|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Human Rights and Equal Opportunity Commission |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
RACIAL DISCRIMINATION ACT 1975 (CTH)
H97/190
BETWEEN:
DR BURNEY SIDDIQUI
Complainant
AUSTRALIAN MEDICAL COUNCIL
Respondent
REASONS FOR DECISION OF INQUIRY COMMISSIONER
PETER JOHNSTON
Location of Hearing: Melbourne and Sydney
Hearing Dates: 10 and 11 December 1997; 11, 12, 13 February 1998; 16, 17 and 18 February 1998; 7, 8 May 1998; 2, 3, 4 and 5 June 1998
Date of Decision: 20 January 2000
Appearances: Martin Willoughby-Thomas, solicitor and barrister, for the complainant
Peter McClellan QC of counsel, instructed by Mallesons Stephen Jaques, solicitors, for the respondent
This complaint was lodged with the Human Rights and Equal Opportunity Commission (“the Commission”) on 21 May 1996 and referred for inquiry by the Race Discrimination Commissioner (“the Commissioner”) pursuant to s.24E of the Racial Discrimination Act 1975 (“the RDA”/“the Act”).
In broad terms, the complainant contends that, by reason of requiring him, as an overseas trained and qualified doctor (“an OTD”), to take and pass a series of examinations of a particular kind, which were different from those required to be passed by medical graduates who obtained their qualifications in Australia and New Zealand (“ANZ”) tertiary institutions, the respondent has unlawfully discriminated against him by contravening ss.9(1) and/or 9(1A) of the RDA. The complainant also alleges that he has been victimised within the terms of s.27(2) of the Act on account of a previous complaint made under the RDA. This earlier complaint is described in Section 2 below.
2. THE PREVIOUS COMPLAINT
In 1993 Dr Siddiqui complained to the Commission about the setting of a quota on the number of OTDs proceeding to take an exam and about the application of this quota to him. This quota was established by the Australian Medical Council (“the AMC”), the respondent to this complaint, and restricted the number of persons who had passed a multiple choice examination (“the MCQ”) from proceeding to take the AMC's clinical examination.
The complainant alleged that the actions of the AMC were in contravention of ss.9(1) and (1A) of the RDA. The Commission upheld his complaint in so far as it related to s.9(1A) of the RDA and awarded him damages. The Full Federal Court granted an order of review, as sought by the AMC, and dismissed an application by the complainant seeking review on the ground of the inadequacy of the compensation award (see Australian Medical Council & ors v Wilson & ors (1996) 137 ALR 653 (“the AMC case”).
Regardless of the appeal to the Federal Court, the AMC removed the quota requirement and the complainant was permitted to proceed to take the clinical examination.
3. THE PRESENT COMPLAINT
Following the lifting of the quota, the complainant attempted on four occasions during 1996-97 to pass the clinical examination administered by the respondent. After failing to pass the requisite examination on the first occasion in March 1996, the complainant instituted the present complaint. Attempts to resolve the matter by conciliation by the Commissioner proved unsuccessful and the Commissioner referred the matter to the Commission for inquiry.
The complainant tendered a statement in these proceedings (Exhibit C16) and gave oral evidence in relation to his background and history. This evidence is summarised below. The following emerges as common ground.
The complainant has a MBBS degree from Osmania University Medical School, Ghandi Medical College, Hyderabad, India. That university is affiliated with the University of London. He studied at Osmania University for seven years between March 1975 and February 1982. Following completion of his undergraduate degree, he undertook postgraduate qualifications in clinical neurology (attaining a Diploma in Clinical Neurology) at the University of London, Institute of Neurology, in London.
Between 1982 and 1988, the complainant worked in a number of hospitals in India, London, Dublin and Pittsburgh.
In October 1987, the New South Wales Health Department and the South West Sydney Area Health Service advertised in the British Medical Journal for doctors to work in Australia. The complainant was interviewed in London and selected for the advertised position.
The complainant and his wife entered Australia on temporary resident visas. Towards the end of 1989 permanent resident visas were issued to the complainant and his wife, and he became an Australian citizen in 1992.
On arrival in Australia he was employed in a number of positions at teaching and other hospitals under various temporary registrations. In 1988 and 1989 he worked at the Campbelltown and Camden Hospitals, part of the South West Sydney Area Health Service. In 1989 and 1990 he worked at the Royal Hobart Hospital and in 1990 and 1991 was employed at the Launceston Public Hospital. In 1991 he worked at the Bendigo Base Hospital and from 1991 to 1993 he worked at St George's Hospital and the Inner Eastern Geriatric Service. In 1993 he was employed at the Accident and Emergency Department at St Vincent's Hospital in Melbourne and between 1993 and 1996 he worked at the Dandenong Hospital.
The complainant claims that he could not sit any AMC examinations prior to becoming a permanent resident. After gaining permanent residency in 1989, he applied to sit for the MCQ examination in July 1990 and did not pass that exam. Between July 1990 and April 1994 the complainant sat six times for the MCQ examination. Although he passed that examination on the majority of occasions, due to the imposition of the quota by the AMC (imposed at the request of the Australian Health Minister's Conference), he was not permitted to proceed to sit the oral clinical examination. As described above, he lodged a complaint against the AMC in relation to the quota.
Following the lifting of the quota, the complainant proceeded to sit the AMC's clinical examination. To date, he has taken this examination on four occasions: in March 1996, August 1996, October 1996 and March 1997. On each occasion, the complainant has not been successful in passing the clinical examination.
During the period in which he sat for the MCQ and later for the clinical examination, he worked at the various hospitals mentioned above under temporary registration. When he first gave evidence to this Commission (11 December 1997) he was working at Maroondah Hospital in the Emergency Department. On the continuation of his evidence (11 February 1998) he was no longer employed at Maroondah Hospital, his employment there having ceased on 2 February 1998.
The complainant told the Commission that, in July 1997, on the basis of his performance in the AMC examinations, the Victorian Medical Board placed restrictions upon his ability to practice which restricted the role that he could perform at Maroondah Hospital (see Exhibits C26, 27 and 28).
Eligibility for registration and the registration of doctors in Australia is a State or Territory matter and is governed by State or Territory legislation. The various State and Territory Acts provide for the establishment of Medical Boards (or their equivalents) which are required to ensure standards of medical practice in the relevant State or Territory. Relevantly to the complainant, the Medical Practice Act 1994 (Vic) confers on the Victorian Medical Board (“the Victorian Board”) the functions of registering persons to practice medicine in Victoria, approving positions in public hospitals for intern training, investigating professional conduct, informing the AMC about persons registered in Victoria, administering the Act and various other functions.
In addition, the Acts set out the preconditions and requirements for practice in each State or Territory. Again by way of example, s.6 of the Medical Practice Act provides that a person who is not a graduate of an AMC-accredited medical school (that is, an ANZ medical school accredited by the AMC) is eligible for registration if he or she:
The Acts generally confer a discretion on the Board not to register a person for a variety of reasons. Section 6 of the Medical Practice Act is subject to s.7 which provides that the Victorian Board may refuse to register an applicant for a variety of reasons, including character, unfitness to practice, competency in English and so on.
The role of the AMC must be considered in light of this statutory background and of its own history. Professor Vernon Marshall, the Chairman of the AMC, gave evidence in these proceedings about the history and role of the body (Exhibit R23). He told the Commission that, prior to 1978, each State and Territory adopted its own method of ensuring OTDs were sufficiently competent to practice in that State or Territory. In 1978, a national examination system for OTDs was introduced and was administered by the Australian Medical Examining Council (“AMEC”). The AMEC liaised with State and Territory Boards to ensure that the examination met their various requirements. In 1984, the Australian Health Ministers’ Conference agreed to establish a new body, the AMC, with the function of reviewing medical courses and accrediting medical schools in Australia. In addition, the AMC was to be responsible for the examination of OTDs.
Currently, the AMC is an association incorporated under the Associations Incorporation Act 1991 (ACT). Under its constitution, the functions of the AMC are, amongst other things, to advise State and Territory Medical Boards about the accreditation of ANZ medical schools and to undertake the assessment for admission to practice of OTDs. In the performance of these functions, the constitution establishes an Accreditation (Standing) Committee to advise the AMC on accreditation matters, including criteria for accreditation. It also establishes an Examination (Standing) Committee, to devise and implement examination procedures to determine the suitability for practice in Australia of OTDs. The AMC is comprised of 13 members, including a nominee of each State or Territory Medical Board. It was Professor Marshall's evidence that the AMC consulted and sought advice from the Medical Boards in relation to various issues. In particular, changes to AMC examinations would need to be the subject of consultation with the Boards.
To understand the examination system that was applicable to OTDs at the time the complainant undertook the clinical examinations, it is necessary to describe the basic features of the AMC exam system as well as the system that exists in AMC accredited ANZ medical schools. There was a great deal of evidence in these proceedings, much of it contested, concerning the relative merits of these systems. These issues are discussed in detail below. For the moment, however, it shall suffice to describe in broad terms the outlines of each of the systems. This summary reflects my findings made later in these reasons.
5.1 The AMC examination system
The system at issue in these proceedings is that which existed prior to various changes introduced in July 1997. It is this system which is described here. In 1997 a number of changes were introduced into the clinical examinations to examine medical and surgical communication and consulting skills.
In essence, the object of the clinical examination is to “establish that the overseas trained doctor has the required knowledge and clinical competence for the practice of medicine with safety within the Australian community” and, consequently, the examination standard is stated to be:
the level of medical knowledge and clinical skills corresponding to that of newly qualified graduates of Australian medical schools who are about to commence intern training (Exhibit C1).
Professor Marshall told the Commission (Exhibit R23) that the AMC was aware of the relevant standard because it was also responsible for the accreditation process of medical schools.
5.1.1 The MCQ
Although this component of the examination is not at issue in these proceedings, it is useful for completeness to understand the full range of examinations which OTDs are required to undergo.
The MCQ tests career topics in medicine, surgery, paediatrics, psychiatry and obstetrics and gynaecology. Until 1992, the exam consisted of 150 questions. After 1992, the format was altered and two papers were introduced, each of 100 questions and each taking 3 hours to complete.
5.1.2 The clinical examination
The clinical examination in its 1996-1997 format was described in detail in evidence before the Commission (see, especially, Exhibits C1, R23). In brief, the examination may be described as follows.
The examination had three components: medicine, surgery, and obstetrics and gynaecology. In both medicine and surgery, the candidate would be examined by two examiners in a half hour of short cases. He or she would then be given a half hour viva voce examination before two different examiners. In obstetrics and gynaecology, the candidate was tested by two examiners by means of a long case examination (50 minutes) and a 20 minute viva voce discussion with the same examiners.
In each examination the candidate would therefore be examined by 10 different examiners, across the three components.
Because it is alleged in these proceedings that the examination procedure is deficient, it is necessary to describe this procedure in some detail in respect of each of the three components. Its essential details were summarised in the evidence of the respondent's witness, Professor Marshall (Exhibit R23). The deficiencies alleged in this process and the failure of this process on occasion will be outlined later in these reasons.
In the medicine and surgery clinical examination, the candidate spent 30 minutes with two examiners on a number of “short cases”. There may have been between one and four of these cases.
The examination coordinator selected up to 6 patients for each examination session. Both examiners examined each patient. The conditions selected were not necessarily capable of determinative diagnosis but were intended to be used to examine the candidate's physical examination technique. The conditions were limited to those which were available in the hospital on the examination day.
Not every candidate saw every selected patient. Thus, candidates may have been examined on different conditions. In general, examiners would attempt to consider 3 to 4 cases. In respect of each examination, the examiner was looking to see if there is a systematic approach to patient examination. Not every candidate would be required to undertake the same steps. For example, a stronger candidate would be stopped and asked to move to a different area in order to test their skills. "Prompting" might occur if the examiner directed the candidate to answer a particular question or requires further information.
The second part of the medicine clinical was the viva voce examination and consisted of a 30 minute examination with two different examiners. Half of this viva concerned paediatrics, the other half concerned medicine. The medicine part involved a discussion of specimens, x-rays or medical equipment. The two examiners used a variety of specimens and materials for each examination session. Not all candidates would have the same specimens, but each specimen would have been used for more than one candidate. In the surgery viva, clinical, radiological, pathological and laboratory findings as well as clinical equipment would be discussed. The focus was on common surgical conditions.
In respect of both medicine and surgery, the assessment criteria were the same (Exhibit C1, p.139). These are:
In respect of the clinical examination in obstetrics and gynaecology, the candidate would be tested to ensure that they are aware of the common problems that would be encountered by a general practitioner. The clinical examination involved a 30 minute “long case” in which the candidate, without the examiners being present, took a history and performed an examination of a patient. Following this, the candidate spent 20 minutes with two examiners; 10 minutes of this time spent discussing the patient, including patient management, and 10 minutes spent as an oral examination covering common gynaecological problems.
The method of marking was as follows. The candidate must complete each component to a satisfactory level in order to obtain an overall pass. The scoring system applicable to these examinations was:
Each individual examiner was expected to consider and mark the candidate separately. These marks were recorded on a marksheet specific to that candidate and to that examiner. Following the examination, all examiners in a particular component (4 in medicine and surgery and 2 in obstetrics and gynaecology) would meet to determine a consensus result for each candidate. This would result in three marks, one for each component. These marks and the marks for all candidates in a particular session were recorded on a scoresheet.
Following this consensus marking, a Panel of Examiners determined an overall result for a candidate. This panel comprises a “substantial number of the examiners in a particular session” (Exhibit R23). This result is either a “pass” or “fail” grade. A candidate must have passed each component of the examination to result in a “pass” grade.
If a candidate failed an exam, he or she was not entitled to sit a supplementary exam in any particular component and had to resit the entire examination. There was no process for merits review of or appeal against a result, although the AMC allowed a limited right of appeal in respect of the procedural aspects of the examination and offered counselling for candidates who have failed. The counselling was not intended to be an appeal.
Until 1 January 1998, a candidate was permitted a period of three years in which to pass the clinical examination. Subject to special circumstances, this meant that three attempts could be made before a candidate was required to resit the MCQ exam. After 1 January 1998, a new system was introduced the effect of which was that the complainant would only have one more opportunity to sit and pass the clinical examinations. Due to administrative consideratioins such as the number of OTDs seeking to sit the next session of examinations, it was unlikely, however, that the complainant would be able to avail himself of that opportunity, and would probably not be able to satisfy the requirement to pass in the time available. That effectively meant he would never be able to become professionally qualified to practise medicine in Australia.
5.2 The medical examination system applicable in Australian and New Zealand universities
Australian and New Zealand medical schools are accredited by the respondent for the purpose of registration by the various medical boards. This accreditation proceeds according to a set of guidelines issued by the Accreditation Committee of the AMC in 1992 (Exhibit R23, Annexure B) (“the AMC Guidelines”). The AMC Guidelines cover a broad range of matters including curriculum and student selection. They are neither detailed nor prescriptive; thus, in relation to assessment, the Guidelines allow “each medical school to develop methods of student assessment appropriate to its objectives and those expressed earlier in these guidelines”.
It is clear from Exhibit R27 and its supporting documents that Australian medical schools utilise a broad range of assessment techniques and that these techniques vary as between institutions. Each medical school uses some or all of the following techniques in one or more of the final years of the course: written exams/short answer/essays; multiple choice examinations; case reports/presentations; log books; continuous assessment; long case clinicals; short case clinicals; objective structured clinical examination/assessment; video patient interview; standardised patient interviews; viva voce and observed clinical interaction.
One examination technique or method which was discussed at considerable length in this case is the objective structured clinical examination/assessment (“OSCE/OSCA”) format. Exhibit R27 indicates that this format is used in the majority of the universities surveyed, for at least some of the final years’ assessment. Although this matter will be considered in more depth later (including various contentions raised by the complainant in relation to Exhibit R27), the AMC Guidelines clearly attach some importance to the OSCE method. In noting that clinical examinations are less reliable than written or MCQ examinations but are nevertheless important to student assessment, the AMC Guidelines advise the universities that:
greater reproducibility can be added to the process of testing specific skills or competencies by using a multi-station assessment process, sometimes known as the “objective structured clinical examination” or “assessment” and this form of assessment should be considered. If adopted, it should be an adjunct to, rather than a replacement for a long case examination which allows an assessment of the ability to take a complete history and elicit a full clinical examination, to integrate the findings and develop a management plan (p.18-19, Exhibit R23, Annexure B).
Thus, although a variety of techniques are used in university medical schools, the OSCE format does assume a significant place at those institutions. Mr Paget and Professor McGrath, witnesses for the respondent, told the Commission that universities tend more and more to use OSCEs and long cases in the final years’ assessments. It is also relevant to note that long case formats are relatively prevalent among the various examination techniques, while the utilisation of examinations involving short cases are diminishing.
By way of example and for the purposes of describing the OSCE format, the Guidelines to Examiners from Monash University (part of the material comprising Exhibit R27 and Annexure A to the complainant’s submissions in relation to Exhibit R27) are instructive. Monash University describes its OSCE format as follows:
As indicated above, there is no provision for an appeal other than on procedural grounds. A candidate who has failed may seek counselling. This entails a committee of two or three persons, one a senior office holder of the AMC and possibly an examiner, discussing with the candidate why he or she failed. The discussion is based on written reports provided by the relevant examiners.
The following sections of the RDA are relevant:
9 RACIAL DISCRIMINATION TO BE UNLAWFUL
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
18 ACTS DONE FOR 2 OR MORE REASONS
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done for that reason.
27 OFFENCES RELATING TO ADMINISTRATION OF ACT
(1) A person shall not hinder, obstruct, molest or interfere with a person exercising or performing any of the powers or functions referred to in this Act.
Penalty for an offence against subsection (1):
(a) in the case of a natural person—$1,000; or
(b) in the case of a body corporate—$5,000.
(2) A person shall not:
(a) refuse to employ another person;
(b) dismiss, or threaten to dismiss, another person from the other person’s employment;
(c) prejudice, or threaten to prejudice, another person in the other person’s employment; or
(d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person;
by reason that the other person:
(e) has made, or proposes to make, a complaint under this Act;
(f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act; or
(g) has attended, or proposes to attend, a conference referred to in section 24C.
Penalty for an offence against subsection (2):
(a) in the case of a natural person—$2,500 or imprisonment for 3 months, or both; or
(b) in the case of a body corporate—$10,000.
In order to make out his case, the complainant must satisfy me that there has been discrimination within the terms of the RDA. He also needs to discharge the onus of proving that the AMC has breached either s.9(1), 9(1A) or s.27(2) of the RDA.
8.1 Section 9(1)
To succeed under this section, the complainant must make out the following elements:
These matters will be discussed below.
8.2 Section 9(1A)
To succeed under this section, the complainant must make out the following elements:
These matters will be discussed below.
The complainant alleges that the AMC examination system is deficient and that this results in a “distinction” which has the proscribed effect on him.
By way of summary of the complainant's case in this regard, it is submitted that the AMC exam was unreliable because of the following factors:
10. THE COMPLAINT OF VICTIMISATION
The complainant, through his counsel, made a number of extremely serious allegations concerning the AMC and individual examiners. They are dealt with in greater detail later in these reasons. The allegations ranged from interference with and tampering with marksheets, collusion between examiners, additions to examination topic to justify a failure, allegations that prompting was required when it was not, marksheets left blank and allegations that the consensus mark was invariably the lowest. They also involved allegations in respect of the conduct and location of the counselling sessions having an intimidatory affect on the complainant.
I am of the view that no evidence was provided to the Commission that satisfied me that a claim of victimisation under the RDA could be sustained. It should be added that the allegations such as collusion were not directly put to the witnesses and individual examiners were not given an opportunity to specifically deny them in substance.
In so far as Dr Siddiqui's complaint is one of victimisation under the RDA, I should indicate at this juncture that I have decided to dismiss the complaint on the basis that there is no credible evidence to substantiate it.
11. EVIDENCE FOR THE COMPLAINANT
11.1 Evidence of the complainant
The complainant elaborated on his written statement of 9 December 1997 (Exhibit C16).
He explained that he had received his original medical degrees from Osmania University in India and then proceeded to do further training at the Institute of Neurology in London where he was tutored by eminent experts. In 1982 and 1983 he had worked at the Ghandi Hospital in India. In 1983-1984 he studied at the Institute of Neurology and did some practice as a general practitioner in the UK in 1985. He had also worked in Germany, Ireland and the United States of America (Saint Francis Hospital, Pittsburgh). He came into Australia in 1988 in answer to an advertisement placed by the NSW Health Department. Subsequently he had become an Australian citizen. In the ten years since coming to Australia he had worked as doctor starting at the Camden and Campbelltown Hospital, and then went to Tasmania (Royal Hobart Hospital). This was followed by a term at the Repatriation and General Hospital prior to moving to the Launceston General Hospital where he worked for a further two years. Following this he had positions at the Queen Victoria Hospital in Tasmania before moving to Victoria where he worked at Saint Vincent’s Hospital and Saint Georges Hospital. He then moved to the Dandenong Hospital where he worked at the grade three Intensive Care Unit for over two years. He also worked in the obstetrics and gynaecology section as well as the orthopaedics section. He regularly worked in the Accident and Emergency Department where he came to know Dr Wenzel. At times he was the only Medical Officer in the Intensive Care Unit though he was in contact with consultants by telephone. Most of his work was on night shifts when the consultants were at home. According to the complainant he was virtually in sole charge of the Intensive Care Unit except to the extent that he needed to be in contact with those consultants. After he transferred to the Maroondah Hospital he worked in the Emergency Department as a Senior Medical Officer. This meant that he was effectively the Night Senior in charge of the whole hospital.
His position at the Maroondah Hospital prior to him ceasing employment there on 2 September 1998 was in a position as an MQ6 which was the highest rating for a resident doctor. This involved him in patient care or trauma cases and emergency cases that pass through the Emergency Department. Maroondah was a very busy hospital with a high turnover so that he had seen in his time many examples of a wide range of conditions. Thus he had seen a lot of multiple sclerosis cases, hernias, abdominal conditions, pregnancies, thyroid and other problems. He said that he had never been criticised in the course of his daily practice in relation to his technique or examination. As an experienced doctor, particularly in an emergency situation, he had learned certain “tricks of the trade” which involved looking at certain signs and then making the appropriate deductions without going through the whole process that would be done by an inexperienced novice. In some cases, after taking a short history he could be guided to the problem straight away on the basis of one or two symptoms. As an experienced doctor it was often simple for him to “hit the target”.
Concerning the various clinical examinations he had undertaken in pursuing his AMC qualification, the complainant told the Commission that he had made notes after the examinations as to each of the examination topics. These had been initially written up between two to six hours after the examination on pieces of paper such as envelopes. He had then written up a more detailed recall supplying further details that he was able to add in addition to what he had written in the first instance. Compiling his notes he had had occasion to speak to Dr Waluk who had been present in the first two sets of examinations as an observer. The complainant said he had not discussed the actual content of what had happened other than to check on the order of particular cases. The Commission took into evidence the original “recall notes” together with four typed up versions of notes relating to the examinations (collectively Exhibit C20A).
The complainant was then examined in relation to various examination sessions, mostly where he had been awarded a C or D, though in some cases where he had obtained a B.
He was taken first to the medicine viva conducted by Dr Glass and Associate Professor Piterman and was referred to the mark sheets of the two examiners (Exhibit C10). He had been given the reports of a full blood examination on a laboratory print out. He was not able to see any date of the patient at first and later on could see the date of birth indicating a younger individual. He was told “here is the full blood examination report” but not told anything about the racial background of the patient nor given any other further information. He had first given a diagnosis of thalassaemia which was a disorder prevalent among people on the Mediterranean coast. He said he volunteered this because he had learnt to go for the “bigger problem” rather than the smaller problem. Had he been told that the person was Anglo-Saxon he wouldn’t have volunteered thalassaemia.
In the second case he had been provided with a pathology slip. The complainant had initially diagnosed asthma but later provided the correct diagnosis which was hyperventilation. The complainant said that in first diagnosing asthma he was following what he had been taught according to standard textbooks of emergency medicine. When a person came in with hyperventilation his aim to determine the major problem made him think of asthma. The complainant was unaware that it was not asthma until the examiner had told him that the chest on auscultation was clear.
In relation to a condition of pleural effusion Associate Professor Piterman had recorded that the effusion was correctly diagnosed but that the complainant had only been able to identify infection as a cause on prompting. The complainant said in relation to this that he had not been given anything by way of history but had been told that the patient had had recent cough and shortness of breath upon which the complainant was shown a chest x-ray. Responding to a criticism of Associate Professor Piterman that he had not realised that an embolism was an issue, the complainant said this was because he was responding to questions put to him by the examiner. It was only when the examiner told him that the patient had had recent leg surgery he had volunteered infarction to be a consequence of an embolus. The complainant did not regard responding to questions as “prompting”.
In response to the note by Associate Professor Piterman of how he had dealt with a condition of myocardial ischaemia, the comment suggesting that the complainant had difficulty in identifying risk factors such as smoking and cholesterol, the complainant said he assumed the person had had a heart attack. He had assumed, when asked “what other things would you check”, that he was not being asked that about a person who was a smoker. Had he been asked what were the risk factors he would have identified smoking and cholesterol.
Examined about the paediatric viva taken to the second case where he was told that parents had brought in a four year old child who had trouble with breathing, the complainant when said he had responded by identifying croup (in the medical terminology). When told there was no barking cough he had ruled that out and considered three or four other causes and had gone on to suggest asthma. That had led Dr Glass to record that the candidate had incorrectly made a diagnosis but was eventually prompted to the diagnosis of asthma.
The final case in that section had involved septicaemia in which the complainant had initially suggested treatment with benzylpenicillin. The complainant said he had volunteered that on the little information that he was provided with at the start. The examiner had then led him further and referred to indications of meningococcal infection. This had led him to offer penicillin as the first option. The examiner had then asked what it would prescribe if unsure of meningococcus which then had led him to suggest an alternative.
In relation to the medicine clinical examination conducted by Professor Salem and Dr Popplewell, the complainant said on the little information he was provided with, namely, that the lady patient had a cough for many years, he had reached the appropriate diagnosis of bronchiectasis. He could have reached that diagnosis sooner if he had been supplied with the proper history. He said that he had in fact started his examination of the patient by inspecting her fingers and had noted there was clubbing there. He had then proceeded to look at her chest and after moving behind her had commenced tapping then came back to her hands where he had noticed small nodes between the finger joints. When asked what he was looking at he had explained that he was looking at nodes and said that they were present in osteoarthritis. He was then told to examine the lungs. He noticed that she had coughed sputum into a container. He looked at the sputum which indicated that it was infective and mucoid. He had then detected a crackle and noted the chest had not been expanding in the way it would in a normal person so, when asked what could cause it, he had suggested pulmonary fibrosis. When the examiner told him that the patient had had green sputum he had realised that there was some infection happening so that it could be bronchiectasis. Thus when Professor Salem had mentioned in his marks sheet “sputum mug not examined until lady coughed” he said this was because he was under the guidance of the examiner as to what to do and did not examine the contents of the sputum mug until his attention was drawn to it by the examiner. In fact the sputum mug was a paper container which was not in an obvious position. This had led Professor Salem to record on the mark sheet “no idea of bronchiectasis and its causes”. When supplied with the information that the patient had developed a disease in childhood he had said that cystic fibrosis was a possible cause of bronchiectasis. No opportunity had been given to the candidate to take a proper history. Further, he disagreed with Professor Salem who had claimed that the complainant had not noticed the clubbing. At no stage during the examination had he been asked to examine the trachea or been given an opportunity to do so.
The next case involved a cerebellopontine angled tumour in the context of a cranial nerve examination. He had been asked to examine the cranial nerves and note abnormality. He noticed the seventh nerve was weak or paralysed. He had then proceeded to test the third, fourth and sixth nerves when he was interrupted by an examiner and asked to assess the patient’s lower cranial nerves. He then started to test her facial muscles and went on to do the steps required to be done in the examination of the seventh cranial nerve. He concluded this was a clear case of Bell’s palsy and initially said it was on the right side because that was the way he was looking at it but then corrected himself to say that he meant the left side. He then went on to examine the eighth nerve and reached the diagnosis cerebellopontine angled tumour which is not the same as Bell’s palsy. That form of tumour was not a common condition. He was then asked whether he wanted to examine for nystagmus. There was a connection between nystagmus and cerebellopontine tumour in that nystagmus could indicate tumour in the cerebellum. He had not examined for nystagmus in the first instance because he had been asked to examine the lower cranial nerves. In any event he had not been able to see nystagmus because the cubicle was dark. He said that to do a proper cranial nerve examination would need 10 to 15 minutes and he was having to cover three cases in 30 minutes all up.
In the third case involving the cardiovascular system Professor Salem had noted that the examination for jugular venous pressure (JVP) was conducted at an angle of 25 degrees only. The complainant had disputed this saying the examination was at 30-45 degrees. At an elevation of 30-45 degrees one could see the blood column rising. Classical teaching was for an angle of 30 degrees or above. The introductory remark to this case was made by Dr Popplewell who stated that the patient had a heart condition. “Please examine”. He had looked at the hand for signs of heart disease and then for small nodules. He was then told the blood pressure, following which he had looked for jugular venous pulsations in the neck. After listening with his stethoscope, he had found there was an extra sound in the middle of the contraction of the heart. When asked what it could be, he had suggested aortic stenosis. The examiner said “good”. He was then asked what he would like to ask the patient and had he had suggested he would like to ask about fatigue on exertion. He thought this could indicate Stokes-Adams syndrome. Referred to Professor Salem’s mark sheet which appeared to dispute that Stokes-Adam syndrome could be a manifestation of aortic valve disease, the complainant said the syndrome was a possible manifestation. Also when asked about a remark of Professor Salem that there had been no examination for conduction of murmurs the complainant had queried why once the diagnosis was confirmed he needed to make any further examination. The complainant also disagreed with a comment by Dr Popplewell which suggested that mid-systolic murmur was not found in aortic stenosis. The complainant suggested that he had been talking about the same phenomenon though there was room for a difference in word usages to describe the kind of systolic murmur.
In the case of the surgery clinical examination conducted by Mr Masterton and Dr Ryan, the complainant first disagreed with a comment by Mr Masterton that he had not transilluminated the patient. He had unable to use his torch to pass a light through the subject because his torch was in a brief case which he had been told to leave outside the examination. When he had recovered the torch he had conducted an examination on the swelling which had involved transillumination.
