Tan, Dr Siew and Ors v Vocational Registration Appeal Committee and Anor 1997 FCA 1248
[1997] FCA 1248
•14 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - medical practitioners - vocational registration of general practitioner - Heath Insurance Act 1973 - Health Insurance (Vocational Registration of General Practitioners) Regulations 1989 - refusal of registration - appeal to Vocational Registration Appeal Committee - criteria published by Royal Australian College of General Practitioners - regulations requiring Appeal Committee to have regard to criteria - unquantified discounting of training and experience overseas - failure of natural justice - requirement for reconsideration - direction to allow appeal in one case.
Health Insurance (Vocational Registration of General Practitioners) Regulations (1989)
Administrative Decisions (Judicial Review) Act 1977
Jayasuriya v Vocational Registration Appeal Committee (1994) 34 ALD 183
Siew Tan and Others v Vocational Registration Appeal Committee and Another (Carr J, 21 June 1996, unreported)
Reid and Ors v Vocational Registration Appeal Committee (O’Loughlin J, 21 February 1997, unreported) applied
DR SIEW TAN, DR KIRAN RUBINA SHAHID, DR AMINDER SINGH, DR AUMUGAN NATCHIMUTHOO v VOCATIONAL REGISTRATION APPEAL COMMITTEE and JOHN MARTYN EVERED (MANAGING DIRECTOR OF THE HEALTH INSURANCE COMMISSION)
WAG 169 OF 1996
FRENCH J
PERTH
14 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 169 OF 1996
BETWEEN: DR SIEW TAN, DR KIRAN RUBINA SHAHID,
DR. AMINDER SINGH, DR ARUMUGAN
NATCHIMUTHOO
APPLICANTS
AND VOCATIONAL REGISTRATION APPEAL COMMITTEE
FIRST RESPONDENT
AND JOHN MARTYN EVERED (MANAGING DIRECTOR OF THE
HEALTH INSURANCE COMMISSION)
SECOND RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
14 NOVEMBER 1997
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The decisions of the First Respondent with respect to each of the Applicants are set aside.
In respect of Dr. Siew Tan, the General Practice Recognition Appeal Committee, as successor of the First Respondent, is to allow Dr Tan’s appeal and to certify:
(a)that his medical practice is predominantly general practice; and
(b)that he has training and experience in general practice that make it appropriate for him to be registered.
In relation to each of Drs Shahid, Singh and Natchimuthoo:
(a)the matter be remitted to the General Practice Recognition Appeal Committee for determination according to law;
(b)before making its determination the General Practice Recognition Appeal Committee is directed within twenty eight (28) days to advise each of the Applicants:
(i)of the criteria by which it will assess their overseas general practice experience;
(ii)how the criteria are relevant to its assessment;
(iii)any specific information it requires in relation to those criteria.
(c)before making its decision the General Practice Recognition Appeal Committee is directed to offer each of the Applicants a reasonable period within which to comment upon the criteria and their relevance and to provide such additional information as may be required.
(d)the preceding directions need not be observed if, having regard to the time that has now passed since the First Respondent’s decision in October 1996 and the experience gained by the Applicants since that time, the General Practice Recognition Appeal Committee is satisfied that it is appropriate that the Applicants or any of them can be registered.
(e)in the event that the Applicants do not fulfil criterion 4 of the RACGP Criteria, the Committee will consider their applications on the merits as required by reg 5(2)(b) of the Health Insurance (Vocational Registration of General Practitioners) Regulations 1989.
The Second Respondent is to pay the Applicants’ costs of the application.
There is liberty to apply for further directions within twenty eight (28) days.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 169 OF 1996
BETWEEN:
DR SIEW TAN, DR KIRAN RUBINA SHAHID, DR AMINDER SINGH, DR ARUMUGAN NATCHIMUTHOO
APPLICANTS
AND:
VOCATIONAL REGISTRATION APPEAL COMMITTEE
FIRST RESPONDENT
JOHN MARTYN EVERED (MANAGING DIRECTOR OF THE HEALTH INSURANCE COMMISSION)
SECOND RESPONDENT
JUDGE:
FRENCH J
DATE:
14 NOVEMBER 1997
PLACE:
PERTH
REASONS FOR JUDGMENT
History of Proceedings
These proceedings are brought by four medical practitioners who, since 1994, have been seeking enrolment on the Vocational Register of General Practitioners under the Health Insurance (Vocational Registration of General Practitioners) Regulations (1989). A higher Medicare rebate is payable in respect of services provided by practitioners on the Register. Registration is a recognition of the quality and efficiency of the services given by those practitioners - Jayasuriya v Vocational Registration Appeal Committee (1994) 34 ALD 183 at 191 (Lee J).
