Li v Medical Board of Australia (No.2)
[2013] QCAT 594
| CITATION: | Li v Medical Board of Australia (No.2) [2013] QCAT 594 |
| PARTIES: | Dr Wei Li (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR233-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: |
| DELIVERED ON: | 5 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is allowed. 2. The decision of the Medical Board of Australia of 16 August 2013 is set aside and the conditions imposed on Dr Wei Li’s registration are removed. 3. The Medical Board of Australia must pay Dr Wei Li’s costs of and incidental to the proceedings as assessed on a standard basis on the District Court Scale. |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – LICENCES AND REGISTRATION – where a communication report concluded that the registrant was unable to professionally communicate and function independently and safely as a medical practitioner – where the registrant had recently passed the oral examination for registration with the Royal Australian and New Zealand College of Obstetrics and Gynaecology – where the registrant had previously satisfied the requirement of the Board’s English Language Skills Registration Standard – where the Board decided to take immediate action and impose conditions on the registrant’s registration – where the conditions on registration prevented the registrant from performing clinical work until the registrant passed an English language proficiency test – where the registrant sought a review of the Board’s decision to impose the conditions – where professional colleagues provided letters attesting to the registrant’s ability to communicate competently – where the registrant had previously passed the English language proficiency test – where the parties agreed at that hearing that it should be ordered by consent the decision of the Board be set aside – where the registrant sought an order for costs – whether it is appropriate in this proceeding that the registrant receive their costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | S J Keim SC instructed by Moray & Agnew |
| RESPONDENT: | K McMillan QC instructed by McInnes Wilson |
REASONS FOR DECISION
This is an appeal from a decision of the Medical Board of Australia to take immediate action in respect of the registration of Dr Wei Li. The immediate action took the form of conditions being imposed upon Dr Li’s registration. The decision was taken by the Board on the 16 August 2013 and notified to Dr Li on 19 August 2013. The conditions took effect from the time of their notification.
The conditions were in these terms:
1. The practitioner will not practice clinical medicine except in the following areas and following roles: administration, education research, a regulatory role or policy role and one which does not involve patient care;
2. The practitioner will undertake the International English Language Testing System (IELTS) English language proficiency test at the time acceptable to her;
3. The practitioner will provide the Board with written notification of her successful completion of the IELTS English language proficiency test, together with the notification/certificate published by the examining body;
4. Within seven days of changing address the practitioner will advise the Board in writing of that change.
The substantive appeal, which proceeds in the Tribunal by way of a review under s 20 of the Queensland Civil and Administrative Tribunal Act 2009, has been resolved between the parties. It has been resolved with an agreement that an order be made, by consent, pursuant to s 202 of the Health Practitioner Regulation National Law(Queensland) (National Law), setting aside the decision of the Board to take immediate action. That order will be made. It seems unnecessary, but for completeness it should be recorded in these reasons that the conditions are thereby removed from Dr Li’s registration.
Dr Li seeks her costs
It is apparent from the material that the decision to take immediate action stemmed from a notification which was made by Dr Beckmann on a date that is unclear as Dr Beckmann has signed it by dating it with his date of birth rather than the date upon which it was made. However, that notification came about by a report having been received from Ms Jennifer Young in respect of an assessment conducted on 19 June 2013. The report was styled a “Communication Report”. It seems to have come about as a consequence of there having been, as part of the normal procedures concerning Dr Li’s specialist training, a mid-semester report, which was prepared on the 31 May 2013. The report identified, amongst other things, a need to improve leadership, organisational skills and communication skills. A summary plan for remedial action was suggested which included a communication workshop with the Centre for International Medical Graduates having been arranged.
It is in that Centre that Ms Young works. In the report, Ms Young expressed the following opinion:
In the author’s opinion, Dr Li is unable to professionally communicate and function independently and safely as a medical practitioner in this country at the present time. She does not yet have the necessary skills to do so. (emphasis in original)
In his notification to the Australian Health Practitioner Regulation Agency (AHPRA), Dr Beckmann described that report – and that aspect of the report to which I have referred – as alarming. Having received that report, Dr Beckmann felt compelled to refer the matter by way of notification.
The National Law requires, by s 157, that a show cause process be carried out if a National Board is proposing to take immediate action under s 156 of the National Law. The show cause process was carried out. The Board, as it was required to do, notified Dr Li that it was proposing to take immediate action by way of suspension of her registration. A detailed submission in response was provided by solicitors on behalf of Dr Li. The National Law requires that the Board have regard to any submission made by a registrant when deciding whether to take immediate action.[1]
[1]National Law, s 157(3).
In the submission on behalf of Dr Li, her history as a medical practitioner both in China and Australia was set out; as was the history concerning her progress through general registration and onto a specialist training program in Australia. That included that she had, only one month prior to Ms Young’s assessment, completed the oral examination for registration with the Royal Australian and New Zealand College of Obstetrics and Gynaecology.
In its letter referring to its decision of 19 August 2013, the Board made reference to the matters which had been contained in the submission and referred to the Committee’s – the Committee being, as I understand it, the Immediate Action Committee – acceptance that the National Board’s position was that Dr Li must meet the Board’s English Language Skills Registration Standard, namely, completion of the IELTS or the Occupational English Testing (OET). The Standard provides that either the IELTS examination, with a minimum score of seven in each of four components, or the completion and an overall pass in the OET with grades A or B, are tests of English language skills which are accepted by the Board for meeting the Standard.
