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Federal Court of Australia |
ADMINISTRATIVE LAW - judicial review - medical practitioners - application for registration on the Vocational Register of General Practitioners under s 3F of the Health Insurance Act 1973 - refusal - appeal to Vocational Registration Appeal Committee - Criteria published by Royal Australian College of General Practitioners - Regulations requiring Appeal Committee "to have regard to" the criteria - meaning of "to have regard to" - whether failure to comply with criteria is conclusive - "predominantly" in general practice - meaning of "predominantly" - must the Appeal Committee have regard to overseas practice - can Appeal Committee have regard to practitioner's experience subsequent to making of application.
Administrative Decisions (Judicial Review ) Act 1977 (Cth)
Health Insurance Act 1973 (Cth)
Health Insurance (Vocational Registration of GP's) Regulations
Tan v Vocational Registration Appeal Committee (unreported: judgment delivered 21 June 1996)
Re BHP Petroleum Pty Ltd and Others and Minister for Resources (1993) 30 ALD 173
Re Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552
The Queen v Toohey: Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327
Southern v Vocational Registration Appeal Committee (unreported: judgment delivered 24 May 1995)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Kioa v West (1985) 150 CLR 550 at 603
Century Metals v Yeomans [1989] FCA 273; (1989) 100 ALR 383
B E T W E E N:
MICHAEL ALASTAIR REID No SG 39 of 1995
TIMOTHY MOSS No SG 49 of 1995
ALEXANDER GREGG No SG 51 of 1995
TIMOTHY SIMPSON No SG 58 of 1995
THEODORE ARONEY No SG 67 of 1995
WILLIAM CHUN WONG No SG 101 of 1995
ROCCO SCHIAVONE No SG 102 of 1995
RAMESH PILLAI No SG 103 of 1995
THIRUMANY KARUNAHARAN No SG 105 of 1995
MARIA FLORES-VIVAS No SG 106 of 1995
RAJESH BHASIN No SG 108 of 1995
JIM AADIEL ABRAHAMS No SG 109 of 1995
ROSS WILLIAM PHILLIPS No SG 5 of 1996
IAN TATTERSALL No SG 23 of 1996
JEGATHEESWARY MARKANDOO No SG 63 of 1996 Applicants
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE First Respondent
AND -
JOHN MARTIN EVERETT Second Respondent
O'Loughlin J
Adelaide
21 February 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 39 of 1995
)
GENERAL DIVISION )
B E T W E E N:
MICHAEL ALASTAIR REID
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 49 of 1995
)
GENERAL DIVISION )
B E T W E E N:
TIMOTHY MOSS
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 51 of 1995
)
GENERAL DIVISION )
B E T W E E N:
ALEXANDER GREGG
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 58 of 1995
)
GENERAL DIVISION )
B E T W E E N:
TIMOTHY SIMPSON
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 67 of 1995
)
GENERAL DIVISION )
B E T W E E N:
THEODORE ARONEY
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 101 of 1995
)
GENERAL DIVISION )
B E T W E E N:
WILLIAM CHUN WONG
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 102 of 1995
)
GENERAL DIVISION )
B E T W E E N:
ROCCO SCHIAVONE
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 103 of 1995
)
GENERAL DIVISION )
B E T W E E N:
RAMESH PILLAI
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 105 of 1995
)
GENERAL DIVISION )
B E T W E E N:
THIRUMANY KARUNAHARAN
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 106 of 1995
)
GENERAL DIVISION )
B E T W E E N:
MARIA FLORES-VIVAS
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 108 of 1995
)
GENERAL DIVISION )
B E T W E E N:
RAJESH BHASIN
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 109 of 1995
)
GENERAL DIVISION )
B E T W E E N:
JIM AADIEL ABRAHAMS
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 5 of 1996
)
GENERAL DIVISION )
B E T W E E N:
ROSS WILLIAM PHILLIPS
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 23 of 1996
)
GENERAL DIVISION )
B E T W E E N:
IAN TATTERSALL
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 63 of 1996
)
GENERAL DIVISION )
B E T W E E N:
JEGATHEESWARY MARKANDOO
Applicant
