OLOWOSEGUN and MEDICAL BOARD OF AUSTRALIA
[2017] WASAT 148
•23 NOVEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: OLOWOSEGUN and MEDICAL BOARD OF AUSTRALIA [2017] WASAT 148
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS P LE MIERE (MEMBER)
DR K JEFFRIES (SENIOR SESSIONAL MEMBER)
HEARD: 17 AUGUST 2017
DELIVERED : 23 NOVEMBER 2017
FILE NO/S: VR 59 of 2017
BETWEEN: OLORUNYOMI OLOWOSEGUN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Medical practitioner - Refusal of Medical Board to renew registration - Remedies sought under s 202 of National Law - Limited registration process for practitioners with medical qualifications obtained from outside Australia - Condition on registration - Requirements of Registration Standard - Limited registration for area of need - Area of need no longer current - Failure to qualify for either specialist or general registration - Tribunal's discretionary power to remove condition
Legislation:
Health Practitioner National Law (WA) 2010, s 5, s 12, s 38(2)(c), s 67, s 72(1), s 72(3), s 80(1)(b), s 82, s 82(1)(c)(i)(E), s 82(1)(c)(i)(V), s 111, s 112, s 112(2)(a), s 112(2)(b), s 127, s 199, s 202
State Administrative Tribunal Act 2004 (WA)
Result:
Application dismissed
Summary of Tribunal's decision:
Dr Olorunyomi Olowosegun filed an application in the Tribunal seeking remedies under s 202 of the Health Practitioner National Law (WA) 2010 (National Law) following the Medical Board of Australia's decision to refuse to renew his registration.
Having obtained medical qualifications from a medical school outside of Australia or New Zealand, Dr Olowosegun was eligible to practice medicine in Australia through the Medical Board's limited registration process pursuant to s 66 or s 67 of the National Law.
Section 66 of the National Law enabled Dr Olowosegun to undertake assessment or to sit an examination approved by the Board.
Section 67 of the National Law enabled Dr Olowosegun to practise in an area of need decided by the Minister under s 67(5), relevantly Midland.
At the time of the hearing, Midland was no longer an area of need. The Tribunal does not have power to renew a practitioner's registration if an area is no longer an area of need.
The only basis of upon which Dr Olowosegun can obtain registration is by limited registration in an area of need. In circumstances where the area of need in which he is applying to practise is no longer deemed an area of need the National Law states that an application for renewal must be refused; s 82(1)(c)(i)(V) of the National Law.
The Tribunal determined on the evidence before it that Dr Olowosegun:
a) did not comply with the requirements for extension of his limited registration.
b) had been on a Fellowship pathway since March 2008 and did not sufficiently explain the periods of delay; and
c) failed multiple exams.
Therefore, in the circumstances, any discretion should not be exercised in Dr Olowosegun's favour.
Category: B
Representation:
Counsel:
Applicant: Mr E Kelly
Respondent: Ms F Stanton
Solicitors:
Applicant: Archer Thompson Lawyers
Respondent: MDS Legal
Case(s) referred to in decision(s):
Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101
Yoong and Medical Board of Australia [2015] WASAT 6
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 4 April 2017, Dr Olorunyomi Olowosegun filed an application (the Application) with the Tribunal in relation to the Medical Board of Australia's (the Board) decision notified to Dr Olowosegun by letter dated 7 February 2017 to refuse to renew his registration (the Decision). Dr Olowosegun sought remedies under s 202 of the Health Practitioner National Law (WA) 2010 (the National Law), including that the Decision made by the Board be set aside.
Ultimately, the various State Boards and Registration Committees are delegates of the Board. For that reason, the Tribunal generally uses the term 'Board' to cover both the Board and its delegates.
Leave granted
The Application was filed out of time. The Board consented to the Application proceeding. The Tribunal granted leave for the matter to proceed.
The applicant's stated grounds for review
The grounds for review set out in the Application were:
[T]hat in making the decision the Medical Board of Australia acted ultra vires, by taking into account irrelevant considerations and by failing to take into account relevant considerations.
The purpose of requiring an applicant to state the grounds for review is so that a respondent is aware of the basis for the review.
The grounds for review should articulate the basis for that review. These grounds failed to do so. There must be some factual basis in the grounds to give context to the orders sought. A claim that a respondent's actions are ultra vires, without more, fails to comply with the purpose of stating the grounds for review.
The agreed facts
The Board filed a statement of issues, facts and contentions on 20 June 2017. Dr Olowosegun filed a responsive statement of issues, facts and contentions on 4 July 2017.
The parties filed an agreed statement of issues and facts dated 4 August 2017 (the Agreed Facts) (Exhibit H). The Agreed Facts conveniently consolidate the issues and facts arising from the respective statement of issues, facts and contentions.
Nature of the hearing in a review matter
Paragraphs 2 to 6 of the Agreed Facts relevantly stated:
2.The review of a reviewable decision is to be by way of a hearing de novo, and is not confined to matters that were before the Board but may involve the consideration of new material whether or not it existed at the time the decision was made (State Administrative Tribunal Act 2004 (SAT Act) s 27(1)).
3.The purpose of the review is to produce the correct and preferable decision at the time of the decision upon review (SAT Act s 27(2)).
4.Neither the reasons for decision provided by the Board, nor any grounds for review set out in the application, limit the Tribunal in conducting a proceeding for the review of a decision (SAT Act s 27(3)).
5.The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the Board in making the reviewable decision; SAT Act s 29(1).
6.The Tribunal may:
6.1.affirm the decision that is being reviewed;
6.2.vary the decision that is being reviewed; or
6.2.1.substitute its own decision; or
6.2.2.send the matter back to the Board for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order that the Tribunal considers appropriate; SAT Act s 29(3).
The objectives of the National Law
Paragraph 8 of the Agreed Facts stated:
One of the objectives of the National Law is to 'facilitate the rigorous and responsive assessment of overseas trained health practitioners'; National Law s 3(2)(d). Among other things, the role of the Board is to protect the public by ensuring medical practitioners are qualified, competent and fit to practise; National Law s 3 and s 35.
AHPRA, the Board, the AMC and the RANZCP
Paragraph 9 of the Agreed Facts stated:
The Board may establish a committee (a State or Territory Board) for a participating jurisdiction, which is a committee of the National Board. The members of a State or Territory Board are appointed by the responsible Ministers for the participating jurisdiction; National Law s 36. The Western Australia Board of the Medical Board of Australia (State Board) was so appointed.
Paragraphs 10 to 14 of the Agreed Facts stated:
10.The Australian Health Practitioner Regulation Agency (AHPRA) is established pursuant to s 23(1) of the National Law. Its functions include providing administrative assistance and support to the Board in exercising its functions; see s 25(a) of the National Law.
11.The Board is established pursuant to s 31(1) of the National Law. Its functions include approving accreditation standards developed and submitted to it by an accreditation authority and accredited programmes of study as providing qualifications for registration or endorsement in the health profession; see s 35(1)(c)(i) and (iii) of the National Law.
12.The Australian Medical Council (AMC) is an external accreditation authority chosen by the Board to exercise accreditation functions; see s 43 of the National Law. These accreditation functions include assessing programmes of study, and the education providers that provide the programmes of study, to determine whether the programmes meet approved accreditation standards, and developing accreditation standards for approval by the Board; see s 42 of the National Law.
13.The Royal Australian & New Zealand College of Psychiatrists (RANZCP) is an AMC accredited specialist college and the RANZCP's Fellowship Program is an accredited program, which has been approved by the Board pursuant to s 49(1) of the National Law.
14.In order to obtain specialist registration as a psychiatrist in Australia a person must have fellowship with the RANZCP.
The limited registration process for International Medical Graduates (IMGs)
Paragraphs 15 to 17 of the Agreed Facts stated:
15.International Medical Graduates (IMGs) who have medical qualifications from a medical school outside of Australia or New Zealand and who are seeking registration to practise medicine in Australia may obtain limited registration:
15.1.pursuant to s 66 of the National Law, to enable the IMG to undertake a period of postgraduate training or supervised practice, or to undertake assessment or sit an examination approved by the Board provided that the Board is satisfied that the IMG has completed a qualification that is relevant to, and suitable for, the postgraduate training, supervised practice, assessment or examination; or
15.2.pursuant to s 67 of the National Law, to enable the IMG to practise in an area of need decided by the Minister under s 67(5), if the Board is satisfied the IMG's qualifications and experience are relevant to, and suitable for, practice in the area of need. The requirements for limited registration for area of need are set out in the Registration Standard: Limited Registration for Area of Need, developed by the Board under s 12 of the National Law.
16.Pursuant to the Registration Standard: Limited Registration for Postgraduate Training or Supervised Practice (approved pursuant to s 12 of the National Law), IMG's with limited registration under s 66 or s 67 of the National Law must provide the Board with evidence that they meet the eligibility criteria for a standard pathway (to general registration) or specialist pathway (to specialist registration).
17.Pursuant to s72(1) of the National Law, the maximum period of registration that is to apply to a grant of limited registration under s 66 or s 67 is not more than 12 months, and pursuant to s 72(3) of the National Law, limited registration may not be renewed more than 3 times.
General registration pathway for IMGs
Paragraphs 18 to 20 of the Agreed Facts stated:
18.Pursuant to s 38(2)(c) of the National Law, the Board has established a registration standard for granting general registration to IMG's (General Registration Standard) who have:
18.1.successfully completed all components of the AMC examinations (standard pathway); and
18.2.satisfactorily completed 12 months supervised practice in Australia.
19.The components of the AMC examinations (standard pathway) are:
19.1.a multi-choice question examination (AMC-MCQ); and
19.2.a clinical examination (AMC Clinical examination).
20.IMG's who have completed the requirements set out in 19.1 and 19.2, and met general administrative requirements relating to matters such as criminal history checks, proof of identity and proof of primary qualifications (set out in full in the General Registration Standard), are entitled to general registration as a medical practitioner with the Board.
Specialist registration pathway for IMGs
Paragraphs 21 to 25 of the Agreed Facts stated:
21.The Board has also established a registration standard for specialist registration (Specialist Registration Standard).
22.The Specialist Registration Standard provides (inter alia) that an IMG who does not qualify for general registration, but who has 'qualifications for specialist registration', can have their name published on the Specialist Register and must restrict their scope of practice to the specialty or field of specialist practice in which they hold registration.
23.The Specialist Registration Standard states that a person has qualifications for specialist registration if the person (inter alia) holds an 'approved qualification' for the specialty, and that fellowship of any of the AMC accredited specialist colleges is an 'approved qualification'.
24.The RANZCP is an AMC accredited specialist college and fellowship of the RANZCP qualifies an IMG to have their name published on the Specialist Register as referred to in 22.
25.IMG's who attain Fellowship with RANZCP (or any other AMC accredited specialist college) and meet general administrative requirements relating to matters such as criminal history checks, proof of identity and proof of primary qualifications (set out in the General Registration Standard), are entitled to specialist registration with the Board, provided that they restrict their scope of practice to their area of specialisation.
Dr Olowosegun's qualifications and history in Australia
Paragraphs 26 to 41 of the Agreed Facts relevantly stated:
26.Dr Olowosegun obtained a Bachelor of Medicine Bachelor of Surgery from the University of Ilorin, Nigeria, in 1997.
