Medical Board of Australia v Fidge
[2022] VSC 768
•13 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01249
| MEDICAL BOARD OF AUSTRALIA | Applicant |
| v | |
| JULIAN FIDGE | Respondent |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2022 |
DATE OF JUDGMENT: | 13 December 2022 |
CASE MAY BE CITED AS: | Medical Board of Australia v Fidge |
MEDIUM NEUTRAL CITATION: | [2022] VSC 768 |
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PRACTICE AND PROCEDURE – Appeal – Application to appeal against orders made by the Victorian Civil and Administrative Tribunal (VCAT) – Where proceedings brought by Respondent in VCAT – Where Applicant applied for proceeding to be summarily dismissed on the basis VCAT did not have jurisdiction to hear the matter – Where Applicant’s application was dismissed by VCAT – Held that VCAT erred in finding Respondent subject of an appellable decision – Held that VCAT lacks jurisdiction to hear the proceeding – Appeal allowed – s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Health Practitioner Regulation National Law 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Harris QC Mr D Chisholm | AHPRA |
| For the Respondent | Appeared in person |
TABLE OF CONTENTS
Relevant facts...................................................................................................................................... 1
The National Law............................................................................................................................... 4
The Guidelines................................................................................................................................. 11
Proceedings in the Tribunal........................................................................................................... 11
The appeal......................................................................................................................................... 14
Ground 1............................................................................................................................................ 15
The Board’s submissions............................................................................................................ 15
Dr Fidge’s submissions.............................................................................................................. 17
Ground 2............................................................................................................................................ 21
The Board’s submissions............................................................................................................ 21
Dr Fidge’s submissions.............................................................................................................. 22
Consideration.................................................................................................................................... 23
Disposition........................................................................................................................................ 29
HIS HONOUR:
Dr Julian Fidge is a registered general practitioner who practises medicine in rural Victoria. For many years Dr Fidge has supervised international medical graduates as part of his practice.
On about 24 September 2020, Dr Fidge was notified by the Registration Committee of the Victorian Board of the Medical Board of Australia that the Committee considered that he was no longer suitable to supervise international medical graduates, including a particular graduate Dr Fidge had been supervising who was referred to before me as “Dr A”.
On 21 October 2020, Dr Fidge filed an application with the Victorian Civil and Administrative Tribunal (the Tribunal) seeking a review of this decision. The Medical Board of Australia (the Board) subsequently applied for the proceeding to be summarily dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) on the basis that the Tribunal did not have jurisdiction. That application was dismissed by orders made by Member Tang AM on 25 March 2021.
The Board now seeks, pursuant to s 148 of the VCAT Act, leave to appeal against the order made on 25 March 2021 dismissing its application for summary dismissal under s 75 of the VCAT Act. The Board contends that the Tribunal does not have jurisdiction to hear Dr Fidge’s application for review under the relevant enabling enactment, the Health Practitioner Regulation National Law 2009 (the National Law).
Relevant facts
The Board was notified of a complaint or concern in relation to Dr Fidge’s conduct in January 2020. The complaint, the details of which are not presently relevant, related to what were said to be inappropriate communications by Dr Fidge with a WorkCover agent in relation to one of his patients. Dr Fidge was invited to, and did, provide a response to this notification. Amongst other things, Dr Fidge acknowledged that his communications were inappropriate and involved an error of judgement.
The Board made a decision in relation to this notification on 28 May 2020. It formed the view that Dr Fidge’s performance or conduct is, or may be, unsatisfactory and decided to issue him with a caution for failing to display professional behaviour.[1] The Board also imposed certain conditions on Dr Fidge’s registration which required him to undertake professional education in relation to ‘effective and respectful communication and behaviours’, appropriate social media use and patient confidentiality.[2] I will refer to the Board’s decision on 28 May 2020 as ‘the conduct decision’.
[1]Under s 178(2)(a) of the National Law.
[2]Under s 178(2)(c) of the National Law.
Dr Fidge was notified of the conduct decision by letter dated 29 July 2020 and provided with a schedule setting out the conditions which had been imposed on his registration. Amongst other things, the letter also informed Dr Fidge that details of the conditions would be recorded in the public national register pursuant to s 225 of the National Law, that he would be contacted about the monitoring of his compliance with the conditions and that the decisions to issue him with a caution and to impose conditions on his registration were ‘appellable decisions’ under s 199 of the National Law. Dr Fidge did not apply for a review of any aspect of the conduct decision, or the conditions imposed on his registration.
On a date which is not revealed by the materials before the Court and which is presently immaterial, Dr A submitted a ‘request for change in circumstances’ to the Board, to alter his supervision from Level 2 to Level 3. Dr A has held limited registration as a general practitioner since October 2017. As a consequence, he has been a practitioner who required supervision under the ‘Guidelines - Supervised Practice for International Medical Graduates’ (the Guidelines) issued by the Board pursuant to s 39 of the National Law.
On 3 September 2020, the Registration Committee of the Board approved Dr A’s request for a change in circumstances in relation to supervision from Level 2 to Level 3. An agenda paper for the meeting of the Committee on 3 September 2020 referred to the ‘Agenda Item’ as being ‘Request for change in circumstances’ in relation to Dr A. After outlining Dr A’s request, his current supervision requirements and the conduct decision, the paper stated that, ‘The Committee is therefore asked to consider [Dr Fidge’s] ongoing suitability to provide supervision to [Dr A]’ and continued as follows:
2. Recommendation
The Committee:
1. Decide Dr Fidge no longer meets the requirements to supervise IMGs as outlined in the Board’s Guidelines: Supervised Practice for International Medical Graduates and revoke his approval to supervise [Dr A].
2. Approve [Dr A’s] Request for a change in circumstances to change his supervision from level 2 to level 3.
3. Require a new Supervised practice plan and supervisor’s agreement for level 3 supervision in which Dr Fidge is not listed as a supervisor.
