Palatty and Nursing and Midwifery Board Of Australia
[2013] WASAT 78
•31 MAY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: PALATTY and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2013] WASAT 78
MEMBER: MR M SPILLANE (SENIOR MEMBER)
MS NATASHA OWEN-CONWAY (MEMBER)
MS E PAVLOS (SESSIONAL MEMBER)
HEARD: 6 NOVEMBER 2012, 25 AND 26 FEBRUARY 2013 FINAL SUBMISSIONS RECEIVED ON 22 MARCH 2013
DELIVERED : 31 MAY 2013
FILE NO/S: VR 119 of 2012
BETWEEN: SOUMYA VARGHESE PALATTY
Applicant
AND
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Respondent
Catchwords:
Health Practitioner National Law Nursing and Midwifery Board of Australia Registration under Health Practitioner National Law Registered nurse Graduated or trained overseas Approved qualifications Similar qualifications
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 5, s 23, s 49, s 52, s 52(1)(a), s 53, s 53(a), s 54, s 55, s 56, s 57, s 58, s 59, s 60, s 61, s 62, s 63, s 64, s 65, s 66, s 67, s 68, s 69, s 70, s 71, s 72, s 73, s 74, s 75, s 76, s 80(1)(d), s 82(1)(c)(i)(l), s 124(1)(a), s 142, s 222, Pt 7 Div 1
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The appellable decision is confirmed and the application is otherwise dismissed
Summary of Tribunal's decision:
Ms Soumya Palatty resides in India and qualified as a nurse there in 2009 and has been working as a nurse in India since qualification.
In September 2011 Ms Palatty applied to the Nursing and Midwifery Board of Australia for registration as a registered nurse in Australia.
In September 2012 the Nursing and Midwifery Board of Australia refused Ms Palatty's application for registration in Australia and she sought to review that decision at this Tribunal.
The matter was heard over three days, finishing on 22 February 2013, and the applicant contended:
1) If the applicant was not entitled to be granted general registration as a registered nurse she should have been considered and granted general registration as an enrolled nurse.
2) The applicant had similar qualifications to others who were granted general registration by various State boards of the Nursing and Midwifery Board and therefore she should also have been granted general registration as a registered nurse.
3) The applicant was not provided with the same opportunity as other applicants, with similar qualifications, to complete one or more of the various bridging courses approved for qualification so as to become eligible for general registration as a registered nurse.
4) The applicant's application was made at a time when an earlier English language skills test applied and five days before a new test was introduced, and the applicant's English language skills should therefore be judged using the earlier test.
Having heard all of the evidence of the parties' submissions, the Tribunal found that Ms Palatty's qualification from India was:
1) not an approved qualification as defined by the National Law for the purposes of s 53(a) of the National Law;
2) not a qualification that, in substance, is comparable with any of the approved qualifications as defined by the National Law for the purposes of s 53(b) of the National Law; and
3) not an examination or assessment that the Nursing and Midwifery Board requires the applicant to have successfully completed for the purposes of s 53(c) of the National Law.
The Tribunal also found that there was no obligation on the Nursing and Midwifery Board to grant Ms Palatty registration as an enrolled nurse and that Ms Palatty's contention that she should have been provided with the opportunity to undertake a bridging course was not supported.
In all the circumstances and for the reasons given, the decision of the Nursing and Midwifery Board was confirmed and Ms Palatty's application was dismissed.
Category: B
Representation:
Counsel:
Applicant: Mr L Devassy (Acting as Agent)
Respondent: Mr H Quail with Ms A Farnsworth
Solicitors:
Applicant: N/A
Respondent: Australian Health Practitioner Regulation Agency
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 14 September 2011 Ms Soumya Varghese Palatty (applicant), a resident of India, filed an application for general registration (graduated or trained overseas) as a registered nurse with the Nursing and Midwifery Board of Australia (respondent or National Board).
By email of 5 October 2011 the respondent confirmed that they had received the application on 14 September 2011 and requested further information including a certified copy of the course outline or student handbook from the university or institution where the applicant's qualification had been conferred in India.
On 31 January 2012 the applicant received a further email from the respondent which stated:
An initial assessment of your application has been undertaken and the following outstanding requirements have been identified.
The email went on to request two items, namely, a certificate of good standing and an employer or selfsigned curriculum vitae.
On 28 February 2012 the applicant received a further email again confirming receipt of the application on 14 September 2011, and that an initial assessment had been undertaken, and requesting that the certificate of good standing be sent directly to the respondent's office from Kerala in India where the applicant was or had previously been registered as a health practitioner.
On 6 March 2012 an email was sent to the applicant which stated:
We seem to be in receipt of all the documentary requirements to complete the assessment of your application form. Should we find you eligible for a registration bridging program, you will be notified.