27.In 2004, Dr Olowosegun was admitted as a Fellow of the Medical College of Psychiatry (Nigeria).
28.In or about March 2007, Dr Olowosegun successfully applied to the Medical Board of Victoria for 'specific registration' under the Medical Practice Act 1994 (Vic) (repealed), which form of registration was analogous to limited registration under the specialist pathway now provided for by the National Law. Dr Olowosegun held specific registration with the Medical Board of Victoria until 1 July 2010, when the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law (Vic)) commenced operation for medical practitioners. Pursuant to s 272(2) of the National Law (Vic), as Dr Olowosegun held specific registration immediately before 1 July 2010, Dr Olowosegun was taken to hold limited registration with the Board from 1 July 2010.
29.On 27 August 2008 Dr Olowosegun started on the Specialist Fellowship pathway with RANZCP, originally on the basis that he was a Category I Candidate, which assessment was appealed by Dr Olowosegun. On 25 July 2011 the RANZCP granted Dr Olowosegun Category II status, which meant he had fewer training requirements than a Category I Candidate but still required completion of clinical examinations.
30.On 25 September 2008, the RANZCP determined that Dr Olowosegun should remain on the RANZCP Specialist Pathway as a Category 1 exemption status candidate.
...
32.In or about January 2010, Dr Olowosegun sought a review of the RANZCP's decision to keep him on the RANZCP Specialist Pathway as a Category 1 exemption status candidate.
34.Dr Olowosegun held limited registration with the Medical Board of Australia from 1 July 2010 until on or about 7 February 2012, when he failed to renew his registration.
35.By letter dated 1 July 2011, the RANZCP upheld Dr Olowosegun's appeal and told him that his exemption status would be changed from Category 1 to Category 2.
36.On 16 March 2012 Dr Olowosegun was removed from the RANZCP Specialist Fellowship pathway.
37.While he was not registered with the Board, Dr Olowosegun was unable to sit any RANZCP clinical examinations. However, Dr Olowosegun was not prevented from seeking general registration with the Board.
38.Between 10 August 2012 and 10 August 2013 Dr Olowosegun held limited registration with the Board for postgraduate training or supervised practice to work as a psychiatrist at Ballarat Health Service.
39.On 4 April 2013, the RANZCP granted Dr Olowosegun Category 2 exemption status for a period of 12 months on the condition that it assess his progress by 27 February 2014 and that he would be requested to provide three current referee reports for its review at its March 2014 meeting.
40.By letter dated 9 April 2013, the RANZCP told Dr Olowosegun that his membership of the RANZCP and his exemption status would be reinstated and that he was required to forward names and contact details of three current referees by 14 February 2014.
41.By letter dated 22 November 2013, the RANZCP stated that it is expected that candidates will be able to successfully complete the mandated training and assessment requirements to attain their Fellowship within 3 years of gaining exemption status and that exemption status candidates are required to apply for extensions of their status every three years, to a maximum of nine years.
Dr Olowosegun contends that in December 2013, he provided the the Royal Australian & New Zealand College of Psychiatrists (RANZCP) with the contact details of four referees - Drs Khalid, Tandon, Barton and Proctor. Drs Khalid, Tandon and Barton were clinical psychiatry staff at Ballarat Health Services, where Dr Olowosegun was employed until October 2013. The Board did not admit Dr Olowosegun's contention. Given the following paragraphs of the Agreed Facts, it is obvious that Dr Olowosegun did provide the names of these referees and the Tribunal so finds.
43.On 13 December 2013 Dr Olowosegun submitted a Standard Pathway Application to the AMC to determine eligibility to proceed with the AMC examination process.
44.By email sent on 9 January 2014, the RANZCP told Dr Olowosegun that Dr Proctor could not be a referee because he was not a RANZCP member.
45.By email sent on 10 January 2014, the RANZCP informed Dr Olowosegun that Dr Barton had advised the RANZCP that he was on leave and would not be able to complete the referee report in time. Dr Olowosegun was advised by this letter either to forward the name of an alternate referee or obtain a referee report from Dr Barton in time for the relevant RANZCP committee meeting on 2728 February 2014.
46.On 10 January 2014 Dr Olowosegun emailed Keisha Thavaseelan of the RANZCP and asserted that his nominated referee, Dr Barton, had failed to take seriously his duty of supervision at the Ballarat Health Service and that the claim that Dr Barton was on leave (and for that reason, could not provide a referee report for Dr Olowosegun ) was 'ridiculously false'. Dr Olowosegun insisted that Dr Barton should provide his referee report.
47.By email sent on 14 January 2014, the Executive Director of Human Services at Ballarat Health Services told Dr Olowosegun that Drs Barton and Tandon were on leave until the end of January and that Dr Khalid had declined to provide the RANZCP with a referee report.
48.By email sent on 14 January 2014 to the Executive Director of Human Services at Ballarat, Dr Olowosegun asserted that Dr Khalid was required to provide a referee report to the RANZCP and asserted that the Applicant was not required to discuss the matter with Dr Khalid stating 'I will not beg Abdul [Dr Khalid] to carry out his responsibilities'.
49.On 27 February 2014, Dr Olowosegun ceased being on a fellowship pathway with the RANZCP as a result of being unable to comply with the RANZCP's referee reporting requirements.
50.Between 27 February 2014 and 23 March 2016 Dr Olowosegun was not on a Specialist Fellowship pathway with the RANZCP.
51.By email sent on 7 April 2014, Dr Olowosegun requested an update from the RANZCP on his application for an extension of his exemption status and also:
51.1.sought to have the RANZCP investigate his complaints about psychiatrists at the Ballarat Health Service;
51.2.sought to be informed about the RANZCP's response to Dr Olowosegun's complaints about Dr Olowosegun's nominated referee Dr Abdul Khalid; and
51.3.asserted that Dr Khalid 'should not be practising psychiatry given his role in malpractices at Ballarat Health Services'.
52.By email sent on 7 April 2014, the RANZCP told Dr Olowosegun that it was unable to progress his application for an extension of exemption status without three complete referee reports.
53.By email sent on 10 April 2014, Dr Olowosegun asked the RANZCP how many referee reports had been provided.
54.By email sent on 10 April 2014, the RANZCP told Dr Olowosegun that no complete referee reports had been received.
55.On 17 April 2014 the RANZCP emailed Dr Olowosegun and advised him that it could not process his application for an extension as it had not received his referee reports, and because Dr Olowosegun was not registered with AHPRA.
56.On 19 June 2014 Dr Olowosegun successfully completed the AMCMCQ.
57.By letter dated 27 June 2014, Dr Olowosegun requested that the RANZCP consider his application for an extension of exemption status without referee reports as his nominated referees were refusing to complete those reports and asserted that their refusal was 'retribution' in response to the Applicant reporting their conduct to three agencies.
58.By letter dated 7 August 2014, the RANZCP told Dr Olowosegun that it could not make a decision about renewal of his exemption status application without the referee reports.
Dr Olowosegun contends that in October 2014, he commenced employment at Goulburn Valley Mental Health Service and provided the RANZCP with the details of three current referees. Nothing turns on these facts.
60.Dr Olowosegun unsuccessfully attempted the AMC Clinical examination for the first time on 17 October 2014.
Dr Olowosegun contends that in November 2014, his employment with Goulburn Valley Mental Health Service ended by reason of him having completed his contract of employment. Nothing turns on these facts.
62.The Board granted Dr Olowosegun limited registration for area of need for 12 months on 21 November 2014, on the basis that he was employed by the North Metropolitan Area Mental Health Service to work as a Supervised Medical Officer (Psychiatry) at either Swan District Hospital in Midland or Osborne Park Hospital in Stirling [On 30 March 2012, pursuant to the Medical (Area of Need) Determination (No. 1) 2012, the suburbs of Midland and Osborne Park were declared areas of need for Psychiatric Services for a period of 5 years].
Dr Olowosegun contends that from 1 December 2014 to 2 February 2015, he was employed by Swan Elderly Mental Health Service in Midland. Nothing turns on these facts.
64.On 3 February 2015, Dr Olowosegun commenced employment at Midland Community Mental Health Centre.
65.By letter dated 9 February 2015, the RANZCP told Dr Olowosegun it had reviewed the new set of referee reports and that he could not rely on them as those referees had only recently started working with him. The RANZCP told Dr Olowosegun that in order to renew his exemption status three new referee reports would need to be provided by the same referees in six months' time.
66.By email sent on 9 February 2015, Dr Olowosegun told the RANZCP he wanted to appeal its decision imposing a requirement that new referee reports from the same referees be provided in six months' time. Dr Olowosegun told the RANZCP that the decision was 'not in [his] interest and Not (sic) based on natural justice or logic' and that since he last submitted the referees' names he had worked in another job with a single supervisor and he was now on another job with only one supervisor. By this email Dr Olowosegun asserted that:
66.1.it was his plan to change work every three months to give him wide experience and referees;
66.2.if his application was not reviewed within 7 days he would 'go to court';
66.3.the RANZCP had not been fair in its decision making about his case;
66.4.he had been subjected to unlawful conduct by the RANZCP which was '[bordering] on bullying and discrimination'; and
66.5.the email was a formal complaint by the Applicant.
Dr Olowosegun contends that between 9 February 2015 and 20 August 2015, the RANZCP was provided with three referee reports from three referees at Swan District Hospital. It is apparent from the following paragraphs of the Agreed Facts that these reports were provided and the Tribunal so finds.
68.On 9 July 2015 Dr Olowosegun unsuccessfully attempted the AMC Clinical examination for the second time.
69.By letter dated 28 September 2015, the RANZCP told Dr Olowosegun that the three referee reports from the three referees at Swan District Hospital were not satisfactory and requested that referee reports from the same referees be provided in six months' time.
70.By letter dated 3 October 2015, Dr Olowosegun told the RANZCP that the delay in approving his renewal had put him in a disadvantaged position as he had not been able to progress with completing the RANZCP's requirements to attainment of the College's fellowship. By this letter Dr Olowosegun:
70.1.alleges delay on the part of the RANZCP in reviewing his exemption status;
70.2.alleges that he has been subjected by the RANZCP to bullying, harassment and intimidation; and
70.3.alleges fraudulent alteration of the results of his MOSCE examination which he unsuccessfully attempted in November 2011.
71.On 6 November 2015 the RANZCP emailed Dr Olowosegun and advised him that the referee reports provided to the RANZCP would be submitted to a committee of the RANZCP for consideration, and requested details of each of Dr Olowosegun's allegations made concerning the conduct of the RANZCP.
72.On 2 December 2015, the scheduling for the February to April 2016 AMC Clinical examinations closed.
73.On 3 December 2015 AHPRA wrote to Dr Olowosegun and advised him that the Registration Committee of the State Board (Registration Committee) proposed to refuse Dr Olowosegun's application for renewal of limited registration on the basis that Dr Olowosegun had not provided any evidence to confirm satisfactory progression towards meeting the qualifications required for general registration or specialist registration.
74.Dr Olowosegun wrote to AHPRA on 4 December 2015 with his submissions in response to the letter referred to in 73, in which Dr Olowosegun said that:
'1.I came in through the specialist pathway in 2007 but I have had delays in progressing through the examinations for various reasons which are related to RANZCP's ways of access (sic) IMGs.
2.I could not sit the RANZCP for 2 years because of a dispute with RANZCP regarding my request for upgrading of my Exemption Status from Category 1 to Category 2. This mean (sic) I have had limited time to sit for RANZCP Examination.
