Jaravaza v Medical Board of Australia
[2013] QCAT 44
| CITATION: | Jaravaza v Medical Board of Australia [2013] QCAT 44 |
| PARTIES: | Dr Vengesai Stein Jaravaza (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR318-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 22 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Medical Board of Australia made on 14 August 2012 to refuse to renew the limited registration of Dr Vengesai Stein Jaravaza be stayed until the determination of Dr Jaravaza’s application to review that decision or earlier order. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where the Board refused to renew the registrant’s application for renewal of registration – where the registrant applied for a stay of the board’s decision – where the board alleged incompetence – where registrant submitted that they worked in an area of need and had the support of professional peers – whether the tribunal should grant a stay of the decision Health Practitioner Regulation National Law Act 2009, Schedule, ss 3(2)(a), 250, 272, 279 Bryant v Commonwealth Bank of Australia [1996] 134 ALR 460 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Tribunal’s Order of 21 December 2012
On 21 December 2012 the Tribunal ordered that the decision of the Medical Board of Australia made on 14 August 2012 to refuse to renew the limited registration of Dr Vengesai Stein Jaravaza be stayed until the determination of Dr Jaravaza’s application to review that decision or earlier order. The following are the Tribunal’s reasons for making that order.
Background
Dr Jaravaza was born in Rhodesia (now Zimbabwe) in 1944. In 1967, the University of Botswana, Lesotho and Swaziland conferred upon him the degree of Bachelor of Science. In 1972, the University of Birmingham conferred upon him the degrees of Bachelor of Medicine and Bachelor of Surgery. He first held registration as a medical practitioner in Rhodesia in January 1974.
Dr Jaravaza arrived in Australia on a Subclass 422 Medical Practitioner Visa on 28 February 1999. He was first registered as a medical practitioner in Queensland on 1 March 1999. He has held registration as a medical practitioner in this state since that time.
On or about 10 August 2007 Dr Jaravaza was granted special purpose registration by the then Medical Board of Queensland on certain conditions. Those conditions included that he was required to apply for general, specialist or section 38 registration within four continuous years from the granting of special purpose registration.
From 1 July 2010 Dr Jaravaza, by operation of s 272 of the Health Practitioner Regulation National Law Act 2009, was taken to hold ‘limited registration’ under that Act.[1] That limited registration remained subject to the conditions previously imposed by the Medical Board of Queensland.[2]
[1] See Health Practitioner Regulation National Law Act 2009, Schedule, ss 250 and 272.
[2] Health Practitioner Regulation National Law Act 2009, Schedule, s 279.
Since August 2002 Dr Jaravaza has practiced medicine in Gin Gin.
On 14 August 2012 the Medical Board of Australia determined to refuse Dr Jaravaza’s application for renewal of his limited registration.
Dr Jaravaza has applied to the Tribunal for a review of that decision.[3]
[3]In his application to review a decision, Dr Jaravaza identifies the decision as having been made on 3 September 2012, however, that appears to be the date of notification of the decision by the Medical Board of Australia rather than the date upon which it was made.
Dr Jaravaza applied for a stay of the decision of the Board pending the determination of his substantive review application.
Consideration
Section 22(3) of the QCAT Act confers jurisdiction on the Tribunal to make an order staying the operation of a reviewable decision if a proceeding for the review of that decision has been commenced under the Act. Section 22(4) provides that the Tribunal may make such a stay order only if it considers the order is desirable having regard to:
a) the interests of any person whose interests may be affected by the making of the order or the order not being made;
b) any submission made to the Tribunal by the decision maker for the reviewable decision;
c) the public interest.
The Board opposes the granting of a stay of its decision. It has made written submissions setting out the bases for that opposition. The Tribunal must have regard to those submissions in determining whether it is of the view that an order staying the decision is desirable.
In its submission the Board says that a stay should not be granted as a matter of course. It submits that the Tribunal’s powers under s 22(3) must be read subject to the principle that matters involving a stay of operation of laws designed to protect the public are in a different class from those involving the suspension of a judgment between two private litigants.[4] The Board says that in cases such as this the stay must be considered in the context of the role of the body from which the review is brought and the end sought to be achieved by the decision that it makes.[5] It submits that the Board’s preeminent objective in registering suitably qualified and competent persons in the health profession is to provide for 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.[6] The Board says it is for Dr Jaravaza to demonstrate some cogent reason for granting the stay which outweighs the public interest that practitioners are competent to practice their profession.[7]
[4] Bryant v Commonwealth Bank of Australia [1996] 134 ALR 460 at 464 per Kirby J.