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. This matter stand adjourned with liberty to any party to apply to relist the same for further consideration upon fourteen day's notice in writing to the others.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
B E T W E E N:
No SG 39 of 1995 MICHAEL ALASTAIR REID
No SG 49 of 1995 TIMOTHY MOSS
No SG 51 of 1995 ALEXANDER GREGG
No SG 58 of 1995 TIMOTHY SIMPSON
No SG 67 of 1995 THEODORE ARONEY
No SG 101 of 1995 WILLIAM CHUN WONG
No SG 102 of 1995 ROCCO SCHIAVONE
No SG 103 of 1995 RAMESH PILLAI
No SG 105 of 1995 THIRUMANY KARUNAHARAN
No SG 106 of 1995 MARIA FLORES-VIVAS
No SG 108 of 1995 RAJESH BHASIN
No SG 109 of 1995 JIM AADIEL ABRAHAMS
No SG 5 of 1996 ROSS WILLIAM PHILLIPS
No SG 23 of 1996 IAN TATTERSALL
No SG 63 of 1996 JEGATHEESWARY MARKANDOO
Applicants
- AND -
VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent
- AND -
JOHN MARTIN EVERETT
Second Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 21 February 1997
REASONS FOR JUDGMENT
Applications pursuant to the provisions of s 5 of the Administrative Decisions (Judicial Review ) Act 1977 (Cth) ("the ADJR Act").
INTRODUCTION
By consent each of these fifteen matters were heard together. In each case the applicant, a legally qualified medical practitioner, seeks an order of review by this Court in respect of a decision, made by the first respondent, the Vocational Registration Appeal Committee ("the Appeal Committee") that was adverse to his or her interests. The second respondent in each of the proceedings, John Martyn Everett, is the Managing Director of the Health Commission ("the Commission"). Mr Everett was added as a respondent so that he might assume the role of contradictor, thereby allowing the Appeal Committee to file a submitting appearance in each action.
Each applicant had sought from the Appeal Committee certification of his or her eligibility for registration on the Vocational Register of General Practitioners ("the Register"). Their applications had been made as a consequence of the introduction, as from 10 October 1989, of ss 3F, 3G and 3H into the Health Insurance Act 1973 (Cth) ("the Act"). Those provisions had, inter alia, established the Register which has been operational since 1 December 1989.
The issue of eligibility for registration is of importance to the applicants. For example, only registered medical practitioners are entitled to use certain new item numbers in the Medical Benefits Schedule which attract higher fees. Although registration is not compulsory, it is common ground that there are financial benefits available to registrants and further that unsuccessful applicants are "aggrieved" persons within the meaning of the ADJR Act.
Their applications to the Appeal Committee having been unsuccessful, the applicants now each seek review by this Court of the respective decisions of the Appeal Committee. The Appeal Committee has furnished to each applicant, as required by s 13 of the ADJR Act, a statement in writing setting out its findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for its decision. I will refer to them hereafter as "the s 13 reasons". As may be expected, the statements have areas of similarity. Although they have regard to the personal circumstances of each applicant, there are in each statement, identical summaries of the relevant legislation and the criteria of the Royal Australian College of General Practitioners. There are also repetitive passages, some of which will be referred to, setting out the manner in which the Appeal Committee goes about determining applications for registration and the principles upon which it operates. Although some changes are occasionally apparent in the s 13 reasons, they do illustrate a clear methodology by which the Committee has performed its task.
THE LEGISLATION
So far as is relevant to these proceedings, s 3F of the Act provides as follows:-
"3F(1) The purpose of this section is to provide for the registration of certain medical practitioners as vocationally registered general practitioners.
(2) ...
(3) ...
(4) A medical practitioner may apply to the Commission for registration under this section.
