Hopper v Chinese Medicine Board of Australia
[2013] QCAT 634
•10 October 2013
| CITATION: | Hopper v Chinese Medicine Board of Australia [2013] QCAT 634 |
| PARTIES: | Susan Finlayson Hopper (Applicant) |
| v | |
| Chinese Medicine Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR319-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 10 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chinese Medicine Board of Australia of 5 September 2012 to refuse Ms Susan Hopper’s application for general registration is set aside. 2. In substitution for the abovementioned decision, Ms Susan Hopper’s application for general registration as a Chinese Medicine Practitioner (in the division of Acupuncture) is granted. 3. Ms Susan Hopper’s registration is subject to the following condition: a. Ms Susan Hopper must complete the following subjects with the Endeavour College of Natural Health by 31 December 2014; i. CMAC223 (Chinese Clinical Medicine 2); and ii. CMCS421 (Chinese medicine – Acupuncture Clinical Studies 7). 4. The review period for the conditions imposed under order 3, above, is the period ending on 30 September 2014. 5. There is no order as to costs. |
| CATCHWORDS: | HEALTH PRACTITIONER – CHINESE MEDICINE PRACTITIONER – LICENCES AND REGISTRATION – where the Board refused the applicant’s application for general registration – where the Board refused the application on the grounds that the applicant was not qualified – where the Board alleged the applicant was not a suitable person – whether the applicant is qualified – whether the applicant is not a suitable person – whether the applicant should be granted general registration in the division of acupuncture Health Practitioner Regulation National Law (Queensland), s 3(2), s 3(2)(a), s 5, s 12, s 12(1), s 12(2), s 52, s 52(1), s 52(1)(a), s 52(1)(c), s 55(1)(h), s 82, s 82(1)(a), s 82(1)(c)(i)(C), s 82(1)(c)(i)(B), s 83, s 83(2), s 199(1)(a), s 202, s 303, s 303(1), s 303(1)(c), s 303(2) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms S Hopper |
| RESPONDENT: | Ms J Rosengren instructed by Rodgers, Barnes and Green Lawyers |
REASONS FOR DECISION
This is an application for the review of a decision by the Chinese Medicine Board of Australia which refused an application for registration brought by Ms Susan Finlayson Hopper to be registered under the Health Practitioner Regulation National Law (Queensland) (“National Law”). Chinese medicine is now defined by the National Law as a relevant health profession.[1] There was no system of national registration of that profession until 1 July 2012. There had previously been a system of regulation of the practice of Chinese medicine in Australia in only one State, that being Victoria. Ms Hopper has practised in Queensland as an acupuncturist for a considerable period of time, some 33-odd years. However, because there was no requirement to be registered in Queensland prior to Chinese medicine becoming a relevant health provision under the National Law in July 2012, she has never previously held registration.
[1]See National Law, s 5, definition of health profession.
The decision of the Board was one made under Part 7 of the National Law. Part 7 includes s 82 which provides that, after considering an application for registration, a National Board established for the relevant health profession must decide to either: grant the application for the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or decide to grant the applicant a type of registration in a health profession, other than the type of registration applied for, but for which the applicant is eligible under a relevant section; or to decide to refuse to grant the application for registration if certain circumstances are satisfied. Materially for this matter, the circumstances set out in s 82(1)(c)(i)(C) are relevant - that is that the person is not a suitable person to hold registration.
That was the basis upon which the Board decided at its meeting of 7 August 2012 to refuse Ms Hopper’s application. The objects of the National Law include at s 3(2) of the National Law that the objectives of the national registration and accreditation scheme are to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. Section 4 of the National Law provides that an entity that has functions under that law, which would include the Board in this case, is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3.
Part 7 of the National Law which deals with the registration of health practitioners, in division 1, deals, materially for this case, with general registration. There are certain eligibility criteria which are provided by s 52. For the purposes of this case, the eligibility criteria contained in ss 52(1)(a) and (1)(c) are relevant. Section 52(1) provides that 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, (c) the individual is a suitable person to hold general registration in the health profession.
Section 53 of the National Law addresses the question of qualification for the purposes of s 52(1)(a). It is common ground that Ms Hopper does not satisfy any of the criteria contained in s 53 and cannot, therefore, be a qualified person by operation of that provision. However, the nature of Chinese medicine becoming a registered health profession under the National Law, it formerly having not being registered, is recognised in the transitional provisions to the National Law. Those transitional provisions, which are contained in Part 12 of the National Law, include in s 303 what are colloquially referred to as grandparenting provisions.