On 21 June 1996 Carr J made orders in respect of each of the four applicants and another that decisions of the Vocational Registration Appeal Committee which had dismissed their appeals against refusal of registration be set aside and the matters remitted to the Committee for determination according to law. The Second Respondent was ordered to pay the costs of those applications - Siew Tan and Others v Vocational Registration Appeal Committee and Another (Carr J, 21 June 1996, unreported).
The statutory framework and the facts leading to the proceedings before Carr J are set out in his Honour’s judgment and it is unnecessary to repeat them in detail here. The common factor in all the matters before him was that each applicant was an Australian registered medical practitioner who asked that his or her professional training and experience in general practice overseas be taken into account for the purpose of assessing his or her eligibility for inclusion on the Vocational Register.
Critical to his Honour’s decision was his finding that the Appeal Committee had erred in law in its interpretation of criteria published by the Royal Australian College of General Practitioners (“RACGP”) relating to eligibility for registration. The Committee was required to have regard to the criteria by reg 7(a) of the Health Insurance (Vocational Registration of General Practitioners) Regulations 1989.
In addition, his Honour held that the Appeal Committee mistakenly took the view that its role was limited to the application of the criteria and that this limitation involved a misconstruction of the requirements of reg 7.
The criteria are informed by a statement of principle endorsed by the RACGP that “during the five year period following the introduction of the Register, the aim should be to enrol as many eligible practitioners as possible and involve them in Continuing Education and Quality Assurance”. The fourth of the RACGP criteria requires that the applicant:
“Will have been in General Practice (as defined) for at least two sessions a week for at least five years by 1 January 1995.....”
“General Practice” is defined in the criteria as:
“...the provision of primary, continuing, comprehensive, whole-patient care to individuals, families and their community.”
That definition is elaborated:
“Indicators of compliance with the RACGP definition include the acceptance of unreferred patients presenting to the practice, acceptance of a direct responsibility to ensure that practice patients have access to care by an appropriately qualified medical practitioner at all times and at locations away from the practice and the undertaking of continuing as well as episodic care.
Restriction of the practice population to patients with a particular special need or social or ethnic group will not necessarily preclude the practitioner from Vocational Registration if the general principles embodied in the definition are met.....”
The Committee was found by his Honour to have erred in taking the view that the definition of general practice in the criterion was limited to general practice experience in Australia. He said:
“In my view, given the overall objectives of the Act referred to above, no such restrictive approach should be taken. Furthermore, it would conflict with “the aim...to enrol as many eligible practitioners as possible and involve them in Continuing Education and Quality Assurance” which is expressed in the criteria. If, upon expert medical assessment, a practitioner’s training and experience overseas were found, on an objective basis, to be such that made it, in a technical and medical sense appropriate for him or her to be registered as a general practitioner in Australia such a person would be “eligible” in the sense of being “fit” or “suitable” for such professional responsibilities.”
Regulation 7 requires the Committee to have regard to the criteria published by the RACGP and:
“(b)then proceed to consider the case on its merits.”
This requirement is conditioned by reg 5(2) which states that a medical practitioner is eligible for registration where the Appeal Committee, having allowed the practitioner’s appeal, certifies:
“(a)that the practitioner’s medical practice is predominantly general practice; and
(b)that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered.”
In his Honour’s view the only relevant “merit” in issue before him was that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered. The regulation required the Committee to go beyond the criteria and consider the merits of the application. The Appeal Committee, having had regard to the criteria, was to proceed to consider the case on its merits, including as part of such consideration, the indicia of eligibility referred to in reg 5(2)(a) and (b) and the underlying object of the relevant sections of the Act.
Decision of the Vocational Registration Appeal Committee with Respect to Dr Tan
On 30 August 1996, the Appeal Committee wrote to Dr Tan indicating that following Carr J’s decision it would be reconsidering his appeal at its meeting on 13 September 1996. The letter went on:
“At that meeting, the Appeal Committee will be reconsidering your appeal relevant to all your training and experience in general practice including your experience in Malaysia. The Appeal Committee will be considering whether your training and experience overseas was equivalent to general practice in Australia and as defined in the RACGP criteria as well as the merits of your case. I have attached a copy of the criteria for information. Would you please forward any further information you wish considered at that meeting as soon as possible....”
Dr Tan replied to the Committee on 9 September 1996 advising that he had already provided details and information relevant to his Australian and overseas experience at the time of his application for vocational registration. He added that he had been in general practice since August 1993 with a minimum of ten sessions per week and that to the date of his letter he had gained over three years and seven months general practice experience in Australia only.