Case two involved the condition of deep vein thrombosis (DVT). The patient was unwilling to be examined because of the likelihood of causing pain. There had been a disagreement between the examiners as to whether the complainant should press on with his examination. Regarding a note by Mr Masterton which said that the complainant was unsure about using Homon’s sign, he said he had not examined for Homon’s sign because the patient was protesting. He said further that the Homon’s test was not performed these days in the case of the DVT because it could dislodge a clot and kill the patient.
In the case of the surgical examination conducted by Mr King and Mr Gya, there appeared to be a disagreement between the examiners as to whether the complainant had made a diagnosis of cancer in one case. The complainant confirmed that he had made such a diagnosis.
In relation to an obstetrics and gynaecology viva, the complainant also suggested that Associate Professor Fliegner had wrongly recorded an answer about how long it would take before a contraceptive pill could become effective.
The complainant had attended a counselling session with Professor Clarke on 28 April 1996 following the March 1996 examination. It had been attended by complainant, Dr Waluk as observer, and his solicitor. Professor Clarke had said that the complainant had made the right diagnosis correctly in all the cases.
The complainant said he had responded to a suggestion by Professor Clarke that he had not carried out the examinations like a medical student by saying that as an experienced doctor he could do short cuts and go to the problem quickly.
Passing to the second set of examinations and starting with a surgery examination conducted by Dr Indyk and Dr Woo, complainant said that he had had to deal with specimens which were in a decaying condition or x-rays which were not able to be clearly read. Thus, when asked about the second case which involved Crohn’s disease, he had said the x-ray was very difficult to read unless one was a radiologist. This was in response to comments by the examiners that he had no idea what the x-ray represented (Indyk) and that he had had difficulty identifying abnormality on the x-ray screen (Woo). The third case had concerned melanoma of the skin. Mr Indyk had noted that he had first said that this was a specimen of a nipple and that it had to be dragged out of him that it was melanoma. The complainant said that it was a very poor sample of tissue in the jar. At first the jar had been faced away from him. It was only when it was turned around that he was able to see that it was skin that was in decaying condition. Once he had noted a little black thing he identified a melanoma.
In relation to the surgery clinical examination conducted by Dr Niesche and Dr Ibrahim, the first case concerned basal cell carcinoma (BCC). It had been recorded by Dr Niesche as a case of BCC but by Dr Ibrahim as a squamous cell carcinoma (SCC) and as Kerato-acanthoma. The complainant said that BCC and SCC were very different conditions requiring different treatments.
In relation to the second case concerning another left inguinal hernia, the complainant responded to a note by Dr Ibrahim that he had not examined the right groin by saying that he had been unable to finish his examination of one side so how could he proceed with examination on the other? The examiner had interrupted him by asking a question.
In relation to the third case, Dr Niesche had recorded “poor examination” whereas Dr Ibrahim ticked his examination technique as satisfactory.
In relation to the fifth case involving cellulitis, the complainant said that he had stated that streptococcal infection was one cause of cellulitis and that staphylococcus was another. In his opinion both infections could cause cellulitis.
Turning to the medicine examination conducted by Professor Macdonald and Dr Penny, the first case involved an abdominal exam and polycystic kidney. The complainant said that Professor Macdonald, in recording that the complainant had thought that a right abdominal mass was the liver until questioned, had not understood what the complainant had said. The complainant had stated “it is not liver it is kidney,” but Professor Macdonald had continued to question him as to why he had thought it was the liver. Dr Penny, on the other, hand had written “correctly identified right mass as renal” meaning the kidneys. Against this, Professor Macdonald had written “missed a large left kidney”. He had in fact identified the diagnosis as polycystic kidney. Regarding a comment by Dr Penny that the complainant was a bit rough with the patient and had not ballotted the mass, he said the patient was old and in pain so he did not want to keep traumatising the patient by tapping on the abdomen.
Case two concerned the condition of mitral stenosis. Professor Macdonald had written “once he had agreed on MDM, got valvular lesion correct” whereas Dr Penny had written “missed-diagnosis”. The complainant insisted that he had got the diagnosis correct. Similarly, Professor Macdonald had written “agreed on mid-diastolic murmur” whilst Dr Penny had written “missed mid-diastolic murmur.” According to the complainant he had detected the murmur and called it mitral stenosis.
After the second set of examinations the complainant had again attended a counselling session with Professor Clarke and Mr Buzzard. The complainant had been accompanied by Dr Waluk and his solicitor but they were excluded from the session. Professor Clarke had insisted that Dr Waluk go, otherwise he would leave. He said Professor Clarke was upset and took time to get composed. The Professor then commenced hanging mark sheets from the examination in front of the complainant. The complainant could see that a grade represented by an “A” had been crossed out and a “C” written by its side. Whilst he did not mention the fact to Professor Clarke at the time he had raised it with Professor Clarke at the subsequent third counselling session on 20 November 1996. On that occasion, Professor Marshall had attended with Professor Clarke. On that occasion Professor Clarke had said “examiners can change. They have to come to a consensus. The other examiners are consulted in the meeting together and then decide upon the final grade”.
At the complainant’s third attempt, the surgery clinical examination had been conducted by Mr Crowley and Dr Yeo. With respect to a thyroglossal cyst Dr Yeo had recorded “did not suggest thyroglossal cyst a possibility. Suggests branchial cyst...” whereas Mr Crowley had recorded “Now candidate noticed thyroglossal cyst, branchial cyst aware unlikely.” The complainant stated that he had noted the presence of a thyroglossal cyst. He had asked the patient to sip water and had noticed such a cyst. It could not be a branchial cyst. Asked about Dr Yeo’s statement that “did not protrude the tongue”, the complainant said that Dr Yeo probably missed what was happening because he was not watching at the time. The complainant understood from what was said in the subsequent counselling session that he had failed the case because he had not been able to conduct a proper diagnosis in relation to the thyroglossal cyst.
In case two he had identified a left inguinal hernia but had initially said it was a right inguinal hernia. He had got his sides mixed up. Although Dr Yeo had recorded that the complainant had missed a hydrocele on the right scrotum, Mr Crowley had noticed that the complainant had conducted transillumination which was a technique used for detecting a hydrocele. He had in fact found there was a hydrocele on the right side. In so far as the examiners recorded that he had missed the hydrocele, they had to be wrong.
The third case consisted of an umbilical hernia. The complainant had been asked for a diagnosis and had said that it was an umbilical hernia. He was asked to proceed and said that he would have to palpate the patient. He palpated the liver and could feel that it was enlarged. He had said so. Mr Crowley’s mark sheet, however, had recorded that he had failed to detect an obvious hepatomegalia (an enlarged liver) and Dr Yeo had similarly recorded “missed a definitely palpable liver.” The complainant was sure that he had made reference to the fact that there was an enlarged liver. He had examined the liver by way of palpation which was necessary in assessing the liver. In relation to this Dr Yeo had written “caused the patient considerable discomfort when attempting to palpate the abdomen...”. The complainant conceded that he might have made the patient uncomfortable.
The complainant stated that when he had attended the counselling session on 20 November 1996 following the third set of examinations he had learnt that he had failed. When told by Professor Marshall that he had failed one aspect of an examination because he had not detected thyroglossal cyst he had protested that he had in fact done so and sought to verify that because he had in his hand at that time his recall notes of the examination. The counselling session had been tape recorded. The tapes of the counselling session on that date was admitted into evidence (Exhibit C23), as was the tape of a subsequent counselling session on 23 May 1997 provided by Professor Marshall and Professor McGrath.
Turning to the surgery examination conducted by Associate Professor Scott and Mr Finkelde on the complainant’s fourth attempt, Associate Professor Scott had recorded that the complainant had not noticed a six centimetre abdominal aortic aneurism. The complainant said that he had not found the abdominal aortic aneurism so he did not think there was one. If it hadn’t been six centimetres he would have found it. Mr Finkelde, on the other hand, had recorded there was an 18 centimetre liver which the abdominal aortic aneurism complainant had interpreted as normal. A similar discrepancy was noted in respect of Mr Finkelde having recorded “did not feel carotid thrill” whereas Associate Professor Scott noted in that the complainant had correctly diagnosed carotid bruits. Mr Finkelde had also added a criticism that the complainant had proposed giving warfarin as well as aspirin to a patient who had a stroke. The complainant said that when he gave the answer he had not been told that the patient had had a stroke.
In respect of the second case involving a thyroid lump, Associate Professor Scott had noted that the complainant had thought it meant CA (cancer). This did not faithfully represent what the complainant had said. He had spoken of cancer in the context of a vascular invasion.
The third case concerned neurofibromatosis. In this case, Associate Professor Scott had noted that the complainant claimed café au lait pigmentation was present whereas Mr Finkelde had said that the complainant had not recognised the café au lait spots. The complainant explained the examination had been conducted in a very dark room in the old building at Saint Vincent’s Hospital. In the darkness he had made a mistake regarding the café au lait spots. After a torch had been brought in he had stated that the spots were not present.
The fourth case concerned rheumatoid arthritis which the complainant had diagnosed as osteoarthritis. A bell had rung indicating the session was coming to an end. One examiner had told him to proceed with the examination and the other said not to. In the circumstances the complainant had only been able to make a very brief examination of the fingers of the patient. In that brief time the complainant had left, the presence of Hebenden’s nodes indicating osteoarthritis were noted but Mr Finkelde’s notes suggested the nodes were not present.
The medical examination was conducted by Dr Pappas and Professor Gatenby. The complainant was shown an x-ray of the chest and lungs which he noted was dated 1978. It was very old x-ray with a very poor quality. Dr Pappas had recorded that the complainant had described many abnormalities which were not present. The complainant also criticised the ECG provided in relation to the second topic. The quality of the photocopy was “horrible”. The complainant had not been able to determine the heart-rate properly on the basis of the copy shown to him.
In relation to the third case, the complainant was advised that a young child had come in with febrile convulsion, the clinical examination being unremarkable, and a full blood examination report furnished to him. Nothing more was said to the complainant at that stage. Dr Pappas had noted “meningitis was not mentioned until very late in the discussion” and Professor Gatenby had recorded that the complainant had needed much prompting. The complainant told the Commission that because he had been told so little at the beginning he had ventured the suggestion that the infection disclosed in the report could be bacterial meningitis. That had caused the examiner to ask a few more things of the complainant. He did not think that he had had to be prompted.
Regarding the final counselling session following the fourth attempt, held on 23 May 1997, at which Professor Marshall, Mr Buzzard and Professor McGrath were present, the complainant said that he had disputed some of the assertions that were made about what he had said or didn’t say. He had tried to put his recall notes before the members but they had shown no interest.
In his written statement the complainant stated that he had once attended a bridging course for the AMC examination at which the class had been told by one of the examiners that the decision had been made not to pass more than 30 per cent of the candidates at any AMC clinical exam. The examiner in question was Mr Gya. These remarks were said to have been made in about 1992-1993.
The complainant also told the Commission that he was concerned that the second and third of his counselling sessions had taken place at the office of the Medical Board of Victoria. He thought it was inappropriate for the AMC to come to a location of a body which was responsible for his registration. He was scared about the venue. The reason given by the AMC for the site had been because recording facilities were available.
The complainant further told the Commission that in July 1997 the Medical Practice Board had contacted Maroondah Hospital indicating that it was necessary for the hospital to impose restrictions upon the complainant’s employment. The main condition was that he could not work in the hospital without someone supervising him at all times. That had presented problems for the hospital. This had led the hospital to terminate his employment on the expiration of his 12 month contract in early February 1998. At the time the complainant was the only person upon whom such restrictions had been placed by the Board. The Board had so acted when the AMC furnished it with the results of his examinations.
Regarding loss of income, the complainant supplied group certificates relating to the financial year 1996/1997 at both the Southern Health Care Network and at Maroondah Hospital. He also provided the Commission with circulars regarding salary according to the Victorian Hospital Industrial Association Agreement (Exhibit C31) detailing the rates payable for an Officer at MQ6 Level relating to the period 1 July 1997 to January 1998. The complainant stated that his income had been drastically reduced because his overtime, particularly at night, had fallen once the restrictions had been imposed. If registered, he would have been entitled to pursue a career in hospitals in New South Wales or Victoria or to enter general practice. In that event his income would have been considerably increased over the $61,000 he had earnt in his last year. He also gave evidence of the drastic emotional impact the failure to pass his examinations had had both on himself and his family.
In cross-examination by Mr McClellan, the complainant conceded that he may have got some of the answers in the examination wrong. When asked whether he accepted that there should be viva voce or just clinical examinations the complainant said he was no authority on the matter but whatever the form of the examination it should be of a certain standard that could be verified. As to the notes he had made for recall purposes, he said he had consulted with Dr Waluk on two occasions, one in person and one by phone, but this was only to verify the order of the cases. In compiling his recall notes he had made several drafts of certain parts.
When asked about the life expectancy of someone with cystic fibrosis, the complainant conceded that someone born with it around 1930 would probably not have lived beyond the age of 30. He did not accept, however, in the case of the old woman that he was examining and in respect to whom he had diagnosed cystic fibrosis, that he was wrong in so doing, even given that she would probably not have survived to the age of 60.
Regarding the statement he had recorded in his recall about the safety of the contraceptive pill, he sought to justify his entry of 0.3-0.4 percent as correct in the case of someone who had been on the pill for more than a year. He said that in the actual examination he had stated 3-4 percent as the answer but in thinking about it later he had changed it in his written statement. As it was, he claimed his answer was correct so far as 3-4 percent. It was the right answer in relation to someone who was taking the pill for the first time. He had verified the 3-4 percent in the case of a person in their first year by reference to an obstetrics and gynaecology text to which he had recently referred.
He further justified his answer that a person whose blood analysis suggested that CO2 had been “washed away” was asthmatic on the basis that he was concerned to identify the illness and not the symptom of hyperventilation. He said he had no problem with the proposition that the treatment for hyperventilation was contrary to the treatment for asthma. He denied that Associate Professor Piterman had asked what was the underlying condition (namely hyperventilation). He insisted that he had been asked what the underlying illness was. In relation to the pathology report he was shown and in respect of which he had suggested a diagnosis of thalassaemia, he emphasised that he had not been given the report. When asked to identify where the cut-off point would be between the occurrence of thalassaemia minor as opposed to thalassaemia major, the complainant said there is no such thing as a cut-off point. He insisted his answer could have been right in so far as thalassaemia is associated with people of Greek and Italian origin in the case of a city like Melbourne. He conceded that menorrhagia was a potentially large problem in young women in Australia but he disputed that menorrhagia would have been a far bigger problem than thallassaemia. When questioned about whether he could have asked questions about the woman, in relation to her origin, the complainant said he wasn’t allowed to ask questions. When pressed he said this was because the examiners had never told him that he could ask questions, even though he had not been specifically told by his examiners that he was not allowed to ask questions. In respect of the full blood examination he said he had not been able to identify the sex or date of birth of the subject although the details were on the report. This was because the examiner had been holding his thumb over the details while he had asked the question.
Two instructional videos prepared by the University of Newcastle were introduced into evidence for the complainant (Exhibits C21 and C22). Three segments related to an examination of the respiratory system. An examination of the abdomen and one relating to the vascular system were shown to the Commission. This was followed by a video of an 18 minute examination of the cranial nerve system. The purpose of introducing this evidence was to demonstrate the process that was required to reach a correct diagnosis in such cases. The complainant told the Commission that these videos were shown in bridging courses for the benefit of candidates for the AMC examination.
When pressed further about the failure rate of contraceptive pills, the complainant agreed that Merk’s Manual indicated that a pregnancy rate of less than 0.2 percent at the end of the year was the effective rate, and that there was no reference to 0.3 or 0.4 percent. When further pressed he said that in the examination he had said 3 – 4 percent but he could not remember and he may have said 0.3 to 0.4 percent. He also said that in compiling his notes regarding the examination he had had regard to the statements made by the examiners and said it included matters where he thought the examiners were wrong.
After objection from Mr Willoughby-Thomas about the confusing nature of the questioning relating to the pregnancy issue, the complainant was again questioned about the discrepancy between his hand-written version of the examination recall, which recorded 3 – 4 percent, and the typed version which stated 0.3 – 0.4 percent. The complainant said that he was not sure now about what he had specifically answered.
Returning to some of the specific cases, the complainant confirmed that pulmonary embolism was a fairly severe problem for someone to have. But he did not think that it would come readily to mind as a cause of plural effusion. The complainant insisted that only if one had a history of the patient would one necessarily consider it. He had not stated it straight away because the examiners were only giving him history bit by bit. So when the examiner had asked “What could be the aetiology” of the pulmonary infarct, the examiner was wrong and biased in expecting the answer of a pulmonary embolism. The question had been put inappropriately if the examiner was expecting an appropriate answer because the complainant could not read the examiner’s marks. Similarly with regard to his diagnosis about the infection being a meningococcal rash, that was the most appropriate diagnosis given no history. When it was suggested that the symptoms shown by the child could have their source in any one of three various conditions, the complainant said no. Meningococcal meningitis was very typical with the rash. When pressed he said that he wouldn’t certainly exclude the other condition. Asked if the child had had either a haemophilus or pneumococcos problem penicillin might not be the appropriate treatment, the complainant had insisted that benzylpenicillin was the appropriate drug to have given. Only when the examiners had suggested to him that there might be another appropriate drug had he offered ceftriaxone.
Turning to the patient with bronchiectasis, the complainant insisted he had found a clubbing in the fingers, stating that he had looked at the lady’s hands at eyelevel. He had noticed the sputum container when one of the examiners gave it to the lady when she had coughed. The complainant said that it was not a sputum mug. A sputum mug would have “sputum” written on it or some flappy thing on a steel mug. This one was of paper not plastic and there was no indicator.
Cross-examined about the counselling sessions and discrepancies between the transcription of the session and his notes, the complainant said he had read from his notes but at times because he was so emotional and the session was so traumatic for him he had said other things. His typed version of the notes had in fact only been completed shortly before the hearing of the complaint although his written versions had been compiled shortly after the examination.
The Commission received into evidence the transcript of the two counselling sessions on 20 November 1996 and 23 May 1997 (Exhibits R1 and R2).
The complainant conceded that there were occasions in the examination in which he had gone for a diagnosis which was perhaps the least likely, and that he was prompted at times, but not on many occasions. He was insistent that in the course of the counselling session he had been shown a mark sheet by Professor Clarke on which a mark had been altered from an A to a C. He conceded that he had been in an emotional state at the time but said that when Professor Clarke realised what had happened he hid the mark sheet from him.
The complainant was then examined on a number of specific cases during the examinations on which the examiners would give their own evidence later.
Starting with the examination by Dr Popplewell and Professor Salem, on 27 March 1996, involving the examination of the cranial nerves of a patient, the complainant conceded that he had no problem seeing the patient but the intensity of light in the ward was a problem. He denied that, although he had found the patient had a Bell’s palsy-like clinical presentation, he had not found all the symptoms that he should have. This was because he did not have a chance to look at the eyes of the lady to make a complete examination. He denied that he had been prompted by the examiners to investigate, further describing it as direction rather than prompting. As it was, he had not found that nystagmus. When asked why he had not complained in his written appeal about the inadequacy of the light, he said that he expected to be able to raise it orally before the appeal committee. This was despite the fact that the guidelines relating to appeals indicated that oral representations were exceptional. Though he had noted in respect of this patient that her tongue was paralysed he said he did not connect the question “which nerve innervates the tongue?” with identifying an association with paralysis of the tongue. His answer concerning the seventh nerve was correct in his view because that nerve was concerned with taste; if the examiner’s question was directed to another nerve the question had been wrongly put. Asked in relation to surgery clinical cases on 27 March 1996 about the case of a person with an aortic valve disease, he said his identification of the angle at which the person placed for examination, namely 30 to 45 degrees was correct, because the person was lying with his head on two pillows.
In relation to the obstetrics and gynaecology viva of 17 March 1997 and his answer that every woman who is sexually active should have a pap smear, he stated that the appropriate procedure would be to conduct a vaginal examination first, followed by a pap smear. He adhered to that answer notwithstanding that it was put to him that by conducting the vaginal examination first there was a potential to damage the cervix so as to distort the pap smear.
In relation to the surgery clinical examination of March 1997 conducted by Mr Finkelde and Professor Scott involving the examination of a patient with an abdominal problem, the complainant denied that he had in fact said that the patient had a palpable liver that was enlarged to 18 centimetres. He said rather it was 13 centimetres, just slightly out of the normal span. He conceded that he had not found the abdominal aortic aneurism but disputed that it was six centimetres in length, stating that it was not easily discoverable. He said the patient was of moderate build and that could mask an aortic aneurism. His response to cross-examination on this point was that while one examiner had found that there was not an enlarged liver the other had so found and had criticised him, according to the counselling.
Asked about the surgery clinical in March 1997 and his identification of a woman patient as having osteoarthritis, the complainant insisted that he had found a Heberden’s node suggesting osteoarthritis as a possibility. He disagreed with the proposition that it wasn’t there. He further said it was incorrect to say that he had missed obvious signs of rheumatoid arthritis. He would have had to possess supernatural powers to have got the diagnosis correct in 30 seconds. Regarding the chest x-ray shown to him in the March 1997 medicine viva conducted by Dr Pappas and Professor Gatenby, he said he had not missed the existence of a lesion until he had been prompted to it. The x-ray was very poorly penetrated. He insisted that he had properly identified areas of calcification on the lung. He disagreed that in so doing he had wrongly identified abnormalities which were not there. Only one examiner had said he was wrong. He did not think it correct that he had only found the lesion after he had been asked by an examiner to have another look. He further disagreed that a chronic obstruction airways disease was apparent on the x-ray.
In relation to his claim that he had been shown a defective ECG in his medicine viva, he said, in relation to another sample copy of an ECG that he had provided to the Commission (Exhibit C25) which he said was similar to the one shown in the examination, that it was not possible to work out the heart rate with the information supplied on it. He said that he needed to have the full squares all the way down to the bottom and the relevant cycles disclosed before he could correctly calculate the heart rate. With respect to the copy he had been shown in the examination, he contended that the large blocks to which the ECG was divided were not clearly visible and were not good enough to make the calculation. He had not complained to the examiners about this, however, because he felt he could not confront them. He denied that he had said the heart rate was between 100 and 150, stating that he had suggested it was 100 or over. When it was put to him that the examiners had suggested the heart rate was 75, the complainant said he did not see any point in arguing because 75 or 100 did not make any difference to the patient. When asked if he had an ECG showing the heart rate of a patient as 75 that would be quite different from an ECG showing 100, the complainant answered “yes, if it’s a good graph paper, yes.” It was put to him that whether the graph paper was good or bad the patterns were quite different, and he replied “No, graph paper is the most important thing for me to say that”.
Turning to the medicine viva of 20 March 1997 and the case of the one-year-old child with febrile convulsions, the complainant suggested the examiners were wrong if they expected him to have identified the condition as streptococcus infection. He denied that he had been prompted to suggest that there should be a lumbar puncture and that the examiners had asked him whether he had thought it could be meningitis. As to whether he could diagnose whether a child perhaps had a viral illness as against a benign febrile convulsion, the complainant said he could if he had the child there and could ask questions but not simply by being shown the pathology slip. In relation to being shown a chest x-ray in that examination, the complainant said that he had recognised that the trachea was deviated but this was not only after he had been specifically asked what he had thought of the trachea. He also denied that it was only after further discussion that he had identified for the examiners that there was a problem with the thyroid gland on the x-rays. In relation to the x-ray of a barium enema of the abdomen, he said that an x-ray was no way to find out whether there is a fistula or not. Regarding the presence of Crohn’s disease, he disagreed that he had identified it only after some passage of time. He denied that his suggestion of a colectomy as a treatment was not appropriate in the circumstances. Although the area affected was not the colon itself, he suggested that the problem was at the beginning of the colon.
In relation to the medicine-clinical examination of 20 March 1997 in respect of the case of a lady who had difficulty walking, he disagreed that the examiners had indicated that he had not done a satisfactory examination and had redirected him to do the testing of the lower limbs again. When it was put to him he had not conducted the Babinski test by running his fingers or instrument down the patient’s sole, he agreed that he had not carried it out but disagreed that he should have done so.
Turning to the case of the patient with abdominal pain in the 22 August 1996 medicine clinical, the complainant agreed that he hadn’t done a ballottment. He said, however, that he was the one who had first suggested that the mass was a kidney and not the liver. He had not identified the features which had led him to identify the organ of the kidney because he had not have been asked about the matter.
Regarding the patient with a heart problem in the medicine clinical examination of 22 August 1996, he disagreed that he had not been able to discover for himself the existence of a mid-diastolic murmur nor a thrill until he had been prompted to it. He disagreed that when he had been unable to hear anything, and the examiner had suggested he should put the patient on the left side and listen again carefully, that that was a prompt. Concerning the examination of the neck of a lady patient in the October 1996 surgical clinical conducted by Dr Yeo and Mr Crowley, he thought he was justified in thinking it was a swelling on the thyroid gland because there was obviously something on the upper part of the thyroid swelling. He thought he did not need to do palpitation because he could see it on inspection. He insisted that he had specified “upper part of thyroid” and not just “thyroid swelling”. He also insisted that he had identified the problem as a thryoglossal cyst and that at least one of the examiners has recorded “thryoglossal cyst” in his notes. In relation to the second case, the complainant said he had not mentioned the word “hydrocele” because he had not been given a chance to do so. He emphatically denied that when the patient was standing up he had tried to reduce the identified swelling by pushing the testes into the abdomen, agreeing that one would never treat hydrocele in that way. He denied that he had attempted to transilluminate the testes by putting a torch on top of the testicle. He said a hydrocele is easy to find but he had been stopped or prevented from saying so.
In re-examination the complainant said that whilst in examinations a number of questions had been asked of him, he had never seen an examiner actually reading a question from some written material nor any introductory statement. Asked about his recommendation of ceftriaxone in the case of the child with an infection he, said that drug was indicated in the Victorian Medical Post Graduate Foundation Antibiotics Guidelines. As to the positioning of the patient in the dispute over the JVP examination, the complainant said that the patient had had the top bit of his shoulder as well as his head on the pillows.
11.2 Evidence of Dr Richard Waluk
Dr Waluk's evidence related to his experience as an OTD or coming to Australia, his involvement with OTDs through the Overseas Medical Graduates Association (OMGA) and also as the Chief Executive Officer of the Australian Doctors Trained Overseas Association. He had accompanied the complainant to two sets of the AMC exams and made notes and observations relating to them and had also accompanied the complainant to a counselling session with Professor Clarke in 1996.
Dr Waluk had graduated in Poland in medicine in 1971 and for a period of almost 10 years had been an academic teacher in surgery at the Warsaw University. He held a degree of PhD in Medicine from that institution. He came to Australia in 1980 and first worked in the Preston and Northcote Community Hospital and also had a short period working at Dandenong Hospital. In 1983 he passed the AMC examination. In the 10 years preceding the hearing he had worked as an emergency fellow at the Airforce Hospital. He had had contact with undergraduate Australian medical students and interns at those hospitals and had also been involved in teaching undergraduate students from Melbourne and Monash Universities.
He had attended as an observer at two clinical examinations undertaken by the complainant. As accurately as he could he had taken notes during those examinations and produced them to the Commission together with some written general observations he had made. He had also viewed the marksheets containing the comments of the examiners. Counsel for the complainant led him through evidence relating to these examinations with a view to establishing that there were significant inconsistencies between the examiners themselves, discrepancies in the way the results were recorded, and overall deficiencies in the process.
The first examination he attended was in March 1996. The examiners were Professor Salem and Dr Popplewell. He prefaced his comments by saying that with a student one would expect there to be a thorough examination of a patient whereas an experienced doctor would be able to eliminate various options as he or she worked their way through a problem as to certain clues would be picked up by the experienced practitioner. If the patient were introduced with a statement “this lady has had a cough for many years, please examine” the person conducting the examination should try and get as much information from the patient to narrow the options which would cover many possibilities. Taking a proper medical history was extremely important. A full physical examination would take somewhere between 15 and 20 minutes to cover every sign, assuming there was a co-operative patient. Half an hour would be a reasonable time to allocate. The less experienced the doctor, the more he or she should go through an ordered assessment of the patient.
A reasonably thorough examination of the cranial nerves should take at least 15 minutes.
Dr Waluk had attended the examinations undertaken by the complainant in March and August 1996. The surgical and medical exams had occupied about 30 minutes and were taken up with three or four "short cases" whereas the obstetrics and gynaecology exams were undertaken through the "long case" method.
Regarding the counselling session between the complainant and Professor Clarke, Dr Waluk said that Professor Clarke had told the complainant that he had performed as a poor fourth-year medical student and mentioned that on at least two occasions his marks had been lowered for such things as incorrectly positioning a patient when taking JVP (see further discussion below). Professor Clarke had conceded, however, that the complainant had reached the correct diagnosis in all the relevant cases. The reason the complainant had failed was more because of technique than correctness of result.
In relation to the first exam conducted by Professor Salem and Dr Popplewell, the first patient was introduced with the statement "this lady has coughed for many years, please examine". It appeared from the notes made by Professor Salem that the complainant should first have examined the sputum mug that was in the room. Dr Waluk thought that was not a reasonable expectation. Also, while Dr Popplewell had noted that the complainant had missed the clubbing of the fingers, Dr Waluk was under the impression that the complainant had in fact picked up clubbing because he had looked at the fingers of the patient but had been directed to assess the lungs. He had listened to them with his stethoscope. At that stage he had looked at the sputum mug and, when asked, said that he found mucoid sputum. To Dr Waluk this suggested that the complainant was following a certain course of "troubleshooting", narrowing his options as he got more clues in order to get to a diagnosis as quickly as possible. He was, however, in Dr Waluk's view, interrupted by the examiners requesting him to do certain things so that he was not allowed to finish his examination properly. In terms of diagnosis, as recorded by Dr Waluk, the complainant had said "could be bronchiectasis" and "cystic fibrosis could be an underlying cause". Dr Waluk disagreed with Professor Salem's later statement that the complainant had no idea of bronchiectasis and its causes. He also disputed Professor Salem's comment that the complainant's initial diagnosis was interstitial lung disease before he went on the reach a diagnosis of bronchiectasis. According to Dr Waluk, the complainant had not said interstitial pulmonary fibrosis was the diagnosis but when asked what can cause pulmonary fibrosis, he had then said interstitial lung disease.