3.Some changes have recently been made by RANZCP and I intend to make use of the opportunity to progress with the fellowship attainment start (sic) from January 2016.
4.I have applied to RANZCP for the renewal of my Exemption Status so that I will be able to complete whatever Rotation/Experience required of me to have RANZCP Fellowship awarded.
5.Although I first registered in 2007, my limited registration does not allow me to sit for RANZCP examination during the period I was not working. This made it impossible for me to sit RANZCP for about 3 years.
6.I will have the opportunity to progress with RANZCP requirements from next year (2016), these requirements are yet to be sent to me by RANZCP.
7.In 2014, I took AMC MCQ for the first time and I passed. This decision was made by me to attain General Registration. I took the AMC Clinical in October 2014 and July 2015 but did not pass. My intention is to try the AMC Clinical Exam again in 2016 July and November.
8.As part of my effort to attain General Registration, I have applied for Workplace Based Assessment Placement commencing early 2016, and I have been shortlisted into a pool. At this stage, I am not certain if I will get a placement in January, 2016.
9.To be able to take part in RANZCP Fellowship Programs, I need to have a current medical registration otherwise I will not be allowed.
10.Also, for my AMC Clinical Examination having my registration will give me the opportunity to practice and be able to financially afford the examination.
11.I am an Australian Citizen now and I am committed to completing my full registration requirements.'
75.By letter dated 8 December 2015, the RANZCP altered its position as to the referee reporting requirements it required from Dr Olowosegun. The RANZCP told Dr Olowosegun that it would now accept a further set of referee reports from his referees at Swan District Hospital rather than wait sixth months before obtaining these.
The Board's 18 December 2015 decision
Paragraphs 76 to 79 of the Agreed Facts stated:
76.Having considered Dr Olowosegun's submissions referred to in 74, on 18 December 2015 the [Board] granted renewal of Dr Olowosegun's limited registration for area of need, subject to the condition:
The Practitioner must provide evidence that he has successfully passed the AMC Clinical examination OR provide official evidence of not being able to gain a placement to sit the AMC Clinical examination when he applies for renewal of limited registration.
(the Condition)
77.The renewal of limited registration provided that Dr Olowosegun was to be employed by the North Metropolitan Area Health Service in the position of Senior Medical Officer (Psychiatry) at Swan District Hospital Campus in Midland and Osborne Park Hospital in Stirling.
78.By letter dated 8 January 2016, AHPRA notified Dr Olowosegun of the Condition placed on his registration.
79.By email sent on 8 January 2016, AHPRA told Dr Olowosegun that his application for renewal of limited registration as a medical practitioner had been finalised and that this was his first renewal under the National Law.
The Board's reasons for its decision of 18 December 2015 were set out in the letter of 8 January 2016 which stated:
Notice to approve renewal of registration with imposed conditions is under section 112(3)(b) of the Health Practitioner Regulation National Law, as in force in each state and territory.
I refer to your application for renewal of limited registration for an area of need as a medical practitioner under the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).
The Western Australia Registration Committee of the Medical Board of Australia (the Committee) considered your application at its meeting on 20 November 2015.
The Committee provided written notice to you on 3 December 2015, advising that it proposed to refuse you renewal of limited registration as a medical practitioner.
Under section 111 of the National Law, you were given the opportunity to make a submission about the proposed refusal to the Committee by a date, which is 30 days after the written notice was given.
At its meeting on 18 December 2015, the Committee considered your submission and under section 112(3)(b) of the National Law, the Committee has granted renewal of limited registration as a medical practitioner and imposed the following condition:
The Practitioner must provide evidence that he has successfully passed the AMC Clinical examination OR provide official evidence of not being able to gain a placement to sit the AMC Clinical examination when he applies for renewal of limited registration.
Under section 112(4) of the National Law, a review period of 12 months from the date of renewal has been set.
Your registration is renewed from 1 December 2015 and will remain current until 30 November 2016.
Dr Olowosegun's registration was as follows:
Registration Type: | Limited |
Registration subtype: | Area of need |
… | … |
| Notations – Registration Requirements: View definition of 'Notation' | |
| • The Practitioner will only practice with supervision by a Board approved supervisor or delegate: Supervision Period 8/2/2016 to 30/11/2016 Employer: North Metropolitan Area Mental Health Service Position: Senior Medical Officer (Psychiatry) Supervision Level: Level 3 Area of Need: 11/2012. Expiry Date; 29 March 2017 Area of Endorsement: N/A Pathway: Standard Pathway Approved Site(s) St John of God Midland Public Hospital MIDLAND, WA Osborne Park Hospital STIRLING, WA | |
(Exhibit A page 241)
The approved sites for the practitioner's practice were Swan District Hospital Campus, Midland, Western Australia (WA) and Osborne Park Hospital, Stirling, WA. Both hospitals fell within the then current area of need determination for psychiatry services.
Paragraphs 80 to 91 of the Agreed Facts stated:
80.On 11 January 2016, Dr Olowosegun sent an email to the AMC and told the AMC that he was available for the 16 April 2016 AMC Clinical Exam in case any candidates cancelled for the day. In an email to Dr Olowosegun sent on 12 January 2016, the AMC told Dr Olowosegun that it was not taking any candidates on the waiting list for AMC clinical examinations for the February to April 2015 (sic 2016) period, but that if he wished to apply for the May July 2016 Clinical examinations the scheduling will open on 1 February 2016 at 10.00am on a first come, first served basis.
81.On 3 February 2016, Dr Olowosegun paid the registration fee for an AMC Clinical Examination, and he was subsequently registered to sit the AMC Clinical Examination on 6 July 2016.
82.On or about 15 February 2016, following the closure of Swan District Hospital, Dr Olowosegun commenced casual employment at St John of God Midland Public and Private Hospitals (SJOGMPPH), also in the suburb of Midland. The Board approved Dr Olowosegun's request for change in circumstances in relation to that change of employment.
83.In March 2016, Dr Olowosegun re-entered the RANZCP Specialist Fellowship pathway for the third time, following a review of his work performance by the RANZCP Committee for Specialist International Medical Graduate Education, on 34 March 2016. On 23 March 2016, the RANZCP advised Dr Olowosegun that to qualify for Fellowship, he must (inter alia), by 7 June 2018:
83.1.complete 4 observed clinical activities (OCA's), at a minimum of 1 OCA per six month period;
83.2.complete 8 entrustable professional activities (EPA's) from Stage 3, at a minimum of 2 EPA's per six month period;
83.3.complete 4 end-of-six-month period In Training Assessment (ITA) Reports, at a minimum of 1 ITA per six month period;
83.4.successfully complete the Objective Structured Clinical Examination (OSCE);
83.5.provide psychotherapy to 3 patients for at least 6 sessions each; and
83.6.undertake Leadership and Management training.
85.On 1 August 2016, Dr Olowosegun sent an email to the AMC wherein he stated he was unable to attend his last examination due to an illness and he sought assistance in rescheduling to sit the examination. In reply, the AMC sent an email to Dr Olowosegun and told him that there was no placement available for the August to November 2016 AMC Clinical Examinations and the waiting list was locked/closed.
86.On 6 October 2016 Dr Olowosegun applied to the Board for renewal of limited registration for an area of need. Despite the Condition, Dr Olowosegun did not provide the Board with any evidence of having sat the AMC Clinical examination, or of having been unable to sit the AMC Clinical examination, with his application for renewal of limited registration.
87.By email sent on 18 October 2016, AHPRA issued a notice under s 80(1)(b) of the National Law, which required Dr Olowosegun to provide an email directly from the RANZCP pertaining to the progress he had made within the Fellowship Program.
88.On 24 October 2016, an administration officer of the RANZCP emailed AHPRA and informed it that Dr Olowosegun was progressing as expected towards RANZCP Fellowship.
89.After registration opened for the February to April 2017 AMC Clinical Examination sittings Dr Olowosegun made multiple attempts to register for those examinations.
90.On 2 November 2016, Dr Olowosegun sent an email to the AMC stating that he had tried registering for the Clinical Exam but couldn't do so because the AMC server was not available.
91.On 2 November 2016, the AMC sent an email to Dr Olowosegun, stating that:
91.1.that due to a technical issue with the scheduling system for the February to April 2017 clinical examinations the AMC would open additional clinical examinations;
91.2.the AMC would be in touch with him over the next few days to schedule him into an examination and confirm those dates; and
91.3.he would not be required to schedule via his candidate portal as scheduling will be completed manually by the clinical team.
92.On 8 November 2016, the AMC sent an email to Dr Olowosegun stating:
92.1.that the clinical team was currently confirming dates for the additional clinical examinations that had been opened;
92.2.that they had not been able to contact him via telephone; and
92.3.that he should contact them so as to finalise his placement.
93.Shortly thereafter, Dr Olowosegun spoke to the AMC and they informed him that there were no spots available in February 2017 but there was availability in April 2017. Dr Olowosegun declined to sit the examination in April 2017 because he wanted to focus on preparing for the April 2017 OSCE. In response, Dr Olowosegun was offered a placement to sit the June 2017 AMC Clinical examination, which he accepted.
The Board's decision to refuse registration
94.At a meeting of the [Board] held on 18 November 2016, the [Board] proposed to refuse Dr Olowosegun's application for renewal of limited registration for the following reasons:
'The Applicant does not meet a requirement for registration stated in the Medical Board of Australia's Limited registration for an area of need Registration Standard.
The Applicant has been practising in Australia since March 2007 and is unable to provide evidence to confirm that satisfactory progress has been made towards meeting the qualifications required for general registration or specialist registration.
95.On 25 November 2016 the Board wrote to Dr Olowosegun and said that the WA Committee proposed to refuse his application for renewal of limited registration for area of need for the following reasons:
You have been practising in Australia since March 2007 and have not successfully completed the AMC Clinical examination nor achieved Fellowship to an Australian specialist medical college.
You have not satisfied the condition imposed on your registration and did not make any attempts to sit the AMC Clinical Examination during the previous registration period.
The Board has granted ample renewals to your registration, to enable you to meet the above requirements for ongoing registration.
96.On 22 December 2016:
96.1.submissions were made to the Board on behalf of the Dr Olowosegun by Counsel, which included (inter alia) a submission that Dr Olowosegun had registered to sit the AMC Clinical examination in July 2016, but had been unable to attend the examination because of his diagnosis in June 2016 with autoimmune thyroiditis; and
96.2.Dr Olowosegun provided the Board with documents including (inter alia) a medical report from Dr Merv Coyle dated 15 December 2016 which said: 'To confirm [Dr Olowosegun] was diagnosed with auto immune thyroiditis in June 2016'.
97.On 20 January 2017 the Board considered the submissions made on behalf of Dr Olowosegun and recorded its decision to refuse Dr Olowosegun's application for renewal (Decision) in a document named Decisions and Actions. The document states, among other things, that:
The Committee decided to … under s 112(2)(b) of the National Law, refuse the application for renewal of limited registration
Reasons for Decision
a.Dr Olowosegun has not provided any additional information to the Committee that would result in a change to the proposed decision.
b.Under section 112(2)(b) of the National Law, the Board may decided (sic) to refuse an application for renewal, if the Applicant contravened any condition to which the Applicant's previous registration was subject.
c.Dr Olowosegun has been registered in Australia since March 2007 and is unable to provide evidence demonstrating reasonable progress towards general registration or specialist registration. Dr Olowosegun withdrew from his placement [for the AMC clinical examination] on 7 July 2016. Scheduling for the February 2017 to April 2017 placements opened on 2 November 2016 and closed on 2 December 2016 and Dr Olowosegun has not provided evidence of enrolling in this next cohort of examinations either.
d.This is in keeping with the Board's regulatory principles, which protect the health and safety of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner, are registered.
