Saini v Medical Board of Australia
[2010] QCAT 515
•14 October 2010
| CITATION: | Saini v Medical Board of Australia [2010] QCAT 515 | |
| PARTIES: | Dr Gurcharan Singh Saini (Applicant) | |
| v | ||
| Medical Board of Australia (Respondent) | ||
| APPLICATION NUMBER: | OCR240-10 |
| MATTER TYPE: | Occupational Regulation matters |
| HEARING DATE: | 8 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 14 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Both parties have leave be legal represented in this matter [2] Stay the operation of the decision of the Medical Board of Australia of 27 August 2010 until the determination of the applicant’s application to review that decision or earlier order. |
| CATCHWORDS : | PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – Queensland Civil and Administrative Tribunal act 2009, s 22(4) – where applicant overseas trained doctor – where registered as medical practitioner in Australia pursuant to limited registration in an area of need – where no compliant about performance of applicant from public, supervisors or professional colleagues – where applicant examined under the structured clinical interview test – where applicant rated as unsatisfactory in certain areas of the test – where applicant failed to pass the RACGP applied knowledge test – where the Medical Board of Australia refused to renew the applicants registration as medical practitioner – where the applicant seeks to review that decision – where the applicant seeks a stay of the Board decision pending a review – whether stay should be granted pursuant to Queensland Civil and Administrative Act 2009 s 22(4) Health Practitioner Regulation National Law Act 2009 ss12, 65, 112, 156 Queensland Civil and Administrative Tribunal Act 2009 ss 19, 22(2)(b), (3) and (4). |
APPEARANCES and REPRESENTATION (if any):
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REASONS FOR DECISION
Dr Saini was trained as a Medical Practitioner in India. In 2005 the Royal Australian College of General Practitioners (RACGP) assessed his overseas general practice time as 3 years and 3 months approved general practice time, as at 8 November 2004.
Dr Saini’s most recent registration[1] applied for the period 1 December 2009 to 12 May 2010. Within time, Dr Saini applied to renew his registration.
[1] The registration was effected under the Medical Practitioners Registration Act 2001. The effect of Health Practitioner Regulation National Law Act 2009 s272 is that from 1 July 2010, Dr Saini was taken to hold limited registration for the purpose stated under the National Law Act.
His registration was for a special purpose activity: to fill an area of need in group general practice at Mackay Family Medical Practice with supervision by Dr Mas – u – Dul Haque. A condition of registration was that:
The registrant must successfully undertake a Structured Clinical Interview (SCI) and provide the results to the Board by 16 April 2010.
Dr Saini did undertake an SCI. The interview panel considered he was not suitable for the position for which registration was sought. The Board gave Dr Saini the opportunity to show cause why it should not refuse his application. After considering submissions made on his behalf by Avant Law, the Board decided to refuse his application.
Dr Saini seeks a stay of the Board’s decision pending determination of his application to QCAT to review it. QCAT has the power to order a stay if it considers it is desirable having regard to:
a.The interests of any person whose interests may be effected by the QCAT making or the not making the order;
b.Any submission made to QCAT by the Board;
c.The public interest.
If the stay is granted, its effect would be to maintain Dr Saini’s registration until QCAT’s review of the Board’s refusal of his application to renew his registration is determined[2].
[2] Health Practitioner Regulation National Law Act 2009 ss 107 and 108; Medical Board of Australia v Moodley; Medical Board of Australia v Kahn [2010] QCAT 457
Before turning to the questions involving the interests of persons who might be affected by QCAT’s decision on the stay application and the public interest, an argument raised by the Board at the hearing will be considered.
Can the Board grant Dr Saini the registration he seeks?
Counsel for the Board argued Dr Saini was not eligible for the registration he sought because of his failure to comply with the condition set out above. He argued this was the effect of certain provisions of the Health Practitioner Regulation National Law Act 2009 (the National Law) and of a registration standard. He submitted, in such a case, the Board, and on review QCAT, could not grant Dr Saini the relief he sought.