The second case involved a problem concerning the cranial nerves. The complainant had first volunteered that his finding was “Bell's Palsy-like picture on the right side” but when queried by the examiner had corrected it and said it was on the left side. Dr Waluk thought this was simply a mistake by the complainant using the wrong word. Dr Waluk disagreed with the examiners over whether the complainant had failed to pick up properly the condition of nystagmus in the patient (abnormal jerky movement in the eyes). The complainant had correctly diagnosed that there was a cerebellopontine tumour. In particular, Dr Waluk differed from suggestions by the examiners that the complainant required prompting. In relation both to the detection of nystagmus and also to examination of JVP (which was the subject of the examination of the next patient) Dr Waluk had commented that the light conditions in the cubicle were very poor and made it difficult to see things properly.
In relation to the next case, one of aortic valve disease, Dr Waluk disputed Professor Salem's expressed view that the complainant had examined the patient at the wrong angle of elevation. According to Dr Waluk he had examined the patient at a degree of between 30 and 45 degrees and that was a correct procedure. He disagreed with the conclusion of Professor Salem that the examination had taken place at an angle of 25 degrees. He also disputed the conclusions of Professor Salem as to whether there had been a proper examination for murmurs and whether or not the murmur he found was mid-systolic. The complainant had again arrived at the conclusion that the proper diagnosis was aortic stenosis.
Dr Waluk was also of the opinion that Professor Salem had incorrectly marked down the complainant because the latter had said that he believed that Adams-Stokes attack could be a manifestation of an aortic valve disease. Having regard to medical textbooks to which Dr Waluk referred, there could be such a connection. Dr Waluk said further that the complainant had not been given freedom to listen to the heart properly because he had been interrupted. Dr Popplewell in his view had misinterpreted the candidate's remarks concerning mid-systolic murmur and its connection with mitral valve lesion.
In relation to a viva exam conducted by Dr Glass and Associate Professor Piterman, the complainant had answered correctly, according to Dr Waluk, that the patient was “washing away his CO2” when shown the test results. When asked what the underlying illness might be, the complainant had hesitated and answered “asthma”. Dr Waluk justified the complainant's answer, as against the examiners’ view that the cause was hyperventilation, because panic can trigger asthma which can result in over-breathing giving rise to hyperventilation. According to Dr Waluk, the question asked of the complainant was not sufficiently clear and in the circumstances the complainant’s answer should be regarded as correct.
Similarly in relation to the case of a three year old child brought in with an infection, according to Dr Waluk, the complainant had first suspected meningococcal rash and when informed it was a haemorrhagic rash had said penicillin was good for meningococcal infection but when asked if he was not sure if it was the latter, the complainant had suggested “ceftriaxone”. In Dr Waluk's view, the complainant's answers had been correct based on published national guidelines provided to practitioners. According to Dr Waluk, the examiners had misread the complainant's answers in so far as they expected him to propose ceftriaxone as the treatment for septicaemia with unknown bacterial aetiology.
Dr Waluk also was critical of Associate Professor Piterman's treatment of the complainant's response in the next case which the latter had initially diagnosed as a case of thalassaemia.
In relation to the third case presented to the candidate, which was an x-ray, Dr Waluk again disagreed with Associate Professor Piterman's assessment that the complainant had to be prompted for a correct diagnosis because he had initially missed the possibility of infarction.
Given that, in his view, the complainant had answered the questions reasonably correctly, Dr Waluk could not understand why he had not passed.
Asked to comment on letters from Professor Salem and Dr Popplewell providing their observations on the complainant’s performance and why he had failed, Dr Waluk said that he was shocked to find various discrepancies between the accounts given by the examiners and his own observations. For example, in relation to the question of whether the complainant had properly conducted an examination of the chest, and comments by Professor Salem that the complainant had not examined the trachea, Dr Waluk considered there was no need in the circumstances to examine the trachea. Likewise, he disagreed with Professor Salem over whether the candidate had missed clubbing of the fingers. Among other instances of alleged misrecording or misunderstanding, Dr Waluk strongly denied a statement of Professor Salem in relation to the cranial nerve examination that the complainant “stated that the seventh cranial nerve was the motor nerve for the tongue. Rather, given the question was “does the facial nerve innervate the tongue”, the complainant's answer had been correct since fibres go to the tongue as part of the facial nerve. Dr Waluk had similar problems with Professor Salem's account about the heart murmur and whether it was aortic stenosis. He expressed strong disagreement with Professor Salem's conclusion that the complainant's clinical skills were very poor.
Likewise Dr Waluk was critical of Dr Popplewell's letter, again asserting that the complainant's reference to whether the patient's facial weakness was on the right or left side was in fact an error. He again disputed the examiner's comments relating to nystagmus, whether the complainant had examined for JVP at the correct position, and whether mitral valve lesions were causing mid-diastolic murmur. According to Dr Waluk, the complainant's investigation of cardiac murmurs was satisfactory and Dr Popplewell's conclusion that the complainant had failed that particular case because of an incomplete and disorganised physical examination was not correct. Further, Dr Waluk contended that the nature of the examination was such that the complainant had not been given a chance in the time available.
Without going into such detail, Dr Waluk gave similar evidence in relation to the following:
The cross-examination of Dr Waluk proceeded with some difficulty as the witness frequently declined to give direct answers to questions as he debated whether the questions were sufficiently qualified or specific.
Asked about his concern regarding the AMC examination system, and speaking as the Chief Executive Officer of the Australian Doctors Trained Overseas Association, Dr Waluk said that his first criticism was that the examination didn’t appear to be the same as the examination given to local doctors. They were differently structured involving different ways of examining and assessing. He was particularly concerned that there was no proper recording such as video recording. This led to there being no objective way to verify what was said in the event of any dispute. He also regarded the lack of a proper appeal mechanism as a problem.
He was not prepared to say, however, whether an examiner in order to make an assessment could assess the student after he or she had partially completed the examination task. In his view, it was necessary for examinations to be objectively structured in terms of what questions were asked and what answers were expected. Questions should not be asked in any ambiguous way. Whether a full examination was necessary to assess a candidate was up to the examiner.
Questioned about whether the complainant had actually been handed a pathology report in the course of the first medical viva, Dr Waluk said he could not recall whether the complainant had had any in his hands.
Regarding the making of notes after the examination, Dr Waluk said he had had a cup of coffee with the complainant during which the complainant had asked him such things as whether something was the first or the second. He had attended the examinations of the complainant as an independent observer and did not regard his record having been made to provide the complainant with a record for his purposes. He was in fact unaware whether the complainant had himself created a specific record. In relation to the first case in the medical viva, the complainant had been given pathology slips after which the complainant had started mumbling. While looking at it he had identified that there was a washing away of CO2. In relation to what question had been asked of the complainant, Dr Waluk said that the question was “what would be the underlying illness”. In his opinion, if the examiner had wanted to ask whether hyperventilation was the cause of washing away the CO2, he should have asked the question in more specific terms. Dr Waluk conceded that in answer to the question of what was the underlying illness the complainant could have said many more things besides “asthma”, including general anxiety disorder. In relation to providing the complainant with a full blood examination, Dr Waluk said there were more common causes for anaemia than thalassaemia. Menorrhagia was probably a more common cause. In the case of the patient presented as one with a recent cough and shortness of breath involving a pleural effusion, Dr Waluk had said that if a competent doctor were asked to list all the causes for pleural effusion, one of the causes he that would expect to be listed would be pulmonary embolism. However, he considered the appropriate question would have been to ask the candidate to list all the causes or at least tell the common ones. As it was, the complainant was offering long shots, that is the less likely causes.
Referring to the case of the patient with bronchiectasis, Dr Waluk agreed the woman would have been 60 or 70 years old. In examining her, the complainant had moved around the patient and had been looking in the sputum mug. He started by looking at the hands. There had been a sputum mug into which the patient had coughed and spat. It was on the bedside table. Dr Waluk agreed that there was no record of anyone in Australia living beyond the age of 60 with cystic fibrosis. However, he disagreed that the complainant’s answer regarding cystic fibrosis was wrong because the context in which the question was asked was about infections in childhood and one infection in childhood could have derived from cystic fibrosis. The questions asked by the examiner were not necessarily to be taken as specific to the particular patient.
Regarding the examination of the cranial nerves, Dr Waluk said the complainant had not taken any steps towards testing for nystagmus prior to being asked whether he wanted to examine for the condition. The witness said however it was not logical for the complainant to have examined for that condition at an earlier stage. In terms of whether the light conditions were inadequate, the witness said there was no suggestion on the part of the complainant that it was. Dr Waluk was surprised when the complainant was asked “does the facial nerve innervate the tongue?” when the complainant was examining other nerves. With respect to the patient with JVP, Dr Waluk insisted that the angle of examination was between 20 and 45 degrees. He had not, however, made a note of the angle in his notes. He did not think it necessary to do so as the complainant had conducted the examination correctly. He disagreed that the position was between 20 and 25 degrees.
Continuing with the JVP examination, Dr Waluk said, in relation to the complainant’s use of descriptions, whilst the words “ejection murmur” and “mid-systolic murmur” were different words they reflected a different approach to a murmur while being descriptions of the same thing from different perspectives. Mid-systolic murmur is a more general term and ejection murmur is more confined. There could be other systolic murmurs apart from ejection murmur and not every systolic murmur is due to aortic stenosis. The complainant’s answer that the murmur could be due to aortic stenosis was one potential answer but others could have given.
Regarding the first case in medical clinical of August 1996 Dr Waluk said the complainant examining the mass on the right the side of the patient’s abdomen had said “not liver, as I can get above it” and went on to suggest it was “renal maligacy polycystic kidney”. The complainant had then appeared to be confused when the examiner had said “why do you think it’s liver?” after the complainant had said “it’s not liver”. The complainant had then gone on to suggest that it was not liver because he could get above it.
Asked whether he had discussed a particular series of questions with the complainant since the exam, Dr Waluk said he had not had a special discussion about the matter. Though the complainant had mentioned having a written document of what the complainant said had had happened at the time, Dr Waluk had not read that written account.
Asked about the x-ray of a barium enema at the August 1996 surgery viva, Dr Waluk had recorded that the complainant had some difficulty finding the narrowing of the passage and had suggested it was probably a fistula. Dr Waluk himself had seen it immediately and had no problem finding it. Dr Waluk could not however say whether the complainant had suggested that the treatment for Crohn’s disease would be a colectomy as he could not write down everything that was happening at this stage. Dr Waluk said that the complainant, when shown a chest x-ray, appeared to be rushed as the examiner seemed to be rushing to complete the case in the remaining time.
In re-examination, Dr Waluk agreed that a person who had the underlying disease of asthma could nevertheless be hyperventilating at times. He also agreed that with respect to the thalassaemia incident the complainant had referred to myeloprolimerative disorder. He also confirmed there had been no need for the complainant to look for nystagmus once the cerebellopontine tumor had been identified.
11.3 Evidence of Dr Johannes Wenzel
Dr Wenzel, the co-ordinator of Emergency Medicine for the Southern Health Care Network, including Dandenong Hospital, Monash Medical Centre, and Sandringham Hospital, gave evidence relating to his own experience as an OTD becoming qualified for practice in Australia, his knowledge of OTDs working under his supervision, his experience in examining medical students, and his personal knowledge of the complainant.
Dr Wenzel qualified in Germany in 1973 and after experience in surgery in that country came to Australia in 1980 and passed the AMC exam in 1981. In 1992 he was appointed Director of Emergency Medicine at Dandenong Hospital and became a fellow of the Australasian College for Emergency Medicine in 1984.
Since 1992 he had been actively involved with overseas medical graduates in the casualty department at Dandenong Hospital. As a lecturer at Monash University in Emergency Medicine he was also acquainted with the education and training of Australian trained doctors. Through his connection with the Emergency College he had been involved in establishing guidelines for teaching undergraduate medical students at fourth, fifth and sixth year of medical studies and was familiar with the OSCA assessment process. This entailed oral examinations which were performed with two examiners and observers. He expressed the view that it was very difficult to compare that examination system with the AMC exam because the final years’ exams for Australian students required them also to have passed certain subjects in their fifth and sixth year which complemented the final exam.
Anticipating later evidence relating to the complainant's own experience in the AMC exam system, counsel for the complainant put to Dr Wenzel various hyphotheticals to elicit his description of what would be expected in relation to clinical case examinations for an Australian student. If, for example in a clinical viva, an examiner said “this lady had a cough for many years, please examine” he said he would hope that it was not to be approached as a short case (ie an examination of several minutes) because it was a complex topic and he would expect the candidate to start with a thorough history and then go on to make an examination in a very structured way involving listening and feeling. In his view it could take an intern up to an hour to assess the patient but if he were an experienced practitioner he might “cut corners” and be in a position to come to a much better idea within five minutes. Where a final year student was involved, however, the expectation was that there would be a very thorough taking of history and examination and it would not be possible for a final year student to come up with an answer in five minutes or less. He expressed similar views in a hypothetical case which might be introduced by the statement “this is Mrs X, please examine the cranial nerves” or “please examine this patient, he has a heart condition”. Dr Wenzel expressed the view that he could conduct an examination in each case within 10 - 15 minutes but might not be able to come up with a diagnosis within that time. The cardiovascular system, for example, required a fairly complex investigation which would need to take 20 - 30 minutes for a proper examination.
In relation to his own experience with the AMC exam and through having assisted other candidates for that exam in their preparation, in light of the results he was convinced that there was neither consistency nor objectivity in the examination system. Candidates who were up to the standard of the final year medical student in his opinion had failed the exam whilst other doctors who had passed it could not perform in the public hospital system safely and required re-education. The OSCA system, however, involved a pre-set situation where subjectivity was eliminated.
While he would expect a recent graduate faced with a clinical case to proceed in a thorough and ordered examination, he would expect an experienced practitioner to come to conclusions much faster by concentrating on certain areas given that an experienced practitioner would be aware of the relative probability of various factors.
He had worked with the complainant at Dandenong Hospital for a period of two years between 1994 and 1996. His office was in the emergency department including as part of the intensive care team. Dr Wenzel ranked the complainant in the top 25 percent of residents he had overseen, including Australian interns.
In cross-examination Dr Wenzel agreed that clinical examinations were universally employed as a means of examining medical students and every doctor would have to have a basic capacity to examine patients in a clinical situation. Many academic institutions to his knowledge used the short case method as a convenient technique for testing the competence of students. There was room in the course of such an examination for the examiner to intervene if necessary. Also an examiner could make the assessment about a candidate’s confidence or lack of confidence before an examination was exhausted. A short case, however, only dealt with very narrow problems and one couldn’t deduce a great deal in relation to the general competence of a student or doctor from them. Concerning OSCEs, Dr Wenzel agreed that there was a capacity for discussion between the candidate and an examiner just as there would be in a long case clinical examination. The discussion in an OSCE context would be limited by time. In the case of a short case clinical examination if a foreign doctor had problems with English, examiners could use discussion to overcome a linguistic disadvantage. An examiner could clarify an answer if he or she was mystified by it. Language problems could affect a short case, a long case or an OSCE examination. There was room for clarification in all three instances. Dr Wenzel had himself, in a recent OSCE examination, had to pull students of Monash University back onto the track when there were misunderstandings on the part of the students. The advantage, however, was that there was group objectivity in achieving a score out of ten according to guidelines.
He did state that from his point of view the AMC exam had been used to restrict the number of candidates passing on to practice in Australia and that to a certain degree there was an ulterior purpose in the way the exams were set. Passing the AMC exam was the first step to eventually entering general practice though it was necessary to serve 12 months internship in a general hospital. First, the hospital needed to certify the doctor was competent to practice independently after that year. The AMC exam was supposed to be the same standard as the final year medical examinations at an Australian university. The latter would not prepare a student to engage immediately in general practice. However, there were many skills, particularly practical, which needed to be acquired before a person would be safe to be a general practitioner in the community. That is why there was a minimum of 12 months in a hospital before there was a right to unrestricted general practitioner status. At the Dandenong Hospital Dr Wenzel had introduced a system where interns could not work independently without proper supervision for that reason. Persons who had passed the final year medical examinations were simply not up to practicing alone.
In re-examination Dr Wenzel stated that he thought the short case clinical method and the OSCE were different ways of assessing a person. He thought that each had a place to test skills.
11.4 Evidence of Dr Felicity Allen
Dr Allen gave evidence in relation to the reliability and validity of the examination system administered by the AMC. She had prepared a report for Rada Consultants Pty Ltd, dated 3 July 1997, which was produced to the Commission (Exhibit C13). She gave oral evidence in elaboration of that report.
Dr Allen had graduated in science in 1971 and completed her PhD in 1988 on the topic of assessment of academic merit. She had worked as a research fellow at the University of Melbourne on issues of assessment and measurement and at the time of giving evidence was a senior lecturer at Monash University. She had taught statistics for many years starting at La Trobe University. In her report she had considered photostats of examiners’ written notes in the various clinical examination undertaken by the complainant, together with the assessment criteria determined by the AMC in relation to the examination system. She had also considered a letter from the complainant to Mr Frank, the Registrar of the AMC, dated 20 May 1996 as well as a similar letter dated 8 August 1996, together with a copy of the rejection of the complainant's appeal to the AMC.
Her report was written at the request of the complainant with the objective of identifying whether the examination system had produced reliable results. She understood the problem was one of assessing clinical capability, which was a complex matter that was hard to assess. She explained to the Commission that the concepts of reliability and validity, concerning measurement, were different concepts. Reliability generally referred to a measure which gives the same answer each time, and validity referred to a measure that really measures what it claims to measure. She stated that in terms of the relationship between reliability and validity one could have one without the other. In dealing with theoretical issues about professional examinations she had indicated in her report that students would need to know to a reasonable degree what it is that they are required to demonstrate. They had to be able to demonstrate their knowledge within the time allowed and within the circumstances, including adequate equipment, in which the examination of a patient is conducted. All people in the same examination should be examined on the same criteria.
Referred to the 16 assessment criteria settled by the AMC, Dr Allen expressed the opinion that it was virtually impossible to deal with four patients in half an hour in order to assess them against all 16 criteria. It appeared to her that if the format was followed in a systematic way there would be too much to cover in half an hour.
In regard to the structure of the examinations it seemed to her that the examiners were free to vary both the number of patients and the amount and type of prompting that they offered.
In attempting to correlate the results from the various 16 examinations undertaken by the complainant she had found, statistically, that it was virtually impossible to come to any relevant conclusion, given that 5 out of the 16 sets of results were not adequately completed. This included cases where pairs did not seem to match. This had led her to question the integrity of other observations made by examiners. It was important that examiners kept careful records, had a clear idea of what the questions meant and whether the student got a particular mark or not. She was referred to a form of an OSCE examination used for 4th year clinical, medical and surgery students at the University of Melbourne. These had clearly defined and structured steps through which the student would proceed. The instructions given to examiners were quite detailed.
Her observations were that under the standardised OSCE examination a candidate would appear to have a great deal more time. Patients would be asked to stick to a script to minimise incidental variation. The various features of examinations were carefully typed out. Her conclusion was that in terms of objectivity and fairness the OSCE system was much more objective than the relatively unstructured AMC exam where there could be varying tendencies for different individuals to emphasise different things. By comparison, the AMC examinations were very unreliable.
Cross-examined by counsel for the respondent she conceded that later year students in medicine in Victoria underwent other forms of evaluation besides the OSCE format. The advantage of the OSCE format was that the two examiners would have a clear idea of what they were intended to observe and could compare their perceptions. Hence the results would be more objective. She considered the value of any records of examinations depended on what they were being used for; however, the standard of record keeping should be sufficient to allow a student to question a mark or to have an in depth feedback. One purpose of their notes would, however, be to assist examiners so that in consultation with their colleagues they could come to a common view about whether a candidate had passed or failed a particular segment of the certification process. Whilst the examiner might be satisfied that someone who is three quarters of the way through an examination task was capable of successfully completing the test, Dr Allen said it would be a very risky and unreliable way to conduct examinations.
In relation to the assessment criteria laid down by the AMC, she conceded that, in terms of the objective stated in the preamble to the criteria, the examiner did not have to undertake an assessment of a candidate against each of the particular 16 tasks. Her view was that the examiners could not compare one candidate to another unless they had a common basis of comparison which would require measuring a candidate against each criterion. She disputed that one could form judgments about the competence of a person or applicant merely by way of an interview. In her view, the advantages of an OSCE examination was that it was more extensive and allowed longer periods of time for the student.
In response to a question from the Commission, Dr Allen thought that if the AMC moved to the kind of exam along an OSCE line it might lead to more doctors passing. For one thing it could reduce what psychologists call the “halo effect” in which a particular characteristic of a person can strongly influence the whole attitude of an examiner. In her view there was a greater likelihood of error in the AMC system than the OSCE.
12. EVIDENCE FOR THE RESPONDENT
12.1 Evidence of Associate Professor Leon Piterman
The statement of Associate Professor Piterman was, after amendments, taken into evidence (Exhibit R3). In elaboration, concerning the pathology report of a patient whom the complainant first suggested might have thalassaemia, Associate Professor Piterman said he handed the report to the complainant who took it in his hands. The report was not masked by the examiner’s fingers.
The witness said that he had examined a number of candidates on the day in question using the same case as in the pre-break session but there could have been different cases in the afternoon. The ultimate score of a C for the complainant was reached as a consensus view of the witness and Dr Glass.
In cross-examination, Associate Professor Piterman said that examiners were selected for the AMC exam based on their previous experience in examining undergraduate courses and also in postgraduate medicine but there was no specific training that he had undergone to carry out the particular exam. The criteria of assessment was based on a comparison between the level of expertise of the candidate for the AMC exam with the final year university candidates. The examiners did not however have a checklist of what they were expecting from each candidate, though the two main concerns were competence and safety. Whilst no written list of questions was prepared, examiners had a mental checklist of what was expected and the same questions were repeated for each candidate. There would only be a limited number of questions that could reasonably be asked in respect to a particular pathology slip or x-ray or ECG. If a candidate went off in a different direction examiners would try and direct the candidate back to the main issue. In deciding whether a person would get a B or a C, Associate Professor Piterman said it was not a judgement based on intuition. There was still an aspect of objectivity associated with the process. This was not in the sense of specific points being given a mark of 1, 2 or 3 against them but there were other objectives which were observed such as the expectation that a candidate would identify, for example, abnormality, then point out the significance of what it was, identify other possible causes and identify a course of management. Those were the issues to be considered in marking a candidate. In terms of comparison between candidates, if candidates were given the same problem and, for instance, 95 percent got the issue wrong, the examiners would realise they may be asking that question unfairly. Though there were no standard written questions to be asked, there was a standard procedure of asking the same questions.
Concerning selection of materials, the examiners selected them on the day from a range of available material that was provided for the exam. The choices were made by the examiners. They would try to select from a broad range of diseases and clinical situations, both acute and chronic, to give a broad measure of a candidate’s competence. If an old x-ray was found to have poor penetration and it was difficult to determine what it showed, it would be discarded. In respect of the examination of the complainant, Associate Professor Piterman thought the ECG read-out would be a good-quality photocopy of the original.
Concerning marking, the two examiners scored independently for each component and then had a consensus meeting at the end. Associate Professor Piterman’s practice was to record comments that he could recollect during the examination and indicate by ticks and question marks his judgement of each case-by-case assessment, arriving at a global assessment as to whether the candidate was satisfactory or not. A question mark against “meningitis” would indicate that he felt the candidate had not adequately handled that aspect.
Regarding the questions asked by Dr Glass in respect of a child with an infection, Associate Professor Piterman thought that Dr Glass’ questions were sufficiently clear to elicit a discussion of septicaemia rather than meningitis.
At the end of the examination there would be a consensus meeting of the four examiners, including the viva examiners and the case examiners. At the consensus meeting the written comments would stay as they were. The only thing that would be changed would be the consensus mark. The ultimate mark would be recorded by a person who was leading the discussion of the group of four.
Associate Professor Piterman said he was aware that the complainant had been involved in a case in the Commission prior to the start of the examination. When asked about his written statement that the viva exam is a test of knowledge, interpretation, clinical decision-making and management, Associate Professor Piterman said he would not rank those aspects generally in order of any priorities. The different components of an exam test would be directed to different aspects. A multiple-choice question, for example, may be a better test of knowledge than a viva but not a test of interpretation, decision-making or management. A viva enabled each of the modalities to be tested. With the viva, clinical decision-making and management might be given a greater degree of significance than knowledge.
Turning to particular aspects of the viva exam, Associate Professor Piterman said it was possible for a person who suffers from asthma to have an episode of hyperventilation. The term “hyperventilation” is used to describe a syndrome which usually had an underlying psychogenic. Regarding the pathology slip showing anaemia, Associate Professor Piterman conceded that thalassaemia was a possibility for consideration. With respect to the case of the pleural effusion, Associate Professor Piterman said he didn’t expect the candidate to identify pulmonary embolism straight away. What he expected was that once the pleural effusion was identified the candidate would then systematically explore the possible causes along a diagnostic pathway which would take one to pulmonary embolism. He agreed that no history of the patient was given at the beginning. In that case, the complainant took considerable prompting before he actually mentioned pulmonary infarction. The prompting consisted of disclosing that the patient had, seven days post-operatively, become acute, being short of breath with a cough. Only after some time was the complainant able to volunteer the diagnosis of infarction. The prompt was assisting him with the question “What could it be?” until the answer was eventually given. He had repeated the question “What could it be?” two or three times. Associate Professor Piterman said that he would have expected the complainant to recognise the issue once the pleural cap had been done and indicated bloodstained fluid. The differential diagnosis at that stage should have included infarction. This was before reference was made to the seven days’ post-operative state of the patient. Once the candidate had failed to mention infarction as a possibility which was potentially serious he had been taken down the diagnostic pathway which led to the complainant correctly diagnosing the problem after some time. It was that process that caused the witness concern. The discussion of the x-ray had probably taken more time than the two to three minutes that was spent on discussing the ECG. Although there were only a few minutes for each component, Associate Professor Piterman said he compared the complainant with other candidates who managed to get through more in the same morning. It was therefore a relative comparison. Associate Professor Piterman conceded that if four out of the six candidates in the morning had performed better than the complainant that would be a factor tending towards giving the complainant a C. Although the time was short for each component the format differed from the kind of diagnosis which would occur in the case of a standard consultation of a practitioner with a patient. The examination was set up to test the various modalities in a setting which was specifically structured for the performance of a candidate in that setting. Whether taking an AMC exam or a university exam the examiners would have to make the same judgement about the potential safety of a candidate judged by the performance in that exam, not as one would judge it if there was more time available, or time to consult a series of textbooks, or have access to consultants. Judgements about potential safety had to be made in the context of the exam.
Associate Professor Piterman was aware that the assessment of Monash University medical students involved an OSCA type exam and a long case exam, but considered it was wrong to say that the final year assessment of graduates of Monash simply consisted of those two features. Short case examinations were conducted in some departments such as medicine and surgery. A long case examination certainly would allow the candidate to take a complete history and allow assessment of the ability to physically examine a patient, the ability to elicit signs and interpret them, and the ability to formulate a management plan. Against that, clinical short cases enabled one to test a variety of systems and vivas enabled one to test clinical management and clinical decision-making. In both the AMC and the university exams the issue was safety for supervised practice which would occur in an intern year. Overall, the AMC exams were directed to assessing performance in a range of different domains involving trying to grade the performance and through that grading to make a judgement about the competence and safety of a candidate.
12.2 Evidence of Professor Barry McGrath
Professor McGrath provided a written statement dated 17 February 1998 (Exhibit R4). He had been an examiner in medicine for more than 20 years in Australian medical schools, had conducted 17 examinations with the AMC, and was a senior examiner for the AMC.
He told the Commission that though various sorts of materials were provided to the examiners relating to the completion of assessment sheets and the need to have regard to guidelines, there were no detailed instructions given about how to conduct medical examinations as such. In July 1997 the AMC had changed the specifications for such exams. They now involve 45 minutes as against 30 minutes for the medical and surgical cases. Also examiners were now provided with more detailed information about assessment.
Regarding the set of examinations involving the complainant the process was that a coordinating registrar at the particular institution where the examination was being conducted arranged for potentially suitable patients to be brought in. The examiners would then individually go and see the patients, proceeding to examine them and make their own findings individually. Examiners then wrote up their own notes and agreed on a consensus of issues which they wished to bring up for the purposes of the examination.
Professor McGrath had attended a counselling session involving the complainant in March 1997 and was aware that the complainant’s recollection of the exam process in medicine differed from his own regarding disagreements between the individual examiners. The cases chosen for examination would have to show fairly flagrant pathology or clearly evident signs. The examination system would be unfair if the signs were not clearly evident to an examiner. While no written sheet was prepared showing the questions that were intended to be asked, there would be agreement between the examiners about the statement agreed to be made in respect of a particular case such as “This patient has shortness of breath. Would you please examine the cardiovascular system?” Subsequent questions would then be directed to asking the candidates to describe their findings and comment.
Whilst a group of patients would be selected, the same patients would not necessarily be shown to each of the candidates. There would be a rotation depending on the ability of the patients to stay for the duration of the session. The selection in a particular instance would be directed to having a candidate assess two or more different systems. Attempts would be made to have different candidates seeing two or three patients in common. There may however be different cases examined in the afternoon from those in the morning session. Some patients have painful conditions that showed important features for use in a clinical examination. It was expected the candidates themselves would normally ask “Do you have any pain or discomfort” prior to proceeding with their examinations. If the candidate did not do that the examiner usually suggest the candidate be careful with the patient because of pain in a particular location. A patient with existing pain could nevertheless be a reasonable case for examination based on inspection and observation. Professor McGrath thought, however, that it would be difficult to conceive of a situation where one examiner told the candidate to proceed with an examination whilst the other one suggested not to.
While there was no checklist beyond the diagnosis and the principal signs, a systematic approach to the physical examination was an important component of the examination technique. Examination would involve observation, palpation, auscultation and should proceed in a logical sequence. The witness agreed that it would be possible to set out a list of the expectations that were in the mind of the examiner, and they could be ticked off as the candidate progressed. This would be better recording but not necessarily more accurate or more rigorous. A difficulty with a checking system, however, was that one could become obsessed with observing for where a particular matter was on the list. It was the kind of thing which could be used in OSCE format where there was a very limited time frame examination for each station. But in a clinical type examination, the examiners were interested in the overall approach and the logical sequence of proceeding to the clinical examination, then the appropriate analysis of the findings. In those circumstances, observing the candidate’s process with the examination technique was very important, including how they placed a stethoscope. One would not to be ticking boxes against every individual item.
At Monash University the short case format was not used in the assessment of final year students but was as part of the assessment in fifth year. It was in fact 30 percent of the fifth year assessment, fifth year making up 10 percent of the final exam result. Professor McGrath was talking about the internal medicine component. Asked whether he would agree that greater reliability or reproducability could be added to the process of testing specific skills or competencies by using a structured, multi-station assessment process like that in the OSCE exam, Professor McGrath said he’d agree if it was the sole kind of examination. That was because with the greater number of stations and sampling there was the likelihood of a greater reliability of the resource.