98.By letter dated 7 February 2017, AHPRA notified Dr Olowosegun of the Decision. The letter stated, among other things, that:
…
Notice of refusal to grant renewal of limited registration under section 112(2)(b) of the Health Practitioner Regulation National Law, as in force in each state and territory …
The Committee considered your written submission and additional information at the meeting held on 20 January 2017, and under section 112(2)(b) of the National Law resolved to refuse renewal of limited registration as proposed.
The full text of the letter of 7 February 2017 was:
Notice of refusal to grant renewal of limited registration under section 112(2)(b) of the Health Practitioner Regulation National Law, as in force in each state and territory
I refer to your application for renewal of limited registration for an area of need as a medical practitioner under the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).
The Western Australia Registration Committee of the Medical Board of Australia (the Committee) considered your application at its meeting on 18 November 2016.
The Committee provided written notice to you on 25 November 2016, advising that it proposed to refuse you renewal of registration as a medical practitioner on the grounds that:
You have been practising in Australia since March 2007 and have not successfully completed the AMC Clinical examination nor achieved Fellowship to an Australian specialist medical college.
You have not satisfied the condition imposed on your registration and did not make any attempts to sit the AMC Clinical Examination during the previous registration period. Scheduling for the February 2017 April 2017 placements opened on 2 November 2016 and closed on 2 December 2016 and you have not provided evidence of enrolling in this next cohort of examinations either.
The Board has granted ample renewals to your registration, to enable you to meet the above requirements for ongoing registration.
Under section 111 of the National Law, you were given the opportunity to make a submission about the proposed refusal to the Committee by a date, which is 30 days after the written notice was given..
The Committee considered your written submission and additional information at the meeting held on 20 January 2017, and under section 112(2)(b) of the National Law resolved to refuse renewal of limited registration as proposed.
The reasons for the decision remain the same as above, as you have not provided any additional information to the Committee that would result in a change to the proposed decision.
With effect from 5.00 pm on Thursday, 9 February 2017, your limited registration as a medical practitioner in Australia will lapse, and I confirm that you will no longer hold registration to practise as a medical practitioner in Australia. If you intend to practise in Australia, you will need to complete a new application for registration and submit this to our office for consideration.
103.On 5 April 2017 Dr Olowosegun commenced these proceedings.
104.On 7 April 2017 the Board consented to the stay of the Decision so that Dr Olowosegun could sit the OSCE which he had scheduled to take in April 2017. The Board further agreed to stay the Decision until 16 May 2017.
105.On 7 April 2017, area of need determination 13/2017 was published in the Government Gazette, which listed suburbs in Western Australia that are declared areas of need for Child and Adolescent Psychiatry Services. The suburb of Midland is included in that determination, but Dr Olowosegun's application for renewal of limited registration does not relate to work in the area of Child and Adolescent Psychiatry. The Board contends that the Dr Olowosegun proposed employer, SJOGMPPH, does not provide inpatient mental health care for children or adolescents psychiatry services.
106.On 7 April 2017, area of need determination 14/2017 was published in the Government Gazette, which listed regions in Western Australia that are declared areas of need for Psychiatry Services. Those regions do not cover the suburb of Midland.
107.On 11 April 2017 the Medical (Area of Need) Determination (No. 16) 2017 was published in the Government Gazette, which listed suburbs in Western Australia that are declared areas of need for Psychiatry Services. The suburb of Midland is not included in that determination.
108.On 1 May 2017, pursuant to the Medical (Area of Need) Determination (No. 1) 2012, the suburb of Midland ceased to be declared areas of need for Psychiatric Services.
110.Dr Olowosegun was advised by the RANZCP on 10 May 2017 that he had failed the OSCE.
Dr Olowosegun contends that, on 26 May 2017, his supervisor, Dr Amit Banerjee, Head of Psychiatry at St John of God Midland Public and Private Hospitals (SJoG Hospital) wrote a letter of support wherein he stated that:
During Dr Olowsegun's employment with SJGMPPH I have found Dr Olowosegun to be a safe and competent practitioner. He works independently and confidently, and is clearly someone who has had experience of working as a consultant psychiatrist in the past. Dr Olowosegun has been a valuable asset to the hospital and I consider he has had a considerable positive impact upon the wellbeing of patients under his care. Given Dr Olowosegun's skill set and contributions to the hospital and patients under his care I consider it would be in the public's interest for him to continue to provide his services at SJGMPPH. I say this in full awareness of the fact that Dr Olowosegun failed to pass the [RANZCP April 2017] OSCE. In my opinion, Dr Olowosegun not having yet passed an OSCE is not a barrier to his employment as he is on a Fellowship Pathway and is an experienced clinician or (sic nor) an indication that his knowledge, expertise or experience are lacking to the point of constituting any form of threat or risk to public health or safety.
The Tribunal finds that the letter was written.
112.On 31 May 2017 the Tribunal ordered that the Decision be stayed until final determination of these proceedings.
113.On 1 June 2017 Dr Olowosegun unsuccessfully attempted the AMC Clinical examination for the third time.
114.On 12 June 2017, AHPRA informed SJOGMPPH that Dr Olowosegun is able to work as a Senior Medical Officer (Psychiatry) at SJOGMPPH.
The issues
The issues can be summarised as follows:
1)Is the Tribunal's review constrained by s 112(2)(b) of the National Law?
2a)Can Dr Olowosegun's registration be renewed in circumstances where Midland is not currently a designated area of need for psychiatry services?
2b)Is there a distinction between psychiatry services and psychiatry services for children and adolescents?
2c)Does SJoG Hospital provide psychiatry services to children and adolescents?
2d)Is Dr Olowosegun's limited registration able to be renewed?
3a)Was the Board required to issue a written direction under s 80(1)(b) of the National Law relating to the Condition?
3b)Did Dr Olowosegun comply with the Condition?
3c)Should Dr Olowosegun be excused from his failure to comply with the Condition?
4)Has Dr Olowosegun provided cogent reasons for delays in RANZCP's Fellowship progression?
5)Is limited registration intended to be a longterm means of registration?
6a)Should the Condition have been imposed?
6b)Does s 127 of the National Law give the Tribunal power to remove the Condition?
6c)Should the Tribunal remove the Condition even if it has power?
7)Ultimately, should the Tribunal renew Dr Olowosegun's registration?
Is the Tribunal's review constrained by s 112(2)(b) of the National Law?
Section 112(2) of the National Law provides:
The National Board may refuse to renew the applicant’s registration or any endorsement on the applicant’s registration
(a)on any ground on which the Board could refuse to grant the registration or endorsement under section 82 or 102 if the application were for a grant of registration or endorsement; or
(b)if the applicant contravened any condition to which the applicant's previous registration or endorsement was subject;
...
(f)if the application is for the renewal of limited application and the applicant's limited registration has previously been renewed 3 times.
By its letter dated 25 November 2016 advising Dr Olowosegun of its proposed decision, the Board stated:
The reasons for the decision are:
•You have been practising in Australia since March 2007 and have not successfully completed the AMC Clinical examination nor achieved Fellowship to an Australian specialist medical college.
•You have not satisfied the condition imposed on your registration and did not make any attempts to sit the AMC Clinical Examination during the previous registration period.
•The Board has granted ample renewals to your registration, to enable you to meet the above requirements for ongoing registration.
('the 3 Factors')
(Exhibit A pages 138139)
The Board repeated the 3 Factors in the letter of 7 February 2017 advising Dr Olowosegun of the Decision.
In a further submission Dr Olowosegun contended that the matters to which the Tribunal may have regard in reaching the correct and preferable decision is limited to whether or not Dr Olowosegun complied with the Condition. The basis for this contention is the references to s 112(2)(b) in the Board's letter of 7 February 2017.
Although the first and third of the 3 Factors are expressed in different factors they are essentially the same, that is, despite having adequate time and opportunity, Dr Olowosegun has failed to qualify for either specialist or general registration.
The 3 Factors on which the Board reached its decision were notified to Dr Olowosegun by the Board's letter of 25 November 2016. Dr Olowosegun had ample opportunity to address those factors.
Dr Olowosegun was made aware of the Board's concerns about the fact that Dr Olowosegun had been practising in Australia since March 2007 but had not successfully completed the Australian Medical Council (AMC) Clinical Examination nor achieved Fellowship to an Australian specialist medical college, from as early as 3 December 2015 (Exhibit A page 1).
Dr Olowosegun's submissions at [15][19] noted:
15.Section 111(2) requires that the Board's written notice of such proposal both state the reasons for the proposal and invite the applicant to make written or oral submissions to the Board, by the date stated in the notice.
16.The six statutory grounds upon which a National Board may refuse to renew an applicant's registration are set out under s 112(2).
17.It is a condition of the exercise of its power to refuse to renew an applicant's registration that the relevant National Board consider both the applicant's application for renewal and 'any submissions made in accordance with a notice under s 111': Section 112(1).
18.As such, s 111 and s 112 serve to ensure the procedural fairness is accorded to applicants for renewal under Part 7 Division 9, by providing notice of a National Board's intention to make a decision that will deprive them of a right, interest or legitimate expectation of a benefit. Together, these provisions ensure that the hearing rule is applied to any adverse registration renewal decision, such that the applicant is given the opportunity of being advised of the case sought to be made against him or her and is given the opportunity of replying to it, before the adverse decision is made.
19.In order to advise the applicant of the case they must meet, a National Board must (when providing notice under s 111) identify with sufficient clarity the relevant s 112 ground or grounds upon which it proposes to rely in refusing to allow renewal of registration. A failure to do so would make a nullity of s 111's procedural fairness safeguards.
The Board's letter of 25 November 2016 both stated the reasons for its proposed refusal to renew Dr Olowosegun's registration and invited him to make oral or written submissions to the Board. It therefore complied with s 111 and s 112.
Dr Olowosegun's submissions move from the need to cite reasons for the proposed refusal to a contention that there is a need to cite the specific statutory section.
In the event that a National Board proposed to refuse to renew an applicant's registration upon one's 112 ground and then proceeded to refuse renewal on an entirely different s 112 ground, this would be a clear breach of procedural fairness: the applicant would have been deprived of the opportunity to respond to the relevant ground upon which the adverse decision was made, prior to the adverse decision being made.
(Paragraph 23 Dr Olowosegun's submissions)
The fact that the letter of 25 November 2016 and 7 February 2017 may have referred to s 112(2)(b) does not alter the substance of the content of the letters. The 3 Factors were plain. Fairness does not require that the substance of the letters be read down so as to limit the review to a breach of the Condition under s 112(2)(b) by reason of the reference to a specific statutory provision.
To the extent that the letter of 7 February 2017 stated 'Scheduling for the February 2017 April 2017 placements opened on 2 November 2016 and closed on 2 December 2016 and you have not provided evidence of enrolling in this next cohort of examinations either' and that these events arose after the time for compliance, the Board had not taken them into account for the purpose of determining whether the Condition had been complied with.