Counsel’s submissions rest on his interpretation of a section which specifies the requirements for eligibility for registration under the National Law Act for an area of need[3]. He argued each of the requirements specified are mandatory qualifying conditions such that a practitioner who did not meet them all strictly was not eligible for registration and could not be registered.
[3] Health Practitioner Regulation National Law Act 2009 s 65
[10] One of the matters specified is:
that the individual meets any other requirements for registration stated in an approved registration standard for the health profession[4].
The Board tendered a document entitled “Limited Registration for Area of Need Registration Standard” and evidence that it had been approved by the Australian Health Workforce Ministerial Council[5].
[4] Health Practitioner Regulation National Law Act 2009 s 65(1)(e)
[5] Health Practitioner Regulation National Law Act 2009 s 12
[11] The registration standard contains a similar requirement for registration to the condition imposed on Dr Saini’s registration: that an applicant must demonstrate satisfactory results of a Pre Employment Structured Clinical Interview (PESCI)[6]. It also provided that renewal of registration will be subject to certain requirements, including demonstrating compliance with a condition or requirement of registration[7].
[6] Limited Registration for Area of Need Registration Standard (Medical Board of Australia) page 2: 2. Standard Pathway: (d)
[7] Limited Registration for Area of Need Registration Standard (Medical Board of Australia) page 3: 1.(b)
[12] Counsel relied on s65[8] and the Registration Standard to establish that a satisfactory assessment under the SCI was a mandatory requirement and, where that was not met, Dr Saini was not eligible for registration and the Board was unable to renew his registration.
[8] Health Practitioner Regulation National Law Act 2009
[13] The effect of the Board’s submissions, as I understand them, would be that a condition fixed in an approved Registration Standard would prevent the Board and, presumably also QCAT[9], from considering whether a particular applicant has the necessary skills, training and experience to safely meet the particular need for health services in an area, despite an unsatisfactory assessment.
[9] Queensland Civil and Administrative Tribunal Act 2009 s 19
[14] At first blush that seems to be a surprising outcome given the assessment is not undertaken by the Board but by an independent panel. More so when one considers that the Board must consider the application and advise the applicant of the right to apply to review its decision.
[15] Before such a conclusion could be drawn, their needs be careful consideration of the scheme of the National Law Act, including the status and function of approved standards made under it. There are many more relevant provisions than the section to which I was referred, including the section which governs the Board’s power to renew a practitioner’s registration. That section provides the Board may refuse to renew an applicant’s registration if the applicant has contravened a condition of their previous registration[10]. The use of the permissive may in that section does not rest easily with the Board’s submission about the effect of s65.[11]
[10] Health Practitioner Regulation National Law Act 2009 s 112(2)(b)
[11] Health Practitioner Regulation National Law Act 2009
[16] No doubt there are other arguments that bear upon this important issue. Its resolution has implications not just for Dr Saini. There are already a number of practitioners who have applied to QCAT to review decisions made by the Board in similar circumstances.
[17] It is not appropriate that the question is determined on an interlocutory basis and, it should be noted that counsel for the Board did not ask me to do so. Rather, I understood him to invite me to consider his argument as a factor that should weigh in the balance on the application to stay the Board’s decision. The prospects of success are a relevant consideration on an interim order of this sort.
[18] However, I am not persuaded by the Board’s submissions that Dr Saini does not have sufficient likelihood of success to justify a stay.
The interests of persons other than Dr Saini, including the public interest
[19] There is a clear dispute on the material about Dr Saini’s competence to practice in a supervised capacity. The assessment by the independent panel was unfavourable. However, Dr Saini has led evidence from three practitioners that might lead to a different conclusion.
[20] Firstly, Dr Saini has provided a letter from Dr Hansrajh, with whom he works at the Mackay Family Medical Practice. He describes him as efficient, popular with patients with a large patient base. He also said Dr Saini was not afraid to seek guidance from his colleagues. That is not provided by way of an affidavit from Dr Hansrajh and does not directly address his competence.
[21] Secondly, there is an affidavit from his supervisor, Dr Haque who described Dr Saini as confident and knowledgeable and said his management of patients is reasonable and in accordance with accepted practice. Dr Saini, he said, is eager to consider feedback about his practice.