In examining the patients prior to the complainant’s examination, Professor McGrath had taken somewhere between 10 to 15 minutes. Because of his experience he would have been able to arrive at a diagnosis more rapidly than would have an intern but nevertheless in conducting his examination he would have gone through the whole process that he would have expected the student or candidate to go through. There were essential steps to be taken such as feeling the pulse and taking blood pressure in the case of a cardiovascular examination. After the exam the examiner would independently record the mark then a consensus meeting would occur at the end of the entire session. The consensus mark would be based on the discussion of all four examiners, referencing to their own recordings, their mark sheets and their assessment of each candidate.
He had been aware when examining the complainant of the case involving the complainant and the Commission.
Regarding the time allowed for examinations, Professor McGrath agreed that it would be difficult to cover everything in all four cases in just half an hour unless the examiners were directing the candidate towards things that they considered important.
Regarding the testing of a particular patient for the power of muscle groups, Professor McGrath said that he had asked the complainant to do a Babinski Test. Referred to the fact that Professor Sweet had marked the complainant’s physical examination technique as satisfactory, Professor McGrath said he did not think that the differences between what the two examiners recorded was great. Professor Sweet had also recorded that it was a poor power examination and inaccuracy in eliciting signs, that the reflexes not well done and that prompting was required for plantar response (that is, the Babinski test).
In relation to the second case involving aortic stenosis, the witness said that his recording that the complainant said the pulse was irregular was only one component of his overall concern about the examination. The complainant missed some very important signs, the nature of the pulse, the thrusting apex speed, the nature of the murmur itself, all of which pointed much more towards the diagnosis of an aortic stenosis than it did towards regurgitation. Professor McGrath was concerned that the candidate had missed some important additional signs.
12.3 Evidence of Dr Reuben Glass
Dr Glass provided a written statement dated 17 February 1998 to the Commission (Exhibit R5) which he amended in relation to the fact that he had awarded the complainant a B minus whereas Associate Professor Piterman had awarded him a C. On reflection he felt that he had been too generous, and with Associate Professor Piterman he had determined that a C was more appropriate. A particular factor in that regard was that the complainant had suggested a treatment that was inadequate in relation to a potentially life-threatening infection, namely penicillin rather than ceftriaxone. The latter was broader in its spectrum than benzylpenicillin. It was capable of covering three types of bacteria, namely, meningococcal, haemophilus and pneumococcus. Referred to the Therapeutic Guidelines for the Victorian Drug Usage Advisory Committee he agreed that they suggested that penicillin was appropriate for pnemococcus and meningococcal infections whilst cefriaxone was appropriate for haemophilus. The witness said he thought ceftriaxone was appropriate in the context of a child with severe infection arriving at a hospital for emergency treatment. It would cover all three of the possible infecting organisms rather than one that only had partial coverage, given a life threatening situation. Dr Glass recalled that the complainant had suggested penicillin in a very dogmatic manner and after further questioning in order to elicit the possibility of a causative organism other than meningococcal had suggested the right medication. The further questions were directed to putting to the complainant the possibility that there might be something other than meningococcal infection.
In re-examination by Mr McClellan Dr Glass was referred to the Therapeutic Guidelines Neurology (Exhibit C31, page 66) where, in relation to immediate and early hospital management of a case such as that dealt with in the examination where the causative organism or susceptibility was not known, a treatment which covers the three most common pathogens should be instituted, using ceftriaxone together with benzylpenicillin in patients aged between 3 months and 15 years. Two of the causes of infection would respond appropriately to penicillin while the other respond to ceftriaxone. All three organisms would be responsive to ceftriaxone. At p70 of the Guideline it was suggested that some strains of infection were relatively resistant to penicillin and ceftriaxone was suggested as the appropriate treatment.
12.4 Evidence of Mr Simon Crowley
Mr Crowley provided a witness statement dated 18 February 1997 (Exhibit R6). In cross-examination he told the Commission that he was aware, prior to examining the complainant, that the latter had made a complaint to the Commission.
Prior to the examination Mr Crowley and Dr Yeo had examined five or six candidates and together they had discussed their findings with a view to determining what patients were thought to be appropriate and whether the physical signs were easily detected. Some signs were fairly obvious in the patient and they would be good to use in an undergraduate examination. He had taken about half an hour to examine the patients. The examiners’ comments would be jotted down in the five minute period between candidates when the reports were written up and a mark given. This would be followed by discussion of the marks. It was possible that something might be added later but by and large the comments would be made after the candidate had left the examination room. No mark was given later on. A meeting of all four examiners occurred at the conclusion of the examining of all the candidates. In the case in point the discussion had been led by Professor Marshall.
Turning to the specific examination with the complainant, Mr Crowley did not have any recollection of the patient with the thyroglossal cyst protruding her tongue spontaneously without being asked. It was theoretically possible that he might have missed it while writing. The complainant had finally come to a correct diagnosis but had taken an inordinate amount of time on the first case. The patient had an obvious midline swelling. The complainant had suggested a thyroid swelling which it obviously wasn’t and concentrated on the diagnosis of goitre which was obviously incorrect. He was therefore asked to re-evaluate the patient. When asked whether there were any other possibilities he had suggested a branchial cyst but had suggested that it was unlikely. The process of examination was long and tortuous whereas a thyroglossal cyst is a common undergraduate condition.
With respect to the case of the inguinal hernia, the candidate had correctly diagnosed left inguinal hernia but his initial diagnosis was of bilateral inguinal hernia meaning hernia on both sides. When questioned he went on to say there was definitely a hernia on the right side and that it was irreducible. He was feeling for a scrotal swelling on the right side which he couldn’t push back and therefore suggested it was an irreducible hernia. In fact it was not a hernia at all. Asked if there was any other pathology in the scrotum, he had tested by transillumination but had used the wrong technique to adequately evaluate the information. The condition on the right had in fact been one of hydrocele and Mr Crowley considered that the complainant had not displayed a proper, safe technique to make that diagnosis.
12.5 Evidence of Professor Hatem Salem
Professor Salem provided to the Commission a written statement dated 18 February 1998 (Exhibit R7) after some amendments. He had examined the complainant in conjunction with Dr Popplewell. They had selected three patients out of four and in relation to the patient with bronchiectasis there was a styrofoam mug kept next to the patient’s bed. It did not have the word “sputum” written on it. The patient was introduced as a lady with a long-standing productive cough and it was essential before one began an examination of the respiratory in that sort of scenario to look for the sputum mug. Examination of sputum was the ABC of examining respiratory systems. Professor Salem said that whilst one would develop expertise by having seen a number of the kind of cases before, he would still think that it was necessary to do a proper examination just as an intern would do. Professor Salem said he would perform a physical examination in the normal way even though, because of his experience, in the end he would be able to hone in on a diagnosis quicker because he was an expert. As far as short case examinations were concerned there was a problem-oriented approach that was required and it was not necessary for the candidate to delve into a detailed history-taking in that kind of exercise.
Professor Salem agreed that it could happen in some cases that physicians would disagree about well defined signs.
The witness said that a graduate of a medical school would still require supervision as an intern but it would not be intensive in the sense of having someone more senior always supervising their work. A more senior practitioner should be available to be called upon if the intern considered he or she needed assistance.
Concerning the case of bronchiectasis, Professor Salem had been critical of the complainant because the latter had missed clubbing of the fingers. In recording that the complainant had “missed clubbing” Professor Salem conceded that the complainant may have noted that condition but not mentioned it. From Professor Salem’s observation, the complainant had not appeared to have noticed clubbing. Regarding his comment that the complainant had made no assessment of the trachea, the witness considered that the candidate needed to feel and not simply look at the trachea. Professor Salem had not seen any sign of the complainant physically touching the trachea. As to whether a cerebellopontine tumour was a rare condition and not suitable for examination, Professor Salem said it was an excellent case for a short term examination because it illustrated physical signs relating to facial nerves and the eighth nerve in an elegant, that is, uncontaminated, manner. It would test the skills of the candidate on the ability to examine and elicit physical signs and then to put the physical signs together into a possible diagnosis. The idea was not to expect a candidate to come up with a diagnosis of cerebellopontine tumour. If the candidate did that it was a bonus. If he or she didn’t it would be fine so long as the candidate went through the routine properly and had a reasonable understanding of what he or she was doing. He expected the candidates to go through the routine of the physical examination in an orderly and reasonably comprehensive manner concentrating on the nerves that were affected. He thought that the complainant’s examination was quite erratic starting with the third nerve going on to the second, and then moving on to the fifth nerve. He recalled Dr Popplewell trying to guide the complainant as to where the problem was that they wanted him to focus on. This has led the complainant to describe a Bell’s palsy-like picture on the right side which he corrected to left side. He was then asked to examine the eighth nerve and came up with the diagnosis of a cerebellopontine tumour at the beginning of the examination of that nerve. The complainant was subsequently asked whether he wanted to examine for nystagmus and according to Professor Salem had not picked it. Nystagmus was not always associated with that particular tumour but was an important sign to look for as part of the examination. In the instant case it was quite obvious.
Regarding the question posed by Dr Popplewell as to whether the seventh nerve innervates the tongue, Professor Salem said the question should be understood in the context in which was asked. If they were talking about a lady who had half her tongue paralysed, the question would be asked in relation to motor paralysis of the tongue.
Regarding the angle of assessment of the JVP, Professor Salem considered the recommended angle as 45 degrees but the patient in question was lying on two pillows and the complainant had not made an attempt to elevate the bed so that the patient was lying at an appropriate angle for examination. Professor Salem’s estimate was that the angle was between 15 and 25 degrees. It was not necessary to attain the 45 degrees angle exactly but there was an expectation to see the patient appropriately for the purposes of the examination. He disagreed that the patient was at an angle of 30 degrees. Referred to a medical text suggesting 30 degrees was an initial starting point, Professor Salem did not think that was true in a context of short-term examination. If one started at 30 degrees and then had to proceed to raise the patient to 45 degrees it would be a two stage process which was a bit too long in the context of a short case exam. An elevation of 45 degrees would give you an answer whereas at 35 degrees you might still have to raise the patient to 45 degrees which would be an uneconomical way of doing an examination.
In relation to the cranial nerve examination, Professor Salem said there were a couple of ways of approaching the examination but each had a structure or a system to go through. One could decide to focus on lower cranial nerves and then proceed to examine through seven, eight, nine to twelve in order not to miss things, rather than proceed in an haphazard way jumping from the third back to the second all over the place.
Referred to an extract from the Oxford Handbook of Clinical Medicine that in the “management of Aortic Stenosis” these patients were at a great risk of Stokes-Adams attacks and sudden death, Professor Salem disagreed, stating that Stokes-Adam’s disease, which involved a person’s heart stopping beating because of irregularities in electrical conduction to the heart so that a person with a condition needed a pacemaker, differed from a situation where a person was blacking out because he had aortic valve disease. There would be blacking out in each case but the person who did so because of aortic valve disease would not be because of a Stokes-Adam attack.
12.6 Evidence of Dr Popplewell
Dr Popplewell provided a written statement to
the Commission dated 18 February 1998 (Exhibit R8). He examined the complainant
in the
medical clinical examination in March 1996. He indicated that the
complainant’s approach to the case and communication skills
were good but
that his clinical examination technique was unsatisfactory.
In the case of the patient with the chronic productive cough and clubbing of the fingers, he failed to identify the clubbing until “brought back” to reexamine the patient’s hands. He did not examine the sputum mug until after the patient coughed. The percussion of the chest was incomplete and one-sided and his interpretation of the signs of auscultation were poor. The complainant did not perform a complete examination of the respiratory system and did not examine for the position of the trachea and did not examine the front of the chest. The witness said that the complainant did not know the common causes of bronchiectasis and demonstrated a poor knowledge of childhood infections. In particular, his interpretation of the signs in respect of a differential diagnosis were poor. He described the complainant’s suggestion of cystic fibrosis as “foolish” and his choices of heart failure, cystic fibrosis and cancer as likely causes of the patient’s respiratory problems as “poor”.
The witness summarised his reasons for marking the complainant as unsatisfactory in the first case as (i) incomplete examination; (ii) failure to identify important signs; (iii) poor selection of differential diagnosis and (iv) lack of knowledge regarding common causes of bronchiectasis.
Dr Popplewell indicated that there was no discrepancy between his mark sheet and Professor Salem’s in relation to the sputum mug. The complainant looked at the mug only after the patient coughed at the end of the examination and he had assumed that the complainant would have examined the mug.
In the second case (the cerebellopontine angle tumour), the witness asked the complainant to examine the patient’s cranial nerves. The complainant tested for but missed the nystagmus and required prompting to examine other cranial nerves. The witness asked the complainant some questions to guide him to the appropriate cranial nerves to examine. The complainant reported a right facial weakness where there was in fact a left facial weakness and this did not appear to be simply an error. Thus, the complainant was taken back to reexamine the patient. In respect of the test for nystagmus, the lighting was satisfactory in the examination room. In summary, the complainant was marked unsatisfactory because he missed signs and had an inadequate and clumsy technique.
With respect to the case of aortic stenosis, the complainant failed to examine for JVP in the correct position. The complainant examined the patient at somewhere between 20 and 25 degrees. It is generally accepted and taught that JVP should be assessed at 45 degrees. The witness said that the complainant described the murmer as mid systolic in character which is non specific while aortic stenosis is an early ejection, systolic murmer. Although the complainant did identify aortic stenosis, on the basis of the inadequate examination performed, the complainant would not have been able to make the diagnosis of aortic stenosis. No possible causes of aortic stenosis were suggested by the complainant. He did not describe the clinical features of aortic stenosis and appeared to make the diagnosis on the basis of the mid systolic murmer only which is insufficient to make such a diagnosis. In summary, the witness indicated that the examination was disorganised and superficial.
Overall, the witness indicated that the complainant missed signs and got others wrong. If the complainant had been eliciting signs in a subconscious way then this had not been conveyed to the witness. Dr Popplewell said that he was an experienced examiner who prompted candidates to guide them to focus on what was relevant.
In cross-examination, the witness explained his statement as to why he thought that an aortic stenosis murmer is best described as an early systolic murmer. He conceded that the description of the murmer might have been a factor in his negative assessment of the complainant but that it was a “very insignificant one”. He conceded that some textbooks indicated that 30 degrees was recommended for the testing of JVP but said that the complainant’s examination was between 20 and 25 degrees.
Dr Popplewell said that he had introduced the patient with the productive cough by saying “this lady has had a cough for many years. Please examine the respiratory system”. He said that examination of the respiratory system should be able to be adequately completed in 5 minutes.
With respect to the cranial nerve examination, the witness said that a supervised examination of the cranial nerves could take less than 5 minutes. He indicated that he had directed the complainant to the seventh nerve and redirected him to it as his examination technique was poor. In the course of coming to the diagnosis of cerebellopontine tumour, Dr Popplewell said that it was possible that the complainant had referred to a “Bell’s palsy-like picture” rather than making a diagnosis of Bell’s palsy. He said that the droop on the patient’s face was not “obvious”.
In relation to the marksheet, the witness indicated that he completed the details either during the examination or at the end and the overall comments on performance were completed at a later time but prior to the examiners’ meeting.
12.7 Evidence of Dr Bryan Yeo
Dr Yeo provided a written statement dated 7 May 1998 to the Commission (Exhibit R10). He had conducted the examination of the complainant with Mr Crowley. Regarding the case of the patient with a liver enlargement the witness said the complainant had conducted an examination that was not thorough. He had only proceeded to palpate the patient’s abdomen in a cursory way. In particular, he had not asked the patient to take a deep breath when the essence of palpating the lower edge of the liver was that it moves with respiration.
In cross-examination he said that an assessment of the three patients to be used had been conducted by the two examiners prior to the examination. He had assessed whether the signs demonstrated by the patients were reasonable, as he would in a case of an undergraduate examination. He regarded the signs as good and clear-cut and said they should have been reasonably elicited by an undergraduate or a person doing the AMC examination.
In terms of the particular examination involving the complainant, Dr Yeo had himself introduced the examination dealing with the patient with a thyroglossal cyst. He did not have a prepared list of question but had a reasonable idea of the common problems that were the essential core elements which people needed to demonstrate competency. It was necessary to help the candidate with some history but a short case examination was not meant to go into irrelevant history. In the morning on which the complainant was examined there were five patients with a number of good clinical signs. Not all candidates had exactly the same examination. Regarding the patient with the thyroglossal cyst she had not protruded her tongue without being asked in the case of the complainant. Dr Yeo remembered this clearly because the diagnosis for a thyroglossal cyst depended considerably on the protrusion of the tongue.
The witness said he had not heard Mr Crowley say thank you, well done, at the end of the examination.
Examiners had no predetermined joint position as to ranking of the four relevant aspects; namely, physical examination, eliciting signs, interpreting them, and management. In some examinations only two out of four might be relevant to the particular problem. There was no discussion before the examination, however, as to what criteria were considered to be relevant. In the case of the thyroglossal cyst, Dr Yeo regarded the eliciting of the correct signs as very important. In relation to differential diagnosis Dr Yeo regarded best practice as proceeding from identifying the prime diagnosis and then proceeding into the less likely possibilities. In respect of a particular problem of a thyroglossal cyst, other matters to be considered could be a mid-line cyst, such as a dermoid cyst, the possibility of a thyroid swelling would be quite a way down the list, however. So far as the thyroid was concerned, it could be picked up visually but needed to be checked by palpation. There could be also a number of other conditions that could be identified in a differential diagnosis. Examination for a thyroglossal cyst would mostly be done from the front but palpation could be done from the front or from behind. With a thyroid, palpation would best be done from behind to get a better palpation. There had in fact been no pathology in the thyroid but the complainant had said that he could feel that the thyroid was enlarged. Challenged that Mr Crowley had said in his notes that the complainant had mentioned thyroglossal cyst, Dr Yeo said he didn’t hear the complainant say that. He couldn’t remember exactly what was said but the complainant had not indicated that this particular patient could have thyroglossal cyst.
With respect to the patient with inguinal hernia, the complainant had said there was a right inguinal hernia, which was not correct, but Dr Yeo thought he had made an assumption that there might have been was a right handed hernia because there was a left handed one. He had said correctly that there was a left inguinal hernia. In examining the right side he had then gone on to say there was a right inguinal hernia as well. At that moment he was clearly examining the right side. It was not a case at that time that he was making a correction. When the complainant had carried out transillumination he insisted in saying it was a right inguinal hernia and the examiners had tried to help him out by saying “could this be something else”. The transillumination had not been conducted properly. To do so it would have to have been done between the legs at the back of the scrotum. This would be to allow the light to pass through to the opposite side to show the cystic swelling.
Dr Yeo said he had had a discussion with Mr Crowley before completing the mark sheet. They arrived at a mark and had then written it down. This was in the five minute break between candidates.
He had been aware of who the complainant was before he had examined him and that there had been a case before the Commission concerning the candidate.
12.8 Evidence of Mr Neil Paget
Mr Paget provided a statement to the Commission dated 7 May 1998 (Exhibit R11). Mr Paget was Director of Education of the Royal Australasian College of Physicians. He had held an academic appointment at Monash University for 20 years prior to that. He was the technical adviser to the AMC on assessment. He was also involved in redesigning the written examinations for the College of Physicians and training examiners for those examinations. He is also a member of the Cambridge Conference which was an eminent group of experts concerned with issues of clinical assessment. He was also involved in the Ottawa Conference which was a large group again dealing with clinical assessment and medicine.
He told the Commission that no single examination was itself sufficiently good to be able to assess all aspects of clinical practice. That was why there was a series of examinations, such as in the case of the AMC. Some assessments were written and others would be assessed through performance type tests. In elaboration of his statement he said that in the case of candidates proceeding according to a checklist approach some may be less competent than the required standard. Such an approach did not necessarily reflect a cohesive adequate style of clinical practice. Examiners could be so busy ticking off items on the checklist that they could not observe the candidate and the candidate’s reaction with a patient.
Concerning the OSCE examination, there was an assumption in the structure that clinical competence would be demonstrated if a candidate were able to go through the sequence of stations and perform at an appropriate level on each of those stations. However, in terms of how each station may be structured, it may be that in some situations the format could be similar to a short case type examination. It could involve simply taking a history or doing a physical examination. A checklist of items did not necessarily indicate the weighting of the various items or even the sequence in which they should be done. In a global assessment there should be criteria which indicated not just the behaviours the candidate should display but also the level of performance and competence. Assessment was moving away from a checklist to a more global approach which more closely reflected the kind of practice situation in which a candidate would be expected to perform after the examination period. The AMC exam better reflected clinical practice than that using an OSCE because the OSCE approach was further away from reality than the short case approach. OSCEs in final year examinations at medical schools needed to be supplemented by the use of long case examinations as well. A combination of assessment methods were being used in universities. The witness conceded that OSCEs had been a world-wide trend over the last two decades.
Concerning the sort of training program that was organised for an average College of Physicians examiner, Mr Paget told the Commission this involved periodic workshops using video tapes of candidates with patients and discussion about the way in which candidates should be scored. Results of examiners were calibrated in order to ensure that individual examiners were consistent with their colleagues. In the end, however, the matter came back to the quality and professional judgement of the examiners who were being used.
The evidence of the witness was that there were differences between the purposes of examination for medical students which were designed to test curriculum uptake, and the AMC examination which was not.
Because some overseas students had difficulties with English, in not being their first language, the viva situation provided greater flexibility and would allow a candidate to clarify a question.
Mr Paget conceded that under the system used for the complainant, before it was changed in 1997, the four short cases were even more important because more examinees fail in those exams than in long cases. Under the post-1997 changes the extension in short case sessions meant there would probably be more time and that each examination would be less rushed. An increase in the number of short cases would expose candidates to an increased range and overcome the notion of what was called “case specificity”. The elements of chance would be considerably reduced.
Turning to questions of reliability and validity, Mr Paget agreed that an “observed score” was a combination of a true score plus an error factor. The objective in terms of ensuring reliability was therefore to reduce the error factor as close to zero as possible. He agreed that content can contribute to the error factor. Other contributions to the error factors could be the degree of professionalism of the examiners and the accuracy of framing questions. One way to test reliability would be to test and then re-test, perhaps by way of the parallel exam which was regarded as equivalent. There would then be comparability between the outcome achieved in the initial test and that in the alternative test which would lead to the defining of a high reliability coefficient. Reliability also applied inter-examiner which was the level of the agreement between individual examiners on the same test format and the same occasion.
The intention of the AMC exam was to predict future practice so “predictive validity” was the primary concern. The common starting point was “face validity”, that is, whether the format of the exam would reasonably test the things that were attempted to be tested. In Mr Paget’s view, the AMC exam had face validity. Validity involved a judgement concerning how relevant the test items appeared to be.
Asked what an A grade signified in terms of the AMC examination, Mr Paget said that it signified a level of performance such that the examiners feel the candidate does not need to be re-assessed on that component and could proceed to internship without difficulties. He could not see that there was any difference in his definition from that in the AMC examination specification namely:
The standard of the examination is formerly defined as the level of medical knowledge and clinical skills corresponding to that of newly-qualified graduates of Australian Medical Schools who are about to commence intern training.
According to Dr Paget an A doesn’t simply refer to a minimal standard where there might be some hesitation but signified a standard where there would be no hesitation about that person going in to an internship.
One of the purposes of undergraduate medical examination was to rank students in order. That implied that there would be a difference in the level of competence between individual candidates and those who pass their examinations would be presumed to have reached a minimal acceptable standard of performance. In the case of a B, the candidate would be at the standard of a final year medical student who has reached the minimal acceptable standard required of a graduate medical student. A mark of C would mean that a person is below the minimum standard of a graduating medical student and a D would mean that the person is well below that standard. It might be true to say in general terms that the reliability or reproducability of clinical examinations is usually less than that of written examinations, such as multi-choice formats, but it would depend on the quality of the tests being used. It was not necessarily the case that reliability could be added to the process of testing specific skills or competencies by using a structured multi-station process such as that in an OSCE. Again it would depend on the quality of the stations. It would also in general terms be true to say that a long case examination would allow assessment of the ability to take a complete history and elicit a full physical examination. Mr Paget confirmed that the short and long cases involving real patients face candidates with a setting which is reasonably close to real life practice. Besides whether such tests were reliable and valid there were a number of other aspects such as fairness and feasibility which should be taken into account. He said that it would be very difficult to test the predictive validity of the AMC exam because there was no construct for measuring performance in practice that would be equivalent to or better than what is traditionally done through the AMC and university medical school examinations. He agreed that it might be possible to find a negative correlation between a measure of performance after graduation and final year examination scores.
Asked why a person with a proved record in practice would fail an exam Mr Paget said there are situations in which, in practice, a doctor may focus on certain areas of practice such that other areas are not maintained at an adequate level. Particularly over time, some people may become less than adequate in their performance because they have not kept up with changes in knowledge, skills or changes in technology. On the other hand, it would not necessarily be unlikely that a doctor who was assessed in medicine on one occasion and given a C could get an A in a further sitting of that exam a month later. From what was known about case specificity and variability of performance, a less competent candidate is more likely to have a profile which goes up and down across the grades than does a more competent candidate who tends to have flatter profile across cases and across sub-speciality. The person who was assessed as not safe and given a C could get a B subsequently because there may have been considerable learning in the two month interval. The two factors that could possibly account for such a discrepancy were, firstly, a learning effect because the student had done something about their earlier performance and, secondly, specifically the basis of the cases on which the candidate was being assessed. While such a change of results might raise questions about the reliability of the particular exam, it had to remembered that a single exam was only one component in the total examination and that there were a number of cases in each component. The point of such assessment was to be able to generalise across sufficient cases in sufficiently different domains to be able to make some judgement about the overall competence of the candidate and their ability to go on to internship. Similarly of a candidate who went from a B to a D and then went up to a B again, it would not necessarily raise questions about reliability. Such results could well describe a candidate who was towards the novice end of the continuum between a novice and expert. Responding to the case of a candidate who got a B and then a D and then again a B the suggestion that statistically a person who sat the test should get the same result, Dr Paget said that the problem could be that there had to be clear differentiation between population assumptions and what happens to an individual. Using the example of a multi-choice examination to clarify the point, he said that the reliability of that format could be influenced by a number of factors such as the number of questions, the size of the population taking the test and the variability of performance within that population. Similarly, with clinical tests, if one increased the number of occasions on which candidates were tested and the number of cases on which they were tested one would increase the reliability of that cohort on that test. But it could not be said that those things applied in exactly the same way with respect to a single individual.
Mr Paget agreed with propositions read to him from a 1996 study by DEET Examination Practices and Procedures in Australia (concluding that examiners should receive some formal training in theory and practice of assessment) that they should be briefed and their standard of marking calibrated, that clear guidelines should be issued to all students so that they could understand the criteria by which their work is going to be marked, and that assessors needed to have a clear idea of the skills and knowledge which they are trying to assess. Mr Paget did not agree, however, that unstructured examinations were common in these times. His understanding of clinical examinations which he had observed was that there was pre-planning of the areas to be examinated by the examiners when they examined patients and decided what the critical features were, and how they were going to proceed. Mr Paget had conducted an assessment of the inter-related reliability for the AMC clinical exam, measuring the agreement between examiners in terms of rating the performance of candidates, covering the first two examinations held in 1997, and that had yielded a correlation of point 9 which was generally accepted as being a very acceptable level of agreement.
He agreed that in the case of the OSCE examinations what happened at each station was determined in advance. It was not the case, however, that there was a clear structure that all the examinees would then follow. This was because there was still some freedom and need for guidance at a station if students gave an inappropriate response. Depending on whether a particular patient was used at the same station for different candidates, the format was essentially the same. He agreed that the OSCE format was both reliable and valid if there were enough stations to go to for sufficient time. Asked in relation to an assertion that studies of the clinical methods of physicians and medical students had shown no correlation between expertise and thoroughness of gathering data, and no relation between thoroughness and diagnostic accuracy, Mr Paget took the point that there may not be a high correlation between the variables but again it would come back to what one was trying to measure or test.
In terms of a more experienced or expert practitioner there was a phenomenon known as “pattern recognition” where the practitioner would ask fewer questions and reach a diagnosis in a shorter time than a mere novice. But a checklist approach would become more and more inappropriate as the level of expertise increased.
Regarding the 16 point checklist published by AMC, Mr Paget said it was not necessary that all 16 be gone through in each case because a case might involve some of them and others involve others. It was the flexibility in the examination process that required professional judgement on the part of experienced examiners. If the candidate was taking a history or doing a physical examination very efficiently and appropriately there may not be any need to dwell on that particular aspect of their performance and they might be taken in a different direction. It is not correct to say that ideally each case should involve all 16 points.
Regarding what he understood by prompting, Mr Paget said that he regarded prompting as positive because it might be necessary to assist a candidate rather than allow the examination process to get bogged down. This was to allow the examination to proceed more efficiently. Prompting would be appropriate if a candidate was doing an examination in a way which was not going to lead them quickly to where the problem was. It was hypothetically possible that prompting might have to be used in order to get through the number of cases in a short case examination. Mr Paget conceded that there may be inadequate samples of what could feasibly be tested within the given time constraints and resources. In the case of an OSCE format, there may be 20 or 30 stations requiring something up to about 3 hours of testing. Even that was not good enough as far as sampling was concerned to reach what would be referred to by psychometricians as the “gold standard”, namely a generalised ability co-efficient of 0.8. Psychometricians suggested it might be necessary to extend the number of stations and possibly to examine between 7 and 10 hours to ensure a measure of consistency. That, however, wasn’t feasible. So with the resources that could be put into short or long term examination, the more cases examined the better the results, but the resources involved could be just out of the world. In the end, the critical assumption was that the principal resource and the quality of the examination was going to be largely examiner-dependent. It was necessary to have the best and most experienced people as examiners who were aware through their own teaching and examination over a long time and across various levels of the acceptable standard of a candidate. With a good candidate there would probably be a stable profile, with the profile continuing to be good. With a very poor student performance was going to be consistently bad or susceptible to variation at the lower end of the performance scale. The AMC examination was concerned with those candidates around the borderline between a B and a C. It was at that point that critical decisions had to be made. With someone whose profile was up and down across the pass/fail line, the AMC and the examiners would probably be reluctant to pass such persons because they had consistently demonstrated that they had reached a minimal standard of performance. The phenomenon of a student who passed an exam on one occasion and then failed in another was also inherent in multiple choice examinations. The AMC testing procedure involved an assessment of four components. That did not entail measuring four separate things. Rather it comprehended each of the various aspects.
