Tabanas v Medical Board of Australia (No 3)
[2013] QCAT 524
•5 November 2013
| CITATION: | Tabanas v Medical Board of Australia (No 3) [2013] QCAT 524 |
| PARTIES: | Dr Troy Tabanas (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR148-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 5 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is refused. 2. The decision of the Medical Board of Australia of 9 April 2013, to refuse Dr Troy Tabanas’ application for renewal of limited registration, is confirmed. 3. Dr Tabanas must pay the Medical Board’s costs of and incidental to the proceedings, including the application for miscellaneous matters filed 17 September 2013, as agreed or as assessed on a standard basis on the District Court Scale. |
| CATCHWORDS: | HEALTH PRACTITIONERS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where the registrant applied for renewal of limited registration in an area of need – where the Board refused the registrant’s application – where the registrant sought review in the Tribunal – where the registrant failed to comply with conditions on registration requiring the registrant to progress to general or specialist registration – where the registrant failed multiple examinations for specialist and general registration – where the registrant had practised for twenty years without complaint – whether the practice history of the registrant demonstrated competence – whether the registrant’s registration should be renewed – whether the registrant should pay the Board’s costs of the proceeding Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld), s 398A, s 398B, s 398C, s 398D, s 398K, s 398L Attudawage v Medical Board of Australia (No. 2) [2011] QCAT 452, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Dr Troy Tabanas was formerly registered as a medical practitioner under the Health Practitioner Regulation National Law(Queensland) (National Law). On 6 May 2013 the Australian Health Practitioner Regulation Agency issued a notice under s 112 of the National Law informing Dr Tabanas that at its meeting on 9 April 2013 the Queensland Board of the Medical Board of Australia had refused his application for renewal of his limited registration.
Dr Tabanas applied to the Queensland Civil and Administrative Tribunal for a stay of that decision. On 12 June 2013 the Tribunal stayed the decision until 30 September 2013. The Tribunal’s reasons for granting the stay were delivered on 2 September 2013.[1]
[1] Tabanas v Medical Board of Australia [2013] QCAT 522.
The purpose of the stay was to permit Dr Tabanas to sit certain examinations for which he was then enrolled; the successful completion of which may have been relevant to his application for review of the Board’s decision refusing renewal of his registration. One of the examinations required him to be registered at the time it was undertaken.
In the event, Dr Tabanas failed all of the examinations. Notwithstanding those failures, he applied to the Tribunal for a further stay of the Board’s decision.[2] That application sought to stay the refusal to renew his registration, perhaps until as late as September 2014, to permit him to pursue an alternative pathway to full registration. That application was misconceived in that, even a successful review of the decision to refuse his renewal of registration, would only have resulted in that registration being renewed until November 2013. A stay of a decision should not act as a vehicle by which registration of a practitioner is extended beyond the end of the period of registration which would have applied had the renewal been granted.
[2] Application for miscellaneous matters filed 17 September 2013.
On 20 September 2013 I dismissed the application for a further stay of the refusal decision.[3] At that time, the Board sought to have the substantive proceedings dismissed on the basis that they lacked utility. I declined to dismiss the proceedings at that time as I considered the application to do so premature as there was still some utility in the proceedings. If successful, Dr Tabanas could have his registration reinstated until 13 November 2013. Holding current registration may have been to his benefit in applying for new limited registration.
[3] Tabanas v Medical Board of Australia (No. 2) [2013] QCAT, 20 September 2013.
The parties have filed written submissions in the substantive application.
Does the Tribunal need to be assisted by Assessors?
Part 12A of the Health Practitioner (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act) “provides for particular matters about particular tribunal proceedings relating to an NRAS registrant”.[4] It contains provisions which provide for the constitution of the Tribunal including that a judicial member must constitute the Tribunal and the Tribunal must be assisted by assessors.[5]
[4] Disciplinary Proceedings Act, s 398A.
[5] See Part 12A, division 4, particularly ss 398K and 398L.
Sections 398C and 398D of the Disciplinary Proceedings Act provide for the Tribunal’s jurisdiction under Part 12A. Pursuant to these sections the Tribunal has jurisdiction to:
a) hear matters referred to the Tribunal under s 193 of the National Law; and
b) review reviewable decisions under s 199 of the National Law; and
c) review tribunal review decision under division 3. [6]
[6]These decisions are defined in s 398B as a NRAS disciplinary matter, although the difference between the wording used in s 398C and the definition of a NRAS disciplinary matter is curious. Section 398C confers jurisdiction to “review reviewable decisions under the National Law (Queensland), s 199”. The definition of a NRAS disciplinary matter includes “a review of a reviewable decision under the National Law (Queensland), part 8, division 13”. Section 199 appears in Part 8, division 13. No section which appears in part 8, division 13, other than s 199, provides for a review. The other sections in that division relate to who the parties are on review, the costs that may be ordered by the Tribunal, the powers of the Tribunal on review and the relationship with the QCAT Act.
An application to review under s 199 of the National Law, which this is, is neither a matter referred under s 193 of the National Law[7] nor a review of a tribunal review decision.[8]
[7]Section 193 requires the Board to refer to the Tribunal matters in which it reasonably believes a health practitioner has engaged in professional misconduct or a health practitioner has improperly obtained registration through false or misleading information.
[8]Tribunal review decision is defined in s 398D. Tribunal review decisions are certain decisions made by the Tribunal either after a review under s 199 of the National Law or upon hearing a matter referred under s 193 of the National Law.
The Tribunal is conferred jurisdiction to review a reviewable decision by s 398C. That section states that Part 12A is taken to be an enabling act for the purpose of the QCAT Act,[9] despite the National Law already being an enabling act. Therefore, the provisions in Part 12A apply to a review under s 199, in addition to any applicable provisions in the National Law, if the review is of a reviewable decision.
