Hunt v Osteopaths Registration Board of Western Australia - [2002] WASCA 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HUNT -v- OSTEOPATHS REGISTRATION BOARD OF WESTERN AUSTRALIA [2002] WASCA 347

CORAM: EM HEENAN J

HEARD: 25 NOVEMBER 2002

DELIVERED : 13 DECEMBER 2002

FILE NO/S: SJA 1083 of 2001

MATTER :Osteopaths Act 1997
and
a decision by the OSTEOPATHS REGISTRATION BOARD to refuse to register WAYNE FREDERICK HUNT as an osteopath

BETWEEN: WAYNE FREDERICK HUNT
Appellant
AND
OSTEOPATHS REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Osteopaths - Professions - Registration - Eligibility for registration under "grandfather" criteria - Refusal by Board to register - Appeal

Legislation:

Osteopaths Act 1997

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M P Thackaberry
Respondent: Ms K A Vernon

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Metaxas & Vernon

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

Bradshaw v The Medical Board of Western Australia (1990) 3 WAR 322
Rosendorff v Dental Board Victoria [1949] VLR 274

Case(s) also cited:

Hindi v Minister for Immigration (1988) 91 ALR 586
Perder Investments v Lightowler (1990) 101 ALR 151
Re Peko-Wallsend (1986) 66 ALR 299