The witness said that if something happened in the course of an examination which particularly disadvantaged the candidate there may have to be some mechanism such as the use of a supplementary examination to compensate.
In re-examination Mr Paget agreed absolutely that the AMC examination process depended on the quality of the examiners, many of whom he had known over a long period of 10 to 20 years. He had great respect for the professional way in which they went about the examination process, both within the universities and within the AMC process.
12.9 Evidence of Mr John Masterton
The statement of Mr Masterton dated 8 July 1997 was received as Exhibit R12. The witness confirmed that he had awarded a mark of B minus in respect of the complainant.
In cross-examination he told the Commission he had been involved in undergraduate teaching since 1955 and had last acted as an examiner in Monash University in the previous year. The patients for the group including the complainant were drawn from a pool of five.
The second case involved a patient with a deep vein thrombosis. The patient had shown discomfort and in fact it was discontinued because of that. The examiners realised that it was becoming “a bit much for her”. They discontinued the process of actually physically examining her but continued with the discussion.
Mr Masterton could not recall any dispute with Mr Ryan, one examiner saying “no-don’t continue the examination”, and the other saying to proceed. He had wanted to establish from the complainant how he would examine the patient in order to establish that the thrombosis was spreading up the leg. The complainant did not need to examine the patient physically for that. Mr Masterton was dissatisfied that the complainant really understood how to carry on the examination. Concerning his comment: “unclear about Homon’s sign” Mr Masterton explained that detecting Homon’s sign was done by bending the knees slightly and then bending the ankle upward. Referred to a comment in Tally and O’Connor’s book that Homon’s sign was of little diagnostic value and may theoretically be dangerous because of the possibility of dislodgment of a loose clot, Mr Masterton conceded that some examiners might take that view. However, he said there was no need to sharply dorsiflex the foot and if the patient complained of any discomfort dorsiflexion should be stopped.
Questioned by Mr McClellan about Homon’s sign, Mr Masterton said that in his opinion Homon’s test could be performed badly. He wouldn’t support the notion that there should be a brisk dorsiflexion of the ankle. He considered the test still had a role but had been displaced by more sophisticated tests such as ultra sound. It was a long-standing test however.
12.10 Evidence of Professor Graeme Morgan and Dr Niesche
A statement of Professor Morgan dated 7 May 1998 (Exhibit R13) was received in evidence as was a statement of Dr Niesche dated 8 May 1998 (Exhibit R14). No cross-examination was conducted in respect of those statements.
12.11 Evidence of Professor Paul Gatenby
Professor Gatenby furnished a statement to the Commission dated 8 May 1998 (Exhibit R15). Expanding on it he told counsel for the respondent that in relation to the second topic discussed with the complainant, the ECG shown to the complainant was taken from a book provided by the AMC. It was an ECG of an inferior myocardial infarct. The case was presented as a 49 year old man with a history of chest pains. The complainant had diagnosed myocardial infarction but reported that the patient’s heart rate was between 100 and 150 when the actual rate was 75. On examining the ECG again in the hearing, Professor Gatenby said the rate was a little slower than 75. He could arrive at this by counting 4 squares between each beat on the graph so that the rate was something about 70. The ECG shown to the complainant in the examination was a fairly uncomplicated one. Shown the copy of the ECG provided to the Commission by the complainant (Exhibit C25), Professor Gatenby said it was possible to look at it and estimate that the rate was about 60. The witness conceded that it was not a perfect document to work from. In cross-examination he conceded that it was a poor quality photo-copy that had been used in the examination. Professor Gatenby conceded that in relation to the ECG, he had clearly differed from the other examiner, Dr Pappas, who had marked “ECG correct” and had ticked interpretation and management as satisfactory. Professor Gatenby had discussed the ECG with Dr Pappas before going into the examination. With respect to Exhibit C25, it was possible to calculate the heart rate accurately.
In relation to the first case, that of an x-ray, Professor Gatenby had written down an introduction on a piece of scrap paper so that it was identical for all candidates. It was important that each candidate had exactly the same case history regarding the ECG.
He knew before the examination that the complainant had been involved in a hearing before the Commission.
In relation to the x-ray used it was certainly old, but Professor Gatenby thought it was adequately penetrated. In terms of examining the x-ray, the complainant had outlined the trachea and said that it was the aorta. This had surprised Professor Gatenby who had asked him whether he was sure and the complainant had confirmed that view. It was surprising that someone with the complainant’s experience would make that kind of mistake.
In relation to the case involving febrile convulsion in a one year child with fever, Professor Gatenby had written that the complainant had misinterpreted the results of the test diagnosing the organism as streptococcus. The complainant had agreed after much prompting that a lumbar puncture would be an appropriate thing to do, whereupon he was presented with the results of cerebral spinal fluid examination. The complainant had said it was meningococcal infection. Beside streptococcal and meningoccocal bacteria, another possibility was haemophilus. In relation to the latter, the treatment would either
be a broad spectrum penicillin or a cephalosporin such as ceftriaxone.
12.12 Evidence of Professor Graham Macdonald
Professor Macdonald provided a statement dated 8 May 1998 (Exhibit R17). He told the Commission that with respect to the two cases that made up the examination in which he took part, he had conducted an assessment of the first patient beforehand with his co-examiner, Dr Penny. It had taken about fifteen minutes and he had discussed his findings with the co-examiner and they had agreed on a diagnosis. Asked why Dr Penny had listed “Rheumatoid” Professor Macdonald said that although he remembered the patient had arthritis he did not know why Dr Penny had listed that matter. As it happened the examination had not proceeded to a point where rheumatoid hands was discussed.
With respect to the abdominal condition of the patient, Professor Macdonald agreed that palpation of the abdomen would have been painful and would have involved discomfort. Asked why in relation to the mass on the right side of the abdomen Dr Penny had noted that the complainant had identified the mass as renal, but Professor Macdonald had thought it was liver, Professor Macdonald said he had no explanation. When questioned about whether he had changed the mark that he had awarded the complainant, Professor Macdonald said that he did not think he had done so. He had awarded the mark when he had finished writing his remarks and had not changed it after that. He had had no discussion with Dr Penny before he had written his mark.
12.13 Evidence of Dr Anthony Aouad
Dr Aouad provided a statement to the Commission dated 8 May 1998 (Exhibit R18). The witness had known the complainant when the latter had worked at the Campbelltown Hospital. When Dr Aouad saw the complainant prior to the examination he had thought the latter would probably not have a lot of difficulty in passing the examination. In his statement, Dr Aouad recorded that he had told the complainant after the exam that the latter’s performance had surprised him.
In cross-examination, Dr Aouad acknowledged that he had given a reference for the complainant in relation to the latter’s work at Campbelltown Hospital and had noted that he had found the complainant’s work to be of a high standard. Dr Aouad stood by his opinion as at the time the reference was given. When examining the complainant he was aware that the standard of the AMC exam was the standard of a final year medical student about to enter intern training but he was not immediately thinking along those lines when he was conducting the examination. The standard had not been uppermost in his mind.
He said the questions asked in the examination were not difficult questions and the information sought was not beyond the level of expertise expected of that standard. Dr Aouad had not, however, examined undergraduate medical students. Asked about his introduction of a patient with myocardial infarction, the witness was not sure that he mentioned that the patient was experiencing discomfort in the abdominal region after walking as part of the initial introduction or whether it was mentioned later. But Dr Aouad insisted that at some stage it would have been mentioned as part of the history provided to the complainant. The complainant had eventually got to the diagnosis of myocardial infarction but it took a good deal more prompting that Dr Aouad would have expected. In an examination where the history given could be interpreted as covering several conditions including myocardial infarction, and the latter, being the most serious of the lot, had not been brought forward, it was appropriate to ask the complainant “what else” could the condition have been.
12.14 Evidence of Dr Nabil Ibrahim
Dr Ibrahim provided a statement dated 8 May 1998 after having made some amendments to it (Exhibit R19). Dr Ibrahim told the Commission that in his recollection of the patient with cellulitis, the complainant’s initial diagnosis was “staph” and not streptococcus, the latter only being suggested after the complainant had been prodded to provide the extra information. Dr Ibrahim told the Commission that he had examined undergraduate students up until about 4 years previously. In examining AMC candidates, examiners tried to use the final year student standard as a benchmark. This involved forming an opinion that the candidate was knowledgeable enough and safe enough and able to convey a story of a sick patient or a patient with a condition in casualty to a consultant on the telephone, or by having a discussion about the management of a case. Interns or residents were always under supervision and were not expected to make a measured decision, but were expected to know the broad frame of a condition to convey a picture very clearly to a consultant.
Asked to comment on a statement that 50 percent of interns at the beginning of their year were competent to perform independently only 4 skills out of 20, Dr Ibrahim said he would have to read the document containing the statement before he could form an opinion.
The witness had examined the first two cases used in the examination prior to the exam. He had had a discussion with Dr Niesche, his fellow-examiner, about the diagnosis and signs to be elicited. He did not know whether they both agreed on the diagnosis beforehand. There was not necessarily an absolute consensus. Dr Ibrahim agreed that there was disagreement on diagnosis in two of the cases. In the first case, Dr Niesche thought the diagnosis was basel cell carcinoma whereas Dr Ibrahim had thought it was kerato-acanthoma or squamous cell carcinoma. In the fourth case, Dr Niesche had thought it was an abdominal lipoma, whist the witness had thought it was an abdominal hernia. The witness said, however, that the difference of opinion didn’t matter in the particular case because what was important was eliciting the physical sign. Whether there was a fatty hernia or a fatty lipoma would not be known until there was an operation on the particular condition. It really amounted to whether the candidate was able to assess an object giving it a name or possible name. The witness told the Commission there did not have to be a real consensus. There could be a list of differential diagnoses or possibilities that could be quite acceptable. This was in response to a comment by counsel for the complainant that in the first case, the witness had marked the complainant as unsatisfactory in eliciting signs, whereas Dr Niesche had marked him as satisfactory, whilst in the fourth case the witness had marked the complainant as satisfactory whereas Dr Niesche had a question mark. After the candidate had finished, the examiners had a brief discussion of several minutes. Dr Ibrahim had made some comments at the end of the examination and may have added some later. In relation to the first patient, the witness had expected the candidate to reach a diagnosis of kerato-acanthoma or squamous cell carcinoma. Either would have been satisfactory.
In relation to the case of cellulitis, Dr Ibrahim had said that if a candidate was asked about the cause, he expected him to say streptococcus and not staph. Staph would always be localised and eventually turn into an abscess. Cellulitis does not. It is a widely spread redness or inflammation. Referred to a manual on the use and interpretation of pathology tests put out by the Royal College of Pathologists that, regarding cellulitis, “common pathogens include streptococcus pyogenes and staphylococcus aureus” Dr Ibrahim conceded that staph is a cause of cellulitis but not the principal cause. Dr Ibrahim said he took the position that the more acknowledged and recognised position is that the primary cause of cellulitis was a streptococcal infection.
12.15 Evidence of Professor Gordon Clunie
Professor Clunie provided a statement to the Commission dated 18 February 1998 (Exhibit R9). He indicated that one advantage of a viva examination over a more structured format was that the examiner can respond to or use a candidate’s answers to lead the discussion to see what a candidate knows about a particular topic. He said that OSCEs are far more difficult to set up than the traditional clinical examinations and are more artificial in that they do not approach the reality of clinical practice. They also do not cater for language difficulties. For example, at Melbourne University medical school there were 40–50 overseas students per year, mostly of Malysian Chinese background, and this group experienced language difficulties with the OSCEs. Professor Clunie said that OSCEs have a place but that the clinical examinations which the complainant undertook were “as good or perhaps better methods of testing a candidate’s capabilities” as any other system.
He was cross-examined as to the short case format used in surgery examinations at the University of Melbourne and as to his knowledge of studies pointing to the reliability and validity of various forms of clinical examinations. He agreed that in the order of 100percent of final year medical students pass their examinations. He did not agree that short case examinations were “dismally unreliable”.
In re-examination the witness said that he did not consider short case examinations to be unreliable because they simulate the clinical situation. He also indicated that final year medical school examinations attempted to rank the students. This was not the case with the AMC examination.
Professor Clunie also furnished a supplementary statement dated 1 June 1998 to the Commission (Exhibit R20) which principally addressed the structure of the examination system in the case of AMC candidates. He was asked what happened in the case of final year students at Melbourne University if they failed one component of their examinations. The process was that they would be allowed to undertake a re-sit examination, that is a supplementary examination, fairly soon after the failure. If they failed that, they were allowed to sit a supplementary examination at a later stage, usually a month or two afterwards. If they failed that examination they had to repeat their whole year. This would include the whole year in medicine and surgery.
In cross-examination, asked about the final year surgery exam at that University, which consisted of a ten minute viva and a ten minute case component, Professor Clunie conceded that the shorter the time spent on the examination, the greater the element of chance would be. In fact, there would probably be a higher element of chance in that case than with the AMC surgery exam. The standard of the AMC exam was the same as that expected of candidates in the final year of the University medical school. Most final year candidates would exceed that expectation. Being in the AMC exam would represent the minimum standard required of an undergraduate student. Professor Clunie confirmed that assessment in Australian medical schools tested not just the medical knowledge and clinical skill of students but also their curriculum uptake. As to whether students would adapt their responses to the way they were taught by particular teachers, Professor Clunie’s students were exposed to a wide range of teachers and would adapt the process to their own circumstances. There would be a broad consensus within the faculty to show how an examination should be done though in detail particular teachers might vary. Asked about a statement that he thought that marks of a B and then a D in successive examinations in the same discipline might indicate the examinations were not reliable, the witness said that he was using the expression “reliable” in a lay sense without attempting to be statistical.
In re-examination Professor Clunie said there were clinical examinations conducted as part of the examination system used at Melbourne University and these were very similar to the way AMC examinations were conducted. An examination would always be conducted before two examiners, one of whom had never seen the student, to eliminate an element of bias.
12.16 Evidence of Dr Maxwell Michael
Dr Michael provided the Commission with a statement dated 2 June 1998 (Exhibit R21). He told the Commission that he had been an examiner for undergraduate examinations in obstetrics and gynaecology at the University of Cape Town from 1952 to 1986. He had also been an examiner at the University of Bristol in the late 1980s before coming to Australia and taking up a position at Monash University in 1990. Since then he had been an examiner for undergraduate students at that university and from 1993 had been an examiner with the AMC. Asked about the case of a patient with placenta praevia who was bleeding, Dr Michael said that after examining the patient for about half an hour, according to his recollection, the complainant had wanted to perform a high vaginal swab. This was despite the fact that he had not recorded the incident. He agreed that the condition of ante-partun haemorrhage was a wider condition representing an obstetric emergency, one cause of which could be placenta praevia. In the case of the obstetrics emergency it was a case of an ante-partun haemorrhage.
Dr Michael said he had found the complainant very vague as to who should have a pap smear. Dr Michael said that the suggestion that the test be conducted more frequently than every two years was a wrong answer. The complainant had wanted to do it more frequently. In response to a suggestion taken from Chapter 4 of Brown and Comwell Holmes which suggested that annual pap smears were recommended for all sexually active women, the witness stated that whilst some patients who had been treated for herpes or cancer should be re-tested every 6 – 12 months, Dr Michael said he disagreed with that recommendation in an Australian context. He pointed out that practices varied as between America, England and Australia. In the Australian context, the practice was 1 – 2 years. In response to the suggestion that the question addressed to the complainant had not made it plain that persons in a particular risk category were not excluded, Dr Michael said he would expect someone to answer with the normal case first and then perhaps to add a qualification that people with a particular condition might have the smear performed more frequently.
Dr Michael said that when asked what a sims speculum was used for, the complainant had given a vague response but after a lot of questioning had given the correct answer which was to assess the interior of the vaginal walls.
12.17 Evidence of Mr David Finkelde
Mr Finkelde provided a statement dated 2 June 1998 (Exhibit R22). He was the Junior Examiner for the surgery component of the March 1997 examination. He had found the complainant unsatisfactory and gave him a D. In the particular examination session there had been six candidates examined. This had been the witness’s first examination for the AMC. He had received no specific training prior to the examination but had received a package of guidelines. He had been involved in the examination of final year undergraduates in surgery at the University of Tasmania in 1994 and 1995.
Prior to the examination, he and Associate Professor Scott had each examined all the patients and verified that the signs indicated on the list of patients were in fact present and able to be elicited. The list had been provided by someone at the hospital. He had completed his general comments when the complainant had finished the examination.
In relation to the patient said to have café au lait spots, Mr Finkelde had personally noted that the complainant had not recognised the café au lait spots and then in the general summary at the end had said “ claimed to have identified café au lait when not present”. When challenged that these were inconsistent statements Mr Finkelde said that they could be read that way, but what he should have said was that the complainant had said that there were café au lait spots that were present, but when asked to identify them, he couldn’t.
In relation to the case dealing with fibromatosis, the witness agreed that he originally ticked satisfactory and then changed it to unsatisfactory during the course of the examination. As best he could recall he thought that he had given a preliminary tick to the complainant when he had initially identified the lumps as neuro fibromatosis, but then altered it when the complainant said there were café au lait spots present but was unable to demonstrate them. Overall, the witness had given the complainant the benefit of the doubt and marked two cases as satisfactory and one case as unsatisfactory. When asked why in those circumstances he had given the complainant a D, Mr Finkelde said it was because the bulk of the clinical examination was concerned with case one and that was the primary case involving two areas of examination, both the abdomen and the neck. So the greater proportion of the time was spent on the first case. It was that case which was unsatisfactory, it having a greater relative importance in the exam. If the candidate had performed well and with confidence and accuracy in the other cases then the examiners would have had to consider whether to upgrade the result to a C. In terms of the criteria Mr Finkelde said that he thought the physical examination technique and accuracy in eliciting signs was the primary component. Discussion of management depended on the questions asked at the time. There had been, however, no discussion between the examiners prior to the exam about how they were going to weight each of the factors for each of the cases.
With respect to the complainant’s suggestion that Warfarin was a suitable anti-coagulant, Mr Finkelde said Warfarin was not appropriate where a stroke was due to an intra cerebral haemorrhage. He conceded that no mention was made of intra cerebral haemorrhage to the complainant. According to Mr Finkelde, a good candidate would have given the answer in the first instance of aspirin. One would not normally give Warfarin to someone in the management of a stroke without being certain that the patient had not had a an intra cerebral haemorrhage. Warfarin could be part of a qualified complete answer.
Asked whether he could have mixed up the patients examined by the candidate to include a case with an enlarged liver, Mr Finkelde said there was no enlarged liver in the patient with the abdominal aortic aneurism examined by the complainant. It did not happen that both Associate Professor Scott and the witness had mistakenly introduced a patient with completely different clinical signs. Whilst the abdominal aortic aneurism was not obvious on visual inspection, it was obvious to palpation. In writing down the comment “enlarged liver interpreted as normal” Mr Finkelde said that that was what had happened when the complainant said that there was an enlarged liver of 18cm and which he interpreted as normal. The complainant had mistaken the abdominal aortic aneurism for enlarged liver. The abdominal aortic aneurism was 6cm. The witness said there was a risk of rupturing the aneurism if the candidate was unduly rough in palpating. In the initial examination it was necessary to feel the abdomen in order to detect the aneurism. Palpation would have to be done fairly violently to rupture it.
12.18 Evidence of Dr Jack Indyk
Dr Indyk provided the Commission with a witness statement dated 3 June 1998 (Exhibit R25). In cross-examination he told the Commission that the exhibits chosen for the viva examination was selected by the Hospital Registrar. There were a number of specimens, 10 to 15, and examiners picked one out at random for each candidate, sometimes using the same specimen for different candidates if it was suitable. The one specimen would not be used all the time because the examiners wanted to cover a wide scope of subject matter. This was because there was plenty of topics that could be discussed. Dr Indyk said that the x-rays used would be excellent otherwise they would not be used.
Dr Indyk had taught and examined fourth and fifth years students at the University of New South Wales for over 30 years but the last time he had examined was 1990. Since then he had been an examiner for the AMC. In the examination sessions involving the complainant, Dr Woo and he had taken it in turns to examine the candidate. Asked to comment on his note on the mark sheet in relation to a cancer of the testes where he had crossed out the word “seminoma” and substituted it with “teratoma”, Dr Indyk said that it was in relation a specimen where Dr Woo had started the examination and he had not examined the specimen closely. He had initially thought it was seminoma but realised its pathology was a teratoma. Asked why he had noted “satisfactory” in relation to diagnosis but in the marking column he had ticked “unsatisfactory”, Dr Indyk said he had assessed the candidate as unsatisfactory in respect of both interpretation and management. What he had meant to convey was that the complainant was satisfactory in recognising a carcinoma of the testes but was unsatisfactory in relation to management generally. Dr Indyk accepted that Dr Woo who was conducting the examination had in fact ticked “satisfactory” in relation to interpretation and management.
In relation to the case of Crohn’s disease, while conceding that in some circumstances it would be appropriate to perform a colectomy, Dr Indyk said that that would only be where the disease was in the colon, a very rare circumstance. In the particular x-ray there was no suggestion of any colonic disease. Asked why he had recorded “no idea what x-ray represented” while conceding that the complainant had indicated Crohn’s disease, Dr Indyk said he had recorded it that way because the examiners had had to drag the diagnosis out of him. While not a common disease, Crohn’s disease was common enough in practice for doctors to be aware of it.
With respect to the skin specimen displaying a melanoma, Dr Indyk said that he had given the specimen jar to the complainant who was free to turn the jar whichever direction he wanted. The complainant was having difficulty in deciding what the specimen showed. Dr Indyk had told the complainant to look at it from the other side. When it was put to him that Dr Waluk had said Dr Indyk had pushed the specimen towards the complainant facing the other way, Dr Indyk said that Dr Waluk was sitting in a position where he could not even see the specimen. The latter was at least 10 feet away from the specimen. When the complainant had said that the nodule on the skin was a nipple, the nodule which was actually a melanoma was visible to the complainant. The complainant had suggested two possibilities before suggesting melanoma at the third attempt; in other words, he was fishing. Referring to his statement that there was nothing to prevent the complainant from handling the specimen, Dr Indyk insisted that he had handed the specimen to the complainant. What was pivotal was that the specimen involved a melanoma.
12.19 Evidence of Professor Bernard Sweet
Professor Sweet, of the University of Melbourne Department of Medicine, provided the Commission with a statement dated 3 June 1998 (Exhibit R26).
Asked how he would rank the four areas of physical examination, accuracy in eliciting signs, interpretation of sign and management, Professor Sweet said that physical examination and its accuracy was important while interpretation was quite important, management in a particular case was also. In a particular case the various aspects could rank equally as in the first case used in examination. The factors would rank differently depending on the case. Asked about the statement that the complainant’s examination technique was inadequate although the witness had marked satisfactory for physical examination technique, the witness said the complainant’s examination technique was inadequate because he tested only some and not all of the aspects involving the patient. For example, muscle group power was poorly tested. Overall the witness had not been satisfied with the complainant’s examination technique. The witness conceded that the complainant had performed the Babinski Test but only after being prompted. Asked why he had, in relation to the first case, changed his view from satisfactory to unsatisfactory in the matter of management, the witness said that one reason was because the MRR test, which the witness thought crucial, was not mentioned until after the complainant had been prompted.
Prior to the examination, the only thing discussed between the examiners was the course of examining the patients and going through the physical signs together, deciding what was thought to be appropriate. There was no discussion of particular aspects of management and what was considered of crucial importance. While the complainant had come to a correct diagnosis in two of the cases, the witness regarded it as a negative factor that the candidate had had to be prompted. He had not come to the correct diagnosis immediately in either of the two cases. Whilst the candidate’s technique of examination was satisfactory, he had performed poorly in regard to accuracy. In the case involving aortic stenosis, it was a straightforward case which required a higher standard of physical examination and accuracy.
In re-examination, Professor Sweet said that his statement “did not test power adequately” equated with the remark for “power poorly tested”. Capacity to test correctly for power was a fairly straightforward expectation which would be expected of any doctor.
12.20 Evidence of Dr Mark Penny
Dr Penny provided a statement to the Commission dated 3 June 1998 (Exhibit R28).
Asked about the complainant’s allegation that he had been distracted from completing his examination in one case because of a discussion of urinary tract infection, Dr Penny said that the allegation was incorrect as the urinary tract infection had not been discussed until after the complainant had completed his physical examination. The complainant had initially examined the abdomen of the patient at a very cursory manner rather than engaging in a detailed examination of each organ and at no time had he examined the left side of the abdomen for non-specific masses or the spleen and kidney on the other side. In relation to the complainant’s suggestion that the patient was elderly and frail and needed compassion, Dr Penny said he had known the patient himself for some years and she was actually quite robust and, while a hospital outpatient, was functioning well. The patient had not, however, been distressed during the examination. She wouldn’t have come to the examination voluntarily if not prepared to be examined. In relation to balloting the kidneys, if done gently, most patients would tolerate it quite well. It was a standard technique taught in student textbooks. Usually one did not need to be particularly vigorous in bouncing the kidney.
In relation to the patient with a cardiovascular condition, Dr Penny said that examining the carotid was one of the most crucial signs. Not to do it was a grave omission. For the complainant to have commented “don’t need to spend much time – just a pulsation” showed a significant degree of ignorance of the importance of the sign in assessing a patient clinically. The examiners had allowed the complainant to complete examining for peripheral signs of the cardiovascular system. As he had not rolled the patient onto the left lateral position up until then, it being a standard part of a cardiovascular examination, examiners had suggested to the complainant to roll the patient to the left hand side and listen carefully. It was effectively saying “listen for mitral stenosis”. While such a murmur was sometimes difficult to hear, this was a classic murmur and easy to hear. The complainant had shown that he never would have found the murmur if left to his own devices.
In cross-examination when asked about Professor Macdonald’s statement “while he (the complainant) correctly asked the patient to turn on their left side ...” Dr Penny said it was not his recollection and he disagreed with Professor Macdonald on that account. It was the witness’s recollection that he had asked the complainant to go back and roll the patient. In relation to Professor Macdonald’s statement that the patient was experiencing some discomfort, Dr Penny said the only discomfort of the patient that he was aware of was that after the examination the patient had made an adverse comment about the way she had been examined.
In relation to the way in which undergraduates would be taught to examine the abdomen, Dr Penny said there was a standard procedure and the purpose of the protocol was to make sure nothing was missed and signs were interpreted properly and thoroughly. Dr Penny also confirmed that his view was that the complainant had not got to examine the left side of the abdomen at all despite the fact that Professor Macdonald had said the complainant was slow to get to the left side.
Asked whether he had examined final year medical students, Dr Penny said he had taught them but not examined them. Asked about what ranking he would give to the various factors, Dr Penny said he considered examination technique to be the most important so far as persons entering into internship at a hospital. He disagreed with the proposition that to palpate the abdomen for liver or kidney properly would inevitably cause some discomfort. Ballotting the kidneys might cause discomfort. Asked why, in relation to the first case concerning the physical examination technique and accurately eliciting signs, he had initially ticked the satisfactory boxes but had then crossed them out and marked them as unsatisfactory, Dr Penny said he had initially incorrectly ticked the wrong boxes. He had made a mistake and corrected them. In relation to the complainant’s statement “it’s not liver” the witness said the examiners had to talk the complainant into coming around to kidneys. He had not gone back and adjusted the mark sheet at any time. The change in relation to the first case was done before the examiners had moved onto the next case and not at the end of the examination after the discussion with Professor Macdonald. Asked about Professor Macdonald’s statement that mitral stenosis murmurs are relatively hard to hear, Dr Penny said it would be fair to say they are harder to hear than classic murmurs but he considered the one in question was a very easy murmur to hear. The witness said he had no consistent practice about using ticks or crosses.
12.21 Evidence of Associate Professor John Fliegner
Associate Professor Fliegner had been appointed to the teaching staff at Melbourne University in 1969, currently held a clinical practice at the Royal Women’s Hospital, had examined for the AMC since 1990 and in the early 1990s had been a visiting examiner for the University of Sydney in relation to final year under-graduates. He provided the Commission with a statement dated 3 June 1998 (Exhibit R29).
In cross-examination the witness said that he had received a letter about the complainant similar to Exhibit C36 prior to the examination. In relation to the question put to the complainant about the correct treatment for menorrhagia, Associate Professor Fliegner said that the suggestion to perform a curettage was not mentioned as an initial form of treatment which orthodox treatment would suggest should be the case. It was mentioned only later. In relation to the question about the failure rate of the pill, Associate Professor Fliegner said that Professor Pepperell had put the question in the following way:
An 18 year old girl comes to you and requests the oral contraceptive pill. What advice would you give her? What contra-indications are there?
That led to a discussion of the failure rate and Associate Professor Fliegner said the accepted failure rate over a prolonged period would be of the order of 2 percent. The complainant however had suggested a failure rate much higher, 3 to 4 percent. In relation to the comment that the Handbook of Obstetrics and Gynaecology said a typical first year failure rate for oral contraceptives was 3 percent, Associate Professor Fliegner said he would disagree with that statement. It might in the first month of treatment be as high as 3 percent but not as high as that overall. The witness said it was not so much a matter of whether the failure was 2, 3 or 4 percent but what had troubled him was the complainant’s suggestion that it would take 18 months to become effective. The complainant really had no idea how long it would take to be effective and had not corrected the term “18 months”. Although it had not been stated that the 18 year old girl was going on the pill for the first time, the witness agreed it was a reasonable assumption. Whilst unreliable during the first cycle of the pill, the failure rate after the first month would be 1 to 2 percent. Asked whether he differed from a view expressed in an article by Dr E Wiseberg, Family Planning, New South Wales, published in October 1997 that the pill has a theoretical failure rate of 0.5 percent per hundred women years of use, Associate Professor Fliegner said he didn’t see the precise success rate of the pill as the issue but rather it was the complainant’s knowledge of how long it took before it became effective.
12.22 Evidence of Dr Graham Ratten
Dr Ratten provided the Commission with a statement dated 3 June 1998 (Exhibit R30). Questioned about his statement that a certain uterus condition was an ante-natal complication, Dr Ratten said he had incorrectly recorded that condition as ante-natal. It was in fact a post-natal complication.