Those grandparenting provisions include that, for the purposes of s 52(1)(a) – that is, whether a person is qualified to apply for registration – that an individual who applies for registration before 1 July 2015 is qualified for general registration in the profession if the individual has practised the profession at any time between 1 July 2002 and 30 June 2012 for a consecutive period of five years or for any period which together amounts to five years. Section 303(2) provides that the section applies despite s 53. That is to say that, if one can satisfy the qualification for registration requirement provided in s 303(1), then one is absolved of the need to qualify by operation of s 53.
Section 12(1) of the National Law provides that the Ministerial Council may approve a registration standard about the registration of persons in a health profession. Section 12(2) provides that the Ministerial Council may approve a registration standard for the profession only if its approval is recommended by the National Board established for the profession and it does not provide for a matter about which an accreditation standard may provide. Section 38 of the National Law provides that a National Board may develop and recommend to the Ministerial Council a registration standard about any issue relevant to the eligibility of individuals for registration in the profession or the suitability of individuals to competently and safely practice the profession.
The refusal of Ms Hopper’s application was notified to her by letter from the Australian Health Practitioner Regulation Agency (AHPRA) dated 5 September 2012. It informed her that, at its meeting of 7 August 2012, the Registration Committee of the Chinese Medicine Board of Australia considered her application for general registration together with a submission which she had previously been invited to provide and that the Committee had refused her application on the basis that she was not eligible or qualified for general registration pursuant to s 303(1)(a), (b) or (c) of the National Law.
The reasons were stated as being that the Committee found that Ms Hopper did not hold an appropriate qualification and was unable to be registered under s 303(1)(a) or (b) (that is common ground in these proceedings) and, further, that her case records which she had provided failed to demonstrate an understanding of traditional Chinese medicine theory and practice and that she was, therefore, unable to be registered under s 303(1)(c). The reasons for the decision as stated in that letter do not accurately reflect the statutory scheme. That is to say that for the reasons set out above s 303(1)(c) merely provides, for the purposes only of section 52(1)(a), a basis upon which a person is qualified for general registration. If the requirements of s 303(1)(c) are met then the person is qualified. Section 303 does not address other eligibility criteria under s 52(1).
However, the Grandparenting and General Registration Eligibility Registration Standard (the Standard) promulgated by the Chinese Medicine Board of Australia and approved by the Australian Health Workforce Ministerial Council in December 2011 pursuant to the National Law includes within it matters which address questions of competence for practice which might be demonstrated by the provision of certain evidence. The Standard, cannot, in my view, impose further requirements for qualification beyond those imposed by s 303(1)(c). Questions of competence are matters which may go to other eligibility criteria under s 52(1) but not qualification under s 52(1)(a).
The evidence required is contained in schedule 2 to the Standard. It requires an applicant for registration to supply a certified copy of 20 de-identified patient records which were recorded at the time at which the applicant for registration treated the patient.
The Standard requires that each record must contain at least the following information:
(a) the date or dates of consultation;
(b) the first name of the patient only or other than non-identifying record of the patient’s name;
(c) the presenting condition;
(d) Chinese medicine differential diagnosis;
(e) record of treatment provided being, relevantly, for acupuncturists the design of an individualised acupuncture treatment plan. That is said to mean an acupuncture/moxibustion point prescription that accords with the Chinese medicine diagnosis and demonstrates the application of principles of point selection as applied to the individual patient.
In section 3 of the Standard itself, in addressing the required competence evidence for acupuncture, the Standard states that to demonstrate competence an applicant must provide evidence that they are competent to provide the full range of acupuncture intervention methods to a member of the public who consults them for such a service. This would be expected to include the differential diagnosis of the person’s condition and the design of a treatment specific to the person’s condition and adequate knowledge to ensure the safe insertion, manipulation, removal and disposal of needles and other stimulation methods such as electro-acupuncture and cupping.
Ms Hopper provided an initial selection of patient records. She later provided further patient records. Mr Peter Gigante is an experienced acupuncturist who, amongst other things, serves on the Committee which considered registration of acupuncturists for the Board and particularly Ms Hopper’s application for registration. In an affidavit sworn in these proceedings, he exhibits a report relating to the Committee’s consideration of Ms Hopper’s application.[2] At page 4 of that report, he provides a description of the meaning of the term “Chinese medicine differential diagnosis”. Ms Hopper takes no issue with the description provided by Mr Gigante in that part of his report.
[2]Affidavit of Peter Gigante, filed 5 July 2013, PG-1.
Mr Gigante deals with a number of the patient records which were provided by Ms Hopper both in terms of the original selection of 20 case records that she provided and subsequent further 20 case records which were provided. In respect of the first bundle of records, Mr Gigante says in his report that for the reasons which he set out it was reasonable for the Committee to conclude that there was insufficient evidence of competence as described in the Standard. After then discussing the further case or patient records provided, Mr Gigante states that the Committee concluded that those records provided in the submission and in the initial application did not provide sufficient evidence of competence to alter the original decision, in particular those competencies referred to in paragraph 3(c) of the statement of reasons filed on 14 December 2012.