At its meeting on 13 September 1996, the Committee further considered Dr Tan’s appeal. The Committee again dismissed his appeal from the decision of the Vocational Registration Eligibility Committee which had originally refused his application for Vocational Registration on 29 November 1994.
A statement of reasons for the decision, provided under s 13 of the Administrative Decisions (Judicial Review) Act 1977, was given on 25 October 1996. In para 15 of its reasons the Committee noted that Carr J had found it had previously erred in law by excluding consideration of Dr Tan’s overseas experience and training. In para 18, which was replicated in the reasons for decision relating to each of the applicants, the Committee said:
“The Appeal Committee is aware that medical practice overseas is not necessarily directly equivalent to General Practice as defined in the Criteria. There are differences in medical technology, diagnostic and treatment techniques, available pharmacopoeia, health outcome expectations, as well as language and custom differences. The Appeal Committee needed to assess these matters before determining the extent that overseas experience and training in medical practice is equivalent to General Practice in Australia as defined in the Criteria.”
The Committee found that in his practice at Thornlie in Western Australia, Dr Tan was predominantly in general practice as defined in the criteria at the date of his application, which was 29 November 1994. It was not satisfied that he met the fourth RACGP criterion which required that he had been in general practice (as defined) for at least two sessions a week for at least five years by 1 January 1995. It noted the following aspects of his professional history:
1. Dr Tan was an intern during 1973.
2.From 1974 to 1976 he was a medical officer at the Hospital Permai, Johor, Malaysia.
3.From July 1976 to March 1977 he was in general practice in Melaka, Malaysia.
4.From April 1977 to July 1987 he was in general practice in Melaka, Malaysia.
5.From 1988 to March 1991 he worked as an administrative assistant at the Buckland College, North Fremantle, Western Australia.
6.From June 1992 to July 1993 he worked at the Royal Perth Hospital, Western Australia.
7.From August 1993 to December 1994 he worked in general practice in
a number of practices in Western Australia (a period of 17 months).
On this basis the Committee considered that Dr Tan had eleven years one month overseas general practice experience and one year and five months Australian general practice experience. However, it did not accept that his overseas experience was wholly equivalent to Australian general practice. It observed that no additional material had been provided to it to assist in establishing the equivalence of overseas experience and training to general practice in Australia.
At para 34 of its reasons the Committee said:
“The Committee had regard to the detailed explanation in Dr Tan’s resume and accepted that some of the overseas experience was equivalent to General Practice in Australia as defined in the Criteria. However, there are differences in medical technology, diagnostic and treatment techniques, available pharmacopoeia, health outcome expectations, as well as language and cultural differences between Australia and Malaysia which affect the way medicine is practiced in each country. The Committee was given no assistance by Dr Tan in addressing these issues in establishing equivalence between his medical training and experience in Malaysia to General Practice in Australia as defined by the Criteria. The Committee noted that Dr Tan was best placed to do this. He was invited to provide additional information as he saw fit. He did not do so. In the circumstances, it had to discount some of the time claimed.”
The Appeal Committee therefore found that Dr Tan had not accumulated the equivalent of five years general practice experience both in Australia and overseas required to meet criterion 4. There was no exposition of the quantity of the “discount” or the factors on which it was based. It appeared to be sufficient unto the day for the Committee that the “discount” led to an assessed general practice experience of less than five years.
It went on to say that it considered the period of five years to be important to enable a practitioner to have experience in providing continuing and comprehensive whole-patient care to individuals, families and their community in Australia which is part of the definition of “General Practice” in the criteria. The elapsed time in general practice related specifically to experience required in matters such as child development, the progression of chronic illness and the management of complex patient cases.
Decision of the Vocational Registration Appeals Committee Relating to Dr Shadid
In respect of Dr Shadid, the Appeal Committee considered that in her practice at the Wesley Medical Centre in Perth she was predominantly in General Practice as defined at the date of her application, which was 12 December 1994. However the Committee was not satisfied that she met criterion 4. It referred to the following professional history:
1. During 1984 Dr Shahid was an intern at the Civil Hospital, Karachi.
2.From 1985 to 1987 she was a medical officer at the Sind Medical Centre, Karachi.
3.From 1987 to 1989 she was a medical officer at the Jaffar Memorial Hospital, Karachi.
4.From January 1991 to August 1991 she undertook a bridging course at Edith Cowan University.
5.From February 1992 to December 1994 she was in general practice in Australia (a period of two years eleven months).
The Committee accepted that there had been two years and eleven months of Australian general practice experience but did not accept that the overseas experience was equivalent to Australian general practice. The material before it was said to indicate that her experience overseas was as a medical officer in a hospital. No material, it was said, was provided to the Committee to assist it in establishing the equivalence of the overseas experience and training to general practice in Australia.