EM HEENAN J: Until the commencement of operation of the Osteopaths Act 1997 the practice of osteopathy was not directly controlled in Western Australia. However, with the new legislation it became obligatory for any person wishing to practice osteopathy to become registered (s 76) and the registration of applicants, and the renewal of registration, was entrusted to the Osteopaths Registration Board, the respondent to this appeal (s 10(1)(b) and Part 3 of the Act). The requirements for registration of a natural person as an osteopath are set out in s 20. They include a requirement that the applicant hold a prescribed qualification or a qualification that in the opinion of the Board is equivalent to the prescribed qualification. The qualification so prescribed is a Bachelor of Applied Science (Osteopathy) from Royal Melbourne Institute of Technology or a combined Bachelor of Science (Clinical Sciences)/Master of Health Science (Osteopathy) from Victoria University of Technology - Osteopaths Rules 1999 - r 4.
Before the commencement of the Osteopaths Act 1997 there were many osteopaths practising lawfully in the State in the unregulated situation which then existed. Although many of these had established skills and knowledge many did not have the prescribed or other qualifications. With the advent of the controlled regime it became necessary for these persons to become registered and transitional provisions were introduced in the Act (s 96 and Sch 3) to provide for this, notwithstanding that they may not have the formal qualifications prescribed under the new legislation or any equivalent formal qualification. Schedule 3 to the Act introduces a scheme under which, persons previously practising osteopathy and who are accepted by the Board as satisfying those transitional requirements, may become registered. In this appeal both parties referred compendiously to Sch 3 to the Act as the "grandfather clause".
The appellant, Mr Wayne Frederick Hunt, is a person who had practised osteopathy for some time in Western Australia before the commencement of the operation of the 1997 Act but who does not hold the prescribed qualification or equivalent under that legislation. He sought registration with the respondent Board under the "grandfather clause" but his application was refused. He appeals from that refusal of registration to this Court pursuant to s 89 and s 88(2)(b) of the Act. An order extending time to appeal was made on 22 May 2001. Both parties accept that the appeal is by way of rehearing on the evidence before the respondent Board and on any fresh evidence which might be adduced pursuant to Rules of the Supreme Court O 65 r 10 - Bradshaw v The Medical Board of Western Australia (1990) 3 WAR 322. No application was made by either party to adduce any further evidence and the appeal has been conducted entirely upon an examination of the evidence before the respondent and in the light of the submissions which were made at the hearing of the appeal.
The Osteopaths Act 1997 contains the following provisions for the registration of a natural person as an osteopath which are material in this case:
"20  Registration of natural person
(1)  A natural person who applies to the Board and satisfies it that he or she complies with the requirements of subsection (2) is, subject to this Act and on payment of the prescribed registration fee, to be registered under section 20.
(2)  The requirements referred to in subsection (1) are that the person -
(a)is a fit and proper person to be registered as an osteopath and has not been convicted of an offence the nature of which renders the person unfit to practise as an osteopath;
(b)has adequate knowledge of the English language both written and oral;
(c)has sufficient physical capacity, mental capacity and skill to practise osteopathy;
(d)subject to subsection (3), has -
(i)practised as an osteopath within the five years preceding the application; or
(ii)satisfied the Board that the person has acquired such knowledge and has such practical experience in osteopathy as in the opinion of the Board is sufficient to enable that person to perform efficiently the duties of an osteopath; and
(e)holds a qualification prescribed as a qualification for registration as an osteopath or a qualification that in the opinion of the Board is equivalent to the prescribed qualification.
(3)  Subsection (2)(d) does not apply to a person who, having been awarded a qualification referred to in subsection (2)(e) within the five years preceding the application, is applying to the Board, for the first time, for registration under subsection (1).
(4)  Except to the extent that conditions or restrictions may be imposed by the Board under sections 27, 36(5) or 70(1), the registration of a person under this section, and as reviewed from time to time, is not to be subject to conditions or restrictions."
Other provisions relate to applications for registration by a body corporate or by a person registered as an osteopath under the law in force in another State or Territory, but these need not be considered in this case.
The manner of dealing with an application for registration is set out by s 24 which provides:
"24  Application
(1)  An application for registration is to be -
(a)in writing;
(b)made in an approved manner and form; and
(c)accompanied by the prescribed application fee.
(2)  The applicant is to provide the Board with such further information as the Board requires, in any particular case, and if required by the Board is to verify the information by statutory declaration.
(3)  Where it has good cause for doing so, the Board may, in writing, require -
(a)an applicant for registration who is a natural person; or
(b)a member or director of a body corporate that is an applicant for registration,
to attend before the Board for the purpose of satisfying the Board as to a matter relevant to the application and, if the person fails so to attend, may refuse the application."
The provisions relating to persons previously practising osteopathy before the commencement of the Act (the "grandfather clause") take effect by virtue of s 96 of the Act which simply provides that "Schedule 3 has effect". In this case the material provision is par 3 of Sch 3 which is as follows:
"3.  Person practising osteopathy but not eligible for registration under Part 3
(1)Despite anything else in this Act, a person practising as an osteopath before the commencement day may continue to do so if registered under this clause.
(2)The Board, on payment of the prescribed registration fee, is to register a person under this clause if -
(a)the person applies to the Board for registration under this clause within six months after the commencement day; and
(b)the Board is satisfied that the person meets the requirements of section 20(2)(a), (b) and (c) and -