[9]Section 9 of the QCAT Act provides that the Tribunal has jurisdiction to deal with matters it is empowered to deal with either under the QCAT Act or an enabling Act. Section 6(7) of the QCAT Act states that an enabling Act may add to, otherwise vary, or exclude provisions in the QCAT Act about the conduct of proceedings, including practices and procedures.
Reviewable decision is defined in s 398B of Disciplinary Proceedings Act as “a decision mentioned in the National Law (Queensland), section 199(1) that is made under part 8 of that Law.”
A decision by the Board to refuse to renew a person’s registration is a decision mentioned in s 199 of the National Law. It is not, however, made under Part 8 of that law. A decision about an application for renewal of registration is made under s 112 of the National Law, this appears in Part 7 of the National Law.
As a review under s 199(1)(d) of the National Law is not a reviewable decision, s 398C does not confer jurisdiction on the Tribunal and Part 12A is not taken to be an enabling act. It follows that Part 12A, division 4 which provides for the procedure in NRAS disciplinary proceedings does not apply.
The enabling act for a review pursuant to s 199(1)(d) is the Health Practitioner Regulation National Law Act 2009 (National Law Act).[10] The procedures for such a review are provided in Part 8, division 13 of the National Law Act and the QCAT Act.[11] Neither contains provisions which require the Tribunal to be assisted by assessors.
[10]Pursuant to s 6 of the National Law Act; see also the definition of an enabling act in s 6 of the QCAT Act.
[11]See National Law Act, s 9.
Consideration
The history of Dr Tabanas’ registration and practice of medicine in Australia is set out in the Tribunal’s decision on the first stay application.[12] That decision also records the reasons for the Board’s decision to refuse renewal of Dr Tabanas’ limited registration. I shall not repeat those matters here.
[12]See Tabanas v Medical Board of Australia.
The decision to refuse renewal of Dr Tabanas’ registration is an appealable decision.[13] An appeal under s 199 of the National Law proceeds as a review of the decision under the QCAT Act.[14] The Tribunal must hear and determine the review by way of a fresh hearing on the merits, the purpose of the review being to produce the correct and preferable decision.[15] The Tribunal must determine the application for renewal of registration on the evidence adduced before it in the hearing.[16] The Tribunal is able to consider evidence of matters which have occurred after the decision under review was made.[17]
[13]National Law, s 199(1)(c).
[14]National Law Act, s 9.
[15]QCAT Act, s 20.
[16]Attudawage v Medical Board of Australia (No.2) [2011] QCAT 452 at [10].
[17]Pearse v Medical Board of Australia [2013] QCAT 392 at [37].
The Board, and the Tribunal on review, must decide an application for renewal of registration under s 112 of the National Law. Section 112(2) provides grounds upon which renewal of registration may be refused. These grounds include that an applicant contravened any condition to which their previous registration was subject (and if the application is for renewal of limited registration, that the applicant’s limited registration has been previously renewed 3 times).
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.
In order to satisfy the conditions of his registration, imposed from the time at which he was first registered, Dr Tabanas ought to have been in a position to apply for general or specialist registration by 13 January 2012. He was not.
Neither was he in a position to apply for general or specialist registration when the Board first came to consider his most recent application for renewal of his limited registration. The Board deferred further consideration of that application to await the results of the Multiple Choice Question (MCQ) examination which Dr Tabanas sat on 16 February 2013. Dr Tabanas failed that examination. Thus he was not in a position to satisfy the condition of his registration when the Board came to further consider his application for renewal in April 2013.
Because he again failed the MCQ examination in June 2013 and the Applied Knowledge Test in August 2013, he remains unable to satisfy the condition.
It is submitted on behalf of Dr Tabanas that the most accurate way of assessing his competency as a medical practitioner is to examine his history. In that regard, it is said that he is clearly a very capable and confident practitioner, having practised for 20 years without having been the subject of complaint.[18] Other medical practitioners and allied health professionals speak highly of his abilities.
[18]Applicant’s submissions filed 4 October 2013, [40].
Whilst it is apparent that Dr Tabanas regularly has seen a large number of patients since obtaining limited registration in Australia, and that he has not been the subject of complaint, and that he has the support of other medical practitioners, I am not persuaded that these are the most accurate means of assessing competence. If they were, there would be little if any utility in the examinations which set the measurable standards for admission into general or specialist practice.
A non-injurious and complaint free period of practice is not necessarily demonstrative of a sufficient level of competence. Examinations apply a uniformity to the measurement of competence. They also serve to set a measurable standard of competence, the attainment of which is considered a minimum necessary requirement to enter, or remain within, the profession.
Repeated failures to meet those standard requirements provide a sound basis for concluding that the person is unable to demonstrate a sufficient level of competence.
Requiring persons seeking registration to demonstrate their competence by passing such examinations is entirely consistent with the objectives of the national registration and accreditation scheme established under the National Law 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, and to facilitate the rigorous and responsive assessment of overseas trained health practitioners.[19] It also facilitates the guiding principle of the scheme that it operate in a transparent, accountable, efficient, effective and fair way.[20]
[19]National Law, ss 3(2)(a) and (d).
[20]National Law, s 3(3)(a).
The decision to refuse the renewal of Dr Tabanas’ registration was the correct and preferable decision. His application to review that decision is dismissed.
The Board has sought an order that Dr Tabanas pay its costs of the proceedings. It is appropriate that he do so. I shall order that Dr Tabanas pay the Board’s costs of and incidental to the proceedings, including the further stay application heard on 20 September 2013, as agreed or as assessed on the standard basis for matters on the District Court Scale.
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