By letter of 28 June 2012, posted directly to the applicant in India, the respondent confirmed that pursuant to s 82(1)(c)(i)(l) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) it proposed to refuse her application for general registration as a registered nurse, as it had been determined that her qualification did not meet the accepted education standards for nursing and midwifery in Australia. The letter stated, in part:
The Committee has considered your registration application as a Registered Nurse and proposes to refuse registration on the grounds that, in the Committee's opinion, you are not qualified for general registration as a nurse pursuant to s 53 of the National Law for the following reasons:
•You are not qualified for general registration pursuant to sections 53(a), (c) or (d) [of] the National Law; and
•You do not hold a qualification the National Board considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the purposes of s 53(b) of the National Law.
The Nursing and Midwifery Board of Australia has published a Framework for the Assessment of Internationally Qualified Nurse and Midwives for Registration to guide the assessment of applications by internationally qualified nurses and midwives. Criteria 3 of this framework requires the application to be assessed against current Australian nursing and midwifery education standards.
Following an assessment, the Committee has determined that your qualification does not meet Criteria 3 of the Framework, that is, it does not meet current Australian nursing and midwifery education standards.
The applicant was invited to make written or verbal submissions to the Committee on or before 28 July 2012.
On 25 July 2012 the applicant filed an application with this Tribunal to review the decision of the respondent contained in its letter of 28 June 2012 and by letter of 19 September 2012 the respondent again wrote to the applicant stating:
The Western Australia Registrations Committee of the Nursing & Midwifery Board of Australia (the Committee) at their meeting of 13 July 2012 considered your application for general registration as a registered nurse and proposed to refuse your application for registration.
The Committee reviewed the following documentation/information in support of your application for general registration:
•Application form
•Curriculum Vitae (CV)
•Academic transcript
•Certificate of good standing
•Statement of service
•English language evidence
On 28 June 2012, the Committee issued you a notice pursuant to section 82(1) of the National Law of the proposal to refuse your application for registration. In accordance with section 81(2) of the National Law you were invited to make a submission to the Board regarding this proposal by 4.00 pm on 28 July 2012.
Decision of the Committee
The Committee noted that no submission was received from you by the requested date, nor was an extension requested. Accordingly, the Committee has decided to refuse your application for general registration pursuant to s 82(1)(c)(i)(l) of the National Law.
The reasons for the decision are that:
1.You are not qualified for general registration pursuant to sections 53(a), (c) or (d) of the National Law; and
2.You do not hold a qualification that the National Board considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the purposes of section 53(b) of the National Law.
The application for review came on for directions before this Tribunal on 7 August 2012 and was referred to mediation on 10 September 2012.
The mediation was unsuccessful and the matter was listed for final hearing on 6 November 2012.
The matter was part heard on 6 November 2012 and completed over two days on 25 and 26 February 2013.
Throughout the proceedings the applicant, who resides in India, was represented by her brotherinlaw, Mr Laiju Devassy. Mr Devassy resides in Queensland and attended the first day of the hearing in Perth in person, but attended the final two days of the hearing in February 2013 by videoconference from Brisbane.
Both the applicant and respondent filed a substantial number of documents and both made oral and written submissions.
All of the relevant documents were taken in as exhibits and further written submissions were received from both the applicant and the respondent on 11 March and 21 March 2013 respectively.
The documents taken in as exhibits and considered by the Tribunal in addition to the oral evidence and written submissions received were:
NUMBER
TYPE
DESCRIPTION
1
Exhibit
Bundle of Documents including the following:
1.1
Exhibit
Application and associated documents 25 July 2012
1.2
Exhibit
Applicant's bundle of documents - 25 September 2012
1.3
Exhibit
Respondent's statement of issues, facts and contentions 9 October 2012
1.4
Exhibit
Respondent's bundle of documents 9 October 2012
1.5
Exhibit
Respondent's supplementary bundle of documents 6 October 2012
1.6
Exhibit
Applicant's statement of issues, facts and contentions 23 October 2012
1.7
Exhibit
Applicant's supplementary bundle of documents - 31 October 2012
2
Exhibit
Witness Statement of Anne Samuelson 1 November 2012
3
Exhibit
Documents supplied under summons (Suppression order in place)
4
Exhibit
Respondent's bundle of documents document undated
5
Exhibit
Applicant's supplementary section bundle of documents 18 February 2013
6
Exhibit
Respondent's list of institutions India, Letter K & V documents tendered at hearing on 25 February 2013
7
Exhibit
Registered Nurse Accreditation Standards dated 30 June 2012
8
Exhibit
Fact sheet & Frequently asked questions (Revised 29 November 2011)
Consideration
The applicant claims that the respondent's refusal to grant the applicant general registration as a registered nurse is broadly 'wrongful' for essentially four reasons. In her application dated 14 September 2011, under the heading 'Decision Sought', the applicant stated:
DECISION SOUGHT
What decision do you want the SAT to Make?