(i)has practised as an osteopath within the five years immediately preceding the application; and
(ii)during that period of time has derived his or her primary source of income from that practice; or
(iii)has acquired such knowledge and has such practical experience in osteopathy as in the opinion of the Board is sufficient to enable that person to perform efficiently the duties of an osteopath.
(3)For the purposes of this Act a person who is registered under this clause is to be taken to be registered under Part 3."
By letter of 6 January 2000 the respondent sent to the appellant an application for registration pursuant to Sch 3 r 3 of the Act ("grandfather clause") and included with that letter two documents entitled respectively "Skills Required to Practise Osteopathy" and "Professional Profile and Skills Declaration". The former outlined in detail the skills which the Board considered were necessary for the practise of osteopathy and described the principal requirements of each of the ten skills so identified. Those ten skills comprised:
•Communication Skills
•Patient Evaluation Skills: Case History Taking
•Patient Evaluation Skills: Orthodox Clinical Examination
•Patient Evaluation Skills: Osteopathic Assessment
•Clinical Reasoning Skills: Plan Treatment or Refer
•Osteopathic Manual Treatment Skills
•Re-evaluation Skills
•Health Education Skills
•Skill in the Application of Osteopathic Concepts
•Professional Development Skills
This document also contains a list of references which includes publications by osteopath registering authorities in the United Kingdom and in Australia. In the introduction to this document is the passage:
"The Western Australian Osteopaths Act 1997 (1) requires the Osteopaths Registration Board to be satisfied that an applicant is a fit and proper person to be registered as an osteopath and has sufficient physical and mental capacity and the skill to practise osteopathy. The Board is releasing this document and seeks to define clearly what it considers to be the skills necessary for an osteopath to provide safe and effective care to members of the West Australian public. ... "
The second document the "Professional Profile and Skills Declaration", is a lengthy document calling for answers and responses from the applicant stating the nature and duration of previous osteopathic practice, the source of osteopathic skills and knowledge, any formal osteopathic education or qualifications, the procedures followed by the applicant to keep the skills and knowledge up to date, the nature of osteopathic treatment approaches used in the applicant's practice and the equipment and facilities used. The form comprises a lengthy questionnaire relating to other aspects of previous and current osteopathic practice and then contains a series of clinical case studies calling for evaluation, response and assessment from the applicant as to how to deal with or manage certain patients or certain conditions being presented by typical patients in the course of practice. These case studies questions call for detailed answers from the applicant and are in the nature of a written examination intended to evaluate the sufficiency of the skill of the applicant in dealing with practical situations likely to arise in practice.
Mr Hunt completed the Application for Registration pursuant to cl 3 and returned this together with the Professional Profile and Skills Declaration which he had answered at length. He also paid the fee for registration.
By letter of 22 June 2000 the respondent refused the application for registration advising the respondent:
"I have been directed to inform you that after giving careful consideration to your application and in particular, your responses in the Professional Profile and Skills Declaration (PPSD), the Board resolved that you were not sufficiently skilled in the practise of osteopathy to be registered as an Osteopath in this State.
In particular, the Board cited the following reasons for its decision:
Insufficient evidence of compliance with the Board's 'The Skills Required to Practise Osteopathy' outline, and specifically:
(i)Insufficient relevant case history details demonstrated
(ii)Inadequate performance of appropriate orthodox clinical examinations demonstrated (such as basic neurological and orthopaedic examinations)
(iii)Insufficient details of osteopathic assessment and findings demonstrated (including the use of inappropriate and/or non‑osteopathic descriptors)
(iv)Inadequate clinical reasoning skills demonstrated (including lack of differential diagnosis and non‑recognition of potentially serious pathology requiring medical referral)
(v)Insufficient knowledge of the application of osteopathic treatment demonstrated
(vi)Insufficient re‑evaluation skills demonstrated
(vii)Insufficient application of osteopathic concepts demonstrated."
The letter concluded by drawing attention to the appeal provisions available to the applicant and offering the appellant an option of appearing before the full Board at its next meeting (due to be held 11 July 2000) to discuss the application.
The seven cited areas of insufficiency of evidence of compliance with the Board's Skills Outline directly correspond with seven of the skills identified by the Board as necessary for the practise of osteopathy as set out and more fully explained in the "Skills Required to Practise Osteopathy", the document which had been distributed with the application form.
It will be noted that there was no suggestion by the respondent Board that the appellant was not a fit and proper person to be registered as an osteopath or had been convicted of an offence rendering him unfit to practise as an osteopath. Nor was it suggested that the appellant was without adequate knowledge of the English language, both written and oral, as required by s 20(2)(a) and (b) of the Act which are incorporated into the "grandfather" provisions by cl 3(2)(b) in Sch 3. The position of the Board in refusing the application for registration, and again maintained at the hearing of this appeal, was that the appellant did not have sufficient skill to practise osteopathy (s 20(2)(c) in Sch 3 cl 3(2)(b)). Equally, it is clear that it was the decision of the Board referred to in the respondent's letter of 22 June which constituted the refusal of the application for registration, notwithstanding that that communication left open an opportunity for Mr Hunt to address the full Board later.
The appellant did not immediately take up that opportunity but, by letter of 24 August 2000 wrote to the Registrar saying, among other things:
"I feel that my application was not considered fairly as I do traditional osteopathic work, and I feel that I should be registered as such."