Dr Olowosegun further submitted:
The other two reasons (i) delayed progress with passing exams/obtaining Fellowship, (ii) ample prior renewals to enable passing of exams/attainment of Fellowship are not within the scope of s 112(2)(b) and do not, in themselves, recite the necessary elements of any of the other s 112 grounds whereby the Board may refuse to renew an applicant's registration. Without identifying or invoking any statutory power, they are relevant only discretionary power under s 112(2)(b).
Having regard to the terms of s 112(2), the Tribunal accepts Dr Olowosegun's submissions on this point. Had the substance of the letter of 25 November 2016 raised factors with s 112(2) it would have been open to the Tribunal to consider them within these proceedings.
Dr Olowosegun also makes the broader submission that a review of the Board's Decision by the Tribunal is limited by procedural fairness consideration to the matters identified in the letter of 7 January 2017 and even more specifically to the failure to comply with the Condition, that is, the ground under s 112(2)(b).
Paragraphs 3 to 8 of the Board's submissions of 24 July 2017 stated:
3.Section 202 of the National Law provides:
(1)After hearing the matter, the responsible tribunal may -
(a)confirm the appellable decision; or
(b)amend the appellable decision; or
(c)substitute another decision for the appellable decision.
(2)In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
4.Section 11 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law Act) provides that a reference in the National Law to an 'appeal' against a decision is 'a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 [(SAT Act)] Part 3 Division 3'.
5.Section 17 of the SAT Act provides:
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
(3)Where subsection (1) ... applies the decision is a reviewable decision for the purposes of this Act.
6.These proceedings therefore involve a 'review' for the purposes of the SAT Act.
7.Section 27 of the SAT Act provides:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
8.The provisions of s 27 of the SAT Act are to the same effect as s 20 of the Queensland Civil and Administrative Tribunal Act 2009. The QCAT's decision in Tabanas v Medical Board of Australia (No 3) [2013] QCAT 524 illustrates the application of such provisions; the QCAT stated at [18]:
Just as the Tribunal could have considered Dr Tabanas' success in the examinations he had recently sat had he passed them, that being essentially the reason for the grant of the initial stay, the Tribunal is able to take into account the fact that he again failed those examinations.
Dr Olowosegun contends that:
46.Should the [Board] have sought to rely on such considerations, it was required to notify the applicant of the relevant statutory grounds in its Notice, prior to making its Decision. By failing to do so, it cannot now raise these issues on appeal without undermining the National Law's s 111 procedural fairness requirements, as it clearly did not make its Decision on the basis of submissions received on grounds outside those stated in the Notice.
47.Accordingly, [Dr Olowosegun] submits that the scope of this review proceeding should be constrained to:
a.a review of the decision made pursuant to s 112(2)(b), being the statutory ground upon which proper notice was given and submissions made under s 111;
b.consideration of any factors that might inform the exercise of the discretion to allow/refuse renewal of registration;
c.exclusion of any factors that are based on other s 112 grounds that were neither the subject of proper notice nor submissions in reply from [Dr Olowosegun] and, therefore, are not matters which the [Board] could have taken into account in making its Decision.
The effect of Dr Olowosegun's submission is that the Board would have to issue a fresh notice before the Tribunal would have jurisdiction to review a decision relating to Dr Olowosegun's registration.
It is difficult to understand Dr Olowosegun's submission. The Tribunal's procedures provide procedural fairness. Dr Olowosegun had been given notice of the Board's position by a statement of issues, facts and contentions in these proceedings. He has had every opportunity to respond by his statement of issues, facts and contentions. The matter has been argued before this Tribunal. No argument based on procedural fairness warrants the ambit of the Board's case being limited to the 7 February 2017 letter. The scheme of the National Law and the StateAdministrative Tribunal Act 2004 (WA) (SAT Act), particularly the provisions set out in the Agreed Facts, paragraph 2 to 6, are contrary to Dr Olowosegun's submissions on this point.
The Tribunal is satisfied that the issues raised by the Board in these proceedings are properly raised by the Board and within the Tribunal's jurisdiction.
The Tribunal's review is not limited to the matters raised in the Board's letter of 7 January 2017, that is, the Tribunal is not constrained in deciding Dr Olowosegun's application to whether refusal under s 112(2)(b) of the National Law is the correct and preferable decision. The Tribunal may also consider matters raised under the other provisions of s 112(2) within the ambit of these proceedings.
2a) Can Dr Olowosegun's registration be renewed in circumstances where Midland is not currently a designated area of need for psychiatry services?
An application to renew registration may be refused on any of the grounds set out in s 112(2)(a)(f) of the National Law. This includes s 112(2)(a), that is, any ground on which the Board could refuse to grant the registration under s 82 of the National Law.
Current employment in a currently designated area of need for psychiatry services arises under s 112(2)(a) of the National Law.
Section 82(1)(c)(i) sets out the various grounds of refusal. Relevantly, s 82(1)(c)(i)(V) provides that registration may be refused if an applicant does not meet a requirement for registration stated in an approved Registration Standard for the profession.
Section 67(1) provides that an individual may apply for limited registration to enable the individual to practise a health profession in an area of need decided by the responsible Minister under subsection (5).
Section 67(2) provides that an individual is qualified for limited registration if the Board is satisfied the individual's qualifications and experience are relevant to, and suitable for, the practice of the profession in the area of need.
Section 67(3) provides that an individual with limited registration for area of need must not practise the profession other than in the area of need specified in their certificate of registration.
Section 67(5) provides that a responsible Minister may decide there is an area of need for a particular health profession in the jurisdiction, or part of the jurisdiction.
A National Board established under the National Law may develop registration standards about any issue relevant to the eligibility of individuals for registration; s 38(2)(c) of the National Law.
Registration Standards developed by a National Board may be approved by the Ministerial Council under s 12 of the National Law.
An 'approved registration standard' is defined in s 5 of the National Law to mean a registration standard approved by the Ministerial Council under s 12 and published on the website of the National Board that developed the standard.
The Board has published on its website an approved registration standard entitled 'Limited Registration for Area of Need' (the Registration Standard); (Exhibit A page 47). The Registration Standard was approved by the Ministerial Council on 7 September 2015.
A person applying for renewal of limited registration must demonstrate compliance with any conditions or undertakings imposed on their registration or requirements on their registration set by the Board (Exhibit A page 50, Item 2).
The Registration Standard (Exhibit A page 47) provides that it is a requirement of renewal that the area in which the applicant is applying to practise is still deemed an area of need by the responsible Minister for Health or delegate (Exhibit A page 49, Item 10).
The Registration Standard provides, inter alia, to meet this registration standard, the applicant must:
1)provide information from the proposed employer [and then sets out information that would confirm the fact of an offer of employment, the employer's details and the position description]; and
2)provide evidence of 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.
A person applying for renewal of limited registration must provide 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, if the area of need declaration provided at initial registration has expired or will expire during the next period of registration (Exhibit A page 50, Item 6).
The Board must refuse limited registration for area of need if (inter alia) the area in which the person is applying to practise is no longer deemed an area of need by the responsible Minister for Health or delegate (Exhibit A page 50, Item 5). Section 82(1)(c)(i)(V) of the National Law provides:
(1)After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must
...
(c)decide to refuse to grant the applicant registration in the health profession if
(i)the applicant is ineligible for registration in the profession under a relevant section because the applicant
...
(V)does not meet a requirement for registration stated in an approved registration standard for the profession[.]
The areas of need for which Dr Olowosegun was granted limited registration expired on 29 March 2017 (Exhibit A page 241). Midland is no longer an area of need for psychiatry services.
Dr Olowosegun has not provided evidence of an area of need for psychiatry services other than Midland (T:56; 17.08.17).
Dr Olowosegun cannot now supply a declaration of the kind specified in the Registration Standard because his employment with the St John of God Midland Public and Private Hospitals has ceased to constitute employment in a designated area of need. Had that been the case at the time that the Board considered the matter, it would have been required by s 82(1)(c)(i)(V) to refuse the application for renewal because there would be a clear failure to meet a requirement of the Registration Standard.
Dr Olowosegun submitted:
126.1.the Board, under its Registration Standard for Limited Registration for Area of Need, has a discretion as to whether to refuse to renew a person's limited registration in an area of need in circumstances where the area of need in which the person is applying to practise is no longer deemed an area of need. It does not follow that the renewal application must be refused[.]
The Registration Standard document format is such that it sets out the requirements for compliance and also provides explanatory commentary on how the compliance might operate.
Whilst the Board, in its Registration Standard (Exhibit A page 50), under the heading 'Refusal to renew limited registration' states:
The Board may refuse to renew your registration if:
1.you are no longer in the position for which registration was granted by the Board
2 you do not comply with the Board approves supervised practice plan and the Board’s requirements for supervision
3 you do not comply with the Boards registration standard for continuing professional development
4 significant or multiple deficiencies are identified in your practice, by the Board, or
5 the area in which you are applying to practice is no longer deemed an area of need by the responsible Minister for Health or delegate.
The statement above is clearly meant to be an informative paragraph, not set a requirement for registration and not to confer discretion upon the Board that it does not have under the National Law.
The Board does not have discretion as to whether to refuse to renew a person's limited registration in an area of need in circumstances where the area of need in which the person is applying to practise is no longer deemed an area of need. The National Law states that it must refuse to renew a person's registration; s 82(1)(c)(i)(V) and the Registration Standard does not and cannot alter the National Law.
Although the Registration Standard states that the Board 'may refuse to renew your registration' (Exhibit a page 50), the National Law states that it must; s 82(1)(c)(i)(V).
2b) Is there a distinction between psychiatry services and psychiatry services for children and adolescents?
The documentation relating to the identification of an area of need makes it plain that there is a distinction between areas of need for psychiatry services (Exhibit A page 244) and child and adolescent psychiatry services (Exhibit A page 245). The services are gazetted separately.
2c) Does SJoG Hospital provide psychiatry services to children and adolescents?
In the course of his evidence, Dr Olowosegun sought to argue that his work at Midland included the provision of psychiatry services to children and adolescents.
Dr Olowosegun presently practices at SJoG Hospital in Midland. SJoG Hospital does not have a ward for children and adolescents (T:46; 17.08.17). The mental health and therapy services provided at SJoG Hospital appear at pages 250 to 251 of Exhibit A. That document states:
Mental health
Our 56-bed Mental Health Unit provides a multidisciplinary service to people who need mental health care.
The three wards on our unit include:
•25-bed adult mental health ward
•16-bed older adult mental health ward
•15-bed secure ward
Our purpose-built unit provides a safe and supportive environment which includes natural light in all bedrooms, four courtyards, a gymnasium and art therapy rooms.
We provide multidisciplinary, individualised care if you need acute support.
We also have strong links with community mental health services, other primary health care providers and social services to ensure you receive ongoing care after leaving hospital. Our older adult care includes a discharge follow up service to ensure you are coping back in the community.
...
Children and teenagers
Children and teenagers in urgent need of mental health care will receive care in our Emergency Department and then transferred to another hospital for ongoing care in an appropriate environment.
