Maini v Medical Board of Australia
[2011] QCAT 368
•5 August 2011
| CITATION: | Maini v Medical Board of Australia [2011] QCAT 368 |
| PARTIES: | Dr Alok Maini (Applicant/Appellant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR174-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 3 March 2011 (final submissions received 13 July 2010) |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 5 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal confirms the decisions made by the Board between August 2008 and June 2010 relating to Dr Maini’s various applications to renew his registration, whether special purpose, general or non-practising, and to reject his applications for special purpose registration and non-practising registration. |
| CATCHWORDS: | HEALTH PRACTITIONER – Medical Practitioner – Registration – Application to review Board decisions – whether special purpose registration had lapsed – whether any application to renew registration outstanding – whether practitioner qualified for general or special purpose registration Health Practitioner Regulation National Law, ss 3, 52, 289 Medical Practitioners Registration Regulation 2002, s 9A |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Professor Kennett for Dr Maini |
| RESPONDENT: | Mr P McGowan, of McInnes Wilson & Jenson, for the Board |
REASONS FOR DECISION
These proceedings involve a dispute between Dr Maini a graduate of the Government Medical College Patiala, India, and the Medical Board of Australia about whether he was entitled to registration as a medical practitioner in Queensland. Sadly and unexpectedly, after the hearing Dr Maini passed away. Respecting the family’s wishes, I have now determined the matter.
The type of registration held by Dr Maini was a category of special purpose registration available under the Medical Practitioners Registration Act 2001.[1] It was available to International medical graduates whose qualifications were not equivalent to Australian qualifications. If they could demonstrate their fitness to practise in an area of need, they were entitled to be registered to practise in a specified position, under supervision and on condition that they progress towards full registration. This involved clinical and written assessment against Australian standards.
[1] Medical Practitioners Registration Act 2001, s 135.
Dr Maini brought this application on 30 June 2010. The next day legislation implementing a national system of registration of health practitioners commenced.[2] It repealed the former registration Act and commenced a national system of registration. Despite this, the Tribunal must decide the application as if the former Act was still in force.[3] The Board assumed the role of the former Medical Board of Queensland in the proceedings.[4]
[2] Health Practitioner Regulation National Law, s 3.
[3]Health Practitioners (Professional Standards) Act 1999, ss 405O, 405P; Health Practitioner Regulation National Law, s 289.
[4] Health Practitioners (Professional Standards) Act 1999, s 405P.
A difficulty in the proceedings has been to determine what decision Dr Maini wanted the Tribunal to review. The confusion arises out of the different views held by the Board and Dr Maini about his registration status at various times and the number of communications from Dr Maini about different types of registration over time. Sensibly, the Board did not oppose the Tribunal hearing evidence about the various applications and requests from Dr Maini since June 2008 until the proceedings commenced.
Dr Maini’s special purpose registration
In 2008, supervision was a condition of Dr Maini’s special purpose registration. For reasons that it is not necessary to canvass, Dr Maini’s supervisor lost the right to supervise others. Another practitioner took on the role of supervising Dr Maini, but subsequently withdrew. In either February or March 2008, Dr Maini’s employer notified the Board that it had no practitioner willing or able to supervise Dr Maini. Dr Maini stopped working around then, due to the lack of supervisor.
At around this time the former Board commenced disciplinary proceedings against Dr Maini. They were resolved in February 2009, when Dr Maini gave an undertaking not to seek further registration in Queensland except upon satisfying specified conditions. There is no dispute that, by at least 30 June 2010, he had fulfilled those conditions.
Dr Maini’s special purpose registration lapsed
Dr Maini’s most recent registration was special purpose registration for a period expiring on 30 June 2008.[5] Dr Maini says that he sought to renew his registration and that the Board never dealt with it. The Board contends that it lapsed on 30 June 2008 because he did not seek to renew it before it expired.
[5] Medical Practitioners Registration Act 2001, s 140.
The Board informed him that his registration had lapsed by letter dated 6 August 2008, although he said he did not receive the letter. In February 2009, Dr Maini signed an undertaking that described him as a former special purpose registrant. On 17 February 2009, Dr Maini informed the Royal Australasian College of General Practitioners that he was no longer registered. The Tribunal is satisfied that Dr Maini understood that his registration had lapsed by then.
It seems from submissions made on his behalf that Dr Maini may have believed that the Board had cancelled his registration without informing him of this. That is not the case. The Board did not contend his registration was or should be cancelled and took no action to do so. This is, most likely, a misunderstanding of the conditions that applied to his registration before it lapsed. That is that he could only practice with supervision. He had no supervisor from early 2008 and, therefore, could not work, although his registration remained active, until it lapsed by passage of time on 30 June 2008.
Dr Maini could not apply to renew a registration which had lapsed
[10] The Board contended that, as well as complying with the conditions of the undertaking, Dr Maini could only secure future registration if he met all the application requirements for special purpose registration.
[11] The Board asserted its representatives explained this to Dr Maini when he signed the undertakings. It is implicit in the undertakings themselves, which described him as a former registrant and referred to future registration.