I am registered nurse in India since 6 May, 2009 and have completed Diploma in General Nursing & Midwifery course (7 semester course) from Vimala School of Nursing, Kanjoor, Kerala, India. The course constitutes of 4556 hours supervised practical training, 1605 hours theory class room training with 17 subjects. On the 14 September, 2011, I have applied for international qualified nurse's registration with Nursing and Midwifery Board of Australia (AHPRA) in Perth. Nursing and [M]idwifery Board of Australia (NMBA) has completed an initial assessment of my application and receipted on 28th of February 12. NMBA has received all the required documents by 6 March 2012 for final approval.
On the 28 June, 2012, NMBA refused my application for registration in Australia on the basis of Health Practitioner Regulation National Law Act 2010 section 53(a), c or d. The refusal notice stipulated that I must have Bachelor Degree (as per new framework criteria 3) for the registration (For division1) in Australia.
NMBA has constituted and approved national level registration standards, codes and frame work for nursing registration in Australia on 29 July, 2010. However, as I applied on 14/09/2011[,] the NMBA hadn't published the new Framework for the assessment of internationally qualified nurses and midwives for registration. Meanwhile, during the period of July 2010 to June 2012, NMBA has received and approved same diploma qualification from India and also provided registration to several candidates, who are currently working with public hospitals as registered nurses.
From the aforementioned grounds, I am also eligible for nursing registration in Australia, either as a registered nurse or enrolled nurse on the basis of Health Practitioner Regulation National Law 2010 section 53(a), c or d. But NMBA refused my application with unreasonable grounds. As per the Health Practitioner Regulation National Law section 199 (a), would you please review this refusal decision which taken by NMBA on 28 July, 2012.
As can be seen, the applicant makes particular reference to a number of nurses whom she claimed had the same or similar qualifications as the applicant, and who applied to the respondent or other State boards of the National Board for registration and who were granted registration.
Broadly, the four issues raised by the applicant were:
1)If the applicant was not entitled to be granted general registration as a registered nurse she should have been considered and granted general registration as an enrolled nurse.
2)The applicant had similar qualifications to others who were granted general registration by various State boards of the National Board and therefore she should also have been granted general registration as a registered nurse.
3)The applicant was not provided with the same opportunity as other applicants, with similar qualifications, to complete one or more of the various bridging courses approved for qualification so as to become eligible for general registration as a registered nurse.
4)The applicant's application was made at a time when an earlier English language skills test applied and five days before a new test was introduced and the applicant's English language skills should therefore be judged using the earlier test.
In preparation for the hearing the applicant had subpoenaed from the respondent particular details of named individuals which included their Diploma Qualification Certificate, Experience Certificates, Date of first application and the official decision letter of Australian Health Practitioner Regulation Agency (AHPRA).
In complying with that subpoena the respondent filed a document titled 'Index To Summonsed Documents' which included all of the requested details in respect of each of the named individuals and which was taken in as Exhibit 3.
The applicant's representative also presented the Tribunal with details of the registrations of other individuals which had been taken from the respondent's website and whom it was claimed had similar qualifications to those of the applicant. However, the applicant's representative was unable to give any detail of the circumstances of those individuals so as enable the Tribunal to assess their eligibility for general registration as registered nurses as the documents furnished by the applicant merely stated the qualifications of the individuals. The majority of the documents recorded that the individuals in question had obtained the same or similar qualifications to the applicant, with a number also having other qualifications such as a bridging qualification.
As at the date of her application for general registration as a general nurse, the applicant did not hold any bridging qualifications conferred in Australia or elsewhere.
It was also noted that, although one or two of those individuals appeared to have similar qualifications to the applicant, apart from the limited documentation that had been subpoenaed, there was no detail of what was actually before the respondent when it made its decision in respect of those individuals. In any event, as will be outlined later, what the respondent did or did not do in respect of other applications is of no value in determining the present application.
The Tribunal noted that in respect of some of the individuals who were successful in obtaining general registration that they had bridging qualifications obtained in other jurisdictions, such as the United Kingdom, which from the evidence of Ms Anne Samuelson, a witness called by the respondent and referred to later, is a country whose bridging qualifications are considered by the respondent and other State boards of the National Board to be comparable to those offered and approved in Australia (T:147148; 25.02.13).
Further, the respondent conceded before the Tribunal that for a time in the past since the introduction of the National Law various State boards of the National Board have made inconsistent decisions and decisions that are not in accordance with the correct and proper interpretation of the National Law (T:190; 26.02.13).