That letter went on to elaborate, in considerable detail, upon the appellant's experience and training and invited a representative of the respondent Board to observe his work with his patients and to decide then whether or not he was competent to be registered. The latter concluded by asserting that the appellant believed that he was qualified in the field, had satisfactorily met the criteria set by the Board and sought approval for registration. This was acknowledged by letter from the respondent Board on 19 September which pointed out that no additional information had been provided which would cause the Board to reconsider its previous decision to decline Mr Hunt's application for registration. Some time after this the appellant approached the Registrar requesting a meeting with the Board and this eventually took place on 30 January 2001. The appellant made what he calls a "presentation" to the Board on that occasion and this was actually videotaped. A transcript of the videotape has been prepared and is set out in the supplementary appeal book in these proceedings. At the completion of the presentation a member of the Board advised the appellant that the Board would consider the information which had been supplied at the meeting and would then "take it from there". This occurred in a setting where the appellant had been told by the Board that it was granting his request to appear before it in person, in order to consider whether Mr Hunt had any additional or supplementary information which would satisfy the Board that he should be registered as an osteopath in the State. After the meeting of 30 January 2001, the Board wrote to the appellant again advising that his application for registration was declined. The material passages in that letter are:
"The Board has directed me to inform you that whilst it was aware that you had not exercised your rights in accordance with the provisions of the Act to appeal the Board's decision concerning your registration, it had agreed to you attending a meeting of the Board because you have made such a request, albeit that the purpose was not precisely known to the Board.
In my letter of 22 June 2000, you were informed of the Board's decision and provided with copies of Clause 2 of Schedule 3 and Sections 88 and 89 of the Act, detailing the appeal provisions available to you. You did not exercise your rights in this regard.
I have been directed to inform you that the Board stands by its previous decision that your application for registration as an osteopath [in] Western Australia is declined."
There are, accordingly, three responses from the Board refusing registration of the appellant namely, the letter of 22 June, the letter of 19 September 2000 and the letter of 26 February 2001. No particular point in this appeal turns upon whether any one of these constitutes the decision to refuse registration rather than another or others. The time for the appellant to institute this appeal has been extended and the hearing of the appeal has proceeded on the footing that all the deliberations of the Board are under review. Clearly enough, the decision of the Board was based primarily upon its assessment of the original application and the reasons contained in the first letter of refusal of 22 June 2000, but both the appellant and the respondent, accepted that the appeal should proceed on the footing that, the Board was prepared to reconsider its original decision in the event any additional information or material of significance being provided to it by the appellant and did so before confirming its original decision by the letter of 19 September 2000 and again confirming the original decision by its letter of 26 February 2001 notwithstanding the presentation made by Mr Hunt on 30 January 2001.
The grounds of appeal relied on by the appellant are as follows:
"1.The Respondent erred in law and in fact in that it incorrectly and wrongly decided that the Applicant was not sufficiently skilled in the practice of osteopathy on the evidence before it, because the Respondent cited as a reason for its decision that it had insufficient evidence before it of the skills required, and, if there was insufficient evidence, it could not have been able to make a positive finding (as it did) that the Applicant was 'not sufficiently skilled'.
2.The Respondent erred in law and in fact in that it failed to give the Applicant a fair hearing generally thereby denying him natural justice in that, and, in particular:
(i)it decided the application on insufficient evidence;
(ii)if there was insufficient evidence, the Respondent should have identified for the Applicant the additional evidence required and given him an opportunity to comply;
(iii)it failed to consider the possibility of conditional registration of the Applicant;
(iv)it failed to give adequate reasons for its decision that the Applicant was not 'sufficiently skilled in the practice of osteopathy'; and
(v)at the hearing on 30 January 2001 it failed to take any or any proper notice of the additional materials that the Applicant wished to submit.
3.The Respondent erred in law and in fact in that it wrongly decided that there was insufficient evidence of the skills required to practice osteopathy when there was sufficient evidence. The Respondent should have concluded that there was sufficient evidence because:
(i)the case history demonstrated the Applicant had the necessary skill
(ii)the Applicant demonstrated adequate performance of appropriate orthodox clinical examinations
(iii)the Applicant demonstrated sufficient details of osteopathic assessment and findings
(iv)the Applicant demonstrated adequate clinical reasoning skills
(v)the Applicant demonstrated sufficient knowledge of the application of osteopathic treatment
(vi)the Applicant demonstrated sufficient re‑evaluation skills
(vii)the Applicant demonstrated sufficient application of osteopathic concepts
(viii)the Respondent placed too much weight on the test and insufficient weight on the following:
(a)the Applicant's extensive qualifications relating to, inter alia, osteopathy
(b)the Applicant's previous experience as an osteopath
(c)the fact that the Applicant had not been convicted of an offence the nature of which renders the person unfit to practice as an osteopath
(d)the fact that the Applicant had adequate knowledge of the English language both written and oral
(e)the fact that the Applicant had sufficient physical and mental capacity and skill to practice as an osteopath
4.The Respondent erred by adopting a testing procedure that was not in accordance with the provisions of the Osteopaths Act 1997
5.The Respondent erred by not granting the Applicant registration when other less qualified and less experienced applicants had been granted registration."