In relation to the complainant’s answer that the failure rate of contraceptive pill was 3 to 4 percent, Dr Ratten said this was in relation to a question in terms of “what are the complications for the oral contraceptive pill?” He couldn’t recall whether there was some reference to the patient’s age but thought there could have been. Dr Ratten’s view was that a statement about a failure rate of 1 percent was not meaningful. He would describe failure rates in terms of 100 women years. That would be a much more accurate assessment on the situation. This would mean in respect of 100 women taking the pill for a year, there would be 1,200 ovulations and chances of getting pregnant. A rate of 3 to 4 out of every 100 women in that situation would translate to a percentage of around 0.08, it would be less than 0.1. There would be a slightly higher risk in the first year of a person taking the pill for the first time because of such factors as forgetting to take it reliably.
12.23 Evidence of Professor Roger Pepperell
Professor Pepperell provided the Commission with a statement dated 3 June 1998 (Exhibit R31). In relation to the discussion about an 18 year old girl seeking contraceptive advice, Professor Pepperell said he would expect a candidate to proceed along a defined path, first of all making sure there was no reason why the contraceptive pill should not be given to the patient. This would include a clinical examination. Then an appropriate pill could be chosen. In the complainant’s case he had not been told that the patient hadn’t been on the pill before. He was asked how he would deal with a request from an 18 year old patient who came along wanting a prescription for the pill. It would be a common question and an undergraduate student would inquire as to whether the person had been on the pill before or to answer that “she hasn’t been on the pill before I would want to do the following ...”. Asked about the failure rate Professor Pepperell said the correct answer was somewhere between 0.1 and 1 percent. That was describing it in common parlance, but to be absolutely correct, you would have to measure the number of pregnancies per 100 women who use the method for a year. That was referred to as the Pearl Index.
12.24 Evidence of Professor David Scott
Professor Scott, who had been an examiner for the AMC for many years and who held an academic post at Monash University, provided the Commission with a statement dated 3 June 1998 (Exhibit R32). Professor Scott when shown the letter, Exhibit C34, said it was possible that he had received that letter prior to examining the complainant but did not recall doing so.
12.25 Evidence of Professor David Healy
Professor Healy of the Department of Obstetrics and Gynaecology, Monash Medical Centre, provided the Commission with a statement dated 3 June 1998 (Exhibit R33). He said that as a broad generalisation the failure rate of a contraceptive pill would be around 1 percent per 100 women depending on the type of patient and factors such as her age. Professor Healy commented in cross-examination he was using that figure in relation to a 100 women taking the pill for one year. His answer implied that one woman would become pregnant. He regarded one per 100 becoming pregnant as a failure rate of 1 percent. Converted into the number of pregnancies during the year it would convert to a percentage of less than 0.1 percent. In relation to the frequency of pap smears, Professor Healy said that a woman with a low risk should have such a smear every two years.
In relation to passing on knowledge about such matters, Professor Healy said that Monash had refresher programmes which AMC candidates were able to attend.
Professor Healy said that he had received a letter about the complainant prior to examining the complainant.
In relation to the obstetrics and gynaecology long case examination, at the time the complainant took the examination the candidate had half an hour with the patient to take the history and conduct an examination and this was unobserved by the examiners. In relation to the patient with placenta praevia, Professor Healy said that this was one of the major types of ante-partum haemorrhage.
12.26 Evidence of Dr Ian Ross
Dr Ross provided the Commission with a statement dated 3 June 1998 (Exhibit R34). Asked about a failure rate for women taking the contraceptive pill Dr Ross said that most examiners would accept anything less than 0.5 per hundred women years as a reasonable answer. That was expressing the failure rate in percentage terms.
12.27 Information from various Australian universities relating to training and assessment processes
The respondent provided the Commission with a summary, “Australian Medical Council Summary of Assessment Methods used in final years of medical courses” (Exhibit R27). This disclosed that OSCEs were used throughout the various universities, but not universally. This was both with respect to the OSCE-structured clinical examination and the written examination. The survey indicated the extent to which long case and short case clinical examinations were used. It was also common but not universal to use viva voce examinations. The survey also indicated that there was variation as to the stage at which the various medical schools used OSCEs. For example, Melbourne used them in the fourth year as a structured clinical exam but not in the fifth and sixth. Newcastle University did not use them at all. New South Wales used them in year five but not in years 4 and 6. Queensland did not use them in year 5 but did in year 6. Similarly, with respect to short and long cases there was a range of approaches to the matter.
13. SUBMISSIONS OF THE PARTIES
13.1 Submissions of the complainant
The complainant made submissions orally at the conclusion of the hearing, supplemented by a detailed written reply dated 22 July 1998 in response to detailed submissions by the respondent about particular cases. In each case the submissions are extensive and detailed but for the purposes of this decision I would summarise their general purport as follows.
13.1.1 Section 9(1) of the Act – the “distinction”
The complainant contends that the relevant “act” was that of requiring OTDS to sit and pass the clinical examination in its 1996-97 format, that is, the format to which the complainant was subjected. It was submitted that the relevant distinction is that between the short case viva format used in the medicine and surgery components of the examination compared to the kind of examination to which undergraduates in ANZ medical schools were assessed. Rather than a comparison with examinations conducted in an OSCA format, the complainant characterised the distinction as one between a chaotic, unstructured examination provided to AMC candidates as against a reliable, structured examination for ANZ undergraduates. The AMC examinations were unreliable and invalid due to a number of error variables including factors attributable to the examiners themselves, the difference in assessment methods assumed by different examiners, and other features.
Concerning discrimination under s.9(1), the complainant no longer maintained that OTDs were subject to discrimination in so far as they were required to adopt the examination techniques of a medical student, though that was relevant, according to the complainant, to unlawful conduct under s.9(1A). Central to the complainant’s submissions was the proposition that candidates for the AMC exams were predominantly of non-ANZ origin while those examined in ANZ medical schools were predominantly of ANZ origin. The complainant submitted that the requirement that, under s.9(1), the distinction had to be one “based on” national origin was satisfied. In that respect, the complainant contended that to the extent the Full Federal Court in the AMC case held that the differences between the systems of examination and admittance to practice of OTDs (which was subject to scrutiny in that case) and the system for examination and admission of ANZ graduates reflected the place or training rather than the national origin of candidates, the distinction did not and should not be maintained in relation to the present case.
It was submitted that it was relevant that the respondent had two roles. Firstly, it was responsible for assessing the competence of OTDs for admission to practice in Australia. Secondly, it was responsible for accrediting the various medical schools. In that way, the AMC had a say in how the different examination and assessment procedures were structured. Given that the AMC was responsible for both examination systems, directly and indirectly, the Commission should find that the only reason for the differential between the examination formats had to be because the AMC system tested people of non-ANZ origin, whereas students qualifying through Australian universities were essentially ANZ in origin.
The complainant contended, in the alternative, that not only should the Commission find there was discrimination between those of ANZ origin and those not, but further within the group of OTDs those whose national origin was found in the Indian sub-continent region could be considered as a distinct sub-group for comparative purposes.
The key question, so the complainant submitted, was whether the AMC examination is valid; that is, whether it in fact measured what it purported to measure. In this respect, despite the evidence of Mr Paget that the AMC examination had face validity, the real issue was whether the clinical examination conducted by the AMC went beyond face validity and in fact measured what it purported to measure. The objective of what it in fact purported to measure was established by the AMC Examination Specification (Exhibit C1, p.122); namely, to establish that the OTD has the required knowledge and clinical competence for the practice of medicine with safety in the Australian community. According to the complainant, the evidence before the Commission indicated that it was not necessarily the case that those who passed the AMC clinical examination had the required knowledge and competence while those who failed did not. This was indicated by the AMC’s own Working Party which in its 1990 Interim Report (Exhibit C14, p.17) acknowledged that overseas candidates who may have substantial gaps in their medical knowledge could pass while presenting difficulties to other candidates who ought to be able to satisfy the requirements. The fact that there were unreliable outcomes in terms of OTDs who required re-training was supported by the evidence of Dr Wenzel, whilst the experience of the complainant himself indicated that whilst he had successfully worked in Australian hospitals for over ten years and had been considered competent by Dr Wenzel and Dr Aouad, had failed the examinations. Given that the evidence indicated that the complainant was competent but the AMC examination suggested he was not, the only logical inference was that the examination was not an accurate basis for assessing competence and therefore was not a valid measure. In this regard, the evidence of Dr Allen was to the effect that as a general rule a test is not valid if it is not reliable.
The unreliability of the short case and viva format were due to the inconsistencies in the knowledge, skill, judgements of the examiners and systemic features such as limitations on time, subject matter and format, resulting in a general lack of structure, without clear and consistent assessment criteria. This was manifested, according to the complainant, in frequent divergences between examiners in a range of matters from medical knowledge and examination techniques to knowledge of assessment criteria themselves and the standards to be applied. It was exacerbated by the lack of training, work-shopping or calibration of examiners. They were inherent in the short case/viva format. The unsatisfactory nature of the short case/viva format was attested by the AMC’s own accreditation guidelines for universities (Exhibit R23, Annexure B, pp. 18 and 19). These stated that greater reproducibility (that is reliability) of clinical examination could be added to the process of testing specific skills or competency by using the structure of multi-station assessment process. Though the AMC had recommended that universities move to a more reliable OSCA format, it had done little to change its own examination system which had originally been introduced in 1978. The realisation that its system required reconsideration was evidenced by the AMC Working Party’s report in 1990 (Exhibit C14).
The factors giving rise to unreliability could be attributed to a number of causes of examiner error. These are particularised in paragraph 106 of the complainant’s submission in reply of 22 July 1998. They include such things as a lack of planning, structure and consistency in the examination form, limitation on the time for physical examination, a lack of versatility in questions posed by the examiners, a lack of opportunity for the candidate to take a history, an absence of a clear understanding between examiners of the assessment standard and the assessment criteria, including the weighting to be given to specific aspects of the examination, the absence of checklists to assess a candidate’s performance, a lack of agreement between examiners on what actually occurred in the course of the examination, gaps in the knowledge of the examiners on particular points, a lack of internal consistency within an individual examiner’s mark sheets, the use of poor specimens of x-rays and ECGs, the failure of examiners properly to assess the patients prior to the examination, the lack in some instances of prior preparation by examiners, and individual examiner biases. The unreliability could be demonstrated, in a test-retest sense, by having regard to the fact that some candidates who had initially failed the AMC examination produced results which fluctuated up and down between grades, such as from a D to a B and vice versa in consecutive attempts.
Turning to particular instances drawn from the evidence before the Commission, the complainant referred to the following as substantiating the claims of examiner-related errors. Firstly, in the important case involving bronchiectasis, there was divergence among the witnesses as to whether the word “productive” had been used in relation to the kind of cough exhibited by the patient when the examiner introduced the topic. It was suggested that the evidence of Professor Salem that the word was used (Exhibit R7, para 7) was directly contradicted by the evidence of Dr Waluk and the complainant and that Professor Salem had effectively conceded the same. Similarly, so the complainant claimed, the statement by Professor Salem that the complainant had missed clubbing of fingers could not be maintained when compared with the evidence of Dr Waluk and Dr Popplewell and was again effectively conceded by Professor Salem in cross-examination. In like manner, the issue of whether the complainant had examined the trachea should be resolved in favour of the complainant (Exhibits C10 and R7). The failure to examine the contents of the sputum container at the outset should not have been held against the complainant because of its deceptive nature. The criticisms of the complainant in relation to his failure to reach a diagnosis of bronchiectasis until after reaching a prior wrong diagnosis were not sustainable. Professor Salem’s comments that the complainant’s performance equated with that of a poor fourth year medical student would not be accepted in light of Dr Popplewell’s comment on the mark sheet (Exhibit C10) that the complainant had a good approach to the case. The complainant’s response of cystic fibrosis to the question “what could be the underlying condition” was not unreasonable given the failure to give clearer details when introducing the history of the patient.
The complainant also relied on different comments by Dr Popplewell and Professor Salem in relation to the examination of the cranial nerves, the order of examination, the unsatisfactory intervention by the examiners, the failure to test for nystagmus (and whether it was obvious or not) until prompted, the failure to detect that condition due to the unsatisfactory lighting conditions in the examination area, the belated diagnosis of cerebellopontine tumor and the rarity of that case in any event. The criticism that the complainant’s examination had been unsystematic and haphazard (Professor Salem) could not be sustained. The left side/right side issue (one which recurs at several times in relation to the complainant’s examinations) was not convincingly sorted out and in fact was the subject of disagreement by the two examiners. The question relating to which nerve innervates the tongue was not sufficiently specific so that the complainant’s answer in respect of it should not have been regarded as incorrect or inappropriate.
The third case in the first medical clinical examination relating to the aortic valve disease and whether the murmur associated with it as mid-systolic evidenced a failure by the examiners to work out the nature of the signs and the appropriate diagnosis beforehand. The complainant also relied on the ostensible divergences of views as between Professor Salem and Dr Popplewell in relation to the appropriate angle to examine for JVP and, in particular, whether the complainant had examined at an angle somewhere between 30 and 45 degrees. The divergences were compounded by the views also expressed by Professor Sweet and Dr Penny and statements in such textbooks as Lovell & Doyle’s Introduction to Clinical Medicine.
The examiners’ reaction to the association between Adams-Stokes attack and aortic valve blockage was claimed to be inconsistent with views expressed in the Oxford Handbook of Medicine and thus claimed to demonstrate gaps in the examiners’ knowledge.
Turning to the medicine viva first attempt involving Associate Professor Piterman and Dr Glass, the complainant contended that on the face of the evidence and materials attributable to Associate Professor Piterman, it should be taken to be conceded that the complainant’s answer of “asthma” in relation to the condition of hyperventilation was acceptable. In relation to the second case in that examination, the complainant’s initial suggestion of thalassaemia as first choice for ultimately diagnosing menorrhagia was not unreasonable given that the fact that the patient was a young Anglo-Saxon female and not of Mediterranean origin was not made evident at the outset. This again demonstrated a lack of clarity in the introduction.
In the x-ray plural effusion case, the tardiness of the complainant in recognising the possibility of pulmonary embolism until allegedly prompted should not have been held as unsatisfactory in that the indication of a history of leg surgery was not introduced until a late stage in that examination. Again, lack of clarity on the part of the examiners was a factor in the candidate’s ability to pick the correct diagnosis. These error factors were compounded by the fact that Associate Professor Piterman had given the complainant a C but Dr Glass a C-. In that regard, the significance of the further case involving whether a patient had septicaemia or meningitis and the appropriate treatment, whether it should be benzylpenicillin alone or a wider spectrum drug such as ceftriaxone in relation to a condition of meningococcal septicaemia, entailed conflicts between the evidence of Dr Glass and that of Professor Gatenby as to the appropriate treatment. It was also claimed that Dr Glass’s knowledge was inadequate in the light of his unfamiliarity with the treatment guidelines (Exhibit C31). On the basis of the inconsistencies revealed on the face of the examiners’ own evidence, it was submitted that in respect of that particular result, a B rather than a C should have been awarded.
The other significant failure that had prevented the complainant achieving a pass was the surgery, third attempt. This was conducted by Mr Crowley and Dr Yeo and involved a particularly significant case of a thyroglossal cyst which the complainant had initially noticed as a swelling in the upper part of the thyroid. This involved discrepancies between the complainant’s diagnosis that the patient had voluntarily protruded her tongue and whether the complainant had rejected the branchial cyst as unlikely prior to finally settling on the diagnosis of thyroglossal cyst.
In relation to the second case involving left inguinal hernia and hydrocele on the right side, it was submitted that the examiners’ adverse comments relating to whether that was a bilateral hernia or not and whether the complainant had missed the hydrocele on the right side (involving again the complainant’s problem with left/right side identification) was not consistent with the fact that after picking the left inguinal hernia the complainant had proceeded to transilluminate on the right side. Criticisms of the way in which the complainant had conducted the transillumination were not sustainable, given Dr Yeo’s observation that if the hydrocele was transilluminible it could not be a hernia on the right side. Though the complainant had not identified the hydrocele by name, he had effectively done so. There were also the different responses as between Mr Crowley and Dr Yeo in relation to the physical examination, the eliciting of signs and the diagnosis of a hernia in the liver, including the complainant’s failure to detect an enlarged liver. While it was agreed that there was a hernia, the examiners disagreed over whether the complainant had detected the liver. It was also submitted that the complainant’s failure in this examination was inconsistent with the fact that Mr Crowley at the completion of the examination shook hands with the complainant and had commented “well done” (a statement denied by Mr Crowley).
Other inconsistencies involved the divergence in marks recorded in the medicine viva third attempt involving as examiners Mr Mestitz and Professor Roberton, the former giving the complainant a C and the latter a B/B-. This was compounded because Mr Mestitz hadn’t marked any of the individual boxes. It involved other inconsistencies such as a comment by Mr Mestitz; “acute renal failure very poor” in contrast to the statement by Professor Roberton “Polycistic Kidney (tick)”.
The inadequate quality of the exhibits provided to the complainant was demonstrated in the medicine viva fourth attempt conducted by Dr Pappas and Professor Gatenby involving the use of a 1978 x-ray and whether it was poorly penetrated or not. In relation to the examination of the ECG, there were divergences between the examiners in so far as Professor Gatenby recorded the complainant’s answer as to the heart rate as being between 100 and 150 pulses a minute when the actual rate was in the order of 75, whereas Dr Pappas had recorded the complainant as satisfactory in his interpretation of the ECG. Divergence was also present, according to the complainant, in the second attempt surgery viva conducted by Dr Indyk and Dr Woo. The fact that Dr Indyk had crossed out “seminoma” and substituted “teratoma” demonstrated a lack of thoroughness on the part of the examiner failing to verify the diagnosis beforehand. Dr Indyk’s comment on the mark sheet “satisfactory but very quick to refer to a specialist” was inconsistent with his marking in the boxes of the complainant’s performance as unsatisfactory. Another inconsistency in that examination was in relation to the specimen entailing melanoma on the skin where Dr Indyk had said the diagnosis of melanoma had to be dragged out of the complainant as against Dr Woo recording that the complainant had failed to consider melanoma.
In relation to the case one of the medicine second attempt conducted by Professor Macdonald and Dr Penny, Dr Waluk had recorded (Exhibit C6) that the examiner had not heard the complainant say that it was not liver and his subsequent diagnosis that the condition related to the kidney should not have drawn from Dr Penny the comment that “needed prompting from liver to kidney”. The fact that Dr Penny had initially ticked the relevant boxes as “satisfactory” and then subsequently amended his mark sheet could only be due to Dr Penny having changed his ticks and crosses after discussion with his fellow examiner.
The surgery cases, fourth attempt, conducted by Associate Professor Scott and Mr Finkelde demonstrated, according to the complainant, inconsistency in marking. Mr Finkelde had assessed the complainant as satisfactory in relation to three of the cases but had given him a D because of his approach to the first case involving the abdominal aortic aneurism. In this instance, the evidence and comments of the two examiners pointed to the fact that the examiners had in fact mistaken the case of a patient with a slightly enlarged liver with that of another patient who had the condition of abdominal aortic aneurism. That examination session also illustrates a divergence between Mr Finkelde who recorded that the complainant hadn’t recognised café au lait spots and that of Associate Professor Scott who recorded that the complainant had claimed café au lait pigmentation but was not found.
In relation to the matter of prompting, the complainant pointed to instances such as Dr Glass’s statement (Exhibit R18) in which he stated that the complainant had not suggested the aschaemic heart disease until after prompting when the sign for that condition only became evident after the examiner had mentioned that the patient had discomfort on walking.
In relation to the cranial nerve examination, Dr Popplewell’s comment that the complainant had needed prompting to examine other nerves was inconsistent with the witness’s concession that a nerve examination could only be done in 5 – 7 minutes if the candidate was directed.
Examples of unclear questions were Associate Professor Piterman’s seeking responses about risk factors for coronary artery disease which the complainant had interpreted in terms of the appropriate test. Professor Macdonald’s statement (Exhibit R17) criticising the complainant for having no idea of general practice management of a patient with a cardiac condition was unfair given that, on the complainant’s submission, the witness had conceded that the question “how would you follow up?” could be interpreted in different ways. The complainant pointed to the case of the 1978 x-ray poor penetration and the photocopy of an ECG (Exhibit C25) as exhibiting bad specimens. This was substantiated, according to the complainant, by the divergence between the evidence of Professor Gatenby who claimed to be able to read the ECG and that of Dr Glass who stated he couldn’t identify the heart rate.
As examples of the extent to which pain arising from examination could inhibit performance of a candidate, the complainant pointed to the alleged disagreement between Mr Masterton and Mr Ryan as to whether a patient was suffering discomfort or possibly pain.
The issue as to the extent to which there was a predetermined list of agreed questions was illustrated by Associate Professor Piterman who said there was no check list, other than a mental check list, Professor McGrath who said there was no written questions other than the opening statements although that witness said he had a clear approach in his mind, and Dr Yeo who said he had a reasonable idea of the essential core elements but didn’t have a written list. In the complainant’s submission it was essential for a proper assessment that there should be a predetermined list of items which the candidate could be expected to identify.
The variability in terms of addressing assessment criteria was substantiated, in the complainant’s submission, by the fact that Associate Professor Piterman responded that he based his award of a grade on a basic gut feeling. The appropriate standard for awarding an AMC candidate a basic B was the Australian medical student who just scraped through passing. Different examiners such as Professor McGrath, Professor Pepperell and Professor Salem diverged in the extent to which one should rank physical examination, eliciting of signs, diagnosis and management.
The failure to reach an agreed diagnosis beforehand was illustrated by differences between Dr Ibrahim and Dr Niesche over whether a patient exhibited a basal cell carcinoma or a squamous cell condition and in relation to the last case in that session regarding whether there was a lipoma or a hernia. Such differences indicated that there had been no prior discussion between the examiners.
In relation to his assessment, Dr Penny had regarded the physical examination as most important, conceding in his statement (Exhibit R28) it was not necessary for a candidate to reach a diagnosis. All these cases illustrated a wide range of attitudes about ranking criteria. This should be contrasted with the evidence of Mr Paget about the desirability of calibration of examiner’s performance to ensure consistency that a candidate was not disadvantaged by potential error on the part of the examiners. The requirement for clear marking criteria in order to have a valid and reliable exam had been made clear by Dr Allen’s evidence.
As against this, the complainant submitted that the format relying to a greater extent on OSCA procedures elicited more consistent and reasonable assessments. The advantage of the OSCA process was that candidates generally knew what was expected of them and on what basis they were being assessed.
The complainant also pointed to the case of pap smears in the examination conducted by Dr Michael and Professor Healy and the difference between the examiners as to how frequently they should be conducted. Similarly, the wide divergence in responses from the witnesses Professor Healy, Professor Pepperell, Associate Professor Fliegner, Mr Ross and Mr Ratten over the failure rate of the pill and how it should be expressed showed remarkable divergence.
As examples of absence of knowledge on the part of examiners, the complainant pointed to Associate Professor Piterman’s initially stating that septicaemia was a complication of meningitis but then reversing his view and the differences over the appropriate angle to examine JVP, Professor Salem’s response that Adams-Stokes syndrome was not a manifestation of aortic valve disease and Mr Masterton’s opinion regarding Homon’s sign as an appropriate test, contrary to textbook recommendations to the opposite. It was also submitted that Dr Ibrahim had an inadequate appreciation as to whether cellulitis was caused by staphylococcal infection.
It was also submitted that the medical and surgery clinical short case method was inadequate because of the lack of an opportunity to take a patient history. The method did not give a proper value to the possibility of pattern recognition on the part of experienced practitioners. A further deficiency was the lack of training or briefing of examiners especially in the case of a first time examiner such as Mr Finkelde.
Taken altogether, these deficiencies substantiated the fact that the short case clinical examinations were defective in relation to their reliability, their test-retest validity and inter-scorer reliability.
The fluctuation in performance of repeat candidates (Exhibit C17) could be in part due to what Mr Paget had described as “case specificity”.
Allied to the issues of reliability and validity were those of fairness and equity as emphasised in the evidence of Dr Allen (Exhibit C13), in so far as candidates should have a clear and consistent knowledge of the skills that they were required to demonstrate, the goals of the examination should be attainable within the time and circumstances allowed, each candidate should be examined on the same criteria, and the records of examiners’ findings should be sufficiently detailed to allow later reference.
Though there were divergences in the extent to which the various Australian medical schools adopted an OSCA format, and the years in which they did so (Exhibits R27 and C12B and evidence of Mr Paget and Professor Marshall), in a general sense the examinations conducted for Australian students were more reliable, valid, fair and equitable. Though some medical schools retained short case or viva format, it was inconceivable that they would manifest the inadequacies of the AMC examination.
The complainant also pointed to the lack of access of AMC candidates to information about the appropriate assessment criteria. Whilst the respondent had claimed that AMC examiners were coached in examination techniques by the universities from which they came, this fell short of the training, workshopping and calibration that was actually needed.
As against the fact that universities had generally moved to an OSCA and long case format as the predominant basis of clinical assessment, the AMC has persisted with the older methods. Further, there was a lack of evidence that the type of short case format the AMC continued to use was reliable and valid. Its deficiencies were recognised in its 1990 Interim Report and also by the fact that, in 1997, the AMC had amended its procedures to include greater time for the short case assessments.
13.1.2 Whether the distinction was “based on” national origin
The complainant relied on the AMC case (Sackville J, p.683) as a basis for claiming that the relevant distinction was between persons who were of ANZ origin and those who were not. It could also be substantiated that the complainant and other candidates of Indian national origin were treated differently from other candidates for the AMC’s clinical assessment. This was illustrated by a summary provided by the complainant based on the data drawn from Exhibit C17. This summary illustrated different percentage of passes for candidates of Indian origin who ultimately passed compared with, for example, those of South African origin. This was relevant to the consideration of whether the former group could be regarded as having been assessed on a “equal footing” if the comparative factor was to be drawn between sub-groups of candidates for the AMC exam. The holding of the Full Federal Court that the quota system in issue in the AMC case was not based on national origin but rather on the place of training, should not be held to apply to the situation of a differential type of examination system where the AMC system lacked logic, reliability and validity. In response to the contention of the respondent that persons of non-Australian origin were students in Australian medical schools and a significant number of persons born in Australia had attempted the AMC exams between 1978 and 1997 the complainant contended that this had not been backed up by any evidence. In any event, the fact that a few persons of Australian origin might have to undergo the AMC examination system should not detract from “true basis” of the differential examination systems.
13.1.3 Whether the distinction impairs human rights and fundamental freedoms
The complainant contended that distinction between the examination systems nullified or impaired the complainant’s exercise, on an equal footing with persons of ANZ origin, of his human rights and fundamental freedoms including the right to work, free choice of employment, equal pay for equal work, just and favourable conditions of remuneration and protection against unemployment. It was conceded that the human rights of the complainant did not extend to a right to practice medicine as such, but given that the complainant was already qualified to practice medicine and was in fact employed in medical practice in hospitals, the effect of his failure to pass the AMC examinations, taken in conjunction with s.8 of the Victorian Medical Practice Act, meant that he was effectively prevented from further engaging in that employment. By reason of his failure to be certified by the AMC, his human rights in relation to entitlement to work had been impaired. In support of this, the complainant pointed to Article 6 of the International Covenant on Economic, Social and Cultural Rights. A beneficial view should be taken of the extent of fundamental rights of which the complainant was a beneficiary consistent with the beneficial intent of the legislation. The case of Ebber and Ebber v HREOC & ors [1995] FCA 1134; (1995) 129 ALR 455 should be distinguished in so far as there was no capacity in the case of OTDs to have their qualifications assessed for equivalents.
13.1.4 Section 9(1A) of the Act – the term, condition or requirement
In terms of s.9(1A) of the Act, the complainant contended that the “term, condition or requirement” is satisfied firstly by the requirement to sit and pass the clinical examination in the 1996-1997 format and secondly the requirement that doctors exhibit the technique of a final year medical student as a precondition for passing. The complainant rejected the contention of the respondent that it is not the AMC that imposes the requirement but rather the effect of the relevant medical practice act legislation of each State or Territory. The complainant cites the AMC case as authority for that contention.
As to the issue of reasonableness, the complainant submited that the appropriate test is that determined by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 103 ALR 513 and by the Full Federal Court in Secretary of the Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621 rather than the views expressed by the Full Federal Court in the AMC case and Commonwealth v HREOC (1995) 133 ALR 629 (Dopking No 2). In other words, the Commission is bound to take into account all the relevant circumstances including the nature and extent of the discriminatory effect on the complainant in the context of his personal circumstances as well as the various factors and features of the AMC clinical examination system. Part of the assessment of reasonableness entails a sense of proportionality and concepts of what is fair and just.
For the reasons already explored, the principal submission of the complainant (as disclosed by paragraph 161 of his submission dated 22 July 1998) is that the AMC exam was unstructured, unreliable and invalid. The fact that ANZ students are advantaged in so far as the system of assessment applied to them is addressed to curriculum uptake, that the respondent itself recognises the reliability of the short case assessment format as against the OSCA and long case assessment, the deficiency in the counselling and appeal procedures which frustrates any fair assessment or challenge to the primary AMC examination results, the fact that the complainant graduated from a recognised overseas university and had 14 years of successful practice, that colleagues who worked with the complainant regarded him as competent, that as a public body discharging public functions, and as a fee receiving body, there was an obligation on the respondent to provide a system of fair and effective assessment, and finally the limitation on the complainant’s capacity to engage in medical practice by reason of his failure to pass the AMC exams were severally, in themselves, unreasonable.
In relation to the latter point, the complainant relied on the fact that practically he has no opportunity to further establish his competence other than to enrol as a student at an Australian university.
It is also asserted that the AMC format is unreasonable in so far as it prejudices experienced doctors who have developed a recognition or a streamlined approach to diagnosis. Contrary to the respondent’s contention that the AMC clinical examination continues to be used by medical accreditation bodies in Australia and elsewhere, the complainant pointed to the diminishing use of short case assessments in Australian universities and the fact that overseas experience indicates that in countries like Canada and the USA there is a move to an OSCA format, including, in the Canadian case, a system of national registration whereby a similar OSCA based assessment method is used in respect of both internal and external candidates. Based on Mr Paget’s evidence, the complainant submitted that while short case format is still used in some medical schools, long cases and OSCAs were in fact extensively used in Australian universities. However, the complainant asserted that he did not rely on the use of OSCAs in Australian universities in itself. His case was based on the distinction between an unstructured and unreliable examination and a reliable structured examination, the use of the OSCA format being a manifestation of the latter.
In terms of the use of more than one examiner in the AMC examinations, the complainant contended that this tended to produce inconsistency between pairs of examiners rather than consistency. As to whether the use of an OSCA format would in fact be detrimental to some OTDs because of a lack of flexibility, the complainant contended that there would be more advantages to be gained than detriments.