That concession, and the Tribunal's observations concerning comparisons between the records showing individuals who have been registered, and the applicant's circumstances, demonstrates that a comparison with registrations in the past is neither a reliable nor satisfactory basis to assess whether the applicant in this proceeding is eligible for general registration as a registered nurse.
To assess the four issues raised by the applicant and decide whether the respondent's decision to refuse to grant the applicant general registration as a registered nurse should be set aside, the starting point is the provisions of the National Law.
Issue 1: If the applicant was not entitled to be granted general registration as a registered nurse she should have been considered and granted general registration as an enrolled nurse
Section 222 of the National Law provides:
(1)Each of the following National Boards must, in conjunction with the National Agency
(a)keep the public national register listed beside that Board in the following Table that is to include the names of all health practitioners, other than specialist health practitioners, currently registered by the Board; and
(b)if Divisions are listed beside the public national register in the Table, keep the register in a way that ensures it includes those Divisions.
(2)In addition, each National Board must keep a public national register that is to include the names of all health practitioners, other than specialist health practitioners, who were registered by the Board and whose registration has been cancelled by an adjudication body.**
Table Public national registers
Name of Board
Name of public national register
Divisions of public national register
Aboriginal and Torres Strait Islander Health Practice Board of Australia
Register of Aboriginal and Torres Strait Islander Health Practitioners
Chinese Medicine Board of Australia
Register of Chinese Medicine Practitioners
Acupuncturists, Chinese herbal medicine practitioners, Chinese herbal dispensers
Chiropractic Board of Australia
Register of Chiropractors
Dental Board of Australia
Register of Dental Practitioners
Dentists, Dental therapists, Dental hygienists, Dental prosthetists, Oral health therapists
Medical Board of Australia
Register of Medical Practitioners
Medical Radiation Practice Board of Australia
Register of Medical Radiation Practitioners
Diagnostic radiographers, Nuclear medicine technologists, Radiation therapists
Nursing and Midwifery Board of Australia
Register of Nurses
Registered nurses (Division 1), Enrolled nurses (Division 2)
Register of Midwives
Occupational Therapy Board of Australia
Register of Occupational Therapists
Optometry Board of Australia
Register of Optometrists
Osteopathy Board of Australia
Register of Osteopaths
Pharmacy Board of Australia
Register of Pharmacists
Physiotherapy Board of Australia
Register of Physiotherapists
Podiatry Board of Australia
Register of Podiatrists
Psychology Board of Australia
Register of Psychologists
The National Board must keep and maintain a public register of nurses and a public register of midwives. In the case of the register of nurses the National Board must keep and maintain that register in two divisions: firstly, Division 1 for registered nurses and, secondly, Division 2 for enrolled nurses.
The term 'Division' is defined to mean:
Division, of a health profession, means a part of a health profession for which a Division is included in the National Register kept for the profession.
Section 142 of the National Law provides that where it applies (that is, upon the National Board deciding to register an individual on the public register (see s 124(1)(a) of the National Law), the National Board 'must':
… as soon as practicable after the decision is made, give the registered health practitioner a certificate of registration in the form decided by the Board.
That certificate 'must' include:
(a)the name of the registered health practitioner;
(b)the type of registration granted and, if the registration is endorsed, the type of endorsement granted;
(c)the date the registration or endorsement was granted;
(d)the division of the register, if any, in which the practitioner is registered[.] (Tribunal's emphasis)
The division of the particular health practitioner register that the National Board must keep and maintain is not the same as the 'type of registration' a person is granted. In particular, in this application, the two divisions of 'registered' and 'enrolled' nurses are a separate and distinct notion to the 'type of registration' granted to a particular registered or enrolled nurse.
The 'types of registration' in contemplation under the National Law are identified as follows:
1)General registration Pt 7 Div 1 of the National Law (s 52 to s 56);
2)Specialist registration Pt 7 Div 2 of the National Law (s 57 to s 61);
3)Provisional registration Pt 7 Div 3 of the National Law (s 62 to s 64);
4)Limited registration Pt 7 Div 4 of the National Law (s 65 to s 72); and
5)Non-practicing registration Pt 7 Div 5 of the National Law (s 73 to s 76).
The National Law contemplates that the public registers for Chinese medical practitioners, dental practitioners, medical radiation practitioners and nurses each have a number of divisions, indicating distinct parts of each of those health professions. Within each division of a particular public health register the National Board must identify the type of registration; that is, general, specialist, provisional, limited or nonpracticing.
Part 7 of the National Law is headed 'Registration of health practitioners' and, as outlined above, each type of registration is dealt with in a different division of Pt 7 of the National Law. Furthermore, each type of registration provides for eligibility, qualification (for that type of registration), examination and assessment, unsuitability and period of registration as provided for in each separate Division of Part 7 of the National Law
In this application the applicant applied to the respondent for general registration as a registered nurse, which was confirmed by the box ticked at cl 10 on page 9 of the application to the Board dated 14 September 2011; that is, she applied to the respondent for inclusion on the public register of nurses within the division of 'registered nurse'.