4. Decide that an Ahpra Manager (Senior Regulatory Advisor/Officer) is authorised to approve the new plan with level 3 supervision and alternative supervision arrangements.
The paper then recorded the Committee’s reasons, set out extracts from the Guidelines and detailed matters concerning Dr A’s background and his supervision arrangements.
On 24 September 2020, the Board wrote to Dr Fidge regarding the arrangements relating to his supervision of international medical graduates and informed him that those arrangements were considered by the Registration Committee on 3 September 2020. The letter stated as follows:
Dear Dr Fidge,
Supervision of International Medical Graduates
I refer to your current arrangement as a principal supervisor for International Medical Graduates (IMGs).
This was considered by the Registration Committee of the Victorian Board of the Medical Board of Australia (the Committee) at its meeting on 3 September 2020.
In considering your arrangements, the Committee notes:
(1)As per the Medical Board of Australia’s Guidelines: Supervised Practice for International Medical Graduates, all supervisors, including principal supervisors, co-supervisors, term co-supervisors and temporary co-supervisors, must not have conditions imposed on their registration or undertakings accepted by the Board as a result of health, performance or conduct issues.
(2)The Board decided to take relevant action on your registration which has resulted in you being cautioned and conditions being imposed on your registration with effect from 23 July 2020.
(3)Therefore, the Committee considers that you are no longer suitable to provide supervision to IMGs.
The Committee has therefore determined that you do not meet the Medical Board of Australia’s Guidelines: Supervised Practice for International Medical Graduates and are no longer approved to supervise [Dr A] effective immediately. [Dr A] will be advised that you are no longer his approved principal supervisor but will not be advised of the reasons why.
[Dr A] is now required to provide a new Supervised practice plan and supervisor’s agreement with new supervision arrangements and will be advised this must be received by 8 October 2020, taking into consideration he has a Board approved co-supervisor.
…
The National Law
The objectives of the National Law are to establish a national registration and accreditation scheme for the regulation of health practitioners and the registration of those undertaking study and training in a health profession.[3]
[3]Section 3(1).
The objectives of the national registration and accreditation scheme to be established pursuant to the National Law include protecting the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered;[4] facilitating the rigorous and responsive assessment of overseas-trained health practitioners;[5] and facilitating access to services provided by health practitioners in accordance with the public interest.[6]
[4]Section 3(2)(a).
[5]Section 3(2)(d).
[6]Section 3(2)(e)
The National Law identifies certain ‘guiding principles’ of the national registration and accreditation scheme. These include that the scheme is to operate in a ‘transparent, accountable, efficient, effective and fair way’.[7] Entities with functions under the National Law – such as the Board - are to exercise their functions having regard to the objectives and guiding principles of the national registration and accreditation scheme.[8]
[7]Section 3(a).
[8]Section 4.
The National Law provides for the establishment of a national health practitioner board for each health profession;[9] the Medical Board is one such board.
[9]Section 31(1).
The functions of a board established under the National Law include to:
(a) ‘register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession’;[10]
[10]Section 35(1)(a).
(b) ‘decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession’; [11]
[11]Section 35(1)(b).
(c) ‘develop or approve standards, codes and guidelines for the health profession’, including ‘the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession’; [12]
[12]Section 35(1)(c)(iii).
(d) ‘oversee the assessment of the knowledge and clinical skills of overseas training applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of applicants for registration in Australia’;[13]
[13]Section 35(1)(e).
(e) ‘oversee the receipt, assessment and investigation of notifications about persons who are or were registered as health practitioners in the health profession under [the National Law] or a corresponding prior Act’;[14]
(f) ‘oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners or students’;[15] and to
(g) ‘do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme’.[16]
[14]Section 35(1)(g)(i).
[15]Section 35(1)(j).
[16]Section 35(1)(q).
Division 3 of Part 5 of the National Law deals with registration standards, codes and guidelines. Section 38 requires boards to develop, and recommend to the Ministerial Council, registration standards about certain matters,[17] and provides that boards may develop registration standards in relation to certain other matters.[18] Section 12 provides for the approval of registration standards by the Ministerial Council.
[17]About requirements for professional indemnity insurance, the criminal history of registered health practitioners, requirements for continuing professional development, English language skills and requirements in relation to the nature, extent, period and recency of any previous practice of the profession.
[18]About requirements for the physical and mental health of registered practitioners and applicants for registration, the scope of practice of registered practitioners and any other issue relevant to eligibility or suitability for registration and practice in the profession.
Section 39 provides that boards established under the National Law may develop and approve codes and guidelines ‘to provide guidance to the health practitioners it registers’ and ‘about other matters relevant to the exercise of its functions’. It was uncontroversial that the Guidelines relevant to this proceeding were approved in accordance with Division 3 of Part 5 of the National Law.
A board established under the National Law must ensure that there is wide-ranging consultation about the content of any registration standard, code or guideline which it may develop,[19] although a failure to do so will not ‘invalidate’ the registration standard, code or guideline.[20] Any guideline or code which is approved (or registration standard approved by the Ministerial Council) must be published on the board’s website,[21] at which time it ‘takes effect’.[22] Once approved, a registration standard, code or guideline is admissible in proceedings against a health practitioner ‘as evidence of what constitutes appropriate professional conduct or practice for the health profession’.[23]
[19]Section 40(1).
[20]Section 40(2).
[21]Section 40(3)(b).
[22]Section 40(4)(a), unless a later day is stated in the guideline (s 40(4)(b)).
[23]Section 41.
Part 7 of the National Law makes detailed provision in relation to the registration of health practitioners, including in relation to general registration,[24] specialist registration,[25] provisional registration,[26] limited registration,[27] non-practising registration [28] and student registration.[29] Amongst other things, the eligibility requirements for each class of registration, save for non-practising and student registration, stipulate that an individual meet any requirements for registration stated in an approved registration standard for the relevant health profession.
[24]Division 1.
[25]Division 2.