Ground 5, the last of these can immediately be disposed of. There was no evidence either before the Board or at this appeal that other less qualified or less experienced applicants had been granted registration. While not formally abandoned, this ground of appeal was not pursued nor could it have been pursued.
There is some overlap between the remaining grounds of appeal. As it emerged in argument, the principal contentions by the appellant were that:
(a)The Board erroneously rejected the appellant's application for registration by concluding that there was insufficient evidence that he was skilled in the practice of osteopathy because, if the evidence was insufficient, the Board should not have drawn that, or any similar conclusion but, rather, should have made further enquiries and provided the appellant with an opportunity to address the need to supply additional evidence.
(b)On the evidence submitted the Board should have made a positive finding that the appellant had sufficient skill to practise osteopathy.
(c)The test administered to the appellant, and upon which his skill levels were assessed, was unfair and inappropriate for a person who was seeking registration under Sch 3 cl 3 in that it placed too great an emphasis upon specialised knowledge and insufficient emphasis upon the benefit of accumulated practical skill and experience.
(d)The Board failed to have any or any proper regard for the additional materials which the appellant wished to put forward at the hearing on 30 January 2001.
(e)The Board failed to give adequate reasons for its decision or decisions to reject the application for registration.
(f)The Board erred by adopting the testing procedure that was not in accordance with the Act.
It is important to identify the proper scope of an appeal under the Osteopaths Act. As an appeal by way of rehearing, the appellant is entitled to the decision of a Judge of this Court upon all the materials adduced before the Osteopaths Board and upon any other materials which the appellant may seek and be permitted to adduce as further evidence. It is the obligation of the Judge presiding over the appeal to make up his or her own mind. Nevertheless, an appeal in the nature of a rehearing remains an appeal and the court must recognise the onus upon the appellant to satisfy it that the decision below is wrong - Bradshaw v Medical Board of Western Australia (supra) per Kennedy J at 328. Where specialist or technical questions are involved the court will naturally attach great weight to the opinion of the specialist Board established for the supervision of control of the profession, as it will to the Board's views on credibility if an issue of credibility arises in the appeal. This is because a Judge on a rehearing should not put out of mind anything done by the Board - Rosendorff v Dental Board Victoria [1949] VLR 274 at 276.
It is convenient to address the appellant's submissions that there was insufficient evidence upon which the respondent Board could make a finding that the appellant did not have sufficient skill to practise osteopathy, and the associated submission that if the evidence was insufficient in this regard the Board should have addressed the area of insufficiency and allowed the appellant an opportunity to adduce further evidence. The commencement point is to recognise that the onus of satisfying the Board that an applicant should be registered as an osteopath under the Act lies upon the person seeking registration. It is necessary for the applicant to satisfy the Board that he or she is possessed of the requirements for registration whether under s 20(2) or pursuant to the special "grandfather clause" provisions in Sch 3 cl 3 to the Act. The application for registration is to be in a manner and form approved by the Board (s 24(1)(b)) and the Board may require any applicant to provide it with such further information as the Board requires or for the applicant to attend before the Board for the purpose of satisfying the Board as to a matter relevant to the application (s 24(2), (3)). Section 24 is of general application and should be regarded as applying not only to applications made under s 22 but also to those special applications which avail of the transitional procedures under Sch 3 cl 3. It follows that the Board is entitled to require any applicant to provide information and to seek registration in a manner which the Board considers necessary for it to discharge its responsibility consistent with its function. Naturally, the form and the requirements must be consistent with the Act.
In this case there was no ground of appeal nor any submission that any criterion by which an applicant's skills were assessed by the Board was not consistent with the Act. Having considered the document "Skills Required to Practise Osteopathy" distributed by the Registrar of the Board to the applicant in this case, and the "Professional Profile and Skills Declaration" which the applicant was required to complete, there is nothing in those documents which I consider is other than pertinent to the evaluation of the applicant as a candidate for registration which the Board was required to undertake. The "Professional Profile and Skills Declaration" posed a series of questions which can conveniently be divided into two categories. The first related to personal information, the nature of the applicant's prior training and experience and to the details of his previous practice. All these were plainly relevant to a consideration of this application for registration. The second part of the questionnaire posed a series of questions set in practical clinical settings calling for analysis and description by the applicant about how such a case should be managed, the provision of a treatment plan, his details of clinical reasoning and relevant history taking. These were all questions which required an applicant to display a degree of professional knowledge, assessment, planning and management detail which would allow an assessment to be made by the Board about the applicant's level of skills as an osteopath. That is what was done in this case and the Board was not satisfied that the applicant had demonstrated sufficient skill to practise osteopathy. That conclusion, if otherwise justified, does not then create any obligation upon the Board to point out to the applicant where or how his answers are deficient still less to allow the applicant an opportunity to supply further answers or analysis to overcome the insufficiency. The conclusion of a demonstration of insufficient skill to practise osteopathy emerging from that process of assessment