Saini v Medical Board of Australia
[2012] QCAT 343
| CITATION: | Saini v Medical Board of Australia [2012] QCAT 343 |
| PARTIES: | Dr Gurcharan Singh Saini (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR240-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 25-26 June and 24 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Sandra Congdon Dr Kong Hai Goh Ms Susan Johnson |
| DELIVERED ON: | 25 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Board’s decision to refuse to renew Dr Saini’s registration is set aside. 2. Dr Saini’s registration is renewed subject to the following conditions: i. conditions b, c, d, e, f, h, i, and j of his current registration; ii. a condition that he must pass the Viva component of the RACGP exams by December 2013; and iii. a condition that he must authorise his supervisor to submit monthly work performance reports to the Board. 3. The review period for the new conditions is 12 months. 4. Any application for costs must be made to the Tribunal within 14 days. 5. Any such application will be determined on the papers after receipt of written submissions from the parties. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – REGISTRATION – Where the Board refused to renew the limited registration of an overseas trained doctor – where the Tribunal stayed the decision – where the doctor repeatedly failed exams but passed 2 of the 3 RACGP exams after the proceedings commenced – where the Board agreed its decision should be set aside – where the parties did not agree what conditions must or should be imposed on his registration Saini v Medical Board of Australia [2010] QCAT 515 Health Practitioner Regulation National Law (Queensland), ss 88, 112(6), 112(3)(a), 112(3)(b), 112(4), 125, 199(1)(e) Queensland Civil and Administrative Tribunal Act2009, ss 19, 24 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr O’Gorman SC instructed by Avant Law |
| RESPONDENT: | Mr R Fryberg instructed by McGuiness Wilson |
REASONS FOR DECISION
Dr Saini, an overseas trained doctor, applied to review the Board’s decision to refuse to renew his limited registration, under which he worked in an approved position, under supervision. His registration was subject to a requirement that he qualify for registration as a general practitioner in 2010. In 2010, the Board decided Dr Saini’s limited registration should not be renewed because of his history of repeated failures of examinations he needed to pass in order to be eligible for unlimited registration as a general practitioner.
Dr Saini filed his application in September 2010. On 14 October 2010, the Tribunal stayed the Board’s decision.[1] The effect of the decision is that Dr Saini’s registration continues until these proceedings are determined.
[1] Saini v Medical Board of Australia [2010] QCAT 515.
After the stay was granted, and before the hearing of Dr Saini’s application, he attempted other examinations. Critical to the outcome in these proceedings is that he successfully completed 2 of the 3 components of the examinations offered by the Royal Australian College of General Practitioners. Successful completion of all 3 components within a 3 year cycle qualifies the practitioner for fellowship of the College. In turn, that status means the practitioner is eligible for unlimited registration as a general practitioner.
The application was heard over two days in June. Dr de Jong, the expert called by the Board, told the Tribunal that, given Dr Saini’s performance in the 2 RACGP exams that he passed, he could practise under limited registration and under level 2 supervision. What that entails is detailed in the Board’s Guideline.[2]
[2] Supervised Practice for Limited Registration, Medical Board of Australia, 1 May 2012.
After that evidence was given, the Board withdrew its opposition to Dr Saini’s application. The hearing resumed in July to hear further submissions.
The parties agree the Board’s decision should be set aside and the Tribunal should substitute a decision to renew Dr Saini’s registration. Once the Tribunal makes its decision, the Board will issue a new certificate of registration. His registration will then be renewed until 12 months after the certificate was issued.[3]
[3] Health Practitioner Regulation National Law (Queensland), s 112(6).
They disagree, though, about what conditions must or should be imposed on Dr Saini’s registration. In substance the disagreement relates to the period by which Dr Saini must successfully complete the third component of the RACGP exams and the conditions under which he is able to practise as a limited registrant.
The period allowed for Dr Saini to complete the third component of the RACGP exams
If the conditions of Dr Saini’s registration reflect the examination requirements of the RACGP, he will be allowed until December 2013 (some 16 months hence) to complete the final examination stage which is a Viva (oral examination).
The Board argues he should pass the Viva by October 2012, because his repeated history of failures raises a concern about his fitness to practise.
No complaint has been made about Dr Saini’s treatment of any patient. Although absence of patient complaint does not necessarily demonstrate competence, there is also no complaint from any other source and no adverse patient outcome has been reported.
Further, there is other positive evidence of Dr Saini’s performance. In addition to the support expressed by his supervisor, Dr Saini’s clinical practice was subject to observation by peer assessors. He comfortably passed that aspect of the RACGP exams.