[26]Division 3.
[27]Division 4.
[28]Division 5.
[29]Division 7.
A board established under the National Law may also determine to register a person subject to any condition which it considers necessary or desirable in the circumstances.[30] Details of any condition imposed on a practitioner’s registration must be included on the national register of all currently registered health practitioners required to be maintained by the board and posted on the website of the Australian Health Practitioner Regulation Agency.[31] A registered health practitioner who is registered on conditions must not knowingly or recklessly claim to be, or hold themselves to be, registered without the conditions.[32]
[30]Section 83.
[31]Sections 222(2), 225(k) and 228(1)(a).
[32]Section 120(1).
Subdivision 1 of Division 11 of Part 7 of the National Law deals with certificates of registration. Section 124(1) provides that, if a board decides, amongst other things, to register an individual in a health profession, renew an individual’s registration or ‘to impose, change or remove a condition on a registered health practitioner’s registration or otherwise change the practitioner’s registration in a material way’,[33] the board must, as soon as practicable after the decision is made, give the registered health practitioner a certificate of registration.[34] The certificate must include certain prescribed information including ‘any condition on which the registration … is subject’.[35]
[33]Section 124(1)(c).
[34]Section 124(1)-(2).
[35]Section 124(3)(e).
Subdivision 2 of Division 11 of Part 7 of the National Law deals with the review of conditions and undertakings. It prescribes procedures by which a registered health practitioner,[36] or a board,[37] may seek to change or remove a condition imposed on a practitioner’s registration.
[36]Section 125.
[37]Sections 126 and 127.
Part 8 of the National Law regulates the health, performance and conduct of health practitioners, including the making of mandatory and voluntary notifications about registered health practitioners. Division 10 of Part 8 deals with the action which may be taken by a board established under the National Law. It includes s 178 which relevantly provides as follows:
(1) This section applies if—
(a)a National Board reasonably believes, because of a notification or for any other reason—
(i)the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; or
(ii)a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment; or
…; and
(b)the matter is not required to be referred to a responsible tribunal under section 193; and
(c)the Board decides it is not necessary or appropriate to refer the matter to a panel.
(2)The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student—
(a)caution the registered health practitioner or student;
(b)accept an undertaking from the registered health practitioner or student;
(c)impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner—
(i)a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv)a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(d)refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3)If the National Board decides to impose a condition on the registered health practitioner’s or student’s registration, the Board must also decide a review period for the condition.
Subject to certain exceptions, a board established under the National Law is required to follow the ‘show cause process’ set out in s 179 of the National Law when it proposes to take ‘relevant action’ as defined in s 178(2) in relation to registered health practitioner.
Division 13 of Part 8 deals with ‘appeals’. Section 199 sets out a list of ‘appellable decisions’ which can be made by a board or panel and in relation to which a person who is the subject of such a decision may appeal to the ‘appropriate responsible tribunal’. The ‘responsible tribunal’ in Victoria is the Tribunal.[38] Section 199(1), which is the only provision in the National Law which provides for a right of appeal against decisions of a board, states as follows:
[38]Section 6.
Appellable decisions
(1)A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
(a) a decision by a National Board to refuse to register the person;
(b)a decision by a National Board to refuse to endorse the person’s registration;
(c)a decision by a National Board to refuse to renew the person’s registration;
(d)a decision by a National Board to refuse to renew the endorsement of the person’s registration;
(e)a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i)a condition relating to the person’s qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);
(f)a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;
(g)a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)a decision by a National Board to suspend the person’s registration;
(i)a decision by a panel to impose a condition on the person’s registration;
(j) a decision by a health panel to suspend the person’s registration;
(ja) a decision by a health panel not to revoke a suspension;
(k)a decision by a performance and professional standards panel to reprimand the person.
The Guidelines
The Guidelines relate to international medical graduates. They provide that all international medical graduates who are granted limited registration or provisional registration must be supervised, and that supervision is a requirement of registration for the duration of their registration.[39]
[39]Guidelines [1].
The Guidelines also provide that the supervision arrangements which are approved by the Board must be in place at all times when the international medical graduate is practising, and that a graduate must not practise if the approved supervision arrangements cannot be met.[40]
[40]Guidelines [3.1].
The Guidelines require all international medical graduates to have a principal supervisor who is approved by the Board and who oversees the supervision of the international medical graduate.[41] Paragraph 3.5 of the Guidelines deals with the ‘requirements for supervisors’ and relevantly states:
All supervisors, including principal supervisors, co-supervisors, term co-supervisors and temporary co-supervisors:
•must not have conditions imposed on their registration or undertakings accepted by the Board as a result of health, performance or conduct issues.
…
The Board may not grant approval or may revoke approval of a supervisor, if it receives a notification of a serious allegation about the supervisor’s health, performance or conduct.
[41]Guidelines [3.3].
Proceedings in the Tribunal
As I have noted, after Dr Fidge lodged with the Tribunal an application for a review of the decision made by the Registration Committee of the Victorian Board of the Medical Board of Australia on 3 September 2020, the Board applied for that proceeding to be summarily dismissed pursuant to s 75 of the VCAT Act. The basis of that application was that there was no reviewable decision concerning Dr Fidge before the Tribunal. The Member dismissed the Board’s application for summary dismissal on 25 March 2021 for reasons given on that same date.[42]
[42]Fidge v Medical Board of Australia of Australia (Review and Regulation) [2021] VCAT 273.
In his reasons, the Member set out the background to the proceeding, the relevant statutory provisions and established legal principles and referred to in s 199 of the National Law as identifying, exhaustively, the specific decisions of the Board which are reviewable by the Tribunal. The Member then recorded his conclusion that the Board’s decision of 3 September 2020 was an appellable decision within the meaning of paragraph (e) in 199(1) of the National Law because it operated, in part, ‘to impose or change a condition’ on Dr Fidge’s registration.