13.1.5 Whether the complainant did not or could not comply with requirement
The complainant relied on the fact that he had been unable to pass the AMC examinations as substantiating his inability to meet the requirement.
13.1.6 Whether the requirement had the purpose or the effect of nullifying or impairing the recognition and equal footing of any human right or fundamental freedom.
Having regard to the view of Sackville J in the AMC case (at p.688), that a person in the complainant’s position or any other Indian doctor, could have satisfied the requirements of admission to Australian practice (and in that instance avoid the quota on OTDs) by enrolling in an Australian medical school, the complainant said that this would nevertheless involve contravention of s.9(1A) in so far as it would amount to an impairment of the complainant’s right to work, given the fact that he was otherwise competent to do so, if properly and fairly assessed. Taken in respect of other Indian born candidates, the fact that 82 percent of such doctors ultimately passed the AMC exams (Exhibit R35) was not determinative given that the pass rate looked to the ultimate results including those of candidates who had had to undergo examination on a second or subsequent occasion. Exhibit C37 showed that in particular years the AMC clinical examination had been as low as 46 percent whilst the pass rate at Australian medical schools was close to 100 percent. The fact that AMC candidates may have to attend the examination a number of times before passing in itself constituted an impairment of their rights. The reference in s.9(1A) to “persons of the same ... national origin” indicated no more than a requirement that the detriment be referable to national origin. In that respect the complainant should be regarded in terms of the fact that he was relevantly of other than ANZ origin (including the fact that he was of Indian origin). There merely needed to be some connection between the detriment suffered by the complainant and his national origin and the fact that some Australians could be similarly subject to detriment did not detract from the general validity of that proposition. Given the fact that some persons of non-Australian origin may succeed ultimately after several attempts (and therefore it could not be said that their right to work was nullified), the fact that more than one attempt was necessary was in itself an impairment of that right.
13.1.7 Victimisation
The complainant relied on the factors listed in his submission of 22 July 1998 to substantiate his claim of victimisation under s.27 of the Act. These included the fact that the various AMC examiners were made aware of the complainant’s background involving a complaint to this Commission, the irregularities in his particular assessment, the alteration to some mark sheets, the case in the second counselling session where Professor Clarke had shown a mark sheet which had an A crossed out and a C written in its place, that in terms of the overall consensus mark at the second, third and fourth attempts, it was inevitably a D irrespective of the fact that in particular components the complainant had received a B, the fact that the complainant was never considered for an upgrade but only for downgrades, the response on appeal to the complainant’s attempts to raise the matter of his assessment and its correctness, the fact that the respondent was not prepared to address the complainant’s concern regarding the unfairness of his assessment, the use of the counselling processing and particularly convening them at the Victorian Medical Practitioners Board’s office in an attempt to intimidate him, and the making available to the Medical Practitioners Board of the complainant’s mark sheets, regardless of his rights, resulting in the imposition of him of restrictions which virtually made him unemployable.
13.1.8 Section 10 of the Act
The complainant also submitted that by virtue of s.10 of the Act, the provisions of the Victorian Medical Practice Act which effectively denied him admission on an equal footing with graduates of ANZ medical schools should be regarded as not applicable in his case.
13.1.9 Orders sought
The complainant first seeks orders that there have been breaches of s.9(1), s.9(1A), and s.27(2) of the Act. He also seeks from the respondent a written apology both in relation to the way he has been treated in regard to the examination process as well as other matters such as the counselling sessions. He seeks compensation in the order of $200,000, part for loss of income for a year and also for general pain and suffering having regard to the stress, humiliation and anguish he has suffered. The figure claimed for loss of earnings was calculated in respect to a 12 month period and having regard to his earnings between 1 July 1996 and 30 January 1997 and amounts to $102,343.
More contentiously, based on the proposition that in respect of the critical exams which resulted in his overall failure to pass, and having regard to various inconsistencies, contradictions and concessions made on the face of the relevant examiners’ own evidence and statements, the complainant seeks that the Commission direct the AMC effectively to award the complainant a pass. Failing that, the Commission should direct the respondent to re-examine the complainant in a format that is reliable and fair, properly recorded and involving the participation of two observers such as Doctors Wenzel and Waluk, in addition to the two examiners appointed by the respondent, one of whom should be Professor Clunie.
13.1.10 Specific instances of individual examination failings
In paragraphs 199 to 250 of his submission dated 22 July 1998, the complainant takes issue with a wide range of contentions set out between pages 4 to 87 of the respondent’s detailed submissions provided subsequent to the hearing. The Commission does not propose to analyse the content of these further beyond noting that they descend to a very high degree of particularity on matters which have been extensively canvassed both in evidence and prior submissions. The Commission should indicate that in this respect it does not consider that it is necessary to resolve every particular difference and disagreement between the parties as to what transpired in the various examination systems. It will be sufficient, as assumed below, to make general conclusions that, in the opinion of the Commission, dispose of the issues before it.
13.2 Submissions of the respondent
The respondent’s submissions were contained primarily in its outline of submissions dated 5 June 1998, as amplified by the oral submissions made by Mr McClellan QC, and as further developed, in respect of the individual examinations, in the respondent’s detailed submissions.
Again, the following summary is directed to outlining the essential skeletal framework of the respondent’s submissions.
The respondent is a body incorporated under the Associations Incorporation Act 1991 of the Australian Capital Territory but is not a Commonwealth agency. Its functions entail both the accreditation of ANZ medical schools and the conducting of examinations for OTDs seeking registration to practice in Australia. Eligibility for registration is the subject of State and Territory laws such as s.6 of the Medical Practice Act 1994 (Vic) whereby a person is eligible for registration in Victoria if they have successfully completed the AMC’s examinations and undertaken a further period of supervised training.
In so far as the clinical examination is concerned to obtain an overall pass, the candidate must complete each component satisfactorily. If the candidate receives only a C in one component that may be raised to a B if performance in other components justifies that result. If not so elevated, the candidate would fail and have to sit the whole examination again.
Prior to 1997, and relevantly to the complainant’s situation, the clinical examination had three components; medicine, surgery and obstetrics and gynaecology. The examination in medicine and surgery was a half hour assessment devoted to short cases before two examiners entailing usually four or five topics with a period of five minutes of that half hour taken up by discussion between the examiners. A mark of B represented a bare pass which would not otherwise entitle the candidate to exemption in a unit which he or she had been awarded a C. A mark of C was a fail but could be elevated whereas a D was an outright failure which under no circumstance was capable of elevation (Exhibit R23, para 5.36). The practice was for examiners to score candidates individually and then for all examiners for a component to determine the consensus result for the component. The standard required was that of final year medical students about to commence their intern year. The Commission accepts all these matters. The respondent further submitted that the evidence on its behalf including Professor Marshall (Exhibit R23, para 5.30 ff) and the evidence of Mr Paget and other examiners disclosed that the AMC examination in fact was conducted in accordance with that standard.
13.2.1 Section 9(1) of the Act
The respondent agreed that the requirement of OTDs to sit and pass the clinical examination in the 1996/1997 format was the relevant “act”. As to the “distinction” which was said to be the difference between the AMC format and the format used in Australian medical schools, the respondent firstly denied that the AMC clinical examination was chaotic and unstructured as claimed by the complainant in contrast to the formats used in Australian university medical schools which were reliable and structured. According to the respondent, whether or not the AMC clinical examinations were objective or less objective than different examination systems such as OSCAs was not the relevant issue. Contrary to the contention of the complainant, the respondent maintained that the criteria under which the examinations were conducted were accessible to candidates and that the examiners were aware of the standards of final year undergraduates of Australian medical schools. Examiners were coached in conducting examination by the universities with which they were associated, in terms of the comparison with examination formats at Australian medical schools. The evidence (Exhibit R27) showed that there was a wide range of examination formats for the final year of medical school throughout Australia. The respondent emphasised that with respect to those examinations no evidence had been presented about the reliability of any examination in a particular Australian medical school. That being the case, the complainant had not proven comparative distance and hence could not establish that there was a distinction.
13.2.2 National origin
The respondent denied that the distinction could be said to be based on national origin. The basis for the examination was that the AMC was unable, without subjecting the candidate to some form of examination, to know whether a candidate trained overseas had the requisite level of medical knowledge and clinical practice to engage in the safe practice of medicine in Australia. The determinant for imposing the examination therefore was not based on national origin but on the state of knowledge and capability of persons who had not trained in Australia. It was the case that Australian medical schools in fact did have overseas fee paying students (Exhibit R9, para 11) while Exhibit R37 indicated that some of the AMC’s candidates were in fact born in Australia. The Commission should follow the views expressed in the AMC case by Heerey J (at p.665) and Sackville J (at pp.682-3).
Invoking s.18 of the Act, in so far as it permitted consideration of one as against other reasons for maintaining a distinction, did not assist the complainant in establishing that the distinction in this case was one based on national origin.
13.2.3 The relevant human right
Given that the complainant was not qualified to receive an unrestricted registration in Victoria, it could not be contended that the respondent had impaired the complainant’s human right to be fairly assessed to work in an occupation for which the person was qualified or the right to work of that person in that occupation. The Commission should not accept that there was any such human right (AMC case, per Heerey J; Jamorski v Attorney – General of Ontario 49 DLR (4th) 433 and Ebber and Ebber v Human Rights & Equal Opportunity Commission [1995] FCA 1134; (1994) 129 ALR 455).
13.2.4 Section 9(1A) of the Act - requirement to comply
The respondent submitted that it was not the AMC who imposed any requirement. The requirement arose from s.6 of the Victorian Medical Practice Act. The complainant had voluntarily chosen to sit the AMC exam and was not required to do so by the AMC.
13.2.5 Section 9(1A) – reasonableness of requirement
With respect to whether the clinical examination conducted by the AMC was reasonable, the respondent first contended that the onus was on the complainant to show that the distinction was unreasonable, the criterion to be judged objectively: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251. The circumstances of the case relevantly included the personal impact of the requirement on the complainant. Essentially, the body imposing the requirement was the appropriate body to determine its reasonableness and courts should be reluctant to be involved in assessments of economic, political and commercial factors. Any point of distinction adopted by the decision making body had to have a logical and understandable basis. If so, it was reasonable (AMC case, per Heerey J at p.668).
The fact that the clinical examination was a reasonable method of assessing competency for practice, both in Australia and elsewhere, was attested by its use in this and other countries. The AMC exam format in fact was still in use in Australian universities in varying degrees and at various stages of undergraduate courses (Exhibit R27). One advantage of the exam was its flexibility allowing consideration for factors that may be present in the case of a person trained outside the Australian system. It was consistent in so far as the medicine and surgery components, each involved two pairs of examiners and a consensus mark was achieved through a meeting of the examiners. Examiners were highly experienced in examining university undergraduates as well as OTDs.
Concerning the evidence of Dr Allen as to the unreliability and invalidity of the AMC short format system, the respondent maintained that she had a flawed understanding of the examination system and that, in particular, the application of the relevant stated criteria for assessment were necessary for OTDs due to their lack of experience or other factors requiring compensation and interactive intervention by examiners. Further, the resources required to run an OSCA format would entail significant expenditure. Candidates for the AMC exam are not required to perform as if they were undergraduates but rather the standard was that of a newly qualified graduate.
The respondent rejected the submissions concerning the unreliability and error factors due to variation, differences and disagreements between examiners. The system and actual standard of the AMC clinical examinations was rational and logical therefore it could not be held to be “not reasonable” for the purposes of s.9(1A). The examination results for the complainant could be sustained because AMC examiners in various instances had found a significant number of serious errors by the complainant.
13.2.6 Section 9(1A) - does not or cannot comply
The respondent contended that the mere failure of the complainant to pass the AMC examination did not necessarily mean that he had not complied or been able to comply with the relevant requirement. In this regard the respondent submitted that the Commission should not follow the view expressed by Heerey J in the AMC case (pp.668-669) and should apply the Full Court’s views generally including that of Sackville J at p.688.
13.2.7 Whether the relevant requirement had the purpose or effect of impairing the enjoyment by persons of the same national origin of a human right
The respondent submitted that the fact that a number of OTDs (or if further confined, doctors of Indian origin) had failed the examination did not entail the proposition that failure to pass had the purpose or effect of nullifying or impairing the exercise by persons such as the complainant on an equal footing with other groups of the relevant human right.
13.2.8 Victimisation
In response to the allegations of victimisation, the respondent submitted that there was simply no evidence to support any of the very serious allegations of the complainant, including the inference of concocting or tampering with results. The instances drawn from inconsistencies between examiners, alleged collusion between examiners, additions to comments to justify failure, the insistence that the complainant required prompting in the face of contrary evidence such as that of Dr Waluk that the complainant did not, leaving boxes in the exam marking sheets blank, aiming to award the complainant an A, conversely always giving him a consensus mark which corresponded to the lowest mark given by any of the four examiners in an examination component, the unfairness of the appeal process and the allegation of intimidation at counseling sessions including location of the venue did not support a conclusion of victimisation.
Given the nature of the examination it was not surprising that there were differences between examiners based on a genuine difference of opinion. That did not imply any impropriety and could not support an inference of a breach of s.27(2). The examiners were reasonable, professional people who examined the complainant fairly. It was the complainant’s performance in the examinations which led to him being regarded as unsatisfactory. The mark sheets were only to be used as an aide-memoir, not as a detailed record. The rules regarding appeals were the same for all candidates and were made known to candidates. The responses of examiners and officers of the AMC in the counselling sessions had to be viewed in context which was that the function of such a session was to indicate to a candidate why he or she had failed rather than to provide an appeal on the merits.
The respondent further contended that there could not be a breach of s.27(2)(c) of the Act in so far as any conduct of the AMC or its officers did not involve any employment relationship between the candidates for the exams and the AMC itself. Section 27(2) applied to prejudicial treatment occurring within an actual relationship of employment. For the purpose of s.27 (2)(a), the respondent had not engaged in an refusal to employ the complainant because he had previously made a complaint under the Act. Nor could it be said that the result of the AMC’s failing the complainant resulted in him suffering any “penalty”.
13.2.9 Section 10 of the Act
Section 10 of the Act had no relevant application in relation to s.6 of the Victorian Medical Practice Act because s.6 did not operate by reference to race or national origin. It was directed to registration as a medical practitioner irrespective of a person’s race or national origin. In any event, the AMC was not an appropriate respondent in relation to any alleged breach of s.10 of the Act given it had no responsibility for the administration of the Medical Practice Act.
14. DISCUSSION OF THE EVIDENCE
14.1 General observations regarding the witnesses
The Commission should first address the issue of the credibility of the witnesses and the reliability of various documentary materials furnished to it by way of evidence.
The complainant was his own principal witness. It is fair to say that the various experiences he has undergone in relation to attempting to qualify through passing the various AMC examination has affected him enormously. It would not be too extravagant to say that he has been quite traumatised by what has ensued over the last few years including his initial attempts to pass the MCQ exams, his first complaint to this Commission and the series of failures in the four subsequent sessions which are the subject of this complaint. In my view this has affected his capacity to give reliable evidence. He undoubtedly was a witness who sought to give evidence truthfully. However, due to his subjective involvement in the various events leading to this hearing, his evidence was frequently emotional, sometimes confused and, because of his deep involvement in the relevant events, much of his evidence was given in a highly subjective way which, at times, at least as I perceived it, entailed an element on the one hand of reconstruction of events and at times a propensity to minimise the significance of facts put against him.
The complainant’s unreliability of recall about particular matters was evident in the fact that, for example, he was not sure whether in his response about the failure rate of the pill, he had said 3-4 percent or 0.3-0.4 percent and accordingly had varied his record between the hand written notes and his typed up version. Either way, two things are manifest from his notes. First, he had no certainty about which answer was correct. Second, despite differing views among the various examiners who were concerned with the issue of the failure rate of the pill, including Professor Healy, Mr Ratten and Professor Pepperell his answer, whether 3-4 percent or 0.3-0.4 percent varied from, or was only at the margin of, any figure suggested by them. In that regard it may be noted that, as Associate Professor Fliegner stated, whether the complainant’s figure was right or wrong, of much greater concern was his volunteering, on one occasion, eighteen months as the time before the pill became effective.
Another matter that diminished the credibility of the complainant’s evidence was his concession that he had written parts of the “recall” after learning of various examiners’ comments. I would accept Dr Waluk’s evidence, on the other hand, that Dr Waluk did not assist the complainant in writing up the complainant’s notes, other than to settle the order of cases.
In referring to the complainant’s tendency to minimise the significance of facts put against him, I mean his tendency to blame conditions such as lighting in examination rooms, the adequacy of specimens, the legibility of x-rays and ECGs and whether articles such as sputum containers were available, or whether specimens were turned away from him so that he could not initially perceive them. This is not necessarily to say that the specimens, ECGs and x-rays in the various viva examinations were of a quality one would expect in an examination. For reasons given below I find that in some instances specimens may have been defective and would give rise to difficulties in any candidate.
In addition to the instance of the sputum mug and his complaint that he was not directed to it at the outset and the darkness of the room when examining for nystagmus, other examples of minimisation include the holding of reports or x-rays in a way to prevent him seeing important details, his constant complaint that he could only examine a patient properly if given a detailed history (when the short-case method is limited in its range of problems and dependent on a detailed history) and the imprecise nature of questions in matters such as these I am not, on the balance of probabilities, convinced that the complainant’s objections were well-founded.
As a matter of fact I would mention that in respect of two instances that assumed some significance in the complainant’s case, I would make the following specific findings. The first was whether Mr Crowley had congratulated the candidate and said “well done” at the end of one examination. In my view, the complainant probably misinterpreted some minor conciliatory or comforting remark of the examiner as an endorsement of his performance. Secondly, I do not find that Dr Gya, at a bridging course for AMC candidates in the early 1990s, said something that could be taken to suggest that the respondent deliberately failed a set proportion of candidates. What is more likely is that Dr Gya commented that a certain percentage were likely to fail and the complainant read into that comment a more sinister intention on the part of the respondent.
The kind of instances where I prefer to accept the examiners’ views that there were justifiable concerns about his level of competence include his slowness in reaching diagnosis of pulmonary embolism, and thyroglossal cyst, his dogmatism in holding onto the view that the cyst was a thyroid condition, his offering of a colectomy as a treatment for the Crohn’s disease when it was evident that the condition was not substantially established in the colon, and the slowness to offer other candidates besides staphylocaccal in the case of the child brought in with an infection. In respect of cases such as whether he transilluminated in a way that revealed a hydrocele, what was of more concern to the examiners was his inadequacy of examination technique. The same may be said of their concerns of the roughness of his approach at times. In these matters some discomfort may necessarily be inherent in the examination but there seems to have been concern on more than one occasion about this issue. I prefer the evidence of the examiners to his in such cases. Cumulatively, instances such as these support the conclusion that the decisions of the various examiners to fail him were not without reasonable justification.
In the result, although I am prepared to accept that many of his answers were true, a substantial amount of his evidence was affected by his tendency to believe in the justice of his cause and this, to some extent, has led him to take a suspicious and adversarial view of the various examiners that he encountered. Whilst this might be understandable in his circumstances and given his history these are impressions that the Commission should take into account when assessing the credibility of his evidence. Where there is conflict I have preferred the evidence of more objective witnesses in cases where there is no independent guide for verification.
Of the other witnesses for the complainant I was impressed with the objectivity of Dr Wenzel. Although undoubtedly he was concerned about the failure of his colleague, the complainant, to pass the AMC examinations, and was critical of features of the examinations, his evidence was given in a relatively dispassionate and disinterested fashion which I found generally helpful and credible.
Dr Waluk was more problematic as a witness. There is no question about his fierce independence, impressive medical knowledge and his general intention to state his evidence objectively. Nevertheless, his evidence was not always helpful to the Commission in determining the facts. He was inclined to be pedantic and dogmatic in responding to questions which I considered were quite intelligible without elaboration. It is fair to say that he has a strong interest in the matter of OTDs taking examinations and it must be said that his judgements about aspects of examiners and the examination system became somewhat passionate and at times detracted from the objectivity and reliability of his evidence. Nevertheless, the Commission was considerably assisted by his recording of the examinations, admittedly in circumstances where it was impossible to observe and record all that went on in the examination sessions he attended. He was, however, rather inclined to put the best construction on events concerning the complainant’s answers, including in some instances a tendency to read the complainant’s physical actions as consistent with the complainant arriving at unexpressed or unarticulated conclusions which, so he thought, went un-noticed by his examiners. In such cases I did not place much reliance on his surmises.
The other witness for the complainant was Dr Allen who again gave evidence in a disinterested, relatively clear and objective manner which contributed to its credibility. In her case, however, as shown in cross-examination, there were features of the AMC examination system, such as a degree to which individual assessment criteria were the subject of examination, which detracted from her evidence. Also her lack of experience or familiarity with the AMC clinical examination system affected her judgement in some significant matters. In that regard I would refer to such matters as concern that an incomplete assessing of a candidate could seriously affect the validity of the assessment (in the case of a candidate who clearly demonstrated competence) and also her opinion relating to the necessity for clear satisfaction of questioning and answering procedures and keeping a record. These concerns appeared to me be more appropriate to circumstances where students were being ranked in terms of their comparative performance as against being assessed against a standard of lowest level of competence accepted in respect of a graduating student who was about to enter supervised internship. The objective of the AMC system in testing doctors of varying backgrounds and experience gained outside Australia is to ensure that they were basically competent and safe to enter general practice after a period of supervision in hospitals. Accordingly, although her evidence regarding the theoretical basis of reliability and validity with respect to the OSCE format were informative and helpful to the Commission, her conclusions about what she saw as deficiencies in the AMC system were not overall persuasive.
So far as the large array of witnesses furnished by the respondent are concerned, I would make only some general comments about the credibility of the greater number of them. The first is that while one or two may have exhibited a somewhat antagonistic or querilous disposition, I detected no evidence that suggested to me that the witnesses were less than professional and basically truthful. There were of course instances where witnesses were vague in their recall of events but I detected no evidence of a malicious intention towards the complainant although some witnesses, particularly in their written statements, expressed strong views about the level of his competence. There were of course, as elicited in cross-examination, individual instances of inconsistency, contradiction and the like which detrimentally affected the credibility of some witnesses. But that is the common experience of any tribunal.
I found Mr Paget, the principal theoretical witness for the respondent, a well informed and objective witness. I accepted his evidence as reliable and of great assistance.
I should also mention that I found Professor Marshall a credible witness notwithstanding that his official position involved defending the respondent organisation. It is evident from particular instances, such as what appears from the tapes of the counselling sessions, that at times emotions were high on the part of some of those involved in the counselling sessions. But this was not unexpected, given the circumstances, and I draw no adverse inferences from it regarding attempts to intimidate the complainant. The statements made in the counselling session about the purpose being to explain why the complainant failed, not why he should pass, was one of fact.
Finally, I should mention in order to dismiss it that I do not accept that the involvement of the respondent’s legal advisers in preparing witness statements conditioned the veracity of those documents. Counsel for the complainant suggested, regrettably in my view, that their written statements were unreliable in some cases because of the way they had been prepared by the respondent’s solicitors. I should make it clear that I find that suggestion totally without justification. While there was obviously a wide discrepancy between resources available to the respondent and those of the complainant (referred to from time to time by counsel for the complainant as of “David and Goliath” proportions) it should be noted that, although not constrained to do so, the respondent was cooperative in making available a large number of the examiners as witnesses and thereby presented the opportunity for adverse cross- examination on behalf of the complainant.
With respect to the documentary evidence, as indicated by various rulings, a reasonable proportion of the material was open to objection by the respondent on the basis of its relevance or the lack of background information or context so that its reliability was open to dispute. I have generally taken the attitude that material such as textbooks could be referred to for the purpose of general information or formulation of concepts but when articles descended to particularity over such matters as performance of individual students or interns in various institutions or States I have had no regard to the specifics.
I should say in relation to Exhibit R27 which was the subject of a separate submission by the complainant, that I have again accepted it as a document that is informative with respect to its general framework and contents concerning the extent to which OSCEs are used in various institutions but, again, I have tended to discount the capacity of that analysis to support any firm conclusions about the degree to which OSCEs have been accepted or not accepted in particular Australian universities. Suffice it to say that it is evident that there is a general tendency to use OSCEs as a major assessment tool, in many cases in preference to short case clinical exams, but the trend is not universal either as to the level of undergraduate testing or in particular institutions. The tendency is significant in my view in demonstrating the suitability of the various OSCE adaptations in the context of an undergraduate medical program. For the reasons given below, any such conclusion about its advantages and fairness in that particular context is not necessarily transferable to the AMC examination given the variables in the background of the candidates in each case.
15.1 Section 9(1) of the Act
For the purpose of s.9(1) of the Act I accept the complainant’s submission that the relevant “act” was the requirement imposed on doctors who have been trained overseas to sit and pass a clinical examination in the format that was used in 1996–1997. I do not accept, however, the submission of the respondent that such a requirement is not the result of policies imposed by the respondent but rather a result of the requirements of the Victorian registration legislation. Certainly, the primary bar to the complainant proceeding to be qualified eventually for practice in Victoria was the requirements imposed by that Act, and in turn such qualification in the case of the complainant was dependent on him passing the exam in the format stipulated by the AMC.
15.2 Did the act involve a “distinction”?
Certainly there is a considerable body of evidence before the Commission to demonstrate differences between the systems used in the case of the AMC examination and the general thrust of the system used in Australian universities, particularly the extensive use of an OSCE type format in the latter case.
That in turn raises the question of whether such differences amount to a relevant distinction for the purposes of s.9(1) of the Act. The principal plank of the complainant’s case is based on considerations of the reliability and validity of the comparative examination systems. Quite rightly it does not rise or fall on the extent to which OSCEs are specifically used. The contrast put forward by the complainant is that of an unstructured and unreliable AMC format as against a structured and reliable undergraduate format.
In that regard I would make the following general comments. The first is that given the different backgrounds of the kind of candidates involved in each system I would have taken a great deal of convincing before I was persuaded that something approaching the wide scale utilisation of OSCEs or similar formats in the AMC format would, comparatively, contribute to a more equitable system overall in terms of the capacity of OTDs to satisfy the respondent of their competence when measured against the notional standard of students who are assessed as appropriate for passing under the domestic university system. For one thing, as contended by the respondent, although there is a great deal of material before the Commission as to the virtues and vices of the short case format in particular situations under the AMC examination system as it applied to the complainant, there is very little information about the actual application of assessments using OSCEs in the Australian undergraduate system. The Commission can draw general conclusions about the high degree of reliability and validity of the OSCE format used in the university context. It is a system which is methodical and subject to cross checking. I accept also the evidence that it is not capable of eliminating aspects of subjectivity of judgement on the parts of examiners. However, it is true to say that the determinations and judgements of the examiners under the OSCE format is open to a high degree of scrutiny and verification in terms of checking results. I shall return to that feature below. Commonsense and general knowledge also suggest that the system for undergraduates is somewhat inflexible. Whilst there is no specific evidence to assist the Commission it would seem reasonable to assume that such a system might not readily be adaptable to the situation of OTDs, many of whom are already of an older cohort and with the benefit of the kind of experience which would in fact give rise to pattern recognition. Balanced against that, it was evident from Mr Paget’s evidence that the flexibility of the AMC format would be advantageous to some OTDs.
What can be said is that Professor Clunie and Mr Paget both questioned the simple proposition that a more structured OSCE-like format would necessarily effect an improvement in achieving a more valid result in the AMC system. As Professor Clunie observed, OSCEs are artificial and conducted within limited timeframes which might not be as suitable in assessing clinical competence, especially in respect of practising OTDs. According to Professor McGrath, the objective of examiners to assess performance as a matter of overall response could be inhibited in an OSCE format. Dr Wenzel also was of the view that the short case examinations have their place in testing competence. I find their evidence persuasive.
A major consideration in determining whether there is a relevant distinction involves the capacity of the AMC examination system validly to measure the competence and capacity for safe practice by AMC candidates. That, after all, is the primary objective of the AMC system. I am persuaded on balance, by the evidence of Mr Paget in particular, that there was in terms of the relevant coefficient a high degree of correspondence between the results in the AMC examination and the standards of competence and safety which it seeks to measure. While this essentially is a matter of face validity, as submitted by the complainant, in terms of its general reliability I accept Mr Paget’s assessment that the system, notwithstanding the use of short cases, demonstrated a high degree of reliability. In this respect, as mentioned above, the fact that there is no objective to rank AMC candidates (now that the quota has been abandoned) conditions the aspects of validity and reliability that one looks for in the undergraduate system since they are not necessary to the same extent in the system which assesses those who have trained outside the ANZ systems.
In that context some of the submissions of the complainant were directed to the area of test-retest validity, namely the circumstances where individual candidates had initially failed the AMC examinations but had resubmitted. The sample relied on by the complainant may well be statistically too small to make any objective judgement. It is apparent that fluctuations in results were evident in students who resubmitted for second or more occasions. But, as the evidence of Mr Paget indicated, such fluctuations are open to various interpretations. There is the matter to start with of case specificity which may in fact mean that an initial test may not produce the validity of outcome it was designed to achieve. There is also the matter of cultural background and familiarity with the particular examination system. In the case of students in the sample analysed by the complainant who improved from say a C to an A, these factors could plausibly have contributed to such a circumstance. In the case of the person such as the complainant, an alternative explanation, according to Mr Paget, which I accept, is that the results of weaker students are capable of oscillation at various attempts. It may be the case, as suggested by Mr Paget, that an OTD in the situation of the complainant may not have kept up with current knowledge or technology. That would explain why he passed a component on one occasion and failed it on another. The variability of his results does not, in my view, establish the unreliability of the AMC clinical examination.
As a general conclusion, therefore, I find that in respect of its general application to most candidates, the AMC examination does produce a high level of validity withstanding various flaws which were disclosed in the evidence before the Commission. That is a judgement I make having regard to the general bulk of OTDs who submit to that exam.
Where I have greater difficulty, however, is in relation to the effect of the AMC examination format on a borderline candidate such as the complainant. In terms of an overall assessment of his competence I find that even if it were appropriate for me to make a judgement about the matter (which I do not) I could not make a finding that the complainant was in fact of the standard of competency and safe practice equivalent to that of a graduating medical student in Australia, such that he should be a judged to have passed the various clinical examinations for which he sat.
In a case such as this there are limits to which the Commission can deal with every instance. My overall conclusion is that the complainant has failed to satisfy me that, despite individual instances of doubtful assessment, his examiners, as competent professionals, erred in their overall conclusions concerning his competence.