[22] Counsel for the Board submitted Dr Haque’s opinion should be accorded little weight as he had an interest in maintaining Dr Saini’s services in the practice. If QCAT was to disregard his assessment for that reason, it would mean the assessment of the person appointed by the Board to supervise Dr Saini was afforded little or no weight. As well as being insulting to Dr Haque, it rather makes a nonsense of his appointment as Dr Saini’s supervisor.
[23] Thirdly, there is the affidavit of Dr Jacobs, an Associate Professor of General Practice in Rural Medicine with James Cook University Dr Jacobs is also a travelling fellow of the RACGP and a member of its North Queensland Sub-Faculty Exam Panel. From time to time he assists colleagues by giving guidance on clinical practice and exam preparations.
[24] At Dr Saini’s request, he reviewed four video taped consultations of Dr Saini. He said he was quite comfortable with the standard of care evidenced in those consultations. He saw no evidence of inadequate or substandard practice by Dr Saini.
[25] Counsel for the Board noted Dr Jacob’s statement that he could not assess Dr Saini’s overall knowledge and competence. That is true, however Dr Jacob did express his view that Dr Saini had a sufficient level of knowledge and skill to practice safely under supervision until he completed a practice based assessment program. That assessment would seem to go to an important issue in considering the public interest in this case.
[26] The independent panel’s assessment of Dr Saini would have to be described as strongly unfavourable. There are also Dr Saini’s low scores on his RACGP examinations in 2009, although they are designed to assess a practitioner’s competence for unsupervised practice. This is the evidence upon which the Board has decided to refuse Dr Saini’s application to renew his registration. Nevertheless there is a dispute about Dr Saini’s competence to practice even in a supervised capacity that cannot be resolved at this stage of proceedings.
[27] Importantly for the stay application, both the independent panel and Dr Jacobs expressed the view that there is no apparent risk to the public for Dr Saini to practice in a supervised capacity in the short term. This no doubt explains why the Board did not feel compelled to take immediate action once it had received the panel’s report[12]
[12] Health Practitioner Regulation National Law Act 2009 s 156
[28] There is no dispute the practice operates in an area of need. Persons who might be affected by the order not being made are patients serviced by the centre.
[29] Between 17 and 24 September signatures by or on behalf of some 24 patients were recorded on a petition requesting reconsideration of the decision about Dr Saini’s registration. Dr Haque speaks well of Dr Saini’s practice. Rebecca Neilsen, who was, until recently, the Practice Manager said she had not received any complaints about his care.
Dr Saini’s interests
[30] Dr Saini has lived and worked in Mackay since 2007 and is committed to staying there. Although he has not produced his visa, he says it contingent on him working as a doctor. There are standard conditions which apply to such visas which require the practitioner to maintain their employment by the employer in relation to which the visa was granted[13].
[13] Migration Regulations 1994 (Cth) Schedule 8 [8107]
[31] I am not persuaded the distinction in terminology between employment (used in the regulation) and working as a doctor (the phrase used by Dr Saini in his affidavit) is of any real significance. It follows that if Dr Saini cannot work for the employer to whom the visa relates, that visa is at risk. I am sufficiently satisfied to act on the sworn evidence of Dr Saini and decline to draw the adverse inference urged upon me by the Board’s counsel[14].
[14] Counsel relied on the rule in Jones v Dunkel in support of his submission that I should draw an adverse inference from Dr Saini’s failure to produce the visa or to lead evidence about his current employment status.
Conclusion
[32] While there is a clear dispute about Dr Saini’s competence to practice in a supervised capacity, both the independent panel and Dr Jacobs expressed the view that he did not present any immediate risk to patients. Although the interests of others are of primary concern, I do take into account the possibility of consequences for Dr Saini, other than a loss of income, if a stay is not granted. He works in an area of need. He is supported in continuing his practice by his supervisor, his colleagues and his patients. On balance those factors favour granting a stay of the Board’s decision pending determination of his application to review it.
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