In reaching his conclusion, the Member noted that the Board expressed itself in the language of making ‘decisions’ that Dr Fidge did not meet the requirements to supervise international medical graduates and to revoke his approval to supervise Dr A. The Board’s communication of the decision to Dr Fidge reflected an appreciation by it that the decision impacted upon him, and that it could be seen as written notice of the imposition of a condition as required under s 180.
Although the Member acknowledged that the decision relating to Dr Fidge ‘could be argued to be a natural consequence of the operation of the Guidelines’ following the conduct decision, the Member considered that ‘by acting upon the Guidelines in relation to Dr Fidge’s particular circumstances, the Board can be seen to have imposed a condition affecting Dr Fidge’s registration’.[43]
[43]Ibid [54] (emphasis in original).
The Member stated that, although Dr Fidge could have taken a different path of challenging the conditions imposed on his registration by the conduct decision, because Dr Fidge accepted the appropriateness of those conditions, there was a clear rationale as to why that avenue was not pursued.
The Member considered that the interpretation of s 199(1)(e) which he adopted accorded with the text, context and purpose of the National Law: the text of s 199(1)(e) referred to ‘a decision…to impose or change a condition’, in the absence of any definition of ‘condition’.
The Member also referred to the context of the National Law as including the Guidelines, including that the scheme should be ‘transparent, accountable, efficient, effective and fair’ and that restrictions on practice were only imposed if they are ‘necessary to ensure health services are provided safely and are of appropriate quality’. The Member considered that it was not consistent with these principles for:[44]
(a)conditions on a practitioner (who wishes to act as a supervisor) to be effectively imposed in an opaque manner, by the adoption of the Guidelines that mandatorily prohibit anyone subject to (other) conditions from acting as a supervisor while those conditions are in place; or
(b)a practitioner whose practice is restricted by the application of the Guidelines to be denied fairness, in terms of a right of review available to another practitioner subject of an express restriction on supervising others.
[44]Ibid [59].
The Member also stated that:[45]
… the mandatory language of the Guidelines in relation to extant conditions on registration is not consistent with:
(a)the principle that restrictions only be imposed to the extent necessary to ensure health services are safe and of appropriate quality, as it is axiomatic that not all conditions will impact on the safety or quality of the health services that a supervising doctor provides. Arguably, the connection between conditions imposed on a supervisor, and the safety and quality of the health services that a supervised international medical graduate provides, is even more remote; or
(b) the treatment, under the Guidelines, of new, but serious, allegations against a supervising practitioner or past conditions on a proposed supervising practitioner, which are relevant (but not determinative) of whether approval to supervise is revoked or granted.
[45]Ibid [60].
The Tribunal acknowledged that the objective of ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner and are registered would be promoted by ensuring that international medical graduates are trained and supervised by doctors who are competent and ethical. The Tribunal continued:[46]
However it does not necessarily follow that any doctor who has conditions on their practice automatically ceases to be competent and ethical for the duration of the period those conditions are in place. Much will depend on the nature of the conditions, as well as the extent to which the doctor has developed insight into the conduct which resulted in their imposition. In that sense, a broad interpretation of s 199(1)(e) that allows for review of any restrictions on supervising others can be seen to be consistent with the overall purpose of the registration and accreditation scheme established by the National Law.
[46]Ibid [61] (emphasis in original).
The Member also considered that a broad interpretation of s 199(1)(e) was consistent with the objective of facilitating ‘access to services’ in rural, regional and remote areas.
For the above reasons, the Member found that the Board had failed to establish that Dr Fidge’s application for review was misconceived or lacking in substance and accordingly dismissed the summary dismissal application.
The appeal
A party to a proceeding may appeal on a question of law from an order of the Tribunal.[47]
[47]VCAT Act s 148.
Section 148(2A) of the VCAT Act provides that the Trial Division of the Court ‘may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success’. In addition to considering whether an appeal has a real prospect of success, in considering whether to grant leave, it is also relevant to consider whether the appeal raises questions of public or general importance.[48]
[48]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [11], [19].
By its amended notice of appeal, the Board identified the two questions of law:
Question 1 – was the Tribunal correct to find that the respondent was a person who was the subject of an ‘appellable decision’ and may appeal against that decision under s 199(1) of the Health Practitioner Regulation National Law Act 2009 (the Act)?
Question 2 – was the Tribunal correct to find that an ‘appellable decision’ under s 199(1)(e) of the Act includes decisions which neither imposed nor changed conditions on a practitioner’s registration?
The Board advanced two grounds of appeal as follows:
Ground 1
The Tribunal misconstrued s 199(1) of the Act in finding that the [Board’s] determination of 3 September 2020 … was an appellable decision of which [Dr Fidge] was the subject on the basis that it ‘operated, in part, to impose or change a condition’ on [Dr Fidge’s] registration, in circumstances where the only change of conditions imposed by the determination related to Dr A’s registration.
Ground 2
The Tribunal misconceived the nature of its jurisdiction by misconstruing s 199(1)(e) of the Act as encompassing a determination as to the application of the Guidelines to [Dr Fidge] whose registration was subject to conditions, in circumstances where:
(a)the conditions had been imposed by an earlier decision of the Board; and
(b)[Dr Fidge] had not appealed against that earlier decision.
Ground 1
The Board’s submissions
The Board fixed upon the language of s 199(1) of the National Law which confers a right on a person who is ‘the subject of’ an appellable decision to appeal against the decision to the Tribunal; it contended that the Tribunal erred in finding that Dr Fidge was a person who was ‘the subject of’ an appellable decision.