As part of her written submissions the applicant stated:
On 10/03/2012 [Nursing and Midwifery Board of Australia] has published a circular (witness document No: 4 attached) that describes about 'all types of registration within a profession will be displayed as a separate blocks of information' (eg division, registration type, registration subtype, speciality and field of specialist practice). This description indicates my applicant is entitled to get assessment either as RN or EN with same application form or without additional marking in the box.
There was a separate box in the application form for 'enrolled nurse' and that box was not ticked by the applicant.
The applicant did not apply to be registered as an enrolled nurse and, if she had, there would have been particular issues to consider.
In all the circumstances, the Tribunal concludes that on reading the National Law as a whole, the phrase 'type of registration' is confined to whether the registration is general, specialist, provisional, limited or nonpracticing and does not mean 'enrolled' or 'registered' nurses, as submitted by the applicant.
The applicant's contention that if she was not entitled to be registered as a registered nurse she should have been considered and registered as an enrolled nurse, being a 'type or registration', is, in the Tribunal's view, incorrect and not supported by the legislation.
Issue 2: The applicant had similar qualifications to others who were granted general registration by various State boards of the National Board and therefore she should also have been granted general registration as a registered nurse
Section 52 of the National Law provides:
(1)An individual is eligible for general registration in a health profession if
(a)the individual is qualified for general registration in the health profession; and
(b)the individual has successfully completed
(i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession;
and
(c)the individual is a suitable person to hold general registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a coregulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
Put shortly, a person is eligible for general registration as a registered nurse if the person meets each and every one of the five criteria identified in s 52(1) of the National Law.
The qualification for general registration is identified in s 53 of the National Law which provides:
53. Qualifications for general registration
An individual is qualified for general registration in a health profession if
(a)the individual holds an approved qualification for the health profession; or
(b)the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or
(c)the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or
(d)the individual
(i)holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and
(ii)was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.
Section 53 identifies four possible and alternative routes by which an individual can be 'qualified for general registration' so as to meet the first of the five eligibility requirements for general registration identified in s 52(1)(a) of the National Law set out above. Broadly speaking, they are:
1)the individual actually holds an approved qualification (which is a term defined by the National Law and to which the Tribunal will return) a specified and defined qualification;
2)the individual actually holds a qualification that the National Board considers substantially equivalent (in terms of the substantive competencies of the qualification) to an approved qualification a comparable qualification in substance to the specified and defined approved qualification;
3)the individual does not hold an approved qualification or a comparable qualification but has 'successfully completed' an examination or other assessment 'required by the National Board for the particular health profession an identifiable 'bridging', 'reentry' or 'refresher' qualification nominated by the National Board; and
4)the individual does not hold an approved qualification or a comparable qualification but does hold a qualification which under the National Law (in substance) qualifies the individual or which qualified the individual by reason of the law as it was prior to the enactment of the National Law and the individual was previously registered either under the National Law or the law prior to the enactment of the National Law what has been described as the 'grandfathering' provision.
In the present case the applicant holds a Diploma in General Nursing and Midwifery obtained from a school of nursing in India between October 2005 and March 2009 and has been working as a nurse in India since qualification. It is common cause that whilst the applicant might have been ready, willing and able to complete a bridging qualification as at the date of her application to the respondent for general registration (and at any time thereafter), she has not successfully completed such a bridging course. As stated earlier, a comparison with other applicants is of no value because their full circumstances are unknown and because the respondent has conceded that various State Boards may have not interpreted the National Law correctly in the case of some applicants.
The real question is whether the applicant as at the date of her application for general registration (14 September 2011) was qualified for general registration by one of the four routes identified in s 53 of the National Law? It is common cause that s 53(d) of the National Law is not applicable in this proceeding. In considering the first route to being qualified for general registration the question is: whether the applicant held an approved qualification?
An approved qualification is defined in s 5 of the National Law as:
approved qualification
(a)for a health profession, means a qualification obtained by completing an approved programme of study for the profession[.]
An approved programme of study is defined by s 5 of the National Law to mean:
approved programme of study, for a health profession … means an accredited programme of study
(a)approved under section 49(1) by the National Board established for the health profession; and
(b)included in the list published by the National Agency under section 49(5)[.] (Tribunal's emphasis)
Relevantly, s 49 of the National Law provides:
(1)If a National Board is given a report by an accreditation authority about the authority’s accreditation of a programme of study, the Board may approve, or refuse to approve, the accredited programme of study as providing a qualification for the purposes of registration in the health profession for which the Board is established.