Dr Olowosegun's evidence was:
KELLY, MR:Just some brief re-examination, if I may, your Honour. Yomi, if you just flick forward a few more pages in that bundle to page 350. This was a document you were taken to an hour and a half ago and to that second last section, headed, 'Children and Teenagers' and a question was put to you as to whether children and teenagers are treated at St John of God. Can you explain what treatment is given at the hospital and what role you've had in that treatment? - - - At St John of God, I mostly cover the emergency unit, where I attend to psychiatric cases and quite often, I do see cases of elderly age group with mental health problems, sometimes middle age group. It's very common to see children with mental health conditions and the way we manage children with mental health conditions is usually to resolve the issue of the emergency and if there are no other safety concerns about the safety of this child going home, we always, always try and discharge back home. Rarely do we send children to the specialist child and adolescent unit. It's in rare cases that we do that. So most of the time, if and when we are - when I've managed adult patients, I've had to also, you know, indirectly manage the children and in most cases, would approve social workers to go home and get the keys and leave them (indistinct) Although we don't have a specific child and adolescent unit but majority of the work I do involve children and that's what I've been doing. So in the last one year, I've not sure if I had a single person to the child and adolescent inpatient unit because that is usually the last resort and that is why most psychiatric facilities don't have specific units for (indistinct) patient (indistinct).
And Yomi, when you say 'refer to the specialist unit', is that specialist unit at the hospital or is it another institution or - - -? It's another institution.
What institution is that? - - - Usually we refer (indistinct) to Princess Margaret Hospital.
Why's that? - - - Because they've got inpatient beds for patients under the age of 18.
Yes. All right? - - - But I must say that there is usually a shortage of beds and in some situations, we've had to continue to keep the patient in emergency. Usually not for - not more than for 24 hours or very rarely, 48 hours for the crisis to resolve.
And I know this is a difficult question to answer precisely but you've been working at St John of God since February 2016? - - -Yes.
In that time, apart from the two months you couldn't work while these proceedings - you didn't have registration, how often would you have seen children or adolescents in any capacity? - - - I think roughly it's every day. Every day, even as of yesterday I was involved in seeing a young man with three kids. The wife left, the man got drunk and – it was the man that we started seeing but it became apparent that we needed to look after the three kids and so it's virtually on a daily basis.
HIS HONOUR: When you say you need to look after the three kids, just explain to me, what do you mean 'look after'? - - - So we have often had to bring the patient – the kids in for assessment and so that's what I meant.
MS: For psychiatric assessment? - - - Yes.
What do you do with them if you don't have any patient (indistinct) no community follow up? - - - What we would normally do is - because they're on the age group, we most often try to avoid giving a specific diagnosis. There's certain cases where the patient has maybe an organic condition like autism or intellectual disability, so for patient that are just starting to show a bit - for example - - -
But surely, like, if you've got someone like that, you have to refer them to a service that's an expert in that care for ongoing care? - - - The way psychiatry works is we deal with the acute situation and refer patients to - - -
The community? - - - - - - the community treating team.
Yes? - - - So in all - virtually all the cases, we encourage community assessment.
(T:5758; 17.08.17; see also T:6364; 17.08.17))
It is evident from SJoG Hospital's statement of its mental health services and Dr Olowosegun's evidence that SJoG Hospital does not provide psychiatry services to children and adolescents as its primary role. It is evident that Dr Olowosegun's role in relation to children and adolescents is to refer them to others and to provide care as incidental to his treatment of their parents' treatment. Most of that care is not psychiatry.
SJoG Hospital does not relevantly provide psychiatry services to children and adolescents.
2d) Is Dr Olowosegun's limited registration able to be renewed?
Dr Olowosegun's limited registration is not able to be renewed because Midland is no longer an area of need for psychiatry services. The Tribunal has no power to renew Dr Olowosegun's limited registration for an area of need that no longer exists. This does not prevent Dr Olowosegun making a fresh application if he can find a suitable employer in an area of need.
Dr Olowosegun is employed at SJoG Hospital as a general psychiatrist. There is no evidence from SJoG Hospital that he would be employed as a child and adolescent psychiatrist or that it even has such a position.
3a) Was the Board required to issue a written direction under s 80(1)(b) of the National Law relating to the Condition?
Section 80(1)(b) of the National Law provides:
The National Board may ask an entity that issued qualifications that the applicant believes qualifies the applicant for registration for confirmation that the qualification was issued to the applicant.
...
(b)by written notice given to the applicant, require the applicant to give the Board, within a reasonable time stated in the notice, further information or a document the Board reasonably requires to decide the application[.]
Dr Olowosegun contends that no written direction was made by the Board pursuant to s 80(1)(b) of the National Law to Dr Olowosegun requiring him to provide evidence that he sat the AMC Clinical Examination during 2016 or was unable to sit the AMC Clinical Examination during 2016. The Board contends that it was made clear to Dr Olowosegun by the Condition that such evidence was to be provided when Dr Olowosegun applied for renewal of his limited registration.
The Board was not required to issue a notice under s 80(1)(b) of the National Law. The Condition did not require further information or a document that the Board reasonably required to decide the application. The onus was on Dr Olowosegun to establish that he had complied with the Condition. The Condition was clear. Section 80(1)(b) of the National Law is directed to matters such as the information identified in Agreed Fact 87.
3b) Did Dr Olowosegun comply with the Condition?
Dr Olowosegun did not pass the AMC Clinical Examination nor did he provide official evidence of not being able to gain a placement to sit the AMC Clinical Examination when he applied for renewal of his limited registration (Agreed Fact 86). In fact his evidence was that he had obtained a placement in the July 2016 AMC Clinical Examination (Exhibit A page 142). Accordingly, Dr Olowosegun did not meet the Condition so as to be entitled to a renewal of his limited registration on the basis of compliance with the Condition. Dr Olowosegun conceded that he did not meet the Condition (T:22; 17.08.17).
Therefore, in order to successfully obtain a review of the Decision, Dr Olowosegun must establish some other statutory basis for the Tribunal's review. The Tribunal does not have an unfettered discretion to set aside the Board's decision.
3c) Should Dr Olowosegun be excused from his failure to comply with the Condition?
In December 2013, Dr Olowosegun submitted a Standard Pathway Application to the AMC to determine eligibility to proceed with the AMC Examination process (Agreed Fact 43).
On 19 June 2014, Dr Olowosegun successfully completed the AMC multichoice question examination (Agreed Fact 56).
On 17 October 2014, Dr Olowosegun sat and failed the AMC Clinical Examination for the first time (Agreed Fact 60).
On 9 July 2015, Dr Olowosegun sat and failed the AMC Clinical Examination for the second time (Agreed Fact 68).
Dr Olowosegun submitted that:
124.2.during 2016:
124.2.1.Dr Olowosegun attempted to and was unable to gain a placement to sit the AMC Clinical Examination during the February to April 2016 sitting period;
124.2.2.Dr Olowosegun was registered to sit the July 2016 AMC Clinical Examination but due to the serious illness he was suffering from he was unable to sit that examination; and
124.2.3.Dr Olowosegun attempted to and was unable to gain a placement to sit the AMC Clinical Examinations during the August to November 2016 sitting period;
...
124.4.Dr Olowosegun attempted to and was unable to gain a placement to sit the AMC Clinical Examination during the February 2017 sitting period and the April 2017 sitting period was not a suitable time for Dr Olowosegun due to the timing of the 2017 April OSCE[.]
Dr Olowosegun was essentially given a period of 11 months within which to comply with the Condition, that is, from notification of the Condition on 8 January 2016 to the expiration of his registration on 30 November 2016.
The Tribunal accepts that Dr Olowosegun was unable to gain a placement to sit the AMC Clinical Examination between February to April 2016 (Agreed Fact 80).
Dr Olowosegun's evidence, at Exhibit G paragraphs 26 and 29, was that:
In the first half of 2016, I began suffering from fatigue, weakness, muscular pain and constipation.
...
I continued to suffer from fatigue, weakness, muscular pain and constipation. During the day, I was working at St John of God Midland Public and Private Hospital and in the evenings, I was trying to study for the AMC Clinical Examination. However, I was highly fatigued, in pain and unable to maintain my concentration levels.
At paragraph 31 of Exhibit G, Dr Olowosegun's evidence was:
At this time, I was continuing to suffer from fatigue, weakness, muscular pain and constipation. I did not feel well enough to sit the AMC Clinical Examination on 7 July 2016 and I did not attend the examination.
Dr Olowosegun's position was that the onset of a serious health condition, Hashimoto's disease, significantly limited his capacity 'to prepare for, and satisfactorily complete, the examination'. He submitted that:
In June 2016, upon presentation at the Swan Medical Group in Midland, Western Australia Dr Olowosegun was diagnosed suffering from autoimmune thyroiditis (Hashimoto's disease) (Exhibit 00-7). The common symptoms of this chronic autoimmune disease include fatigue, muscle pain and weakness, and affected mood.
(Exhibit A page 142)
Exhibit 00-7 was a letter from the Swan Medical Group dated 15 December 2016 that stated 'To confirm the above [Dr Olowosegun] was diagnosed with auto immune thyroiditis in June 2016'.
There was an interim application for a stay of the Decision before this Tribunal at which the deficiencies of the medical certificate of 15 December 2016 as evidence were drawn to Dr Olowosegun's counsel's attention by the Tribunal.
At the final hearing a medical report was provided as an annexure to Dr Olowosegun's statement in these proceedings (Exhibit G). The report, dated 12 July 2017, stated:
The following [diagnoses] were made:
1.Obesity
2.Gastroesophageal reflux with oesophagitis
3.Autoimmune hypothyroidism
4.Disturbed liver functions
5.Low serum testosterone
6.Non refreshing sleep possibly related to sleep apnoea
Typical symptoms of the above include low energy levels, tiredness and fatigue and retrosternal discomfort.
4.The above symptoms would have had a negative impact on his ability to prepare and sit for his AMC clinical examination in July 2016.
5.The above has been commenced on Thyroxine replacement therapy, acid suppression therapy. Consideration will be given to the introduction of testosterone. A sleep study to assess the possibility of sleep apnoea is being considered.
6.The diagnosis is based on elevated TSH on 22 June 2016, a raised thyroperoxidase antibodies on 8 July 2016, disturbed liver function test on 22 June 2016, endoscopic findings on 28 June 2016 and low serum testosterone of 7, on 28 June 2017.
The only medical evidence as to the effect of the symptoms set out in the report of 12 July 2017 was that 'the above symptoms would have had a negative impact on [Dr Olowosegun's] ability to prepare and sit for his AMC Clinical Examination in July 2016'.
Given that the deficiencies in the certificate of 15 December 2016 had been drawn to Dr Olowosegun's counsel's attention, it is surprising that the report of 12 July 2017 should be so unenlightening. A statement that the above symptoms would have had a 'negative impact' without any evidence as to the degree to which it might have had a 'negative impact' on Dr Olowosegun's ability to prepare and sit for his AMC Clinical Examination in July 2016 is of limited assistance to the Tribunal.
Dr Olowosegun's evidence was that he was able to work during the day (Exhibit G paragraph 29). One might have through that the AMC Clinical Examination should have been his priority. Dr Olowosegun did not advance any evidence that he was unable to take leave for the relevant period. The Tribunal also notes that he had sat the examination twice previously and he would have studied for the examination on two previous occasions and been familiar with the requirements of the Examination. He was not coming to the examination 'cold'.