The Board submitted that Dr Fidge was not the subject of the decision of which he sought review. Instead, Dr Fidge sought review of the ‘decision’ matter notified to him by the Board by letter dated 24 September 2020. That notification concerned the Board’s decision on an application by Dr A to vary the supervision condition on his registration. Having granted that application, the Board submitted that what was then notified to Dr Fidge’s was the Board’s view of the application of the Guidelines to Dr A’s supervision requirements. In particular, the letter referred to the requirement in the Guidelines that all supervisors must not have conditions imposed on their registration, noted that conditions had been imposed on Dr Fidge’s registration and advised that the Registration Committee of the Board ‘considers that you are no longer suitable to provide supervision to IMGs’. The letter also advised that Dr A was required to provide a new supervised practice plan and supervisor’s agreement with new supervision arrangements. Although the letter noted that the Committee ‘has therefore determined that you do not meet the Medical Board of Australia’s Guidelines: Supervised Practice for International Medical Graduates’, it was submitted that this was less naturally described as a ‘decision’ than as notice of the application of the Guidelines.
The Board sought to emphasise that the decision made in relation to Dr A did not affect Dr Fidge’s registration: it did not amend or vary his registration, nor the conditions attached to it. The sole subject of the decision to change the supervision conditions on Dr A’s registration was Dr A.
The Board submitted that Dr Fidge’s application for a review of the decision on the basis that it rendered him ‘no longer suitable to provide supervision to IMGs’ was misconceived. Dr Fidge’s eligibility to supervise international medical graduates was neither the subject of, nor affected by, the Dr A decision. Had the Dr A decision not been expressly notified to Dr Fidge, he would nevertheless not be able to supervise Dr A because of the effect of the decision on Dr A, who was required to submit a plan and agreement which did not identify Dr Fidge as supervisor. Further, by reason of the Guidelines, Dr Fidge would be ineligible to supervise any other international medical graduates while his registration was subject to conditions.
The Board drew attention to the fact that the Guidelines set out the eligibility requirements to supervise international medical graduates and include a minimum mandatory criterion that a proposed supervisor does not have any conditions imposed on his or her registration as a result of a conduct issue. Because the conduct decision imposed conditions on Dr Fidge’s registration as a result of a conduct issue, from the time of that decision, Dr Fidge no longer met the eligibility requirements to supervise international medical graduates. Dr Fidge’s ineligibility to supervise international medical graduates was therefore a consequence of the conduct decision and not the decision of which he was notified on 24 September 2020. The conduct decision imposed a set of conditions on Dr Fidge’s registration. Although those conditions did not prohibit Dr Fidge from supervising international medical graduates, the consequence of their imposition was, by reason of the requirements of the Guidelines, to render him ineligible to supervise.
The Board made the point that Dr Fidge had a right to seek a review of the conduct decision imposing conditions on his registration because it was an appellable decision within the meaning of s 199(1)(e) of which he was the subject. Dr Fidge could have sought to have the conditions imposed on his registration set aside and, if he had succeeded, that would have had the practical effect of making him eligible to supervise international medical graduates. Because he did not do so, the conditions remain imposed upon his registration.
Dr Fidge’s submissions
Dr Fidge advanced six main contentions under this ground.
First, he submitted that the Board’s submission that the decision did not affect his registration was irrational and impossible. As a result of the Board’s decision on 3 September 2020, much had changed because he was prohibited from engaging a specific class of person and a limitation on his practice was imposed. He submitted that he had been supervising and training international medical graduates for about a decade before the decision and planned upon supervising other graduates in the future. At the time of the decision, he was supervising Dr A and expected to supervise another doctor, ‘Dr B’, in the near future. The decision of the Board therefore had a severe and long-term effect upon his workload and reduced the access to medical services in the regional area in which he worked.
Dr Fidge submitted that he had an established right to supervise international medical graduates which was removed by the Board when it determined that he was ‘no longer suitable to provide supervision’ to international medical graduates. He reasonably expected to continue that supervision and anticipated that he would have the benefit of the show cause process provided for in s 179 of the National Law in the event that any allegations were made against him. The Board did not have power to dispense with that process and the Board did not put any allegations to him before deciding to restrict his practice. He submitted that the decision of the Board removed an existing right and benefit that he had with regard to Dr A and prohibited him from exercising that right and benefit in the future with Dr B and other international medical graduates.
Dr Fidge submitted that the situation was analogous to the Victorian Legal Services Board removing a judge’s associate and informing the judge that they may not have an associate for an indeterminate period because of a guideline and that the judge may not appeal against the action because it was taken by a guideline. The judge has a right to have an associate and that right is restricted for an indeterminate period of time because of a guideline and in such circumstances the action would be contrary to the reasonable expectation of the judge.
Secondly, Dr Fidge submitted that he was the subject of a decision by the Board made under s 178(2) to take action to prohibit him from supervising international medical graduates. He argued that the Board acknowledged that he was the subject of a decision by writing to him on 24 September 2020 to inform him of the decision to restrict his practice. Dr Fidge referred to the terms of the letter[49] and emphasised the references therein to ‘you’ and ‘your’ as indicating that he was identified as the subject of the decision.
[49]Set out in [10] above.
Dr Fidge submitted that the proposition that Dr A was the subject of the decision was irrational and impossible because the decision does not affect any doctor unless they proposed to be supervised by Dr Fidge. The decision attached ‘inseparably’ to him and restricted him from engaging with international medical graduates as a supervisor. He also described the Board’s submission that only Drs A and B were the subjects of the decision as being a logical fallacy; the decision may, in fact, affect multiple parties. He also argued that that the Board’s contention that the sole subject of the decision was the changed the supervision condition and Dr A’s registration was disproved by the Board’s later decision to also prohibit him from supervising Dr B.
Dr Fidge submitted that it was illogical to contend that the condition the Board imposed on him was actually a ‘secret quiescent condition’ that was instead placed upon all international medical graduates which coincidentally lasted for as long as he has any conditions placed upon his registration. The condition on other international medical graduates would only enliven when they sought to be supervised by him and it would ‘magically disappear’ when he no longer had conditions on his registration.
In summary, Dr Fidge submitted that the actions of the Board confirmed that he was the subject of the decision because the Board considered it necessary to write to him about international medical graduates advising him that he was the subject of a decision prohibiting him from supervising international medical graduates. The effect of the Board’s actions was to place a condition on his registration in the form of a limitation on his practice.