…
(5)A list of the programmes of study approved by a National Board as providing a qualification for registration in the health profession for which the Board is established must be published on the National Agency's website.
(6)The list of approved programmes of study published under subsection (5) must include, for each programme of study, the name of the university, specialist medical or other college or other education provider that provides the approved programme of study.
(7)An approval under subsection (1) does not take effect until the programme of study is included in the list published under subsection (5).
The 'National Agency' is defined by s 5 of the National Law to mean the AHPRA established by s 23 of the National Law.
The respondent provided the Tribunal with a list of approved programs of study approved by the National Board which was and is published on AHPRA's website (Exhibit 4 Tab J) (Tab J). It is 39 pages long and under the heading 'Approved Programs of Study' sets out all of the approved courses of study for 'Registered Nurse (Division 1)' in Australia. It can be found at AHPRA's website (>
That list contains 173 approved programs of study and intermingles programs of study leading to bridging qualifications, reentry and 'refresher' qualifications, with Bachelor and Masters programs of study in nursing and midwifery.
The respondent's position in the proceeding was that an 'approved qualification' for the purposes of the National Law was, and is, a minimum of a course of study in nursing as listed in Tab J, leading to a Bachelor degree being conferred by an Australian university. That proposition appears to be unsupported by the proper construction of the National Law and particularly by reference to the published list of approved programs of study which includes bridging, reentry and refresher programs of study by specified Australian providers, the completion of which will, by definition, result in the conferral on an individual of an approved qualification. Further, during the course of debate, counsel for the respondent conceded that 'an approved qualification' was not limited to a minimum Bachelor Degree in Nursing and Midwifery because the published approved programs of study included bridging, refresher and reentry courses of study (T:198199; 26.02.13).
Ms Anne Samuelson, the only person to give evidence before the Tribunal, and who is currently the Manager of Nursing and Midwifery Registration at the New South Wales Board of AHPRA and responsible for the management of registration of nurses, was resolute in her belief that the minimum qualification for registration as a registered nurse in Australia was a Bachelor degree.
Ms Samuelson's evidence was premised upon her belief that the National Law, properly construed, provided that only a Bachelor degree in nursing at a specified Australian university listed in Tab J amounts to an approved qualification for the purposes of s 53(a) and s 52(1)(a) of the National Law. As stated the Tribunal has concluded that Ms Samuelson’s premise is incorrect and the respondent conceded that issue in debate.
Although the Tribunal is of the view that an approved qualification is not limited to a minimum of a Bachelor Degree in Nursing and Midwifery identified in Tab J and includes all of the qualifications mentioned in Tab J, the applicant does not hold any of the qualifications listed in Tab J. The Tribunal concludes therefore that the applicant does not hold an approved qualification so as to be qualified for general registration (s 52(1)(a) of the National Law criteria 1).
Ms Samuelson's evidence was also relevant to the assessment of the applicant's diploma qualification against the 'approved qualification' as defined by the proper construction of the National Law to assess whether the applicant's diploma might afford the applicant the opportunity to take the second route to being qualified for general registration as provided for by s 53(b) of the National Law, that is, a comparable qualification. Ms Samuelson gave evidence that the applicant's diploma was not substantively comparable to any of the programs of study identified in Tab J (including the bridging and reentry programs of study) (see paragraphs 16 to 32 of Ms Samunelson's statement of evidence, and T:139; 25.02.13).
The third route to being qualified for general registration is where the applicant has successfully completed an examination or assessment required by the National Board (s 53(c) of the National Law). Counsel for the respondent initially contended that the programs of study that did not lead to a minimum Bachelor Degree is Nursing and Midwifery referred to in Tab J (bridging, refresher and re-entry courses) were courses that involved examinations and assessments that the National Board required applicants who did not fall into s 53(a) or (b) of the National Law to successfully complete so as to qualify for general registration pursuant to s 53(c) of the National Law. If the bridging and reentry programs of study referred to in Tab J do not lead to an 'approved qualification' for the purposes of s 53(a) of the National Law (contrary to the Tribunal’s view referred to above), they are examinations or assessments which the National Board has determined it might require an individual to have successfully completed for the purposes of s 53(c) of the National Law.
Section 53(c) does not provide that the examination or assessment that the individual is required to successfully complete by the National Board, must be published (unlike the approved qualification definition in s 5, s 49(1) and s 49(5) of the National Law). However, there is no doubt, on the material before the Tribunal, that the National Board had determined that the bridging and reentry programs of study referred to in Tab J are ones which might be the subject of the National Board's requirement of an applicant under s 53(c) of the National Law. However, the applicant did not hold such a qualification. For this reason, the Tribunal concludes that the applicant does not hold a qualification for general registration pursuant to s 53(c) of the National Law for the purposes of s 52(1)(a) of the National Law.