The Tribunal is not satisfied that the evidence is sufficient to establish that Dr Olowosegun's medical condition affected his ability to sit the AMC Clinical Examination in July 2016 to a sufficient degree to explain his failure to attend.
The Tribunal accepts that Dr Olowosegun was unable to gain a placement to sit the AMC Clinical Examination during the period of August to November 2016.
The Tribunal notes that on 1 June 2017, Dr Olowosegun sat and failed the AMC Clinical Examination for a third time (Agreed Fact 113).
There is no evidence that any health grounds impacted on Dr Olowosegun taking the AMC Clinical Examination on 1 June 2017.
The Tribunal is not satisfied that the matters raised by Dr Olowosegun provide cogent reasons for his failure to comply with the Condition.
Dr Olowosegun has not satisfied the Tribunal that its discretion, if any, to excuse his failure to comply with the Condition should be exercised in his favour.
Has Dr Olowosegun provided sufficient explanation for delays in the RANZCP's Fellowship progression?
In assessing whether Dr Olowosegun has provided sufficient explanation for the delays, the delays need to be placed in context.
It is evident that the period during which Dr Olowosegun was in fact on the Fellowship pathway was more than the three years normally expected to be sufficient.
Dr Olowosegun has made five actual attempts at a RANZCP clinical examination. This includes two failed attempts at the current OSCE. Previous to this, he failed both the MOSCE and the MOCI, which were required for SIMG candidates. He also failed the ECE, which was a combined version of the MOCI and MOSCE clinical examinations for SIMG candidates until March 2012.
The various acronyms, MOCI, MOSCE, ECE and OSCE, were explained by counsel for the Board in her opening (T:3435; 17.08.17).
At the time they were called the Modified Observed Clinical Interview, the MOCI, and the Modified Objective Structured Clinical Exam, the MOSCE and they were held in combination – and in combination they were called the ECE ... and the exam became, then, the OSCE[.]
The dates of Dr Olowosegun's unsuccessful clinical examination attempts are as follows:
•6 March 2009: unsuccessful attempt at written examination;
•7 August 2009: unsuccessful attempt at written examination;
•19 November 2011: unsuccessful attempt at ECE;
•29 June 2013: unsuccessful attempt at MOCI;
•21 September 2013: unsuccessful attempt at MOSCE;
•10 September 2016: unsuccessful attempt at OSCE; and
•8 April 2017: unsuccessful attempt at OSCE.
Further to this, Dr Olowosegun was also ineligible for a number of clinical examinations in which he enrolled.
•February 2012: attempted MOCI with no result - ineligible because not registered with AHPRA at the time of attempting;
•March 2012: withdrew MOSCE enrolment - not registered with AHPRA;
•March 2014: ineligible enrolment in MOCI - MOCI remediation required;
•April 2014: ineligible enrolment in MOSCE - remediation plan required;
•June 2014: ineligible enrolment in MOCI - did not submit AHPRA registration and current Exemption Status; and
•September 2014: ineligible enrolment in MOSCE - did not submit AHPRA registration and current Exemption Status.
(Exhibit C)
As part of his submissions as to why the Condition should not have been imposed, Dr Olowosegun stated:
124.6.Dr Olowosegun provided evidence demonstrating reasonable progress towards specialist registration:
124.6.1.from 25 August 2008 - being the date Dr Olowosegun started his Specialist Fellowship pathway with the RANZCP - to 20 January 2017 - being the time of the Decision - the applicant had only been on the Specialist Fellowship pathway for approximately five years;
124.6.2.by reason of the RANZCP incorrectly classifying Dr Olowosegun's exemption status for approximately two of the five years that he was on the RANZCP Fellowship pathway there was complete uncertainty as to whether he would be required to sit the Written Examination and hence, if and when, he would proceed to sit the Exemption Candidate Examination;
124.6.3.two of the years that Dr Olowosegun was not on the Specialist Fellowship Pathway occurred due to reasons outside of his control, namely:
124.6.3.1.notwithstanding his requests that they do so, his referees at Ballarat Health Services failed to provide referee reports to the RANZCP; and
124.6.3.2.the RANZCP initially and arbitrarily insisted that the Dr Olowosegun's referee reports be from referees who had supervised Dr Olowosegun for over six months.
124.6.4.the RANZCP, under the exemption status regime, acknowledged that circumstances may arise which prolong a candidate's progression and, therefore, that candidates could maintain their exemption status to up to nine years;
124.6.5.under the 2012 Fellowship Program candidates are expected to complete 60 months' full time training and candidates can be on the program for up to 13 years.
Dr Olowosegun submits that although a period of about eight and a half years had passed between when he started on the Specialist Fellowship pathway with the RANZCP on 27 August 2008 (Agreed Fact 28) and 20 June 2017, the date of the Decision, he had only been on the specialist pathway for approximately five years.
The first period Dr Olowosegun relies upon is the RANZCP's incorrect classification of Dr Olowosegun's exemption status, that is, Category 1 rather than Category 2.
The Tribunal notes that on 25 September 2008, the RANZCP determined that Dr Olowosegun should remain as a Category 1 candidate (Agreed Fact 30). Dr Olowosegun did not seek a review of that decision until 15 or 16 months later (Agreed Fact 32). No explanation has been offered as to why he did not seek a review in September/October 2008.
Dr Olowosegun failed the Category 1 exams in March 2009 and in August 2009.
Dr Olowosegun submits that for approximately two of the five years, there was complete uncertainty. No explanation was offered as to how that uncertainty impacted on his pathway. Ultimately, on 1 July 2011, Dr Olowosegun's review was successful, the effect being that he was excused from the Category 1 written exams. Dr Olowosegun submitted that this delay was two years and 11 months (Dr Olowosegun's Chronology of Delays). Even if one accepts that there was a delay from when Dr Olowosegun sought a review that still does not explain the period between when Dr Olowosegun was classified as Category I and when he sought a review.
This period of delay has not been satisfactorily explained by Dr Olowosegun.
Dr Olowosegun's registration with the Board lapsed on or about 7 February 2012 when Dr Olowosegun failed to renew his registration. No explanation was offered as to why Dr Olowosegun failed to renew his registration (Agreed Facts 2935, Dr Olowosegun's submissions paragraphs 59 to 60, pages 150 to 151).
The second period of delay of two years and 1 month, from 27 February 2014 to 23 March 2016, is said to arise as a result of the failure of Dr Olowosegun's referees to provide references and the RANZCP's arbitrary insistence that Dr Olowosegun's reference reports be from referees who had supervised Dr Olowosegun for over six months.
The history of Dr Olowosegun's request for reference reports is set out at paragraphs 49 to 83 of the Agreed Facts.
It appears that there was a degree of difficulty about Dr Olowosegun's performance at Ballarat which suggests that the referees were unwilling to provide reports as a result of Dr Olowosegun's strained relationship with them.
The Tribunal notes in particular:
1)By email sent on 7 April 2014, Dr Olowosegun requested an update from the RANZCP on his application for an extension of his exemption status and also:
a)sought to have the RANZCP investigate his complaints about psychiatrists at the Ballarat Health Service;
b)sought to be informed about the RANZCP's response to the his complaints about his nominated referee Dr AK; and
c)asserted that Dr AK should not be practising psychiatry given his role in malpractices at Ballarat Health Services'(Agreed Fact 51); and
2)Dr Olowosegun's complaint email dated 10 April 2014 to the Independent BroadBased AntiCorruption Commission (IBAC) (Exhibit A page 186) which stated:
I think it is clear that my supervisors who I told are being investigated for their malpractices and cover ups by IBAC are being vindictive by their refusal to write the referee's report.
This has been my concern that some college members are using their privileged positions to punish any ECE that complain about their malpractices. I believe the college has a duty here to request a formal hearing on this situation.
I cannot continue to be disadvantaged because of some psychiatrists that should have been stripped of their fellowships. It is important to address my complaints at the highest level in the College. Some college members like [Dr AK, Dr DB and RT] are acting in the most unprofessional manner.
Refusal to write requested reports good or bad is part of their duties as they are all being paid for their supervisory roles. The initial excuses was by [DB] and [RT] was that they were on leave.
The college should be able to read between the lines here; I have no other choice than to forward to you, the current criminal investigation against BHS by IBAC.
While I worked at BHS, I saw a systemic criminal pattern of gross malpractices that resulted in the death of patients and subsequent cover up by fellows RANZCP; yet no response from the college despite my notification[.]
These are extraordinarily serious allegations. There is no evidence to support any of these allegations other than what Dr Olowosegun has asserted. If Dr Olowosegun sought to rely on such serious allegations as a basis for explaining the delay in his registration, it behoved Dr Olowosegun to lead evidence, other than his own testimony to support such allegations. The Tribunal is not satisfied that it has sufficient evidence to form a conclusion.
The Tribunal also notes the admissions made by Dr Olowosegun in the course of his crossexamination (T:51 and T:56; 17.08.17). In particular, the Tribunal notes that Dr Olowosegun was dismissed as a result of his conduct towards his colleagues after having been suspended for three months.
The Tribunal does not have sufficient evidence before it to determine whether or not the delay was ultimately caused by the failure of Dr Olowosegun's referees to provide reports or by Dr Olowosegun's conduct.
The Tribunal is not satisfied that Dr Olowosegun has advanced any, or any sufficient, reason as to why the RANZCP's insistence on referee reports from referees who have supervised Dr Olowosegun for over six months is arbitrary.
The RANZCP does permit candidates to prolong their exemption status every three years for up to nine years (Exhibit A page 174):
Maintaining Exemption Status
In order to maintain Exemption Status, candidates must be registered with the Medical Board of Australia or New Zealand Medical Council.
It is expected that candidates will be able to successfully complete the mandated training and assessment requirements to proceed to admission to Fellowship within three years of gaining exemption status. However, the College acknowledges that circumstances may arise which prolong a candidates progression and therefore, candidates are required to apply for extensions of their exemption status every three years (to a maximum of nine years) if they wish to maintain their exemption status. Applications for Extension of Exemption Status should be submitted directly to the RANZCP. Please refer to Link 19a Policy: Maintenance of Exemption Status on the Pre-Fellowship - Links and Forms page of the College website.
Dr Olowosegun contends that:
1.The RANZCP has issued regulations, policies and procedures with respect to its 2012 Fellowship Program.
2.Clause 4.3 of the RANZCP’s 'Education and Training Policy & Procedure: Leave & Interruptions to Training' concerns the RANZCP 2012 Fellowship Program. It states that Trainees must be aware that they should not be eligible for Fellowship after 13 years (calendar time) in the Fellowship Program.
3.Regulation 5.1 Interim Number states that trainees under the RANZCP Fellowship Regulations 2012 are required to complete a minimum of the equivalent of 60 months' full-time accredited training in approved training programs to achieve Fellowship of the College.
4.Clause 4.10.2 of the 'RANZCP's Education Training Policy: Progression through Training', which concerns the RANZCP 2012 Fellowship Program, states that trainees have 72 months of FTE accredited training before being required to show cause to the CFT as to why they should be able to continue towards Fellowship.
5.IMGs can work towards Fellowship with the RANZCP through its Substantial Comparability Placement. The Substantial Comparability Placement does not require a practitioner to undertake the OSCE.
Given that it is expected that the requirements to proceed to Fellowship Status are expected to be completed within three years, some sufficient explanation must be offered as to why subsequent periods of extension should be granted. Dr Olowosegun's reasons do not offer a sufficient explanation.