Thirdly, Dr Fidge submitted that the Board’s decision must be an appellable decision because, by immediately preventing him from supervising Dr A and preventing him from supervising Dr B at a later time, it had the effect of taking action in relation to him under s 178(2)(c) of the National Law. The decision by the Board fell squarely into the examples of appellable decisions provided for in ss 178(2)(c)(iii), (iv) and (vi) of the National Law.
Fourthly, Dr Fidge submitted that the Board had previously recognised that similar action taken against another registrant made that registrant the subject of an appellable decision. It was submitted that the Board does not have the power to treat registrants differently and is required to use the same legislative processes to effect limitations on a registrant’s practice.
In this submission, Dr Fidge sought to refer to a condition said to have been imposed upon Professor Les Bolitho in 2020. Although the conditions imposed upon Professor Bolitho’s practice were not identical to those said to be placed on his practice, they included the supervision of international medical graduates. Dr Fidge submitted that Professor Bolitho was informed that these conditions involved the imposition of an appellable condition. It was inequitable and unjust for the Board to proceed in a different way in relation to him.
Fifthly, Dr Fidge submitted that no adverse action taken by the Board is excluded from appeal under the National Law, except those conditions specifically provided for in s 199(e)(i) and (ii) of the National Law. The National Law does not otherwise exclude other types of conditions or adverse decisions from being appellable. It would be illogical if the ‘examples’ of appellable decisions referred to in s 199 represented all of the infinitely possible decisions that a board might make ‘in the infinite future’.
It was submitted that the only rational interpretation of the words ‘may appeal against the decision’ in s 199 is that it clarified and confirmed that a person affected by an adverse decision has a right to appeal the decision. The lack of prohibitive language against decisions not referred to in s 199 was said to be a compelling indication that appeals against other decisions were foreshadowed and allowed for, as compared to the specific language and exclusion of the right of appeal in s 199(1)(e). The latter provision indicated that the legislature was capable of using clear language to limit or exclude appeals when it wished to do so.
Sixthly, Dr Fidge submitted that the Guidelines can only be created pursuant to s 39 of the National Law and they are not capable of placing limitations upon his practice or preventing him from performing any other action. The Guidelines are therefore not responsible for the limitation which has been placed upon him. The Board must have made a decision because guidelines can only be developed under s 39 and there is no provision in the National Law for guidelines to have any power or to apply themselves. It is the Board which makes decisions to revoke the approval for a practitioner to act as a supervisor. All the Guidelines are capable of doing is to provide guidance.
Dr Fidge submitted that it was the Board’s decision to apply the Guidelines to him which confirms that he is the subject of an appellable condition. By analogy, Dr Fidge referred to an appeal against a sentence imposed by a judge who has applied sentencing guidelines. The sentencing guidelines do not apply of themselves. As with sentencing guidelines, the Guidelines must be applied by a body or person with authority to apply them. In this case, they were applied by the Board to him and the Board’s decision imposed a limitation on his practice that is appellable under ss 178(2)(e)(iii), (iv) and (vi).
Ground 2
The Board’s submissions
By its second ground of appeal, the Board contended that the Tribunal erred in finding that an appellable decision under s 199(1)(e) could include a decision which neither includes nor changes conditions on a practitioner’s registration. The Board submitted that the terms of s 199(1)(e), its context, and the purpose of the National Law were all consistent with that subsection being construed to apply only to decisions which in fact ‘impose or change a condition on a person’s registration’. The Board argued that the Member’s broad interpretation of s 199(1)(e),[50] was incorrect insofar as it would cause the content and issuing of Guidelines to be captured by that section, matters which were properly not appellable decisions, nor otherwise subject to review or supervision by the Tribunal.
[50]See above at [34]–[38].
The Board submitted that s 199 provides an exhaustive list of those decisions which are appellable decisions.[51] Moreover, the wording in s 199(1)(e) relevantly refers to a decision by a National Board to impose or change a condition on a person’s registration, the Dr A decision not having this effect in relation to Dr Fidge. The guiding principles of the National Law in s 3(3),[52] to which the Tribunal referred, do not operate to broaden the prescribed appellable decisions in s 199.
[51]See above at [25].
[52]Those guiding principles being that:
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
The substantive error of the Tribunal, as contended by the Board, was in their mischaracterisation of the effect of the 24 September 2020 letter[53] that was sent by the Board to Dr Fidge regarding the Dr A decision. In the Tribunal’s reasons, to which I have already referred, the Tribunal stated that ‘by acting upon the Guidelines in relation to Dr Fidge’s particular circumstances, the Board can be seen to have imposed a condition affecting Dr Fidge’s registration’.[54] The Board submitted that, in the circumstances that have occurred, the correspondence regarding the Dr A decision was not a decision which, in fact, imposed or changed a condition on Dr Fidge’s registration. Rather, the 24 September 2020 letter that was sent to the Fidge was an objective statement of how the terms of the Guidelines[55] applied to him. The letter communicated the view that Dr Fidge no longer met the eligibility requirements to supervise international medical graduates. Construing this statement as a decision to impose a condition upon Dr Fidge’s registration was erroneous.
[53]See above at [20].
[54]Fidge v Medical Board of Australia (Review and Regulation) [2021] VCAT 273, [54]
[55]See above at [28].
In practical terms, Dr Fidge became ineligible to supervise international medical graduates by virtue of the conditions imposed on his registration pursuant to the conduct decision which occurred some four months earlier on 28 May 2020. The fact that the terms of the letter were not limited to the immediate case of Dr A, but applied to the supervision of any international medical graduate, was the effect of the Guidelines and not the result of any decision made by the Board.
Dr Fidge’s submissions
Dr Fidge submitted that the conduct decision was in fact an appellable decision. He argued that the effect of the conduct decision was to place a condition on his registration, and that the Board’s failure to acknowledge it as such did not lead necessarily to its absence. He referred to a number of cases which he submitted were analogous, and argued that since the Board’s decision resulted, in substance, in a restriction to his practice, it constituted an appellable decision.