Based on all of the evidence before it, the Tribunal concludes that the applicant's diploma qualification:
1)is not an approved qualification as defined by the National Law for the purposes of s 53(a) of the National Law;
2)is not a qualification that, in substance, is comparable with any of the approved qualifications as defined by the National Law for the purposes of s 53(b) of the National Law; and
3)is not an examination or assessment that the National Board requires an applicant to have successfully completed for the purposes of s 53(c) of the National Law.
As stated above, the grandfathering provision of s 53(d) has no application in this proceeding because there is no evidence that the applicant had been registered under the law as it stood prior to the enactment of the National Law.
For all of those reasons, the Tribunal is not satisfied that the applicant holds a qualification for general registration within the meaning of that term for the purposes of s 52(1)(a) of the National Law.
Issue 3: The applicant was not provided with the same opportunity as other applicants, with similar qualifications, to complete one or more of the various bridging courses approved for qualification so as to become eligible for general registration as a registered nurse
The applicant's representative contended that the respondent should not have refused the applicant's application for registration but instead should have offered the applicant the opportunity to complete a bridging course so as to become qualified. This, he said, is what had occurred in the case of other applicants whose documents the applicant had summonsed from the respondent and which were taken into evidence as Exhibit 3 and the applicant's representative repeatedly referred to these applications to support that contention.
It is noted that in the correspondence to each of the individuals referred to in Exhibit 3 they were informed that the qualification they held was not an approved qualification (s 53(a) of the National Law) nor was it one that the National Board considered comparable to an approved qualification (s 53(b) of the National Law). However, rather than refuse that application for registration, the individuals were permitted to keep their application on foot so that they could undertake a bridging course.
In some instances the author of the letter, on behalf of the State board of the National Board, indicated that the power to stay the application for a period of time was found in s 80(1)(d) of the National Law and this is the opportunity the applicant said she was entitled to or which should have been offered to her.
The applicant also pointed to the email of 6 March 2012 (referred to earlier) from the respondent, which confirmed that such a course was being contemplated when the respondent had stated:
We seem to be in receipt of all the documentary requirements to complete the assessment of your application form. Should we find you eligible for a registration bridging program, you will be notified.
Section 80(1)(d) provides:
(1)Before deciding an application for registration, a National Board may
(a)investigate the applicant, including, for example, by asking an entity
(i)to give the Board information about the applicant; or
(ii)to verify information or a document that relates to the applicant;
…
(d)by written notice given to the applicant, require the applicant to undergo an examination or assessment, within a reasonable time stated in the notice and at a reasonable place, to assess the applicant’s ability to practise the health profession in which registration is sought[.] (Tribunal's emphasis)
…
(3)If the National Board requires an applicant to undertake an examination or assessment under subsection (1)(d) to assess the applicant’s ability to practise the health profession
(a)the examination or assessment must be conducted by an accreditation authority for the health profession, unless the Board decides otherwise; and
(b)the National Agency may require the applicant to pay the relevant fee.
(4)A notice under subsection (1)(d) or (e) must state
(a)the reason for the examination or assessment; and
(b)the name and qualifications of the person appointed by the National Board to conduct the examination or assessment; and
(c)the place where, and the day and time at which, the examination or assessment is to be conducted.
(5)The applicant is taken to have withdrawn the application if, within the stated time, the applicant does not comply with a requirement under subsection (1).
The s 80(1)(d) National Law power is conferred on the National Board so as to enable and facilitate the National Board to undertake the function of assessing an applicant for general registration as a registered nurse against the five criteria identified in s 52(1) of the National Law. The power conferred upon the National Board by s 80(1)(d) of the National Law must be read in the context of the whole of the National Law and Pt 7 of the National Law in particular. Section 3 of the National Law identifies, as objects of the National Law and the national accreditation scheme provided for by the National Law:
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered;
…
(d)to facilitate the rigorous and responsive assessment of overseas-trained health practitioners;
As stated above, s 52(1) of the National Law identifies five criteria for eligibility for general registration. Those criteria, whether they be qualifications, experience, a clear record , suitability or compliance with approved registration standards, are expressed in the present tense. The individual must meet that criteria as at the date of the application.
The s 80(1)(d) of the National Law power is conferred on the National Board not so as to allow an individual an opportunity to meet the criteria but to facilitate the National Board's investigation and assessment of the individual to ascertain whether as at the date of the application the individual does meet the s 52(1) of the National Law criteria so as to be eligible for general registration.
It is not sufficient that an applicant merely holds:
• an approved qualification (s 53(a) of the National Law); or
• a qualification that is comparable to an approved qualification (s 53(b) of the National Law); or
• has successfully completed an examination or assessment required by the National Board for the 'purpose of general qualification' such as a refresher or bridging course (s 53(c) of the National Law); or
• alternatively, falls within s 53(d) of the National Law.