There were a number of common form statements in these reasons as in those relating to Dr Tan. They included the statement that medical practice overseas is not necessarily directly equivalent to general practice as defined in the criteria.
Decision of the Vocational Registration Appeals Committee Relating to Dr Singh
In the case of Dr Singh, the Committee found that his professional history was as follows:
1.During 1985 Dr Singh was an intern at the Government Medical College, Patiala.
2.During 1986 he was a resident at the Rajendra Hospital, Patiala.
3.From 1987 to 1988 he completed the MD in Medicine at the Postgraduate Institute of Medical Education and Research.
4.From January 1989 to October 1991 he worked in his own private general practice in Chandigarh, India (a period of two years ten months).
5.From January 1992 to March 1992 he worked as a medical resident in the Royal Perth Hospital.
6.From April 1992 to December 1994 he was in general practice in Australia (a period of two years nine months).
The Committee considered that Dr Singh had two years ten months overseas general practice experience and two years nine months Australian general practice experience. It did not, however, accept that his overseas experience was wholly equivalent to Australian general practice. It found also that no material had been provided to assist it in establishing the equivalence of overseas experience and training to general practice in Australia. The Committee accepted that some of the overseas experience was equivalent to general practice in Australia as defined in the criteria, however in the circumstances it had to discount some of the time claimed. The amount was not specified, nor was the basis for it specified.
Decision of the Vocational Registration Appeals Committee Relating to Dr Natchimuthoo
The Committee referred to Dr Natchimuthoo’s professional history which was as follows:
1.During 1982 Dr Natchimuthoo worked at the Osmania General Hospital.
2.During November 1982 he worked in a Rural Health Centre in Hyderabab, India.
3.From December 1982 to January 1983 he worked at the Government Maternity Hospital, Hyderabad.
4.During 1983 he worked at a number of hospitals in Hyderabad.
5.From January 1984 to August 1984 he worked at the University Hospital Kuala Lumpar.
6.From August 1984 to December 1986 he worked as a medical and health officer in the Ministry of Health in Malaysia (a period of two years and five months).
7.From July 1986 to December 1986 he worked in the Department of Orthopaedics, Kuala Lumpar General Hospital.
8.From January 1987 to December 1988 he worked in the Department of Radiology at the National University of Malaysia.
9.From January 1989 to September 1989 he worked as a general practitioner in Malaysia (a period of nine months).
10.From January 1992 to March 1992 he worked at Royal Perth Hospital.
11.From March 1992 to December 1994 he worked as a general practitioner in a number of practices in Western Australia (a period of two years nine months).
The Committee considered that he had three years two months overseas general practice experience and two years nine months Australian general practice experience. It did not, however, accept that his overseas experience was wholly equivalent to Australian general practice. It accepted that some of the overseas experience was equivalent to general practice in Australia as defined in the criteria. However in the circumstances it discounted some of the time claimed. Again, the common form statements appeared in this statement of reasons.
The discount was not quantified. Nor were the factors on which it was based specified.
In the case of the other applicant who had succeeded before Carr J, that is Dr. Lombard, registration was certified by the Committee following the reconsideration of her appeal.
The Committee’s Error
It was not disputed that the Committee had erred in failing to invite the applicants specifically to address its concerns about the “equivalence” of their overseas practice. On 14 January 1997, the Australian Government Solicitor on behalf of the second respondent, advised the solicitor for the applicants that it was prepared to consent to orders setting aside the decisions under review. There was clearly a failure of natural justice. It was submitted however by the second respondent that the findings of fact made by the Committee in each case did not enable the conclusion to be drawn that, upon expert medical assessment, each applicant’s training and experience made it “objectively appropriate” that he or she be registered. There were, it was said, unresolved factual matters and further matters to which the expertise of the Committee was relevant. Whether the overseas experience of each applicant was “General Practice as defined” had not been determined and could not be determined, on the material before the Committee. It was said not to be an appropriate case for the Court to substitute its opinion for that of the Committee and to make an order compelling a decision of a particular kind.
As can be seen, the issue from the perspective of the second respondent was one of the appropriate relief.
The question is whether, having regard to the findings of the Committee and the material before it, there was, open to it, on the proper construction of the regulations and criteria any alternative to allowing the appeals.