As a consequence of this conclusion, Dr Fidge submitted that a ‘restriction’ placed on his registration constituted a ‘condition’ for the purposes of s 178 and, it followed, was therefore appellable.
Dr Fidge also argued that any attempt of the Board to make a decision which had the effect of restricting a practitioner’s practice without imposing a [formal] condition, was not within the power afforded to it by the National Law, including the enforcement of the Guidelines as standalone restrictions.
He argued that the only means by which the Board is permitted to limit his, or any registered practitioner’s, practice is by imposing a condition; either this is what occurred as a natural consequence of the conduct decision and the decision is accordingly appellable; or no such condition was imposed, and the restriction of his practice was beyond the power of the Board and in error.
Consideration
As is apparent from the parties’ submissions, there is considerable overlap in the issues raised by the two grounds relied upon by the Board. It is accordingly convenient to deal with them together.
The Tribunal’s jurisdiction is limited and derives entirely from statute.[56] Its review jurisdiction is limited to the jurisdiction conferred upon it by, or under, an enabling enactment to review a decision made by a decision-maker.[57] The Tribunal does not have inherent jurisdiction, in that it does not have jurisdiction to deal with an application for review if the enabling enactment does not allow for the application to be made.[58]
[56]Director of Housing v Sudi (2011) 33 VR 599, [19].
[57]VCAT Act, s 42(1).
[58]Herald and Weekly Times v Victorian Civil and Administrative Tribunal [2006] VSCA 7, [27].
The Tribunal’s review jurisdiction under the National Law is conferred by s 199(1). The central issue raised by the Board’s grounds of appeal is whether the Tribunal erred in law in concluding that the Board’s decision of 3 September 2020 was an appellable decision within the meaning of paragraph (e) in 199(1) which provides as follows:
A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
…
(e)a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i)a condition relating to the person’s qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);[59]
[59]Section 112(3)(a) states: If the National Board renews a registration, including any endorsement on the registration, the registration or endorsement is subject to any condition to which the registration was subject immediately before the renewal.
For the reasons which follow, the Tribunal did err in law in concluding that the Board’s decision of 3 September 2020 was an appellable decision within the meaning of this paragraph.
Although a board established under the National Law has power to register a person subject to any condition which it considers necessary or desirable in the circumstances,[60] and ‘condition’ is not defined the National Law, a decision of a board is not an appellable decision of the type referred to in s 199(1)(e) merely because it imposes or changes a condition which affects the manner in which a health practitioner is able to conduct their practice. Rather, as s 199(1)(e) states, the condition must be one which is imposed or changed ‘on a person’s registration’.
[60]Pursuant to s 83(1).
The making and prescription of rules governing the registration of health practitioners is the principal subject matter[61] of the National Law and is closely regulated by its terms. As I have explained,[62] the National Law makes detailed provision for different types of registration for health practitioners, and confers on boards the function of deciding the requirements for registration, and requires them to develop registration standards.
[61]Together with persons undertaking study and training in a health profession.
[62]See above at [15]-[19].
The registration of health practitioners is self-evidently a critical concern of the National Law. Boards must maintain a publicly available national register of all currently registered health practitioners,[63] including details of any condition imposed on a practitioner’s registration.[64] Whenever a decision is made to register an individual in a health profession, renew an individual’s registration or ‘to impose, change or remove a condition on a registered health practitioner’s registration or otherwise change the practitioner’s registration in a material way’, a board must give a registered health practitioner a certificate of registration containing prescribed information including any condition on which their registration is subject.[65] The National Law also sets out detailed procedures by which changes in (or the removal of) a condition on a practitioner’s registration may be sought.[66]
[63]Section 35(1)(l).
[64]Section 225(k).
[65]Section 124.
[66]Section 125.
Given these features of the National Law, the reference in s 199(1)(e) to a decision by a board to impose or change a condition ‘on a person’s registration’, is to be understood as being a reference to a decision which imposes or changes a condition which expressly attaches to a person’s registration as recorded in accordance with the provisions of the National Law. This construction is consistent with the ordinary meaning of the preposition ‘on’.
It is also consistent with the distinction recognised in the National Law between a practitioner’s registration and their practice. For example, in dealing with notifications about the health, performance and conduct of health practitioners, a board may, pursuant to s 178(2)(c), impose conditions on a practitioner’s registration requiring the practitioner to manage their practice in a specified ways, or requiring the practitioner to report to a specified person at specified times about their practice.[67] Sections 132(1) and (2) also require registered health practitioners to comply with a notice issued by a board which asks the practitioner to give written notice containing certain ‘practice information’.[68]
[67]Paragraphs (iv) and (v).
[68]Defined in s 132(4) as follows: practice information, for a registered health practitioner practising in the health profession for which the practitioner is registered, means each of the following if it applies to the practitioner—
(a) if the practitioner is self-employed and shares premises with other registered health practitioners with whom the practitioner shares the cost of the premises—
(i) that the practitioner is self-employed; and
(ii) the address of each of the premises at which the practitioner practises; and
(iii) if the practitioner practises under a business name or names, each business name; and
(iv) the names of the other registered health practitioners with whom the practitioner shares premises;
(b) if the practitioner is self-employed and paragraph (a) does not apply—that the practitioner is self-employed, the address of each of the premises at which the practitioner practises and, if the practitioner practises under a business name or names, each business name;
(c) if the practitioner is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement—the name, address and contact details of each entity;
(d) if the practitioner is providing services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, and whether or not the practitioner receives payment from an entity for the services—the name, address and contact details of each entity.