Those factors go to whether the applicant meets the first of the five s 52(1) of the National Law criteria for eligibility for general registration. The individual must have 'successfully completed' any period of supervised practice 'required by an approved registration standard' (s 52(1)(b)(i) of the National Law), or, alternatively, the individual must have 'successfully completed' any examination or assessment required by 'an approved registration standard' so as to 'assess the individual's ability to competently and safely practice the profession' (s 52(1)(b)(ii) of the National Law). These factors concern the second of the five s 52(1) of the National Law criteria for eligibility for general registration.
In addition, the National Board must be satisfied that:
•the individual is 'a suitable person to hold general registration in the health profession' (s 52(1)(c) of the National Law criterion three for eligibility for general registration); and
•is not disqualified from registration under the National Law or pursuant to the law of a co-regulatory jurisdiction (s 52(1)(d) of the National Law criterion four for eligibility for general registration); and
•meets any other requirements for registration 'stated in an approved registration standard' for the health profession (s 52(1)(e) of the National Law - criterion five for eligibility for general registration).
As to suitability, s 55 of the National Law identifies what amounts to being 'unsuitable to hold registration'. Whilst there is very considerable overlap between the s 52(1)(c) of the National Law 'suitability' criterion (by reference to what is meant by unsuitable in s 55 of the National Law) and the separate and distinct criteria for general registration as identified in s 52(1)(a), (b), (d) and (e) of the National Law (see s 55(1)(c), (e), (f) and (g) of the National Law), the factors that the National Board may have regard to, in determining if an individual is 'unsuitable', necessitate the exercise of a power of investigation and enquiry. Otherwise, the National Board would be limited to the information that is put before it by an applicant. This is contrary to the objectives referred to in s 3 of the National Law and referred to above.
The investigative and inquisitorial power is found in s 80(1)(d) of the National Law. It is not conferred upon the National Board so as to facilitate the applicant with the opportunity to become eligible for general registration. The power is intended to be exercised by the National Board to test and assess the facts which the applicant asserts prove they are as at the date of their application eligible for general registration.
The Tribunal is of the view, therefore, that on a proper construction of the power conferred on the National Board by s 80(1)(d) of the National Law, the respondent was not entitled to defer consideration of the applicant's application for general registration until the applicant became eligible for registration by successfully completing an examination or other assessment required by the National Board for the purpose of general registration in the health profession. The applicant's contention that the National Board should have provided her with an opportunity to become eligible for general registration is not supportable as a matter of proper construction of the National Law, notwithstanding that other applicants may have been given that opportunity contrary to the proper construction of the National Law.
The Tribunal's conclusions in respect of the first three issues means that the Tribunal finds that the applicant does not meet the first of the five eligibility for general registration criteria referred to in s 52(1)(a) of the National Law. The applicant cannot succeed on her application to set aside the respondent's refusal to grant her general registration as a registered nurse and instead be granted such registration.
The final issue, as set out earlier, namely:
4)The applicant's application was made at the time when a previous English language skills test applied and five days before a new test was introduced and the applicant's English language skills should therefore be judged using the earlier test
concerns whether the applicant meets the fifth criterion for eligibility for general registration. As the applicant does not meet the first criterion for the reasons referred to above and must meet all five criterion, it is not necessary for the Tribunal to consider the fourth issue.
Conclusion
In the case of every application for general registration as a registered nurse, an applicant must meet the five criteria identified in s 52(1) of the National Law in order to be eligible for general registration. The respondent must consider the applicant's claim as to eligibility against each of the five criteria. The National Board has significant investigative and inquisitorial powers to assess whether an applicant is eligible for general registration as provided for by s 80 of the National Law.
In this application the Tribunal has concluded that the applicant is not qualified for general registration for the purposes of s 52(1)(a) of the National Law within the meaning of that term as provided for by s 53 of the National Law. and the respondent was not entitled or obliged to adjourn the applicant's application so that the applicant could acquire the qualification for general registration for the purposes of s 52(1)(a) of the National Law. For that reason alone the Tribunal affirms the respondent's decision to refuse the applicant's application for general registration as a registered nurse. Furthermore, for the reasons expressed above, the Tribunal also dismisses the applicant's contention that the respondent should have granted her general registration as an enrolled nurse.
In all of the circumstances and for the reasons outlined, the decision of the Nursing and Midwifery Board to refuse the applicant's registration is confirmed and this application will be dismissed.
Orders
1.The decision of the Nursing and Midwifery Board of Australia to refuse the applicant's registration is confirmed.
2.The application is otherwise dismissed.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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