5a) Should the Condition have been imposed?
What is the scope of review where a decision under the National Law is based on an earlier decision
Although Dr Olowosegun had a right of appeal under s 199 of the National Law, he did not appeal the decision of 8 January 2016 requiring him to obtain registration as a general practitioner.
Dr Olowosegun submitted:
48.Whilst the applicant submits that the scope of a review proceeding concerning a decision to Refuse to Renew Registration under the National Law should be conducted in the manner set out above, it further submits that nothing in the National Law constrains the Tribunal's power, on merits review, to consider and express opinions on matters of related validity.
49.It is established that, in the course of a review proceeding, the Tribunal may entertain a collateral attack on the validity of another administrative decision, the validity of which would impact upon the decision under review (see, eg, Edwards and Department for Planning and Infrastructure [2007] WASAT 101). Such an approach was employed in the context of an appellable decision under s 199 of the National Law in Yoong and Medical Board of Australia [2015] WASAT 6 [Yoong].
50.As is clear on the authorities, the Tribunal in exercising its review jurisdiction can only deal with the particular decision affecting the applicant and is not authorised to exercise its s 29 review powers upon a decision that is not the subject of the review. However, in considering and expressing an opinion on a decision the subject of collateral attack, the Tribunal may inform itself as it sees fit in relation to review of the decision the subject of review.
51.In the current review proceeding, the applicant submits that it is within the scope of the Tribunal's review powers to consider the decision to impose the condition on the applicant's registration (found at pages 1-2 of the Board's bundle) [Exhibit A], the breach of which is said to provide the statutory basis for the Board's exercise of its power to refuse renewal, under s 112(2)(b).
The decision in Yoong and Medical Board of Australia [2015] WASAT 6 concerned whether a right of appeal to the Tribunal under s 199 of the National Law existed from a decision of a Performance and Standard Panel of the Board. The Tribunal found that a right of appeal did exist. It was not a collateral attack. It is not authority for the proposition articulated in paragraph 49 of Dr Olowosegun's submissions.
In Edwards & Anor and Department of Planning and Infrastructure& Ors [2007] WASAT 101 (Edwards) the Tribunal stated at [31]:
Justice Besanko then at [93] set out a number of factors that might be considered in this context if a court were to have a discretion to entertain a collateral attack:
1)Are the grounds of challenge likely to involve the adducing of substantial evidence?
2)If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3)In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4)Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5)Is the issue raised by the collateral challenge clearly answered by authority?
6)Are there other cases pending which raise the same issue?
7)(Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?
An important distinction between Edwards and Dr Olowosegun's situation is that Edwards was not a party to the decision which led to the grant of a jetty licence to the Strata Council. Accordingly, the only redress available was a collateral challenge.
Dr Olowosegun's position is that he was a party to the original decision imposing the condition. He has a right of appeal to which he did not exercise. The scope of review does not extend to a challenge to the imposition of the condition by a collateral attack when Dr Olowosegun had a right of appeal. An appeal is a more appropriate forum and a collateral challenge should not be permitted.
5b) Does s 127 of the National Law give the Tribunal power to remove the Condition?
In the course of oral submissions, Dr Olowosegun's counsel submitted that the Board, and therefore the Tribunal, has jurisdiction pursuant to s 127 of the National Law to remove the condition.
Section 127 of the National Law relevantly provides:
(1)This section applies if a National Board reasonably believes
(a)that a condition imposed on the registration of a registered health practitioner or student registered by the Board is no longer necessary; or
(b)that an undertaking given to the Board by a health practitioner or student registered by the Board is no longer necessary.
(2)The National Board may decide to remove the condition or revoke the undertaking[.]
The removal of the Condition is discretionary. Section 127 does give the Tribunal power to remove the Condition.
5c) Should the Tribunal remove the Condition even if it has power?
Dr Olowosegun submitted:
124.3.by reason of the operation of s 3(2)(a), 3(2)(c), 3(2)(d), 35 of the National Law and part 6 of the National Law, in particular, s 48 and 49, Dr Olowosegun reentering the RANZCP Specialist Fellowship pathway on 23 March 2016 meant that passing the AMC Clinical Examination was not an appropriate assessment hurdle;
124.5.the RANZCP informed AHPRA on 24 October 2016 that Dr Olowosegun was progressing as expected towards RANZCP Fellowship[.]
It was Dr Olowosegun's decision to seek to obtain general registration (Agreed Fact 74). As noted, Dr Olowosegun had failed the AMC Clinical Examination twice in October 2014 and in July 2015 at the time the Condition was imposed.
Dr Olowosegun had a right of appeal against the decision to impose the Condition. He did not appeal that decision. No explanation was advanced as to why he did not appeal the decision.
Dr Olowosegun chose to continue with his AMC Clinical Examination even after he was advised that he had been reinstated on the specialist Fellowship pathway.
Dr Olowosegun's evidence was:
On 23 March 2016, RANZCP advised I had been reinstated on the specialist fellowship pathway, that progress on this pathway would require completion of various assessment tasks, and that my status on this pathway would expire on 7 June 2018.
Despite being reinstated on the specialist fellowship pathway, I maintained my registration for the AMC Clinical Examination to be held on 7 July 2016.
(Exhibit G paragraphs 2425)
The Tribunal notes that Dr Olowosegun sought to obtain his general registration to be able to practice to financially afford the examination (Agreed Fact paragraph 74(10)).
The Tribunal is not satisfied that even if it has power it should remove the Condition.
The Tribunal further notes that even if it were to remove the Condition, Dr Olowosegun would still not be eligible for renewal because his registration could not be renewed because Midland is no longer an area of need.
Is limited registration intended to be a longterm means of registration?
Sections 72(1) and (3) of the National Law provide that an individual may be granted limited registration for up to 12 months, and that limited registration may not be renewed more than three times.
The Board submitted:
57.4.Dr Olowosegun has subsisted on limited registration for 10 years (with some periods off the register during that time), during which time he has not demonstrated that he is qualified, competent and fit to practise by achieving general registration or specialist registration with the Board;
57.5.Notwithstanding the clear intention of the legislation (referred to in paragraph 12 above) that practitioners should only have limited registration for a limited period of time. If renewal of Dr Olowosegun's limited registration for area of need is granted, Dr Olowosegun will continue to be registered as a medical practitioner in Australia notwithstanding that during the 10 years he has spent practising in Australia he has been unable to meet the requirements of either general registration or specialist registration. It is not in the public interest for a medical practitioner to continue to be registered in those circumstances; and/or
57.6.Dr Olowosegun has not demonstrated that he is qualified, competent and fit to practise by achieving general or specialist registration, notwithstanding that 10 years have now passed since he was first granted limited registration in Australia.
Dr Olowosegun submitted that:
...
126.2.there is not a clear intention of the legislation that practitioners should only have limited registration for a limited period of time or that limited registration is not intended to be a long-term means of obtaining registration under the National Law. The legislation contemplates practitioners holding limited registration for more than 4 years, as demonstrated by the note to s 72(3) of the National Law which states that in the event that a person has had their limited registration renewed three times they are then to make a new application for limited registration;
126.3.given that the maximum period of limited registration that may be granted is 12 months, the Board's contention as to the period of time that practitioners may subsist on limited registration is at odds with the training requirements of the RANZCP 2012 Fellowship Program and the maximum time provided to complete that program, namely, 13 calendar years;
126.4.Dr Olowosegun's application for renewal of his limited registration in an area of need had only been renewed once previously;
126.5.Dr Olowosegun's efforts to pass the OSCE do not affect his continued progression towards fellowship with the RANZCP nor does it indicate that he is not qualified, competent and/or fit to practice. His Partial Comparability Assessment Schedule makes it clear that he has until 8 May 2018 to pass the OSCE. The RANZCP 2012 Fellowship Program provides that practitioners will be given support to assist them with passing the OSCE for an additional two years after the expected completion date and passing the OSCE is not requirement for persons on the RANZCP's Substantial Comparability Placement[.]
The fact that a person may take 13 years does not provide a blank cheque to take 13 years. One can anticipate circumstances in which progress towards a fellowship might be delayed, for example, where a parent is raising children or there is a serious illness but those facts do not arise in Dr Olowosegun's case.
It is clear that the RANZCP intends that the training will generally be completed within three years.
Ultimately, whether limited registration is intended to be a longterm means of registration is moot since Dr Olowosegun's application for renewal of his limited registration under the National Law in an area of need has only been renewed twice.
Dr Olowosegun's progress to date on the Fellowship pathway and the long period he has been on the Fellowship pathway is however relevant to the exercise of the Tribunal’s discretion, if any under the National Law because it provides context to the reasons for Dr Olowosegun's decision to apply for general registration and the explanation for his difficulties in complying with the condition imposed by the Board on his limited registration.
The Tribunal does not consider the reasons advanced by Dr Olowosegun for not having completed the specialist training he started in 2008 by February 2016 as satisfactorily explaining the delay.
Even had the Tribunal accepted Dr Olowosegun's explanation for the delays, it remains a fact that he did not complete the Fellowship pathway within three years.
The Tribunal accepts, as it must, that the RANZCP considers that Dr Olowosegun is now making satisfactory progress on the Fellowship pathway.
Dr Olowosegun's reported satisfactory progress on the Fellowship pathway is not of itself a ground to exercise whatever discretion the Tribunal has in his favour in the absence of any suitable explanation for the long delay overall.
Ultimately, should the Tribunal renew Dr Olowosegun's registration?
Dr Olowosegun has not complied with the requirements for extension of his limited registration. On that ground alone his application for renewal fails.
Dr Olowosegun submitted:
126.6.that Dr Olowosegun is fit to practice, qualified and competent is demonstrated by:
126.6.1.him being on the RANZCP 2012 Fellowship Program;
126.6.2.his continued employment by St John of God in circumstances where his employer is aware of these proceedings and the facts that have led to them; and
126.6.3.the letter of support from Dr Banerjee.
(Exhibit E page 18)
The fact that SJoG Hospital has continued to employ Dr Olowosegun whilst these proceedings continued, does not assist the Tribunal in exercising its discretion. Dr Olowosegun's continued employment is because of the stay granted by this Tribunal.
Dr Banerjee's letter is of limited value. It does not assist the Tribunal in exercising its discretion beyond the fact that Dr Banerjee regards Dr Olowosegun as competent.
The Tribunal is not satisfied that the factors referred to by Dr Olowosegun in paragraph 126.6 and the other factors identified in the course of his submissions would be sufficient to cause the Tribunal to exercise its discretion, if it had one, which it does not, in his favour.
Dr Olowosegun:
a)did not comply with the Condition;
a)has been on the fellowship pathway since March 2008 and has not sufficiently explained the periods of delay; and
c)has failed multiple exams.
In the circumstances any discretion should not be exercised in Dr Olowosegun's favour.
In the event the Tribunal is wrong and it should exercise any discretion it may have to remove the Condition it does not have discretion to renew Dr Olowosegun’s registration.
The only basis of upon which Dr Olowosegun can obtain registration is by limited registration in an area of need. In circumstances where the area of need in which he is applying to practise is no longer deemed an area of need the National Law states that an application for renewal must be refused; s 82(1)(c)(i)(V) of the National Law.
Orders
1.The application is dismissed.
I certify that this and the preceding [173] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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