only in extraordinary circumstances, a proposition the Court rejected: [48]. It went on to say at [49]:
The use of the word “may” in s 52(2) clearly gives a Board a discretion which it can exercise to decide if someone is eligible by the imposition of conditions. However, that discretion is not unconstrained. It would have to be exercised by reference to relevant, and not to irrelevant, considerations, and within the framework of the National Law and its objects. However, until the Grandparenting provisions of s 303(1) expire, the discretion to impose conditions in s 52(2) has at least two areas of operation, namely:
(a) where an applicant seeks to demonstrate that they are qualified under ss 52(1) and 53, the Board’s consideration is whether to impose conditions that relate to a qualification that comes within s 53; put shortly, that relates to qualifications that are approved by a Board, or where the Board recognises in one way or another that the qualifications are substantially equivalent to an approved qualification;
(b) for those applicants who seek to demonstrate qualification under s 303(1), the discretion relates to the imposition of conditions in respect of a qualification falling outside those that the Board considers are adequate for the purposes of practising the profession, or in relation to training in the profession which falls outside what the Board otherwise considers adequate.
The Court there was speaking of a situation where s 303 applied. Where it did not, paragraph (b) above would not apply, so it would be necessary for the Board to approach the matter as indicated in paragraph (a): the conditions must relate to qualifications that are approved by the Board, or which are recognised as substantially equivalent to an approved qualification. Further, the discretion is not unconstrained. It has to be exercised within the framework of the National Law and its objects. That includes the objectives in s 3(2)(a) and (c), and the main principle in s 3A.
The decision of the Court of Appeal is binding on the Tribunal, and I accept that the Board, and therefore, in this proceeding the Tribunal, has a discretion under s 57(2) which is to be exercised subject to the constraints set out by the Court above. The Tribunal in this case is acting under s 57, in relation to specialist registration, not under s 52, in relation to general registration, but the wording of s 57(2) is the same as the wording of s 52(2), and the analysis of the Court of Appeal applies to s 57(2) as well.
In the present case, the applicant is closely involved with the degree at Griffith Dental School which is an approved qualification, because of his involvement in teaching in it, and in clinical work, although the overall supervision of the course and the students, and therefore also his work, is in the hands of a registered specialist endodontist, as required by the respondent. There is an old saying: to teach is to learn. In order to provide instruction about a particular matter, one must be thoroughly familiar with it. As Director of Studies, the applicant will have a good grasp of all parts of the course, including those parts he does not teach himself. In my opinion, once the first set of students have completed the course, he will be in substantially the same position as they are in terms of their study of endodontics, if not indeed in a better position, because of his longer practical experience.
In my opinion therefore, if the Tribunal imposes a condition that the applicant continue to be associated with the course which is the approved qualification until the first student or students have graduated from that course, I consider that it is appropriate for him to be registered as a specialist endodontist. I understand that the first students should graduate at the end of 2022, and in the circumstances it is convenient for the condition to be reviewed after eighteen months. There is material available which shows that he is, and has been for years, carrying on a practice essentially as a specialist endodontist, and his teaching and academic credentials show that he is thoroughly familiar with the subject. The specialist endodontist with whom he works at Griffith University supports his application, and he has provided other references which speak highly of his skill and expertise in this area.[40] I have no concern that granting him specialist registration will be in any way contrary to the objective of furthering the health and safety of the public.[41]
[40]HB 2410+.
[41]I understand his intention is to continue his academic work, as an endodontist supervising the course for the DCD degree at Griffith University: p 1-19. But he could also practice safely, as no doubt he will continue to do through the Griffith Dental School clinic, and elsewhere.
I have had the benefit of the assistance of the assessors in this matter, and they support the decision. Accordingly the decision of the Tribunal is as follows:
1. The decision of the respondent to refuse the applicant specialist registration as an endodontist is set aside.
2. The applicant be granted registration as a specialist in the specialty of endodontics forthwith, on condition that he remain at least as closely involved with the course for the degree of Doctor of Clinical Dentistry (Endodontics) at Griffith University as he was during the calendar year 2020, until the first student or students graduate with that degree on completion of that course.
3. The review period for the condition is eighteen months from the date of this decision.
4. Any question of costs is reserved pending further submissions, if any.
It is not clear whether the applicant has incurred any legal costs for this review. There was at least a filing fee. If the applicant seeks an order for costs against the respondent, he must file in the Tribunal and serve on the respondent, within twenty-eight days, submissions in writing indicating briefly what costs are sought, and the reasons why he says that a costs order should be made. If such submissions in writing are filed and served, the respondent is to file and serve any submissions in writing in response within twenty-eight days from the receipt of the applicant’s submissions.
0
6
0