is, of itself, a conclusion that the applicant does not have one of the essential requirements for registration. The conclusion that there is insufficiency demonstrated by the applicant for registration, is not a conclusion that the application process or the assessment is insufficient but rather that the skill of the applicant is insufficient for registration and is, in that sense, complete and final. Subject to the discretion on the Board to call the applicant before it for the purpose of satisfying it as to any matter relevant to the application there is simply no occasion to provide the appellant or any applicant in such circumstances with a second round at which the applicant may attempt to overcome apparent deficiencies in his skill as, by then, identified by the original application. Once the Board considers that an applicant has failed to show that he or she has sufficient skill to practise osteopathy there is nothing anomalous or inconsistent in the Board concluding that the applicant was "not sufficiently skilled" to be granted registration.
As to the appellant's grounds of appeal and submissions that the Board failed to take any or any proper notice of the additional materials which the applicant wished to submit at the presentation on 30 January 2001, it must be noted that there was nothing which the appellant wished to say or submit to the Board on that occasion that he was not permitted to do. There is simply no evidence that there were any additional materials that the appellant attempted to put before the Board on 30 January 2001 but which he was not allowed to present. Whether it was obliged to do so or not in the circumstances where the right of appeal had not been exercised from the initial decision refusing the application dated 22 June 2000, the respondent Board did receive and consider the further two approaches by the appellant in August 2000 and January 2001 but, having done so, decided that there was nothing in those two supplementary submissions which caused it to alter its original decision. The situation simply was that the Board remained of the decision that the appellant did not have sufficient skill to practise osteopathy. Far from this constituting any denial of natural justice or showing that the respondent failed to give the applicant a fair hearing, the course taken by the Board shows that it did consider all the additional materials and submissions advanced by Mr Hunt but remained of the view that he had not demonstrated sufficient skill to practise osteopathy.
With regard to the ground of appeal that the Board erred in law and fact by wrongly deciding that there was insufficient skills shown by Mr Hunt for the practise of osteopathy, and that the Board should have concluded that there was sufficient evidence, it is necessary to examine the reasons given by the Board for rejecting the application on these grounds. These are contained in the letter from the Board to the appellant dated 22 June, but this must be read in conjunction with the criteria for the skills required to practise osteopathy which outlined the ten areas of professional skill considered by the Board to be essential and which have already been described. It is obvious that the Board examined the responses of Mr Hunt to the clinical case study questions in the "Skills Declaration Form" and, as a result, concluded that the responses were insufficient or inadequate in the various respects identified in the letter of 22 June. It must be appreciated that this was a process of evaluation of professional skill, knowledge, experience and judgment undertaken by a Board which comprises six members, four of whom are themselves osteopaths. It is a process of evaluation of professional competence by other professionals and involves an assessment of degrees of knowledge, competence and experience of a special kind for which knowledge, training and experience as an osteopath is essential. Although this is an appeal by way of rehearing which, as explained, requires this Court to reach its own opinion, on an issue such as an evaluation of professional competence and the existence of skills sufficient to practise osteopathy, great respect must be given to the opinion and conclusions of the specialist Board constituted under the Act. This does not mean the Court is absolved from carrying out the evaluation process itself but in the process, considerable guidance and assistance can be derived from the process followed by the Board.
Going to questions 2.2(i) and 2.2(ii) in the "Skills Declaration Form" completed by the appellant one can readily see how this process was undertaken. Those questions required the appellant to answer the following:
"2.2PART B
(i)A 46‑year‑old male patient presents for osteopathic treatment with mid thoracic and chest pain. What possible causes and subsequent actions would you consider?
...
(ii)Detail your approach to the management of a 53 year old male patient suffering with constant gradually increasing head pain who, until the last two months, had no prior history of headache."
The answers given by the appellant in response to those questions make no reference to the potential need for independent medical assessment for evaluation of the cardio vascular state of the two patients, nor of the potential causes for concern which might be revealed if there was a history of hypertension or cardio vascular disease. They did not include any reference to the possible need for an independent medical assessment, scan or radiological examination to eliminate the possibility of growths, clots or obstructive arterial disease which, as counsel for the respondent submitted, were important factors which any osteopath or other health worker should address in these circumstances. These are only two examples of major inadequacies in the response by the appellant to the questions which were posed. But they bear out that very little case history details were provided by the appellant, that there was little, if any, differential diagnosis identified and that, in addition to the examples just discussed there was no express recognition of potentially serious pathology calling for medical referral. Having examined the answers provided by the appellant to the individual case studies which he was required to address in the questionnaire, against the background of the ten skills identified as necessary by the Board, it is obvious why the Board considered the answers were insufficient. Whether the insufficiency identified demonstrated the lack of sufficient skill to practise osteopathy is the next question. It is a difficult one because it requires the application of specialist knowledge of osteopathy and its practice to evaluate the skill level of a candidate for registration. It is at this point that I consider that it is incumbent upon the appellant to show that some error was made by the Board in performing this task but no specific errors in any regard were suggested. In such circumstances I consider that I can and should be guided by the conclusion of the Board on this question of evaluation of professional skill level where nothing has been shown to suggest that the Board made any error of fact, failed to take into account any material consideration or had regard to any irrelevant consideration. In short, I am satisfied that no error has been shown by the Board in reaching its conclusion that the answers provided by the appellant did not demonstrate sufficient skill to practise osteopathy.