In its meeting on 3 September 2020, the Board did not purport to deal with Dr Fidge’s registration or any conditions which attached to it. The agenda item referred to in the agenda paper for the meeting was a ‘Request for change in circumstances’, that is, Dr A’s request to alter his level of supervision. That Dr A’s request was the subject matter with which the Board was concerned on 3 September 2020 is confirmed by the decisions recorded in paragraphs 2-4 of the ‘Recommendation’ section of the agenda paper.[69] In those paragraphs, the Board approved Dr A’s request to change his level of supervision from level 2 to level 3 and dealt with the consequential issues which thereby arose: the need for Dr A to have a new practice plan and supervisor’s agreement at level 3, and authorising the means by which the new plan would be approved.
[69]See above at [9].
These same matters also establish that Dr Fidge was not the ‘subject of’ an appellable decision as required by the chapeau in s 199(1) of the National Law.
In approving Dr A’s request to alter his level of supervision and dealing with these consequential matters, at a pragmatic level, it is perhaps unsurprising that the Board also directed itself to Dr Fidge’s ‘ongoing suitability to provide supervision’ to Dr A. Dr Fidge had of course been supervising Dr A, the conduct decision which resulted in conditions being imposed on his registration had only been made a few months previously and paragraph 3.5 of the Guidelines prohibited supervisors from having conditions imposed on their registration. However, what is of present relevance is that, in purporting to decide that ‘Dr Fidge no longer meets the requirements to supervise’ international medical graduates and revoking ‘his approval to supervise’, the Board did not direct itself at all to Dr Fidge’s registration, including by imposing or changing a condition to which his registration was subject. Neither can it be said, contrary to the Tribunal’s reasoning, that the decision operated in any way to impose or change a condition on Dr Fidge’s registration, as distinct from, for example, the manner in which he conducted his practice.
In s 199 of the National Law, Parliament has exhaustively identified, in precise terms, the particular types of decisions by boards established under the National Law for which the Tribunal is given a supervisory role. Most of those decisions are expressed to relate to a person’s registration, with the remainder concerning decisions about the giving of undertakings and the issuing of reprimands.[70] Parliament could have readily included in this list, but did not, decisions relating to, or affecting, supervisory arrangements between registered practitioners and other persons, such as international medical graduates. In adopting a ‘broad interpretation of s 199(1)(e) that allows for review of any restrictions on supervising others’,[71] the Tribunal construed paragraph (e) of s 199(1) in a manner which was inconsistent with the immediate textual context in subsection (1), and what I have explained to be the central importance and meaning given by the National Law to a health practitioner’s ‘registration’, as distinct from their practice.
[70]Sections 199(1)(g) and 199(1)(k).
[71]See [37].
A consideration of the various objectives of the national registration and accreditation scheme to be established pursuant to the National Law[72] does not alter these critical aspects of the statutory text and framework. Neither do the ‘guiding principles’ of the national registration and accreditation scheme[73] operate to broaden the prescribed appellable decisions in s 199(1). In that respect, the Tribunal’s reference to conditions being imposed on a practitioner ‘in an opaque manner’,[74] by the adoption of the Guidelines, is an inapt description. The Guidelines have been in place since they were issued in January 2016, they are published on the website of the Medical Board,[75] and are self-evidently relevant and important to practitioners given that they are admissible in disciplinary proceedings.[76] It is accordingly reasonable to proceed on the basis that registered practitioners would be familiar with the Guidelines if they undertake activities to which they applied. Finally, Dr Fidge’s reliance on actions said to have been taken, or not taken, by the Board towards other practitioners, such as Professor Bolitho, are of no assistance in considering whether, in the circumstances of this case, the Tribunal erred in its construction and application of the National Law.
[72]Referred to in [12] above.
[73]See [13].
[74]See [35].
[75]Pursuant to section 40(3).
[76]Section 41.
There is a further underlying legal error in the manner in which the Tribunal construed and applied s 199(1)(e) of the National Law. Although the Board expressed itself as deciding that Dr Fidge no longer met the requirements to supervise international medical graduates, as a matter of substance, this was the operational effect of paragraph 3.5 of the Guidelines in the circumstances pertaining to Dr Fidge, as distinct from any decision by the Board. In the terms of s 199(1)(e), contrary to the Tribunal’s analysis, the Board cannot be said to have imposed any condition on Dr Fidge.
Section 39 provides that guidelines prepared by a board established under the National Law provide guidance to health practitioners registered by the board, and may deal with other matters relevant to the exercise of the board’s functions. Pursuant to s 40(4)(a), a guideline ‘takes effect’ when published on the relevant board’s website.[77] That a guideline has operational effect according to its terms from when it is published is implicit in the provision made by s 40(2) that a failure to engage in the wide-ranging consultation about its content as required by s 40(1) will not result in it being ‘invalidate[d]’. This analysis is also supported by the fact that, pursuant to s 41, a guideline is admissible in proceedings against a health practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession. The proposition that the operational effect of the Guidelines is contingent on some further action or decision being taken by a board, which is the natural consequence of Dr Fidge’s submissions, is inconsistent with these provisions of the National Law.
[77]Section 40(4)(a). Unless a guideline states a later day: s 40(4)(b).
It follows from the above analysis that I accept the Board’s submission that Dr Fidge’s ineligibility to supervise international medical graduates was a consequence of the conduct decision, and not the decision of which he was notified on 24 September 2020. As the Board submitted, the conduct decision imposed certain conditions on Dr Fidge’s registration. Although those conditions did not prohibit him from supervising international medical graduates, the consequence of their imposition was, by reason of the requirements of the Guidelines, to render him ineligible to do so. The fact that the Board did not articulate this in its correspondence with Dr Fidge, cannot alter the correct legal analysis of the operation and effect of the Guidelines under the National Law in the context of the conduct decision. Viewed in this context, I agree with the Board’s submission that the letter to Dr Fidge dated 24 September 2020 is less naturally described as a ‘decision’, than as the Board giving notice of the application of the Guidelines to Dr Fidge.
Disposition
For the reasons above, I will grant leave to appeal and allow the appeal.
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