That is a reference to a document filed in these proceedings which stated that the Board found that the applicant was not eligible for general registration as a Chinese medicine practitioner in the division of acupuncture as she did not satisfy s 52(1)(b)(ii) of the National Law. This was because she had not successfully completed the assessment required by the Standard. Particularly, she had not provided evidence to demonstrate that she was competent to provide the full range of acupuncture intervention methods to a member of the public consulted for such a service including knowledge and application of Chinese medicine differential diagnoses, the design of a treatment specific to the person’s condition and design and use of individualised acupuncture prescriptions. The competency evidence set out in the Grandparenting Standard may be relevant to that consideration.
Paragraph 4 of the statement of reasons goes on to record that the refusal was, therefore, in accordance with s 82(1)(c)(i)(B) of the National Law. For reasons which I have already set out, these proceedings before the Tribunal have proceeded in respect of an ineligibility on the part of Ms Hopper, having regard to the matters contained in s 82(1)(c)(i)(C), not (B). The material question, therefore, which arises is whether or not Ms Hopper is not a suitable person to hold registration, and, therefore, unable to satisfy the eligibility criterion contained in s 52(1)(c) that she is a suitable person to hold registration. That consideration is informed by s 55(1)(h) of the National Law which provides that a National Board may decide an individual is not a suitable person to hold general registration in a health profession if, in the Board’s opinion, the individual is for any other reason unable to practise the profession competently and safely.
Ms Rosengren of counsel who appears on behalf of the Board and who has discharged the Board’s functions in respect to a general administrative review such as this in the entirely appropriate manner of assisting the Tribunal to reach the correct and preferable decision which is the requirement for the Tribunal under s 20(1) of the Queensland Civil and Administrative Tribunal Act 2009, has identified that these are the material considerations for the Tribunal in this matter. Therefore, the issue for me to resolve is whether I, standing as I do in the position of the Board, am of the opinion that Ms Hopper is unable to practice the profession competently and safely and is, thus, not a suitable person for registration.
The decision to refuse to register Ms Hopper is a reviewable decision under s 199(1)(a) of the National Law. The powers of the Tribunal are under s 202 of the National Law that the Tribunal may confirm the decision, amend the decision or substitute another decision. In substituting another decision for the appellable decision, the Tribunal has the same powers as the Board that made the decision. As already said, under s 20 of the QCAT Act, the purpose of the review is to produce the correct and preferable decision and it is common ground that, in order to do so, pursuant to s 20(2), the Tribunal must hear and decide the review by way of a fresh hearing on the merits on the material presented to the Tribunal.
In his evidence before the Tribunal today, Mr Gigante again expressed the views that the material which he considered in terms of the patient records, even with the further evidence given by Ms Hopper in her submission to the Tribunal which she swore to this morning and in her further evidence to the Tribunal today, still left him unsatisfied as to her competence. However, I did not understand his evidence to go beyond that to which he deposed as being the view formed by the Board that it considered there to be insufficient evidence to demonstrate competence.
One of the issues which has emerged is that Ms Hopper’s practice seems to be within a limited area of acupuncture or Chinese medicine in that she has expressed that she is only interested in treating musculoskeletal conditions and does not, for example, have an interest in treating internal conditions. As to Ms Hopper’s competence in relation to the treatments which she has performed as demonstrated in the records which have been considered by Mr Gigante, he has said that he is happy to say that Ms Hopper can provide satisfactory treatment to her clientele. However, he has expressed some reservations as to whether or not, based on those records, the optimal treatment is being provided or whether it has been a matter of Ms Hopper simply selecting a treatment which is not wrong or which is appropriate.
In considering the bundle of patient records which have been provided by Ms Hopper, it is apparent that there are certain matters which may have been recorded by her at the time of the consultations, but which were not. That is evident from the fact that she is able to give descriptions of the particular patients and the treatments provided in her oral evidence which are not directly supported by records in the case or the patient notes. Obviously enough, the maintenance of appropriate patient notes is a very important matter in all medical practices. As Mr Gigante said, the maintenance of appropriate records serves a number of purposes. They provide a record of the diagnosis made and the treatment provided; they provide the ability for another practitioner to be able to understand what diagnosis has been made and treatment has been provided; they also provide the basis for analysis of adverse outcomes should that unfortunately occur. He stressed that the notes themselves are the primary source of information, not the memory of the practitioner.