The approach taken by the appellant, however, was not so much to argue that his answers were satisfactory in the form which they had been given but to contend that his practical training and experience as an osteopath meant that it was inappropriate that he should be expected to display the kind of technical clinical knowledge that this questionnaire and this process was testing. Counsel for the appellant submitted that, a person seeking registration under cl 3 of Sch 3 should not be expected to display the degree of scientific, technical or clinical knowledge that would be required to attain the formal qualifications necessary for new applicants for registration under s 22(5). In effect, these submissions meant that a more stringent test for registration was being demanded of the appellant by this process of assessment than the Act required for someone seeking registration under Sch 3 cl 3. This essentially involves a different attack on the decision of the Board which is more appropriate to ground 4 of the notice of appeal.
To the extent that he appellant maintained his ground of appeal that the Board failed to consider the possibility of conditional registration (ground 2(iii)) it is clear that conditional registration in a case such as the present was never appropriate nor even sought by the appellant. Mr Hunt did not, in the Board's opinion, satisfy the requirements of s 20(2)(d) and there was never any likelihood that he would be able to produce evidence to satisfy the Board that he had a prescribed or equivalent qualification under s 20(2)(e), nor was he a person of eminence within the field of osteopathy seeking conditional registration for the purpose of teaching or demonstration. Nor at any stage did Mr Hunt seek registration to enable him to undertake particular duties of osteopathy of limited duration. These are the principal grounds upon which conditional registration may be made at the discretion of the Board under s 23(1), but none is here apposite.
The argument made in support of ground 2(iv) of the notice of appeal that the Board had failed to give adequate reasons for its decision that the appellant was not "sufficiently skilled in the practice of osteopathy" was directed mainly to issues which have already been covered, namely, that there was some responsibility upon the Board to indicate the areas of deficiency and allow the appellant a chance to redress them and that it was not possible for the Board to make a finding that the appellant was not sufficiently skilled if there was "insufficient evidence". These do not require further elaboration or refutation, but the ground of appeal does address the question of the adequacy of reasons generally. The provision of reasons for decision by a Board or a Tribunal from whom a right of appeal lies to this Court, or to another court, is an essential part of the decision‑making process and without it the right of appeal may be ineffective. Furthermore, the provision of reasons allows the parties to understand the reasons for the decision of the Board and permits any aggrieved party to consider whether or not he should exercise a right of appeal, if one exists, or whether other remedies might be available for a reviewable error.
What will constitute sufficient detail or content in the reasons for decision will depend upon the nature of the decision being made by the Board at first instance, the matters in issue before it and the scope of any appellate or other available review. But it must be clear from the reasons for the decision of the Board what are the issues upon which their decision has turned and what factors or criteria have been applied for the determination. If there have been disputed issues of fact before the Board it should be apparent from the reasons for decision how those disputes have been resolved and, where possible, why they have been resolved in a manner which allows the process of reasoning to be analysed and reviewed. Where any particular test or criteria has been applied by the Board in making the decision it will be important to ascertain whether or not the test or criteria is lawful, in the sense that it is within the jurisdiction of the Board, and how it has been applied in the circumstances. However, one must be guarded about prescribing constituent components as essential for reasons for decision because so much will depend upon the particular decision, the context of the controversy, and the nature of the body making the decision, especially where, as here, it is a Board comprised by members with special professional knowledge and experience which the members can be expected to apply to their decision‑making processes. In this present case I consider that the reasons given by the Board sufficiently identify that the respondent refused registration to the appellant because it was not satisfied that he had sufficient skill to practise osteopathy and that that determination was based upon the Board's analysis of his answers to the "Professional Profile and Skills Declaration" form, and in particular his treatment of the clinical case studies. As already noted, the assessment of the sufficiency of skills level with respect to professional ability is very much within the knowledge and assessment of this respondent Board with its professional members. Under the Act it is for the applicant to satisfy the Board that he is of the requisite skill to practise osteopathy and has the other requirements for registration. If he is unable to do this on a matter within the professional judgment of the Board then I do not consider that more is required of the Board than reasons for decision which plainly identify that it is this factor, and not some others, which have caused them to reject the application.