The material provided to the Committee by Dr Tan included his degree parchment from the University of Malaya, a Certificate of Experience in a resident medical capacity at the General Hospital, Malacca and a Life Certificate in relation to the Beser Hospital, Melaka. Dr Tan’s Certificate of Full Registration as a Medical Practitioner in Malaya was also provided. There were references from Hospital Permai, West Malaysia to which Dr Tan was attached as a medical officer from May 1974 to June 1976. His resume set out his career in detail, particularly in respect of his hospital and general practice experience. The Committee had regard to what it accepted was “the detailed explanation” in Dr Tan’s resume and “accepted that some of the overseas experience was equivalent to general practice in Australia as defined in the criteria”. Although it appears to have had enough material to have made that judgment, it did not say how much was equivalent, what was the criterion of equivalence, how much of the time served overseas was discounted and on what basis. In any event the Committee did not otherwise appear to consider the merits of the case even assuming that none of the alternative criteria was satisfied. That is a consideration it is required to undertake - Reid and Ors v Vocational Registration Appeal Committee (O’Loughlin J, 21 February 1997, unreported).
The Committee considered that Dr Tan had eleven years and one month overseas general practice experience. It concluded also that his Australian general practice experience at the time was one year and five months. Three years and seven months was necessary to make up the five years of general practice experience. The Committee’s discount from eleven years and one month would appear to have been in excess of seven years and six months. On the material before the Committee, and having regard to its finding that what Dr Tan had been doing was general practice, this outcome is inexplicable. In my opinion, on the material before the Committee its asserted ability to make a discounting judgment on that material and the time which has passed since the Committee’s decision and on a proper application of the criteria in light of the objects of the registration scheme, it would be a waste of time to require reconsideration of Dr Tan’s appeal. The Committee should be directed to allow the appeal pursuant to s 16 of the Administrative Decisions (Judicial Review) Act.
In the case of Dr Shahid, however, it is appropriate that her appeal be remitted to the Committee to be dealt with according to law. The Committee was evidently not satisfied that her work in hospitals outside Australia amounted to general practice. Unlike the case of Dr Tan it made no finding that Dr Shahid had engaged in general practice overseas. Even if that finding as to general practice is reaffirmed, it would still be necessary for the Committee to consider the merits of the case - Reid (supra).
In the case of Dr Singh, the Committee found that he had two years ten months overseas general practice experience and two years nine months Australian experience. This is barely in excess of five and a half years. It would not be appropriate in the circumstances, even allowing for the time which has passed since the Committee’s decision, to direct the Committee to allow the appeal. Again, however, the Committee would have to consider not only the criteria in accordance with natural justice but also the merits of the case.
Similarly, Dr Natchimuthoo was found by the Committee to have had three years two months overseas general practice and two years nine months Australian general practice experience. The total was just under six years. A similar outcome would apply to him as to Drs Shahid and Singh.
In the case therefore of Dr Tan, the Committee will be directed to allow his appeal and to certify that he has training and experience in general practice that make it appropriate for him to be registered.
In the case of the other applicants, the Committee should indicate the criteria by which it will assess their overseas general practice experience in determining whether it is appropriate that they should be registered. The criteria should be framed with sufficient precision to allow the applicants to adequately inform the Committee of those aspects (if any) of their experience which answers the criteria. The Committee should also give the applicants the opportunity to comment on the criteria themselves and suggest, if they should wish, other ways of assessing their overseas general practice experience. I may add the comment that it is difficult to see how issues of language or culture go to the content of overseas general practice. The Committee would, if it intended to rely upon these factors in assessing overseas general practice, have to spell out quite clearly just how they are relevant. The Committee will also have regard to the merits of the cases even if not satisfied that criterion 4 is completely met. In so doing it will no doubt have regard to the further time that has passed since its original decision. On that basis it may be the Committee will be able to find that the requisite experience has now been had by one or more of the applicants. That is, however, a matter on which the Committee will make its own factual and expert evaluation.
Since the hearing of the appeal I have been informed that under the Health Insurance (Vocational Registration of General Practitioners) Regulations (Amendment), Statutory Rules 1996 No. 356, the successor body to the Vocational Registration Appeal Committee is the General Practice Recognition Appeal Committee and that any remitter order should be made to that Committee.
On the matter of costs, the applicants have been successful and in one case secured an outcome more favourable than that offered. The identified deficiencies in the Committee’s decision-making have gone beyond the mere natural justice question and extend to their failure to consider the merits of each application notwithstanding the fact that the Committee was not satisfied that criterion 4 had been met.
I propose therefore to treat the costs of the applications as one set and to order that they be paid by the second respondent.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Associate:
Dated: 14 November 1997
Counsel for the Applicants: Mr J. Curthoys Solicitor for the Applicants: Shakur & Co. Counsel for the Respondents: Mr J. Allanson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 19 May 1997 Date of Judgment: 14 November 1997
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