[12] The Tribunal accepts that the Board cannot renew a practitioner’s registration, unless the practitioner has applied to renew it before it lapsed.[6]
[6]Medical Practitioners Registration Act 2001, ss 144 and 72; If an application is made within time, registration continues until the application is determined: Medical Practitioners Registration Act 2001, s 73.
Application to renew general registration
[13] Dr Maini provided the Tribunal with a copy of an application dated 18 June 2008 to renew his registration as a medical practitioner (general and/or specialist) dated 18 June 2008. Dr Maini did not hold that type of registration in June 2008 and, therefore, could not renew it.[7] The application was not valid and had no effect.
[7] Medical Practitioners Registration Act 2001, s 72(1).
[14] Further, Dr Maini did not then, or later, satisfy the requirements for general registration. Specifically, he had not attained Fellowship of the RACGP. The RACGP did deem his experience as equating to 5 years of Australian general practise as at May 2007. However, that did not qualify him for registration. Rather, that is an assessment that enabled him to enter the RACGP assessment program.
Application for non-practising registration
[15] Dr Maini applied for non-practising registration on 21 June 2008.[8] The former Board notified Dr Maini of its decision to refuse that application by letter dated 5 August 2008. Shortly afterwards, Dr Maini sent an email to the registration section of the Board stating that he no longer wished to practise medicine in Queensland and withdrawing his application for non-practising registration.
[8] Medical Practitioners Registration Act 2001, s 105B.
Applications to renew special purpose registration
[16] Dr Maini applied for new special purpose registration by a form dated 4 February 2009. It is not clear when the Board received the form. It is more likely that the correct date for the form was 4 February 2010, because the Board returned it to Dr Maini by letter dated 18 February 2010, with advice that he had used an out of date form and that his application was, in any case, incomplete.
[17] On 21 June 2010, Dr Maini faxed to the Board what seems to be the same form as the Board had returned to him. By then he had corresponded a number of times with the Board[9] insisting they deal with his request to renew his registration. As already explained, he was not in a position to renew the registration, which had lapsed on 30 June 2008.
[9] On 17 and 25 March 2010, 7 April 2010 and 4 May 2010.
[18] On 30 June 2010, the Board wrote to Dr Maini reiterating its earlier advice to that effect.
[19] It also explained what were then the requirements for special purpose registration under the former registration Act:
19.1.1an Advanced Standing Certificate from the Australian Medical Council; or
19.1.2pass result for the Australian Medical Council Multiple Choice Questionnaire examination; and
19.2An area of need certification for the position; and
19.3A pre-employment structured clinical interview conducted by the Board’s accredited agent.
[20] Dr Maini did not provide any of this material to the Board. At the time of the hearing, Dr Maini had not made a valid application to the Board for new special purpose registration.
Findings regarding Dr Maini’s registration
[21] In summary, the Tribunal is satisfied of the following matters:
(a)Dr Maini’s special purpose registration lapsed when its term expired on 30 June 2008;
(b)Dr Maini could not apply to renew that registration after it had lapsed;
(c)Dr Maini did not make a proper application for new special purpose registration;
(d)Dr Maini’s application to renew general registration was not a valid application because he did not hold that form of registration;
(e)Dr Maini’s application for non-practising registration was refused (and in any case the application was withdrawn).
Was Dr Maini entitled to be registered as a practitioner at the time of the hearing?
[22] Dr Maini did have a practitioner willing to supervise him under special purpose registration at the time of the hearing. However, he did not demonstrate that he could fulfil the other conditions of special purpose registration, in particular the requirement for an Advanced Standing Certificate or a pass result in the AMC Multiple Choice Questionnaire.
[23] Nor did Dr Maini meet the former or current requirements for general registration. He did not hold Fellowship of either of the RACGP or the Australian College of Rural and Remote Medicine.[10]
[10]For the former requirements for general registration, see Medical Practitioners Registration Act 2001, s 138 and Medical Practitioners Registration Regulation 2002, s 9A. For the current requirements for general registration see Health Practitioner Regulation National Law Act 2009, s 52 and publication Competent Authority Pathway, Medical Board of Australia.
[24] Dr Maini appeared to have misunderstood the RACGP decision to deem his experience as equivalent to 5 years Australian general practice. He considered that demonstrated his suitability for general registration. For reasons already given, that is not so.
[25] The Tribunal acknowledges the assistance given to Dr Maini, and also to the Tribunal, by his representative, a lay person who ably presented Dr Maini’s arguments as he understood them.
[26] Dr Maini felt aggrieved by the way the Board responded to his requests for registration. He felt he was qualified for registration of some form. The Board dealt with each request properly. It is not surprising that Dr Maini might have become confused about what applications were before the Board, but this resulted from the number and type of his applications and requests.
[27] It is unfortunate that Dr Maini’s sense of grievance seems to have distracted him from taking the steps necessary to secure registration. Had he directed his attention to them, these proceedings might have been avoided.
[28] In conclusion, the Tribunal confirms the decisions made by the Board between August 2008 and June 2010 relating to Dr Maini’s various applications to renew his registration, whether special purpose, general or non-practising, and to reject his applications for special purpose registration and non-practising registration.
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