It had been pointed out in the submission made on behalf of Dr Li that Dr Li had, in fact, passed the OET in 2003. It is apparent from the reasons for decision published by the Board that it was Ms Young’s opinion as to the inability of Dr Li to proficiently communicate and thus function independently and safely as a medical practitioner in this country at that time and that she did not have the skills to do so, upon which it acted.
The decision taken by the Board in this case demonstrates the significant impact which immediate action can have upon a registrant. In an affidavit by Dr Paul Conaghan,[2] one of the supervisors at the Mater Hospital where Dr Li worked, he referred to the fact that when the outcome of the assessment became known – that being Ms Young’s assessment – “none of us in the unit expected such a devastating outcome.”
[2]Filed 31 October 2013.
The decision of the Board, taken as it was on Ms Young’s opinion, imposed conditions prohibiting clinical practice by Dr Li, notwithstanding that there was considerable evidence to the contrary that she had, in fact, been able to professionally communicate and function independently and safely as a practitioner in Australia for a number of years. Given the significance of the conditions which had been imposed, Dr Li was left with little option but to seek to have the Board’s decision reviewed.
The solicitors on behalf of Dr Li subsequently provided to AHPRA evidence in support of Dr Li’s communication competency. That included a letter of reference from Dr Louis McPherson dated 13 September 2013. Dr McPherson is the Medical Director of the Women’s and Newborn Services at the Mater Hospital in Brisbane. Dr McPherson observed in part;
In my interactions with Dr Wei Li, I found her to practise safely and effectively as an Obstetrics and Gynaecology registrar and no patient complaints were raised with me.
During this period, Dr Wei Li also successfully completed the Membership examination for the Royal Australian and New Zealand College of Obstetrics and Gynaecology (RANZCOG). This is the exit specialist examination of the College. It is an oral examination based on simulated clinical scenarios.
I am of the opinion that Dr Wei Li is able to communicate and relate appropriately to staff, colleagues and patients. She is able to reflect appropriately on constructive criticism.
The letter from Dr Li’s solicitors to AHPRA of 16 September also included a letter of reference from Dr Thi Vo. Dr Vo, in part, observed:
She is an experienced O & G registrar. I was very impressed with her surgery skills from the first day I worked with her.
Dr Vo had worked with Dr Li at the Liverpool Hospital in New South Wales where Dr Li had commenced her training in obstetrics and gynaecology.
A further letter of 17 September 2013 from the solicitors for Dr Li to AHPRA included a letter of reference from Professor Gamal Matthias. The Professor expressed the opinion, amongst other things, that:
There were no clinical incidents or poor outcomes related to Dr Wei Li’s management of any of our patients at this hospital during that time.
Dr Li was effective in her communication with staff and patients and has demonstrated good interpersonal skills.
Professor Matthias spoke of the time when Dr Li worked at the Bankstown-Lidcombe Hospital in New South Wales from July 2010 to January 2011, again as a registrar in obstetrics and gynaecology.
Dr Li also again undertook the OET on 17 August 2013 and achieved grades of two As and two Bs, which, as I have referred to above, was consistent with what the Board considered in its published Standard to be an acceptable standard of English proficiency as demonstrated by an objective test. AHPRA was informed of that. Notwithstanding that, in a letter of 2 October 2013, AHPRA communicated that:
The Committee accepts the submission by Moray & Agnew Lawyers that the practitioner has successfully completed the OET but does not concur with the view that the review conditions have been satisfied. The Committee considers that condition “c” under the heading ‘Review of Conditions’ may, at the election of the Committee, require not only the completion of an English language proficiency test as described in the Board’s English Language Skills Registration Standard but also a performance assessor’s report.
It went on to record that the Committee considered that the references provided in the submission from Moray & Agnew Lawyers, Dr Li’s solicitors, were particularly persuasive, and an independent performance assessment was warranted. The conditions were not lifted.
Throughout all of that no attention really seems to have been directed to the capacity of Ms Young to express the opinion which she did when taken into consideration with the other views expressed by expert clinicians as to their views of Dr Li’s communication ability.
It is also apparent from the documents which have been referred to in the material and tendered on the costs issue that offers were made by solicitors acting for Dr Li at various times.
Ms McMillan of Queen’s Counsel for the Board submits that if the Tribunal took the view that costs ought be awarded, that should only occur from 16 September 2013, being the date upon which that communication to which I’ve referred – the first communication from the solicitors for Dr Li – included Dr McPherson’s report. Ms McMillan also submits that the decision that has been taken and is reflected in the consent order is influenced by virtue of the fact that the IELTS exam has been sat on three occasions by Dr Li, which has resulted in a pass mark of at least 7 in three of the four components on three occasions in recent times, and that this was only disclosed to the Board the previous day, 4 November 2013; and also that the Board has now had the benefit of hearing Dr Li give evidence.
The Tribunal, as Ms McMillan submits, has had the benefit of hearing Dr Li give evidence today. There is nothing in the material to which I have been directed, or which I have otherwise read, which suggests that the Board at any time availed itself of the opportunity to speak with Dr Li in such a way as she might demonstrate her English proficiency to them. It seems as though what was relied upon was the report of Ms Young.
The discretion by s 201 of the National Law to award costs is broad. It simply provides that the Tribunal may make any order as to costs it considers appropriate for the proceedings. In my view, Dr Li, having been wholly successful in this matter, should have her costs.
I will order that the Medical Board of Australia pay Dr Li’s costs of and incidental to the proceedings on the standard basis in accordance with matters in the District Court scale.
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