Tabanas v Medical Board of Australia (No 2)
[2013] QCAT 523
•20 September 2013
| CITATION: | Tabanas v Medical Board of Australia (No 2) [2013] QCAT 523 |
| PARTIES: | Dr Troy Tabanas (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR148-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE ORDER OF THE TRIBUNAL THAT: 1. The application for miscellaneous matters filed in the Tribunal on 17 September 2013 is refused. 2. The costs of the application for miscellaneous matters filed in the Tribunal on 17 September 2013 are reserved. THE TRIBUNAL DIRECTS THAT: 1. Dr Tabanas must file five (5) copies in the Tribunal and give one (1) copy to the Medical Board of Australia of any further material, including written submissions, on which he wishes to rely upon in the final hearing and any submissions on costs as reserved in order 2, above, by: 4:00pm on 4 October 2013. 2. The Medical Board of Australia must file five (5) copies in the Tribunal and give one (1) copy to Dr Tabanas of any further material, including written submission, on which it intends to rely upon at the final hearing and any submissions on costs as reserved in order 2, above, by: 4:00pm on 11 October 2013. 3. The application will be determined on the papers; and without an oral hearing, not before 14 October 2013 |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – LICENCES AND REGISTRATION – where the Board refused to renew the registrant’s limited registration in an area of need – where the registrant sought a review of the Board’s decision – where the registrant applied for a stay – where the Tribunal granted a stay until a specified date – where the registrant sought an extension of the stay beyond the specified date – where the registrant sought a stay beyond the period for which registration could be renewed – whether the Tribunal should extend the stay of the Board’s decision Medical Practitioners Registration Act 2001, s 135 Tabanas v Medical Board of Australia [2013] QCAT 522, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Hone instructed by Haymans Solicitors |
| RESPONDENT: | Mr R W Barnes of Rodgers, Barnes and Green Lawyers |
REASONS FOR DECISION
On 9 April 2013 the Medical Board of Australia decided to refuse Dr Troy Tabanas’ application for renewal of his limited registration. Dr Tabanas was notified of the Medical Board’s decision by a notice of refusal dated 6 May 2013. On 12 June 2013 the Tribunal stayed the operation of the decision of the Medical Board. The stay was effective until 30 September 2013 or until a further the order of the Tribunal. I will not set out in these reasons the detailed history which is provided in the earlier reasons for the stay decision which were published on 2 September 2013.[1]
[1] Tabanas v Medical Board of Australia [2013] QCAT 522.
Dr Tabanas’ registration from the time it was first granted on 31 January 2008[2] was subject to conditions. The conditions included that he was required to apply for general, specialist, or, what was then, s 138 registration within four continuous years of his then special purpose registration being granted.
[2]Pursuant to s 135 of the Medical Practitioners Registration Act 2001. Section 135 provided for special purpose registration for the purpose of enabling a person to practise the profession in an area the Minister decided is an area of need for medical service. The Medical Practitioners Registration Act was repealed on 1 July 2010 by s 123 of Act No. 14 of 2010. Section 277 of the Health Practitioner Regulation National Law (Queensland) applied so that registration continued under the National Law as limited registration (area of need).
At the time the Board made its decision in June of this year, that condition had not been complied with. It remains unmet.
When Dr Tabanas applied for a stay of the refusal of the application for renewal, he did so for reasons which included that the Board had not considered his sacrifice, both personal and monetary, to be absent from work for six weeks between 22 April 2013 and 26 May 2013 to attend the Australian Medical Council (AMC) Bridging Course, and a three day Pre-employment Structured Clinical Interview (PESCI) workshop to aptly prepare himself for his upcoming examinations. Those examinations were then scheduled on 15 June 2013 for the AMC Part 1 examination (Multiple Choice Question (MCQ) examination) and on 10 August 2013 for the Royal Australian College of General Practitioners (RACGP) Applied Knowledge Test (AKT). He said in his stay application that he had already spent substantial sums of money to prepare for those, then, upcoming examinations.
As I observed in my earlier reasons, contrary to what had been said by Dr Tabanas, the fact of those examinations having been set for him to sit on those particular dates had not been communicated to the Board when it made its decision. However, notwithstanding that lack of communication to the Board, I observed that it seemed that the results in those exams, that is, the exams for which he was then enrolled, may well be a relevant matter for the Tribunal to consider in its substantive review of the Board’s refusal of his application for renewal of registration. In that regard, it was also of some significance that the Board accepted that registration was a requirement to sit the RACGP examinations, although it was not a requirement to sit the MCQ examination.
At [24] of my reasons published on 2 September 2013, I observed that it was sufficient for the present purposes of considering the stay that there was evidence that there were events which had been planned, the outcome of which events may have a bearing on the substantive decision, and that the events could not take place if the decision was not stayed; that is, that the examination could not be sat. It was also of significance, as I observed at [27] of those reasons, that although registration was not required to sit the MCQ examination on 15 June 2013, Dr Tabanas would upon having passed that examination been able to apply for limited registration. As I observed then, that seemed to be a matter which rather favoured the granting of the stay rather than its refusal.