The Commission can point to a large number of cases where individual examiners were alarmed or concerned about the complainant’s responses. A few examples will suffice. These include Dr Popplewell’s concern about the way the complainant reached the diagnosis of cerrebellopontine tumour, Mr Crowley’s views about the complainant’s continued insistence on a thyroid condition as well as a thyroglossal cyst, his failing to reach a diagnosis of meningitis first up in the case of a child with febrile convulsions, his offering cystic fibrosis as a diagnosis in the case of a woman over 60, missing menorrhagia as the initial diagnosis in favour of thalassaemia, suggesting Warfarin be administered without pursuing clarification of the risk factors, the suggestion of a colectomy in the case of Crohn’s disease, failing to ballotte the liver in one case, and his roughness of examining technique in others.
In these cases, as is evident from the complainant’s detailed submissions, both oral and in his response of 22 July 1998, attempts were made to rationalise the complainant’s shortcomings (inadequate time, imprecise questions, misleading questions, poor specimins and the like) and to justify his responses when they differed from his examiners’. I would say, shortly, that generally I remain unpersuaded that the rationalisations and justifications substantially undermine the view common to those examiners that the complainant should not have been given a pass in the relevant examinations. It is true that such things as unclear graphlines in an ECG or the age of particular x-rays made analysis or detection extremely difficult, but it does not explain how he could be so far out in particular responses (to use the ECG example by stating a heart rate of over 100 pulses per minute and, possibly 100-150, instead of 70-75). The attempt to justify his answer of penicillin rather than ceftriaxone in the case of emergency treatment for infection is illuminating. In the end, the evidence, particularly as it was explored in that case in re-examination by the respondent of Dr Glass, confirmed, in my view, the position which the examiners had taken.
On the balance of probability I find therefore that with respect to the large majority of AMC candidates the kind of flaws and deficiencies revealed in this case do not appear, in the absence of any countervailing evidence, to have materially affected the outcome of candidates other than the complainant. With respect to him, although I put a large measure of weight on the opinions of witnesses such as Dr Wenzel, in particular, and to a lesser extent, Dr Waluk and Professor Aouad, that suggest the complainant, in their view, could at least be regarded as (not that he necessarily was) competent to practise, their judgements were made in the special context of a Registrar in the emergency department of a public hospital. As noted above, I am not persuaded on the basis of probabilities that the performance of the complainant was sufficient to demonstrate his competence. I certainly discount the possibility that I can notionally rewrite the assessments of particular examiners because of particular contradictions and demonstrable errors and disagreements that arose on the face of the evidence. The results determined in individual cases can be given a distorted characterisation by giving undue weight to particular instances taken out of context relating to disagreements amongst examiners about diagnosis and management and how the complainant performed in particular examinations and assessed the relevant specimens. In my view, many of the criticisms made of examiners were open to debate and not, in the end, sustained. I accept the submission of the respondent that in a significant number of cases, despite the complainant’s attempts to minimise or explain them away, the answers or actions of the complainant were sufficient to give rise to a reasonable apprehension on the part of experienced examiners so that the complainant’s performance should be regarded as unsatisfactory, and on a consensus review, was deemed to be insufficient to warrant a pass at the B level. The complainant may well have been able to demonstrate his competence in a different context but on the evidence before the Commission I am not persuaded on the balance of probabilities that he did merit a pass mark.
While some instances of the examiners’ different responses from the complainant’s, such as the JVP, can perhaps be resolved in favour of the complainant (though as indicated above I do not consider that was the case) there were too many instances of disquieting observations and comments by the examiners which suggested an inadequate knowledge or understanding on the part of the complainant. These include, as instanced above, the preference for less likely diagnoses such as that involved in the case of thallaseamea, the persistence of the complainant in trying to justify the alternative diagnosis of a thyroid condition and his lack of understanding about the need to administer a wide spectrum drug such as ceftriaxone as well as or in place of benzylpenicillin in the case of the child’s infection where the nature of the infection was not known upon emergency admission, that was significant.
In other instances, while the complainant seeks to put the blame on his examiners for failing to be sufficiently particular or informative in formulating short histories or questions, I can appreciate the examiners’ dilemma where the candidate seems to have made no effort to pursue what one would have expected as a routine inquiry or conduct in order to, himself, advance his examination or pursue a diagnosis. In cases such as the allegation about the fact that a specimen of a melanoma of the skin was, according to him, turned away from him so that he could not properly see it, it would seem the problem could have been remedied by him simply turning the specimen. There is no reason to believe the examiners were forbidding such a course of action. The Commission also puts much weight on the concern of the examiners about the slow progress to make a diagnosis in cases such as the thyroglossal cyst. These illustrations invite the conclusion that the examiners were not unjustified in concluding that, on the basis of their concerns about the safety of his procedures or the adequacy of his knowledge, he did not merit a pass at even the B level.
However, I would accept that there are many instances that were ventilated in the course of cross-examination that did disclose what I would regard as flaws in the examination method concerning potential examiner error or that possibly arose from mistakes about the complainant’s responses, and that were capable of affecting the results in the complainant’s case.
In approaching the issue of examiner error, I would start by observing that I do not draw any seriously adverse conclusion from disagreements of the kind that emerged about the appropriate angle to test for JVP. In the first place, as a matter of fact, and if it is relevant to do so, I find that on balance the complainant probably carried out the examination at an angle of about 25-30 degrees, having regard to the patient’s head and shoulders in relation to the pillows on which it rested. As to whether the appropriate angle was 30-45 degrees or more, I accept the evidence of Professor Salem suggesting in the case of a short case examination, 45 degrees would be an appropriate angle to start as the JVP may not be sufficiently evident below that angle. Whilst the complainant’s actions were of concern to the examiners who were involved, it was not the sole reason why the complainant received a low mark.
I am also of the view that other examples of differences in the accounts of the complainant and Dr Waluk, on the one hand, and the examiners on the other, such as whether the complainant’s answer was affected by his left/right side mistakes, requiring correction, did not significantly render the AMC results of clinical and viva examinations flawed to an extent that the assessment of the complainant was unreasonably or unfairly compromised. An example is the case of whether a mass under the skin was a lipoma or not. What was in issue was the observance of the swelling and what it could signify, not what it was. Accordingly, I am not prepared to find that the various examinations of the complainant were flawed to the extent where they were not reliable or valid. But I take a different view as to other significant differences that are evident on the marksheets or through cross-examination of some examiners where there was a possibility that an examiner may have misunderstood a particular response of the complainant.
Examples of significant disagreement between examiners include that between Professor Macdonald and Dr Penny about whether the complainant turned a patient with a cardiovascular condition on the left side for examination, or had detected a mid-systolic murmer, that between Associate Professor Scott and Mr Finkelde over whether the complainant had identified a condition of abdominal aortic aneurism and whether he had detected a carotid thrill, and between Dr Niesche and Dr Ibrahim over whether the complainant had correctly elicited signs. There were other instances of matters which could have unfairly prejudiced the complainant’s assessment. An example is Professor Macdonald’s obvious mistake over whether the complainant had said “liver” or not. Failure to settle in advance the wording of questions or introductory statements also left room for debate about whether the complainant had been told a patient had a “productive” cough (an important fact).
I also find that in the form in which the short case clinical and viva exams were conducted in 1996-1997, the fact that there was, for the most part, no detailed discussion between examiners and agreement about diagnoses, treatment and mode of physical examination beforehand, nor the settling of particular matters to be elicited by the candidate during physical examination, may have prejudiced the candidate. Further, the lack of an accurate recording system, by notes or otherwise, again meant that a candidate like the complainant, who might be borderline, might be misunderstood without the opportunity for later verification or retest.
This might not be fatal to the validity of the system so far as it applied to the majority of OTDs, who were capable of passing the examination. It could have had the result in the complainant’s case, however, that, if he were competent and safe to practise, the examination results might not have accurately reflected that fact.
In making that finding I am not saying that the examination results in the case of the complainant were wrong.
That having been said, however, there is one other aspect where I think the complainant’s objections to the examination format and process do reveal a significant potential deficiency in the AMC examination system. It is one in respect of which I conclude that there is a relevant distinction between the two examination systems. This factor is confined to the singular case of a candidate who, though he or she may be competent, has failed the examination system in a way that the merits or the reasons for his or her failure is not open to reliable confirmation by a more carefully structured retest. In other words, a lack of transparency or verification of the final result. In this regard there are a number of very significant deficiencies that can be noted in the clinical and viva examinations that the complainant underwent. I need not go so far as to suggest, as counsel for the complainant insisted, that the examination process was chaotic and so flawed that it was totally discredited. There are a number of instances which raise serious issues about whether, being a borderline case, the complainant was fairly tested. Instances include significant disagreements between examiners such as Dr Ibrahim and Dr Niesche and Mr Crowley and Dr Yeo, discussed above, the failure of examiners to have a common agreement about diagnosis, inconsistencies in diagnoses among the examiners themselves, and the possible failure properly to hear comments by the complainant as in the case of “not the liver”. Had there been a prior agreed question in the case, for example, about hyperventilation (“washing away his CO2”) it might have eliminated debate, in a retest situation, about whether the complainant was asked about the condition itself or the underlying cause of the condition. On that issue, if it were relevant to do so, I would find myself unpersuaded that the complainant’s answer of “asthma” should be taken to be an appropriate or correct response. Whether prior agreement on the questions to be asked would have removed doubts about whether the patient with the thyroglossal cyst voluntarily protruded her tongue (something on which I prefer the examiners’ version to the complainant’s) is another matter.
I would not include among these the possibilities suggested by counsel for the complainant that in one case the examiners actually mistook the patient and whether or not there was a liver condition. In that case I prefer the evidence of the examiners relating to the existence of a condition of the liver to that of the complainant. Nevertheless at the end of the day, I find firstly, that there was a reasonable chance on the balance of probabilities that in a number of cases which could have affected the result the examiners were inconsistent in their assessment in ways that are open to serious doubt about the accuracy of their conclusions, or in which they may well have been mistaken about whether the complainant had in fact performed a certain examination or not. The complainant could, perhaps justifiably, be criticised for his lack of clarity in indicating to the examiners in the way he was progressing or his mind was thinking. Nevertheless, I would conclude that there is a real possibility based on the evidence in relation to how the complainant was tested that, because of personal attributes, an OTD with similar attributes to the complainant could, on particular aspects of the examination topics, have performed in a way that was not assessed with reasonable accuracy by the examiners. This is essentially a matter of propensity rather than a finding of actual fact.
I do not include in the deficiencies that might have affected a borderline candidate like the complainant the absence among the examiners of a clear understanding of the standard of a graduating ANZ student who just passes. For the overwhelming part, there was a common feature shared among the examiners that those involved in the AMC assessments also were teaching and/or examining in Australian medical schools and could be expected to have a knowledge of the relevant, common level of competence to be met by candidates in both systems.
I do not accept, however, the respondent’s submission that the fact that the complainant had the opportunity to pass, but failed the AMC clinical examination four times was a substitute, systemically, for a more objectively structured supplementary retest.
What follows from that, in my opinion, is not necessarily that, on each occasion that he failed the AMC clinical examination, there was error on the part of his examiners as to whether he merited a pass. Rather it was the deficiency in any follow-up, verification procedure, such as an appeal or immediate retest or a supplementary, where a more specific set of procedures, including possibly, third party observation, should have been available to confirm the reliability of the assessment as a failure. That represented a significant deficiency in the AMC system when compared to the examination system in Australian medical schools where a supplementary examination was generally available.
What that means is that the AMC examination, at least in its pre-1998 form and because of a lack of improvements such as prior agreement between examiners on appropriate diagnoses and management, proper written recording of the candidates’ responses and examination procedures and the like, should be regarded as inherently suspect and unfair if not supplemented by a more reliable retest. Without that, there was a significant difference between the system for assessing OTDs as against locally produced graduates. While the pre-1997 clinical format was adequate in my view as a reliable preliminary test of an OTD’s competence and safety, so that the lack of the kind of improvements raised in the 1990 Working Party’s report was not a serious shortcoming in the case of the normal AMC examinations, the AMC system was defective in terms of arriving at valid results in some cases in so far as there was no verification assessment that would have left no, or little, room for dispute about whether the complainant’s performance merited a pass.
In that narrow respect, in regard to the case of borderline candidates like the complainant and in the absence of a more structured and better recorded supplementary examination system after a prior failure, I find the deficiency did constitute a relevant distinction between the examinations of OTDs and those who graduate through the ANZ university systems.
15.3 Was the distinction “based on” national origin?
In the AMC case, Sackville J (at p.683) held that the appropriate question to ask in determining whether an act or distinction is “based on” national origin is what is the “true basis” of that act or distinction. It may be that in a case like the present it is possible that the aspect of national origin does not have to be answered in terms of an origin connected with any particular nation. Negatively, the concept of national origin may entail a differentiation, in the present case, between persons of ANZ origin and those who are not (AMC case, per Sackville J at p.683).
In the AMC case Heerey J agreed with the approach taken by Doyle CJ in Aboriginal Legal Rights Movement Inc v South Australia that “on the basis of” for the purposes of s.9 of the RDA meant that an act “occurred by reason of or by reference to the racial distinction” and that the inquiry was “whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act” (at p.665). Sackville J discussed the meaning of “based on” in the context of a distinction “based on national origin” and indicated that the most obvious case of such a distinction “is one where a distinction is imposed expressly by reference to a person’s national origin”. He referred to the example of a medical college that explicitly denies entry to all persons of Indian origin (at p.682). His Honour went on to say that the legislation will be attracted where the criterion actually applied is national origin, albeit that no explicit reference is made to it (at p.682).
In Macedonian Teachers’ Association of Victoria Inc v HREOC and anor [1998] FCA 1650; (1999) 160 ALR 489, Weinberg J reviewed the earlier judicial analyses of the term “based on” in Australian Legal Rights Movement Inc v South Australia (No 1) (1995), the AMC case, Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, Human Rights and Equal Opportunity Commission v Mount Isa Mines (1993) 118 ALR 80 and a number of other decisions. His Honour considered that there was no authority binding him to hold:
that the phrase “based on” in s 9(1) of the RDA is to be understood as synonymous with the expressions typically used in anti-discrimination legislation such as, “by reason of”, or “on the ground of” (at p.508)
His Honour further said that there is:
nothing “unreasonable or unnatural”, in my view, in treating as encompassed within the phrase “based on” the meaning of “by reference to”, rather than the more limited meaning of “by reason of” (at p.509)
Further, the view of s.9(1) of the RDA as “encompassing the broader, non-necessarily causative, relationship expressed in the phrase ‘by reference to’” (at p.509) was fortified because the words “based on” were taken directly from the definition of “racial discrimination” in Article 1.1 of the International Convention on the Elimination of all forms of Racial Discrimination rather than any other anti-discrimination statute.
His Honour’s construction of the words “based on” in s.9(1) was approved by the Full Federal Court when the matter went on appeal in State of Victoria v Macedonian Teachers’ Association of Victoria [1999] FCA 1287.
Despite the complainant’s submission that I should distinguish or not follow the Full Federal Court’s decision in the AMC case, I hold as a matter of fact that in respect of the requirement to take the AMC clinical examination in the 1996-1997 format, even if it does give rise to a relevant distinction or disadvantage, nevertheless that distinction or disadvantage is not one based on the national origin of the complainant. Whether, in pursuing the inquiry into the basis for imposing the examination system one asks what it is the “true basis” for use of the particular format (Sackville J at p.683) or whether one takes a broader view along the lines suggested by Weinberg J, it is clear in my opinion that the true basis, reason or point of reference for imposing the AMC examination was the assessment of doctors who have been themselves assessed by domestic procedures well known and accredited throughout ANZ medical schools and those who have not. The actual national origin of a candidate was of no relevant difference in determining whether he or she needs to take the examination.
The variability of training and experience of OTDs requires some appropriate testing of competence and safety. In that regard it cannot simply be said that national origin is irrelevant because some candidates of Australian origin have trained overseas. This is not an issue that turns on proportionality in terms of OTDs being predominantly non-Australian. The point is that if a person of Australian origin chooses to train overseas the same need for verification of his/her competence arises. The fact that most OTDs will predominantly be of non-Australian origin is a circumstance that has no connection to the reason why the test is applied to persons who have not trained in this country or New Zealand.
In that regard I do not see that the complainant’s case is assisted by reference to s.18 of the Act. It would be of some enlarging significance in terms of the operation of s.9(1) if national origin was one basis or reason for the imposition of the examination requirement among others. But the simple fact is that national origin has no relevance in determining whether a particular doctor has to submit to the AMC clinical examination. Having so found, I must conclude that the complaint, to the extent that it relies on a breach of s.9(1) of the Act, cannot be upheld. I would therefore dismiss the complaint to that extent.
Having so found it is unnecessary for me to make any finding as to whether the distinction (the failure to have a verification or supplementary procedure in the case of a weak candidate) has the purpose or effect of impairing enjoyment of a human right or fundamental freedom. In that regard I would agree with the proposition supported by Heery J in the AMC case (at p.671) there there must be some doubt that there is a human right which entitles one to practise medicine. If it was necessary to do so, however, I would incline to the view put forward by counsel for the complainant, that there is relevantly under the International Covenant on Economic, Social and Cultural Rights (Article 18) a right not to be denied access to employment by reason of unfair qualification procedures. If the AMC clinical exam is, at least in one respect that is relevant to the condition of candidates like the complainant, inadequate and unfair in terms of its lack of a verification or confirmation procedure in the case of a candidate who has failed, it has the effect of denying to the person who would otherwise be qualified to pursue employment in medical practice the opportunity to do so. I would not accept that there is no effect on the candidate’s capacity to engage in work because he or she has not yet achieved the Australian qualification. The purpose of the examination system is to confer on persons who meet the graduating student standard and have the competence and safety qualities that that entails, an entitlement to registration which, even though it may be withdrawn for cause under s.7 of the Victorian Medical Practice Act, in the normal cause of events would lead, after supervised internship, to the right to be employed as a medical practitioner.
Although I have found that the way the AMC examinations were arranged involved a distinction when compared to the ANZ university exam system, I further find that the distinction was not “based on” national origin. It follows that the complaint under s.9(1) cannot be sustained.
15.4 Section 9(1A) of the Act
In order to establish a breach of the Act under this heading it is necessary for me to find that the complainant has been subjected to a relevant term, requirement or condition and that the term is not reasonable having regard to the circumstances of the case; that the complainant has not or cannot comply with the requirement; and that the requirement has the purpose or effect of impairing the exercise of the human right on a equal footing, by the persons of a same national origin as the complainant.
I accept firstly that s.9(1A) should be regarded as a ground separate from s.9(1) of the Act, the latter being concerned with direct discrimination so called whereas s.9(1A) is designed to catch cases of indirect discrimination (AMC case, per Sackville J at pp.679-680). In respect of the particular term, requirement or condition, it is not necessary that the same should be “based on” national origin in the same sense as is required under s.9(1). There is, however, a need to compare persons in the same group as the complainant with a corresponding group, in order to establish whether or not the first group does not enjoy the exercise of the relevant human right to the same extent, that is, “on a equal footing with” members of the other group. For the purposes of that comparison I would adopt the view of Black CJ and Sackville J in the AMC case (at p.655 and pp.686-7) that the group subject to the requirement need not be compared with another group of persons who are also subject to that requirement.
Section 9(1A)(c) can be satisfied, on the view expressed by Sackville J, if the effect of the condition is to impair the human rights of persons in the same group as the complainant on an equal footing with members of other groups, regardless of whether they have to comply with the same condition or not. As against this, there is the alternative view expressed by Heerey J (at p.669), that the relevant groups each be subject to the same requirement.
As indicated above, the complainant contends that either the requirement of sitting and passing the clinical exam in the 1996-1997 format, or the requirement that OTDs exhibit the same standards as ANZ medical students has the purpose or effect of nullifying enjoyment on an equal footing between OTDs and people of Australian origin. Alternatively it is said that on the available statistics persons of Indian or related origin do not enjoy the right to certification for practising medicine by virtue of passing the AMC clinical examination to the same extent as other groups, such as South Africans.
I would dispose of the latter contention shortly in that though there may be statistical differences to the extent to which Indians and say, South Africans, succeed either at the first or subsequent attempts, there is no evidence before me to suggest why that should be so. There could be manifold reasons to account for the difference including, relevantly, different standards of practice or training in the two countries concerned.
According to the complainant, the requirement to pass the exam is simply another detriment referable to national origin and not some personal characteristic. If I were to accept that proposition, I would find on the basis of the evidence before me, that the inability of the complainant to meet the requirement to pass the relevant examinations in their former format is not necessarily due to any attribute or feature arising from the complainant’s national origin as an Indian person. His inability to comply (and I accept, contrary to the contentions of the respondent, that he meets the criterion of not having complied with the relevant requirement) is probably due to personal characteristics and not to any aspect of his national origin.
In that regard, it is not enough to say that his national origin automatically denies him access to enjoyment of qualification in the same way as ANZ graduates are able to qualify through passing their ANZ medical schooling exams. Certainly at this stage of the complainant’s life it is practically unrealistic to accept or even expect that he might be able to enjoy the ultimate right to practise medicine consistently with the Victorian Medical Practice Act provided he gained admission to an Australian medical school. But in that event he would be competing for a place in a university along with students, most of whom would be of Australian origin, but also with others, some of whom would be of Indian origin, who likewise seek to qualify through the domestic system.
In the end the same problem arises under s.9(1A)(c) as does under s.9(1) in so far as the requirement to pass the AMC clinical examination does not impair or nullify the right of persons of non-ANZ origin to qualification by either of the available routes.
The key point as I see it is that, at the end of the day, the group into which the complainant falls is not defined or identified by reference to national origin. It is the fact of having or not having an ANZ qualification that defines the group. The comparative groups are characterised by virtue of the place of training and qualification.
In like manner, the complainant has failed to discharge his burden of persuading me that there is some feature of his Indian origin compared with those of non-Indian origin that in some way affects his ability to comply with the stipulated requirement. It is not appropriate to seek an analogy with height characteristics of particular candidates as in the example put forward in the complainant’s submissions. If language or accent were some kind of impediment to complying with the requirement there may be some foundation for putting forward a physical or intellectual characteristic that deprives a person in that particular group of the advantage to compete on an equal footing with others not subject to that attribute based on the national origin of the members of that group. No such characteristic was advanced by the complainant.
Turning to other matters, if were necessary to do so, I would reach the same conclusion whether there was any impairment or nullification of a relevant human or fundamental right as I did in relation to s.9(1).
For completeness, I should also address the issue of whether the requirement to comply with the relevant condition or requirement was unreasonable. As I have indicated above, though some flaws have been identified in the AMC process, at least so far as it was applied in the complainant’s case, that detract from its efficacy, I am not persuaded that I should find, in terms of the general effect or purpose of the requirement, that it was unreasonable. Again, a comparative aspect arises in terms of whether the AMC requirements were unreasonable compared with the procedures applicable in domestic schools. The deficit of evidence as to the way in which students of national origin other than ANZ would cope with the kind of examination used in ANZ medical schools means this cannot be assessed. It is likely, perhaps, to the extent that persons of non-ANZ origin achieve access to domestic universities and proceed to the 5 or 6 years of Australian studies, they would not be affected by the kind of possible inflexibilities in the domestic procedures. They may accustom themselves to it as they go. This begs the question. If they have access to the ANZ medical schools, people of their national origin would be enjoying or exercising the right to the same extent and on the same footing as those of ANZ origin.
A distinction might perhaps be drawn between a requirement having the purpose of impairing enjoyment of the human right as against having the effect of such nullification or impairment. If it were possible to establish by evidence there is some covert purpose determining the actions or influencing the AMC this ground might be made out. But there is no credible evidence before the Commission to that effect.
A factor that needs to be considered when assessing the reasonableness of the existing AMC clinical examination system is that of cost. I accept the evidence and submissions of the respondent that to adopt a wide scale use of a more OSCE-like structure would entail considerable expense. I find that to do so in respect of all first-instance examinations of OTDs would be unjustified given my finding that under the present system for all but a few exceptional cases the existing format is adequate and sufficiently valid to assess competence. The objection of cost, however, cannot be upheld, in my view, in relation to providing a more structured supplementary examination after the initial failure, at least in those cases where the candidate was a borderline fail.
I turn to deal with the aspect that the requirement to undertake the AMC clinical format could be found to be unreasonable, in the alternative, because of the absence of what I have termed a verification or supplementary procedure. In that respect I would take a different view. It is true that the lack of a fallback supplementary examination is only likely to affect a very small number of persons such as the complainant if looked at in terms of the overall efficacy (validity) of the system. The absence of such a failsafe mechanism represents, in terms of proportionality, only a relatively small effect in terms of the number of individuals who might be affected. Nevertheless, the impact with respect to particular individuals like the complainant may be viewed much more seriously. Given that the objective of the human rights legislation is to protect individuals as well as groups, I would here find that the existing lack of transparency in the examination appeal system was unreasonable for the purposes of s.9(1A), if I had found the respondent was otherwise in breach of that provision.
15.5 Section 10 of the Act
In respect of the complainant’s submissions in respect of s.10 of the RDA, I agree with the submissions of the respondent that this section has no application to the present circumstances as s.6 of the Victorian Medical Practice Act does not operate by reason of or by reference to race or national origin.
15.6 Victimisation
The complainant made a number of extremely serious allegations of victimisation by the AMC. These included the following allegations:
As I have indicated above, no evidence was provided that satisfied me that a claim of victimisation under the RDA could be sustained.
I would start generally by finding that the sending of letters to various examiners about the complainant’s prior history of complaint was not a breach of s.27(2) of the Act. It may have been undesirable or unnecessary but I accept its purpose was informative, indicating that perhaps, as a precaution, special care and attention might be necessary in his case, but I do not read it as conveying any malicious or improper intention to make an adverse assessment of the complainant.
In relation to allegations (i), (ii) and (iii) above, the evidence has shown that discussion between examiners with the view to reaching a consensus mark was entirely proper and was part of the AMC examination process. Alterations to marks may have occurred as part of the consensus process and I find that in the case of Dr Penny, the examiner did correct his original assessments of “satisfactory” after reconsideration. Such instances, however, fall well short of substantiating the allegations of improper discussions leading to alteration of marks or comments or of tampering with the marksheets. These are extremely serious allegations which must be substantiated by evidence. I find no basis on which I can properly draw any inferences of tampering or concoction from the number of “irregularities” that could support a finding of victimisation. There is no evidence at all to suggest that additions to the examination topic were made in order to “justify a failure” on the part of the complainant.
In respect of allegation (iv), there was no evidence before me to suggest that particular differences and inconsistencies between examiners were intended to penalise the complainant or were due in any way to his making a complaint to the Commission. Given the nature of a system where examiners marked individually and then came to a consensus, those differences were to be expected. Inconsistencies in perception and recall on the part of the individual examiners might point to a failure in the exam system in so far as it lacked an independent verification procedure (which finding I have made above) but are not evidence that points to victimisation directed against the complainant.
With regard to the allegations that marksheets were left blank (allegation (v)), the complainant has adduced no evidence to demonstrate that this was directed at him. There was evidence that the marksheets were intended only as aide-memoirs for the examiners and that there was no specific manner in which they were to be completed. However desirable it might have been to have had a more consistent marking method leading to greater transparency of results, leaving elements of the marksheets blank does not give rise to an inference that this was in some way conduct directed at the complainant. There is, again, no evidence on which I could make a finding of victimisation.
A finding that the complainant was said to require prompting when he did not (allegation (vi)) might be open on the evidence. There was certainly differences in understanding as between the witnesses over the meaning of and the reason and occasion for the use of “prompting”. There was also evidence that prompting was used in various cases and that in some cases the complainant was regarded as unsatisfactory in part because he required prompting. However, there is no evidence to demonstrate that these differences in understanding and the actual use of prompting in the various examinations amounted to or arose from any ulterior purpose that led to victimisation of the complainant. There was evidence that prompting was a common part of the examination process and was a technique used by many examiners.
So far as allegations (vii) and (viii) are concerned, the fact that the complainant failed on four occasions, was always given the lowest mark following consensus marking and was never awarded an A is not sufficient to found a complaint of victimisation. Taken at their highest; that is, in the most favourable view for the complainant, these matters are entirely equivocal and lead to no single conclusion concerning action directed to penalising the complainant. These factors are more reflective of the complainant’s standard of safety and competence to practise than adverse conduct directed at him. While I have found that there are inadequacies in the examination system that may have impacted on the outcomes for the complainant, I do not find that the failures are themselves evidence of victimisation. No such inference can reasonably be drawn from the fact of the complainant’s failures, on my view of the evidence.
It is true that the appeal process as it existed in 1996-1997 was open to criticism that it may have unfairly prejudiced the complainant. However, it is one thing to find, as I have, that the appeal process in the AMC system was deficient in not providing an independent verification procedure for candidates such as the complainant. It is quite another thing to find that this systemic deficiency amounted to victimisation of the complainant (allegation (ix)) and I reject that contention. The appeal process was the same for all candidates and there is simply no evidence before me to substantiate an adverse finding.
Finally, in respect of allegation (x) regarding the location and conduct of the appeal and counselling sessions, I accept the evidence of Professor Marshall that the use of the premises of the Medical Board was to allow the taping of the sessions and that the use of the room was not intended to place pressure on the complainant. Its selection as a location is supported by practical considerations. Similarly, with respect to the release of the marksheets to the Medical Practice Board, though it may be open to criticism on other grounds, it does not, as I assess the evidence, lead to a finding from which I would conclude that the respondent has contravened s.27(2) of the RDA. Again, I can find no evidence in the conduct of the proceedings that would lead me to conclude that the complainant had been victimised.
I have noted the respondent’s submissions that s.27 has no relevant application here. I do not need to decide this issue because, to the extent that s.27 could be applicable to the complainant’s claims, I dismiss the complaint.
16. ORDERS
Since I have found that the complainant has not satisfied me that the conduct and practices of the respondent are unlawful by reason of breaching s.9(1), s. 9(1A) or s.10 of the RDA, and also has failed to persuade me that the respondent has contravened s.27 of the RDA, I dismiss the complaint in its entirety. I therefore make no orders regarding remedies and it is unnecessary to attempt to quantify an appropriate amount of compensation.
I certify that this and the preceding one hundred and forty seven (147) pages
are a true copy of the Reasons for Decision herein
of Inquiry Commissioner Peter
Johnston.
Hearing Solicitor:
Date: 20 January 2000
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HREOCA/2000/2.html