It is now convenient to turn to those grounds of appeal which assert that the respondent Board erred by adopting a testing procedure that was not in accordance with the provisions of the Act and, as developed in argument, that his prior practice and experience as an osteopath, meant that for an application under Sch 3 cl 3 a demonstration of skill levels as required by the test administered should not have been demanded.
An examination of Sch 3 cl 3 and s 20(2) reveals that the requirement for registration under Sch 3 cl 3(2)(b), namely:
"(i)has practised as an osteopath within the five years immediately preceding the application; and
(ii)during that period of time has derived his or her primary source of income from that practice; or
(iii)has acquired such knowledge and has such practical experience in osteopathy as in the opinion of the Board is sufficient to enable that person to perform efficiently the duties of an osteopath."
are additional to the requirements necessary under s 20(2)(d) which are incorporated to the Schedule by sub‑cl 3(3)(b). In this setting practise as an osteopath within the five years immediately preceding the application and the derivation of the applicant's primary source of income from that practise is regarded as the equivalent of the acquisition of knowledge and the possession of such practical experience as in the opinion of the Board is sufficient to enable that person to perform efficiently the duties of an osteopath. But this does not dispense with the need for sufficient skill as an osteopath as a separate requirement. Upon that point founders the appellant's arguments on these grounds because the appellant's submissions, on this part of the appeal, contended that the level of skill called for by the Board, as emerging from the assessment procedure administered to him, was excessive and inappropriate for an applicant for registration under Sch 3 cl 3. I am unable to accept that submission. The Act, in my view, requires that sufficient skill in osteopathy (as assessed by the Board), is an additional requirement to eligibility under the "grandfather" provisions in Sch 3 cl 3. That the Board is the body entrusted and empowered to make the determination as to whether or not any individual applicant who has sufficient skill cannot be doubted and there is no suggestion that its decision in this case was made other than in good faith. I agree with the conclusion of the Board on this issue.
I propose to dismiss the appeal.