[5] Legal Services Commission v Baker [2006] 2 Qd R 107 [18].
[6] Health Practitioner Regulation National Law Act 2009, Schedule, s 3(2)(a).
[7] Legal Services Commission v Baker [2006] 2 Qd R 107 [28].
The Board emphasises its specialist nature, reflected in the requirement that a majority of its members must be practitioners in the profession. It says these matters are akin to the well established principle that an appeal court should be slow to diverge from the opinion of a specialist tribunal.
In notifying its decision to refuse Dr Jaravaza’s application for renewal of his registration in a letter of 3 September 2012, the Board set out its reasons as follows:
· You have not met the condition imposed on your special purpose (now known as limited) registration by the previous Medical Board of Queensland on 19 October 2007, namely ‘The registrant must apply for general or specialist registration within 4 continuous years of initial registration’.
· On 24 October 2007, 25 September 2008, 27 November 2008, 8 October 2009 and 14 June 2011, you were informed by the previous Medical Board of Queensland and AHPRA of the requirement to progress towards general or specialist registration within the four years as required by the registration condition referred to above.
· You were initially granted limited registration, previously known as special purpose registration, on 2 March 1999 and have therefore had 13 years to progress to general or specialist registration in Australia.
· You have now failed the RACGP OSCE on five occasions.
· The three part RACGP examination is a benchmark for minimum competence to practise, and enables the candidate to progress towards specialist registration and therefore enter unsupervised practice when the requirements for specialist registration have been satisfied. Your five failed attempts at the OSCE component raise concerns about your ability to competently and safely practice the profession, regardless of the outcome of the Clinical Assessment Interview completed with the Australian College of Rural and Remote Medicine on 28 April 2011.
· You have not successfully completed all three components of the RACGP fellowship examinations within the three year time frame specified by the RACGP. Therefore, you are now required to again pass all three components to progress towards fellowship with the RACGP.
In its submissions the Board identifies two issues as demonstrating a lack of competence on the part of Dr Jaravaza to practice. First, it identifies his inability to achieve a pass mark on the OSCE despite five attempts to do so over a period of three years. In this regard, the Board is somewhat critical of the submissions made by Dr Jaravaza. It says that Dr Jaravaza in making his submissions identified that he had failed the OSCE in 2011 and 2012, but neglected to say that he failed the OSCE on three previous occasions. That criticism by the Board is unfair. As Dr Jaravaza points out in his submissions in reply, two documents, each referring to those earlier failures, were exhibited to the affidavit which he had filed in support of the stay application.[8] Indeed, the latter of those had also been filed with the Tribunal as part of Dr Jaravaza’s substantive review application.
[8] The Board’s letters to Dr Jaravaza dated 3 February 2012 and 3 September 2012.
Secondly, the Board refers to adverse findings made by Medicare’s Determining Authority in August 2010 concerning a review of Dr Jaravaza’s practice between 1 October 2006 and 30 September 2007. Whilst that determination had been made by the authority two years prior to the Board’s decision to refuse Dr Jaravaza’s application for renewal of registration, it was not a matter known to the Board at the time of making its decision. It has subsequently come to the Board’s attention.
Submissions made on behalf of Dr Jaravaza emphasised that he had passed two of the three components of the RACGP exams and that when he sat the OSCE component in the 2011.2 sittings he had obtained a score of 61.46 when the pass mark was 62.64.
Dr Jaravaza was due to resit the OSCE component on 21 October 2012 however he was unable to do so due to the refusal of his application for renewal of registration as registration is a requirement for sitting the exam.
Notwithstanding the Board’s concerns about Dr Jaravaza’s competency, he has practised medicine for almost 30 years as a general practitioner, the last 13 in Australia, without having been subject to a complaint regarding his work. He seems to enjoy the support of professional colleagues who have knowledge of him as a medical practitioner. In the case of one of those practitioners, that knowledge has been acquired over a considerable period of time.