Although Dr Saini did not meet the condition requiring him to qualify for unlimited registration in 2010, he has, since, made important progress. This has been achieved during a period in which it is likely that Dr Saini was subject to stress arising from these proceedings.
In the absence of any indication that Dr Saini presents a material risk and given his progress to date, it is reasonable to allow Dr Saini the period set by the RACGP to complete the final stage of his exams.
The other conditions of registration
The parties agree that Dr Saini’s registration should be subject to level 2 supervision. Dr Saini has proposed a set of conditions modelled on the Board’s Guideline. They are less onerous than the conditions the Board says the Tribunal must and should impose.
The Board argues the Tribunal’s decision must be to impose the same conditions that Dr Saini’s registration is currently subject to. If the Board made the decision to renew, Dr Saini’s registration would be subject to those conditions.[4] In reviewing the Board’s decision, the Tribunal has the same powers of the Board, and the effect of its decision to renew is, therefore, likewise bound by that statutory requirement.[5]
[4] Health Practitioner Regulation National Law (Queensland), s 112(3)(a).
[5] Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24.
Although there is a process for a practitioner to object to a condition when it is first imposed,[6] or to apply to remove a condition,[7] neither application is before the Tribunal.
[6] Health Practitioner Regulation National Law (Queensland), ss 81, 199(1)(e).
[7] Health Practitioner Regulation National Law (Queensland), s 125.
Although Dr Saini contested the need for the particular conditions, he did not meet the Board’s argument about the scope of the Tribunal’s power on the application before it. The interpretation contended for by the Board is the ordinary meaning of the words used in the relevant provision. It seems that on an application to renew registration alone, neither the Board nor the Tribunal would have the power to remove or vary the existing conditions (save those which have no further operation because of the passage of time).
The Board has identified those conditions that have ongoing effect in paragraph 9 of its submissions provided on 10 July 2012. It argued one of them (condition e) should be varied to cast the obligation on Dr Saini, not his supervisor. That stance is inconsistent with its submission, accepted by the Tribunal, that the Tribunal must impose the conditions that apply at the time of registration and has no power to vary them.
If the Tribunal had the power to vary the conditions, it would have been disposed to vary them in the ways proposed by Dr Saini. The conditions proposed by Dr Saini were modelled on the Board’s guideline and the Tribunal is not persuaded that more is required.
However, as the Tribunal accepts the Board’s argument that the existing conditions must be imposed, its hands are tied in the matter.
It follows that, if the Tribunal cannot vary the conditions as Dr Saini has proposed, it also cannot vary condition e in the way the Board has proposed. Accordingly, save for those that have no effect because of the passage of time, Dr Saini’s registration, when renewed, will be subject to the existing conditions, as they are now framed.
The Board proposes two further conditions. Although the Board, and the Tribunal, cannot remove or vary existing conditions, it does have the power to impose additional conditions.[8]
[8] Health Practitioner Regulation National Law (Queensland), s 112(3)(b).
The first additional condition proposed by the Board requires Dr Saini to pass the Viva component of the RACGP exams before October 2012. For reasons already given, the date the Tribunal will impose will reflect the period allowed under the RACGP examination cycle, not the date requested by the Board.
The second condition requires Dr Saini to ensure his approved supervisor submits monthly work performance reports to the Board. Dr Saini is willing to authorise his supervisor to do so, but, not unreasonably, objects to a condition that requires him to ensure something that may be beyond his control. The condition proposed by the Board will be reframed to require Dr Saini to authorise his supervisor to report regularly.
Costs
The Board has reserved its position on costs. If any party wishes to apply for an order for costs in its favour, it must make an application within 14 days and the Tribunal will determine the matter on the papers, after receiving the parties’ written submissions.
Orders
The Tribunal’s orders are:
1. The Board’s decision to refuse to renew Dr Saini’s registration is set aside.
2. Dr Saini’s registration is renewed subject to the following conditions:
i.conditions b, c, d, e, f, h, i, and j of his current registration;
ii.a condition that he must pass the Viva component of the RACGP exams by December 2013; and
iii.a condition that he must authorise his supervisor to submit monthly work performance reports to the Board.
3. The review period for the new conditions is 12 months.[9]
[9] Health Practitioner Regulation National Law (Queensland), s 112(4).
4. Any application for costs must be made to the Tribunal within 14 days.
5. Any such application will be determined on the papers after receipt of written submissions from the parties.
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