It is also evident, however, from an explanation provided by Ms Hopper that the notes do contain more information than was initially understood by Mr Gigante and the Committee which considered them. For example, Mr Gigante had formed the opinion initially that a number of the notes identified that only massage therapy had been provided. When the recorded symbols in the notes were explained by Ms Hopper, it became evident, and Mr Gigante very fairly accepted, that they demonstrated that treatments other than massage had been provided. Notwithstanding that, Mr Gigante still had some reservations particularly in relation to, for example, exactly where acupuncture treatment might have been provided. For example, in relation to a record that referred to the thoracic spine between levels 3 and 7, there was no notation as to whether that was on the left side or the right side.
Part of the concern expressed by Mr Gigante was that, in accordance with the Standard, the extent of the records provided and the evidence of Ms Hopper today would suggest that she does not provide the full range of services that might be provided by an acupuncturist. However, given the extent of the number of treatments which might be provided by an acupuncturist, it’s difficult to see how 20 selected records might in many circumstances demonstrate that full range of activity. In my view, given the manner in which the Board expressed itself, as deposed to by Mr Gigante, that the evidence provided by way of her patient records was insufficient evidence of competence, and his evidence today about the satisfactory treatment that is evidenced by those records, I am unable to form the opinion that Ms Hopper is unable to practice the profession competently and safely.
Therefore, I am satisfied of the eligibility criteria that she is a suitable person to hold general registration in the profession. As the only live eligibility criteria for qualification under s 52(1)(a) and suitability under s 52(1)(c) is satisfied, then s 82(1)(a) of the National Law would require a decision that she be granted registration if she is eligible for that type of registration under s 52. Section 83 of the National Law provides that, if a National Board decides to register a person, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Given the overall objects of the National Law and the matters which have been identified by Mr Gigante in his evidence to the Tribunal, I am of the view that a condition on the registration of Ms Hopper would be desirable in the circumstances.
The Board has identified two subjects which, if completed by Ms Hopper, would render her eligible for general registration. In an affidavit of Mr Richard William Barnes sworn 10 October 2013[3] those subjects are identified. Mr Barnes, on behalf of the Board, appears to have conducted some inquiries and was informed by the Endeavour College of Natural Health of the availability of those subjects in semester 2 of this year. Unfortunately, that applies to a period of time that commenced on 29 July. There is no evidence about availability beyond that period. Whilst the Board formed the view that, upon completion of those subjects, Ms Hopper would be eligible for registration, for the reasons I have already expressed, under the statutory scheme and on the basis of the provisions relied upon by the Board in these proceedings, I am already satisfied that she meets the eligibility criteria.
[3]Exhibit 8 in the proceedings.
Therefore, any requirement to complete those subjects would be a requirement which would be imposed by way of condition on the registration granted, as opposed to some condition precedent to attaining registration. I propose to make the registration of Ms Hopper subject to her completing the two identified subjects – that is, CMAC223 (Chinese Clinical Medicine 2) and CMCS421 (Chinese Medicine Acupuncture Clinical Studies 7), by 31 December 2014. I do not know, because there is no evidence before the Tribunal, what the availability of those subjects is beyond semester 2, 2013, and, for that reason, it’s appropriate to impose the condition that they be completed by the end of next year.
Section 83(2) of the National Law requires that if the Board, or in this case the Tribunal, decides to register the person subject to a condition, a review period for the condition must be set. The effect of a review condition being set is that it restricts the circumstances under which a person may apply for the change or removal of a condition under s 125 of the National Law or under which the Board itself may change conditions under s 126 or remove the condition under s 127. Because I am uncertain of the circumstances which may prevail next year as to the availability of the courses or any other circumstances which might become relevant, it seems appropriate to me that a review period be set which expires prior to the time set for the requirement to complete the courses, and I propose to order that the review period for the condition is the period which expires on 30 September 2014.
The condition which I'm imposing on the registration is imposed with the objective to which I have already referred in s 3(2)(a) of the National Law which raises issues concerning the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. There is no prohibition on the registration, the eligibility criteria having been satisfied, but, given the competency issues which have been raised by Mr Gigante, the proposed condition is desirable in those circumstances.
Section 201 of the National Law provides that the Tribunal can make any order about costs it considers appropriate for the proceedings. In the circumstances of this matter where Ms Hopper is self-represented, the appropriate order seems to be that there be no order as to costs, but I will hear the parties in relation to that.
The orders I propose to make are:
The decision of the Chinese Medicine Board of Australia of 7 August 2013 refusing Ms Hopper’s application for registration is set aside;
In substitution of the decision of the decision of 7 August 2013, Ms Hopper’s application for general registration as a Chinese medicine practitioner in the division of acupuncture is granted;
Ms Hopper’s registration is subject to a condition that she complete the subject, CMAC223, Chinese Clinical Medicine 2; and, CMCS421, Chinese Medicine Acupuncture Clinical Studies 7, offered by the Endeavour College of Natural Health by 31 December 2014;
The review period of the condition imposed by order 3 is the period which ends on 30 September 2014;
There is no order as to costs.
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