Medical Board of Australia v Moodley; Medical Board of Australia v Khan

[2010] QCAT 457

CITATION: Medical Board of Australia  v Moodley; Medical Board of Australia v Khan [2010] QCAT 457

PARTIES:	OCR219-10 Rajendra Seshagiri Moodley (Applicant)
v
Medical Board of Australia (Respondent)
PARTIES:	OCR220-10 Pervez Mahfuzur Rahman Khan (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBERS:         OCR219-10 and OCR220-10                   

MATTER TYPE: Occupational Regulation – Health Practitioner

HEARING DATE:   16 September 2010

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   16 September 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  OCR219-10

1.    Stay the operation of the decision of the Medical Board of Australia of 27 August 2010 to refuse to renew the registration of the applicant until the determination of the applicant’s application to review that decision or earlier order;

2.    List the matter for a Directions Hearing on 27 September 2010 at 1.30pm

OCR220-10

1.    Stay the operation of the decision of the Medical Board of Australia of 27 August 2010 to refuse to renew the registration of the applicant until the determination of the applicant’s application to review that decision or earlier order;

2.    List the matter for a Directions Hearing on 27 September 2010 at 1.30pm

CATCHWORDS : 

PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL –  REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – Queensland Civil and Administrative Tribunal Act 2009, s 22(4) – where both applicants overseas trained doctors – where each registered as medical practitioner in Australia – where no complaints about the performance of either applicant from the public, supervisors or professional colleagues – where both applicants examined under the Structured Clinical Interview test – where both applicants rated as unsatisfactory in certain areas of the test – where Doctor Moodley previously failed to pass the RACGP Applied Knowledge Test – where the Medical Board of Australia refused to renew the applicants’ registrations as medical practitioners – where the applicants seek to review that decision – where the applicants seek a stay of the Board Decision pending the review – whether stay should be granted pursuant to s 22(4)

Health Practitioner Regulation National Law Act 2009
Queensland Civil and Administrative Tribunal Act 2009, s 22(2)(b), (3) and (4)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr O’Gorman SC instructed by Flower and Hart for both applicants
RESPONDENT:	Mr R Fryberg instructed by McInnes Wilson

REASONS FOR DECISION

1. Dr Moodley was born, and trained as a medical practitioner, in South Africa. He came to Australia in 2004 and was first registered as a medical practitioner here on 10 September 2004. Since October 2004 he has worked as ‘special purpose registrant’ in a general medical practice at Lowood. On 27 August 2010 he was advised by the Medical Board of Australia that his application for the renewal of his registration as a medical practitioner was refused.

1. Dr Khan was born, and completed his medical training, in Bangladesh. He came to Australia in 1992 and obtained a provisional registration as a medical practitioner in New Zealand in 1993. He was first registered in Queensland on 31 May 2002, and thereafter, worked as a general practitioner at Lowood until 2004, then on the Gold Coast for a year and finally at Kuraby since September 2006. On 27 August 2010 the Medical Board of Australia declined to renew his application for a limited registration.

1. Both have applied to QCAT to review the Board’s decision contending, in each case, that it was wrong or not properly made. Both also applied for an order to stay the Board’s decision, and to be legally represented. Leave for representation has been granted. The applicants share a solicitor and the Board has the same lawyer in both matters. By direction, the application for a stay was the subject of an exchange of written submissions, and oral submissions at a hearing on 16 September 2010. In both cases the stay was granted and I undertook to deliver reasons shortly. These are those reasons.

1. In each case the respondent is what is called a ‘National Board’ under the Health Practitioner Regulation National Law Act 2009 (National Law Act). The respondent’s decision is described in that legislation as ‘appellable’[1] but the parties agree that what is called up is QCAT’s review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)[2] and that in each case the Board’s decision is a ‘reviewable decision’ under that legislation.

   [1]Schedule, s 199 

   [2]Chapter 2, Part 1, Division 3

1. Under s 22 of the QCAT Act the applications for review brought by each doctor do not effect the operation of the Board’s decision, or prevent its implementation, but QCAT has the power to make an order staying the operation of the reviewable decision: subs 22(2)(b),(3).

1. Under s 22(4) this tribunal may only make an order in the nature of a stay if it considers the order is desirable having regard to the interests of any person whose interests may be affected by the making of the order, or the order not being made; any submission made to the tribunal by the decision maker for the review of the decision; and, the public interest.

1. In each case the Board raised a preliminary legal point: that its refusal to renew the registration of each Doctor was not amenable to a stay order because an order of that kind would, in effect, require the Board to register each practitioner and that is something outside QCAT’s jurisdiction and power.

1. The National Law Act provides, however, for a system of registration of heath practitioners, and for applications to renew that registration: ss 107, 108. In each case here the doctor’s registration continued in force until 27 August 2010 when the Board gave each of them notice of its refusal to renew. The effect of a stay simply maintains each applicant’s registration until, in accordance with the orders made on 16 September 2010, the applications for review are determined (or earlier ordered).

1. In each application the extensive material filed by and on behalf of the applicant was persuasive that a stay order was desirable, in light of the factors set out in s 22(4) the QCAT Act.