Dr Mohammad Akram Hossain is a member of the Board of the RACGP as an assessment examiner. He has been so since 2006. He commenced as a medical superintendent at the Gin Gin Hospital in September 2002 and at that time met Dr Jaravaza. They worked together until August 2005, during which time Dr Hossain was Dr Jaravaza’s supervisor from July 2004 to July 2005. In October 2007 Dr Hossain became Dr Jaravaza’s principal supervisor for the purpose of medical registration requirements. This required Dr Hossain’s supervision and assessment of Dr Jaravaza’s performance as a general practitioner, including completion of a yearly assessment plan for the Medical Board. Dr Hossain’s assessment of Dr Jaravaza’s performance and competence was facilitated by monthly teleconferences in which Dr Jaravaza reported on cases.
Between August 2009 and October 2010 Dr Hossain was Dr Jaravaza’s secondary/co-supervisor after which time he again became Dr Jaravaza’s principal supervisor.
Dr Hossain deposes to Dr Jaravaza having preformed consistently at the expected levels in all areas including clinical management, safe practice and professionalism. Dr Hossain expresses the opinion that Dr Jaravaza is a competent medical practitioner who is always looking out for the needs of patients and attending to those needs.
Dr Parvin Lata Ishri is also a member of the Board of RACGP as an assessment examiner. Dr Ishri’s experience of Dr Jaravaza as a medical practitioner is more limited than that of Dr Hossain. Dr Ishri has run a study group to assist international medical graduates since 2011. Dr Jaravaza was a participant. Dr Ishri deposes to the opinion that Dr Jaravaza is a conscientious medical practitioner who appears to have the clinical skills and knowledge to continue to practise under limited registration.
Gin Gin is regarded as an ‘area of need’ in respect of the provision of medical services. At the time at which Dr Jaravaza ceased practice he had 1,900 active patients on his books. He was fully booked on the 5 ½ days per week on which he consulted. One third of his daily consultations were for the continuing care of chronic diseases such as diabetes, chronic pain, mental health, chronic obstructive pulmonary disease and warfarin care.
There is apparent difficulty in attracting doctors to the Gin Gin area. Two full-time doctors have been lost to the area in recent times and there remain only three doctors practicing there. The Chief Executive Officer of Bundaberg Regional Council has confirmed that Gin Gin and surrounding rural communities continue to struggle to attract medical practitioners. The difficulty in filling doctor vacancies in Gin Gin has also been confirmed by Health Workforce Queensland. Dr Jaravaza’s patients are persons whose interests may be affected by a stay being granted, or not granted.
The findings of Medicare’s Determining Authority did not result in Dr Jaravaza being prevented from practising, but rather he was prevented from accessing all Medicare benefits for a period of 2 months and was prevented from accessing certain Medicare items for a period of 6 months. And, as he submits, the action taken by the authority relates to matters which occurred within his practice between October 2006 and September 2007. It does not appear that there have been any other matters in respect of which the authority has been required to take action subsequently.
These are all matters relevant to the public interest to which the Tribunal must have regard in exercising its discretion under s 22 of the QCAT Act.
The Tribunal is satisfied that Dr Jaravaza has demonstrated a cogent reason for the grant of the stay. Quite evidently, the interests of Dr Jaravaza, and to a more limited extent those of his family, will be adversely affected if a stay is not granted. However, those personal impacts are no more than what is suffered by any professional who has his or her right to practise suspended or cancelled. Such an inability to practice has been recognised as being, of itself, insufficient to warrant the granting of a stay. In any event, those impacts are not as great, in the Tribunal’s view, as those to the community of Gin Gin and the public referred to above if the stay is refused.
This is not a case in which findings of unsatisfactory professional conduct or professional misconduct have been made by a tribunal constituted for the purpose of hearing those charges.[9] The Board’s submissions as to the protection of the public and its own role as an expert body in that process must be considered in that context.
[9]Compare Legal Services Commission v Baker supra at [21]-[24]; Fletcher v Queensland Nursing Council [2011] 1 Qd R 111 at [86].
On balance, the Tribunal is of the view that the evidence establishes that the public interest will be best served by permitting Dr Jaravaza to continue practice until the hearing and determination of the substantive review application.
The Tribunal is satisfied that a stay of the decision is desirable.
For these reasons, the Tribunal ordered on 21 December 2012 that the decision be stayed.
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