At [28] of the earlier reasons, I said:
Of course, if Dr Tabanas is unsuccessful in those examinations, then that will have a bearing on whether or not the stay should be continued. It is unlikely that the stay would remain if Dr Tabanas did not pass those examinations.
It was for that reason that the decision was only stayed to 30 September 2013 and was to be reviewed at a directions hearing after the examination results were known. The directions hearing was set on that basis.
On 17 September 2013, Dr Tabanas, through his solicitors, filed a further application for miscellaneous matters. In that application he stated that he would request from the Tribunal, or in fact apply, for an order that the order of 12 June 2013, staying the decision of the Medical Board of 6 May 2013 until 30 September 2013, be extended up until the applicant is able to sit for and comply with the practice based assessment as an alternative College fellowship assessment for general practitioners under the RACGP. He identified that this would be on 30 May 2014 or as otherwise directed by the Tribunal.
In regard to that latter aspect, I note that I am unable to direct that he otherwise sit an exam at an earlier date.
In his application he set out a timetable by which the practice based assessment 2014 stream would be conducted. It involved a professional portfolio being provided on 20 January 2014; recorded consultations being completed by 14 March 2014; a Viva and ECV to be conducted between 10 March 2014 and 23 May 2014. He then stated that the overall results would be released on 5 September 2014. From that it would seem that his success or otherwise in that course of examinations would not be known until September 2014.
Effectively, what is applied for is a further stay of the Board’s decision to refuse renewal of registration through until 2014 – at least until May 2014 and perhaps as far as September 2014. That application really pays no heed to the fact that it is made simply as an interlocutory application in a substantive application to review the Board’s decision to refuse registration. It seeks, really, to push out the review of the refusal until such time as which Dr Tabanas may be able to pass examinations which might then be considered in that review. That was not the purpose of the stay granted by me on 12 June 2013. The purpose of the stay was to allow then identified examinations which had fixed dates for their sitting to be undertaken as that seemed to be a matter relevant to the review of the decision.
In affidavit material which has been filed, it is evident that both of those examinations were failed by Dr Tabanas. It was, in respect of the MCQ examination, the seventh occasion on which he failed that examination.
Dr Tabanas deposes to the fact that his migration status, by virtue of his subclass 457 visa, is subject to him working as a medical practitioner and that if he cannot satisfy that criteria then he will need to leave the country. That seems to me to be a consequence of his inability to continue to practice medicine as opposed to being a matter which would be in any way determinative of what I should do with this application.
Section 112 of the Health Practitioner Regulation National Law (Queensland) (National Law) provides that the Board may refuse to renew an application for renewal of an applicant’s registration on various grounds. They include grounds contained in s 82 of the National Law. Section 82(1)(c)(i)(C) provides that the Board may decide to refuse to grant the applicant registration in a health profession if the person is not a suitable person to hold registration. It was on that basis that the Board, at paragraph 8 of its reasons,[3] communicated its reasons for decision to Dr Tabanas. The Board also, in communicating its reasons, identified that Dr Tabanas had failed to comply with the condition to which I have earlier referred. Section 112(2)(b) of the National Law provides that the Board may refuse to renew an applicant’s registration if the applicant contravened any condition to which the applicant’s previous registration was subject. That seems to be the case here.
[3] As set out in the Notice of Refusal dated 6 May 2013.
Under s 112(6) of the National Law, registration can only be renewed under Part 7, division 9 for a period of 12 months after the date on which it starts. The date on which it starts must be the date immediately after the applicant’s previous period of registration ends or ended. In the substantive application, therefore, it would seem that Dr Tabanas’ registration could only be renewed for the period, even if he was successful in his substantive application, from 14 November 2012 to 13 November 2013. That raises the question of utility in relation to the further extension which he now seeks.
In my view, the purpose for which the stay was granted on the earlier occasion of 12 June 2013 has now been spent. That is, the examinations which were to be facilitated by that stay have now been sat and the results known. Both the results are failures. That is a matter which can now be considered in the substantive application to be heard at some time in the future.
For those reasons I refuse the application to further extend the stay. The order will stay in the terms in which it is, that is, the stay is effective until 30 September 2013.
In coming to that conclusion I have considered the aspect of the public interest in Dr Tabanas practising in an area of need in Townsville which I identified in the earlier reasons. Whilst there is evidence before me by way of Dr Tabanas’ affidavit of 20 September 2013 as to the impact that an inability for him to continue to work in the practice may have on the practice itself, there is, really, little evidence about what effect it might have on the patient load.
Certainly, there is evidence that he was able to absent himself from the practice for the six week period when he undertook preparations for examinations to which I have already referred. Notwithstanding that Townsville is an area of need, it seems to be inappropriate that I would simply continue the stay of the decision indefinitely on the basis that there might be one fewer medical practitioners in Townsville as a consequence of the decision. Certainly, there is no evidence which has been put on before me of any attempts which have been made by the practice to obtain the services of another medical practitioner, or any difficulties which might have been associated with that.
The application will be dismissed.
Mr Barnes, on behalf of the Board, seeks an order that I dismiss the substantive review application. I’m unpersuaded that I ought make that decision at this time as it seems to be premature.
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