Doctor Moodley   

1. The particular events which led to the Board’s refusal to renew Doctor Moodley’s registration included what is called a Structured Clinical Interview (SCI) which involved an oral examination based on clinical scenarios said to be typical of those which would present to Doctor Moodley in his ordinary practice.

1. According to a letter from the Medical Board to Doctor Moodley of 29 June 2010, the report on the outcome of the SCI indicated that he rated as unsatisfactory in three key areas: medical interviewing skills, physical examinations skills, and familiarity with social and cultural idioms. Those results, combined with his previous inability to pass the RACGP Applied Knowledge Test persuaded the Board, on that date, to call upon Doctor Moodley to show cause why his application for renewal should not be refused. He was given until 30 July 2010 to respond. It is to be observed that the Board did not, apparently, take the material upon which it relied as something which would warrant immediate action to remove his registration, as it could have done so under s 156 of the National Law Act.

1. His solicitors made submissions on his behalf alleging the SCI interview was brief, and asserting that it did not involve a fair assessment of his abilities and areas including medical interviewing, physical examination, communication and procedural skills; that he had, in any event, successfully passed components of the RACGP Fellowship examinations which demonstrated satisfactory clinical decision making skills in a number of areas; and, observing that he failed the applied knowledge test by a margin of less than 1%.

1. The Board’s submissions were unsurprisingly and quite properly focused upon questions of public interest.  Save for the tests upon which the Board relied, however, there is no evidence which suggests any of Doctor Moodley’s patients, or potential patients, are at risk.  Rather, the weight of evidence points to the opposite conclusion.

1. The area in which he practices is categorised as an ‘area of need’ for medical services and the practice at which he has been working draws from a population of about 23,000, but currently has only 5 of its normal complement of 9 Doctors.

1. The individuals whose interests may be affected by a stay order include patients at the practice where he is employed, and the applicant and his family. He has worked at the Lowood Medical Centre under the supervision of Doctor Crowley for 6 years. Doctor Crowley speaks of him in the highest terms. If permitted to continue to practice, he will still be doing so under Doctor Crowley’s supervision.

1. During his 6 years of practice Doctor Moodley has not been the subject of any complaints to the Board about his competence, or anything else; nor, of any complaints from any colleagues. Rather, the affidavits filed on his behalf show a large number of his patients (and, indeed, the citizens of Lowood and surrounds) think very highly of him, as do a number of general and specialist medical practitioners.

1. Although Doctor Moodley apparently failed an examination last year for the Royal Australian College of General Practitioners (RACGP), it related to competence to practice in an unsupervised capacity, which he is not seeking to do. He is scheduled to undertake another component of those examinations on 24 October 2010.

1. Personally, he has strong ties here: he is the sole income earner in his family; he and his wife own a house in Ipswich; and, their two children attend school there. His continued residence in Australia is subject to an immigration visa issued on terms which include mandatory conditions that he cannot cease to be employed in the capacity in which his visa was granted, or work in any inconsistent occupation. Failure to comply with those conditions could lead to cancellation, within a short period.

1. The evidence is, on balance, compelling that the interests of Doctor Moodley’s patients, and the public are best served by permitting him to continue to practice until the review application is determined. His personal circumstances must, in the context of the nature of his work as a medical practitioner, be given considerably less weight, but they also fall in his favour.

Doctor Khan

1. Doctor Khan’s initial experience as a medical doctor in Bangladesh has been assessed by the RACGP as the equivalent of 5 years of general practice in Australia. He was first registered, outside Bangladesh, in New Zealand in 1993 and in Queensland on 31 May 2002. He has been in continual practice as a supervised medical practitioner for a period of approximately 8 years. There is no evidence of any complaints about his competence or otherwise. He has been working under the supervision of Doctor Ali, and will continue to do so. Doctor Ali speaks of him in the highest terms.

1. He is married, with four dependant children and is the sole family income earner. His visa is of much the same kind as that held by Doctor Moodley, with the same conditions.

1. The practices at which he works are in an area of need for medical services – i.e., an area where there is a shortage of medical practitioners. He has been servicing a patient ‘base’ of several thousand, and seeing about 200 patients each week.

1. In his case the Board asked him to show cause on 17 May 2010 but he was not obliged to respond until 24 July. Again, the Board plainly did not consider there was any threat or risk to his patients, or the public, in the intervening period.

1. He also contends that the SCI was not a fair assessment of the competencies required for a supervised general practitioner. Doctor Ali, who supervises him, has assessed his performance in all areas of clinical management, communication, professionalism and safe practice at either at, or above, the expected level.

1. Again, the evidence is compelling that the interests of his patients, and members of the public who might seek medical attention or advice at the practices where he works are best served if he is permitted to continue until his application for review of the Board’s decision is determined; and, there is no compelling evidence of any potential adverse impacts upon those interests. His personal circumstances are akin to those of Doctor Moodley; again, they are of considerably less weight as elements of the factors set out in s 22(4), but also support the conclusion that a stay order is appropriate.