Nigah v Medical Board of Australia
[2014] QCAT 204
•11 March 2014 (ex tempore)
| CITATION: | Nigah v Medical Board of Australia [2014] QCAT 204 |
| PARTIES: | Dr Jasbir Nigah (Applicant) |
| V | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR006-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 March 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 11 March 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for review is refused. |
| CATCHWORDS : | HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where the applicant sought a review of the respondent’s decision to refuse registration – where the application was for limited registration as a medical practitioner in an area of need – where the area of need for which the applicant can be granted limited registration – whether the Tribunal can grant limited registration Health Practitioner Regulation National Law (Queensland), s 9, s 12(1), s 67(1), s 67(2), s 67(5), s 199(1)(a) Pearse v Medical Board of Australia [2013] QCAT 392 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dr Nigah appeared for himself |
| RESPONDENT: | Mr RW Barnes of Rodgers Barnes & Green Lawyers |
REASONS FOR DECISION
Dr Jasbir Nigah is an international medical graduate. He graduated from medical school in India in 2001. He worked as an intern from July 2001 to June 2002. Between July 2002 and June 2003, he worked as a general practitioner at the Chivan Charitable Hospital and the Jaskaran Hospital. From July 2003 to December 2004, he worked as a general practitioner at the Pal Nursing Home. From January 2005 to December 2005, he was an orthopaedics junior registrar at the Government Medical Centre in Chandigarh.
He moved to Australia in 2007. He commenced work in a factory in about February 2007 in order to support his family. He worked there until June 2011. He has also worked as a taxi driver.
In or about September 2009, he attempted the Australian Medical College multiple choice questionnaire (‘AMC MCQ’). He was unsuccessful in that attempt. On a recommendation of some colleagues, in June 2011 he undertook, at considerable expense, a bridging course in Melbourne to help him prepare for his next attempt of the AMC MCQ. He made that second attempt in September 2011 and was successful.
In February 2012, he sat and passed the International English Language Testing System test, gaining a score of seven or above in all components, and an overall band score of seven.
In or about March 2012, Dr Nigah was offered a position as a general practitioner at the Queen Street Surgery in Goodna and the Metro Medical Centre in Springfield. Both practices are operated by Dr Singh.
On 10 November 2011, a delegate of the responsible Minister had made an area of need declaration pursuant to s 67(5) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) in respect of the position of general practitioner in each of the two practices. The area of need declaration was assigned the number AN309011S. It was effective for an operational period of two years. It has now lapsed and has not been renewed.
Between January and October 2012, Dr Nigah undertook observation shifts at the practices.
Section 67(1) of the National Law permits a person to apply for limited registration to enable the person to practise, in this case as a medical practitioner, in an area of need decided by the Minister.
In June 2012, he undertook and passed a Pre‑Employment Structured Clinical Interview (‘PESCI’) in respect of the general practice position at the Queen Street Surgery, which he also passed. The PESCI was conducted by three doctors on behalf of the Australian College of Rural and Remote Medicine. Each of the doctors was a Fellow of that college. Dr Nigah had undertaken the PESCI at the suggestion of the Board.
On 27 July 2012, Dr Nigah applied for limited registration to practice in the declared area of need
On 27 November 2012, the Medical Board of Australia determined to refuse Dr Nigah's application for limited registration. The reasons for the Board's decision included that Dr Nigah had not demonstrated that he has relevant practical experience for the proposed position and he had no experience in general practice.
Dr Nigah has sought a review of the Board's decision. The decision is an appelable decision under section 199(1)(a) of the National Law. Notwithstanding the description of an appelable decision, the review in this tribunal proceeds, pursuant to s 9 of the National Law, as a review of the decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Under s 20 of the QCAT Act, the purpose of the review is to produce the correct and preferable decision. The tribunal must hear and decide the review by way of a fresh hearing on the merits. It is a de novo hearing of the application based upon the material before the tribunal: Pearse v Medical Board of Australia [2013] QCAT 392, [36].
On a hearing de novo, the tribunal must decide the matter on the law and the facts as at the date of the hearing. In Shi v The Migration Agents Registration Authority (2008) 235 CLR 286 at [40] to [41], Kirby J observed:
"Of necessity, any such fresh decision replaces the decision of the primary administrative decision‑maker within the executive government of the Commonwealth. In law and in effect, it becomes the decision of the executive government. Many days, weeks, months or even a year or more might have passed since the original decision was made by the primary decision‑maker. It would be theoretically conceivable that the tribunal might make the decision which ought to have been years, months, weeks or many days earlier, leaving it to the primary decision‑maker then to update or alter the decision if any new facts and circumstances require or warranted that course.
However, given the obvious purpose of having the tribunal, as it is commonly put, step into the shoes of the primary decision‑maker so as to make a decision that ought to have been made on the merits, this would appear to ascribe to the tribunal an artificial function. It would not be the natural and appropriate function given the role, purpose and powers and of the tribunal viewed in its administrative setting.
When making a decision, the administrative decision‑makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When therefore the tribunal elects to make a decision in substitution for the decision so set aside, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard."
In the same case, which concerned a consideration of the fitness of a migration agent to provide immigration assistance, Hayne and Heydon JJ said at [99]:
"Once it is accepted that the tribunal is not confined to the record before the primary decision‑maker, it follows that unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the original decision, the material before the tribunal will include information about conduct and events that occurred after the decision under review."
Then, at [101], their Honours said:
"Nothing in the provisions of the Migration Act fix a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed, unlike some legislation providing for pension entitlements in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements. The provisions of section 303 the Migration Act contain no temporal element.
It follows that when the tribunal reviews a decision made under section 303, the question which the tribunal must consider, is the tribunal satisfied that the person concerned is not a fit and proper person to be given immigration assistance, is a question which invites attention to the state of affairs as they exist at the time the tribunal makes its decision."
In my opinion, it is plainly the case that on the review of a decision concerning an application for limited registration as a medical practitioner for an area of need, the tribunal must base its decision on the facts as they exist at the time of deciding the review application.
The significance of this in this case is that the declaration of an area of need for the position having lapsed and having not been renewed, there is now no relevant area of need for which Dr Nigah can now be granted limited registration.
It is clear that s 67(1) permits application to be made for a particular area of need as decided by the Minister under s 67(5). Section 67(2) provides that the individual is qualified for limited registration applied for if the National Board is satisfied that the individual's qualifications and experience are relevant to, and suitable, for the practise of the profession in the area of need.
By s 67(3), the Board is not required to grant the person registration merely because there is an area of need. This can only refer to the particular area of need declared by the Minister under s 67(5).
Section 12(1) of the National Law permits the Australian Health Workforce Ministerial Council to approve standards about the registration of persons in the health profession. On 31 March 2010, the Ministerial Council approved the Limited Registration for Area of Need Registration Standard with effect from 1 July 2010.
The general requirements for limited registration under that standard include evidence of an area of need declaration for the geographical area and/or type of health service for which there is a need from the responsible Minister for Health or delegate in the jurisdiction in which the designated area of need position is located.
Whilst Dr Nigah could satisfy that requirement at the time at which he made his application, he now cannot. In the absence of an area of need declaration, the tribunal, standing in the shoes of the Board, cannot grant limited registration to Dr Nigah.
His application for review must be refused. In the circumstances, I should refrain from making observations about substantive merits of the case, particularly, whether Dr Nigah’s training and experience, as set out at paragraph [1] above, is experience in general practice relevant to the positions for which he sought registration.
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