(5) ...
(6) If:
(a) the Managing Director of the Commission is satisfied that the Royal Australian College of General Practitioners has certified that the applicant's medical practice is predominantly general practice and that the applicant has training and experience in general practice that make it appropriate for the applicant to be registered under this section; or
(b) the applicant is, in accordance with the regulations, eligible for registration under this section;
the Managing Director shall, within 14 days after receiving the application, enter the applicant's name in the Register.
(7) ...
(8) ...
(9) ...
(10) ..."
The Regulations that are referred to in par 3F(6)(b) of the Act are the Health Insurance (Vocational Registration of GP's) Regulations (SR 1989 No 2). Pursuant to reg 3, a medical practitioner may have his or her eligibility for registration considered by an Eligibility Committee. In other words, the practitioner has a choice of applying to the Managing Director of the Commission under sub-s 3F(4) of the Act or to an Eligibility Committee under the regulations. The practitioner's eligibility for registration, where he or she has proceeded under the regulations, is found in sub-reg 5(1). It states:-
"5(1) A medical practitioner is eligible for registration where an Eligibility Committee certifies:
(a) that the practitioner's medical practice is predominantly general practice; and
(b) that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered."
It will be noted that the two conditions precedent to eligibility in sub-reg 5(1) are the same as those contained in par 3F(6)(a) of the Act save that an Eligibility Committee is the certifying party under the regulations, whilst the Royal Australian College of General Practitioners ("the RACGP" or "the College") is the certifying party under the Act. As a matter of convenience, I will use the term "the two conditions" as an abbreviation to refer to these conditions precedent and to distinguish them from the criteria stated in the pamphlet published by the RACGP (to which substantial reference is made hereafter).
Regulation 4 gives to an unsuccessful applicant rights of appeal. Where the RACGP has declined to certify in relation to a medical practitioner under par 3F(6)(a) of the Act or an Eligibility Committee has declined to certify under sub-reg 5(1), the practitioner may appeal to the Appeal Committee; if that Committee determines to allow the appeal "it must certify in accordance with sub-reg 5(2)". The language of sub-reg 5(2) is identical to that of sub-reg 5(1) which is set out above save that it refers to the "Appeal Committee", not to the "Eligibility Committee".
The next regulation to which reference needs be made at this stage is reg 7. It applies both to the Eligibility Committee and the Appeal Committee and provides relevantly as follows:-
"7. Before certifying in accordance with regulation 5 ... a Committee must:
(a) have regard to the criteria published by the RACGP relating to eligibility for registration; and
(b) then proceed to consider the case on its merits."
Sub-regulation 2(2) provides, inter alia, that a reference to the criteria published by the RACGP is a reference to the document that sets out the criteria relating to eligibility for registration.
THE COLLEGE'S CRITERIA
Following the introduction of the 1989 amendments to the Act, the RACGP published on 28 September 1989, a pamphlet setting out its criteria for the Vocational Registration of General Practitioners. Those criteria were subsequently amended on 1 September 1992 and most recently on 20 September 1994. The 1994 criteria are those that affect each of the applicants in these proceedings.
The criteria that were published on 20 September 1994 by the RACGP are prefaced by a short introduction and statement of principle in these terms:-
"The criteria for Vocational Registration set out in this document were developed by The Royal Australian College of General Practitioners (RACGP).
Initial registration is based on two broad criteria. These are:
qualifications, training and experience; and
General Practice content
Continuation of registration is based on two criteria: that the practitioner
continues to be predominantly in General Practice; and
has met the College's requirements for Quality Assurance and Continuing Education.
PRINCIPLE
The College Council has endorsed the principle that during the five year period following the introduction of the Register, the aim shall be to enrol as many eligible practitioners as possible and involve them in Continuing Education and Quality Assurance."
ELIGIBLE PRACTITIONERS
In the above statement of principle the aim of the College is said to be that it will "enrol as many eligible practitioners as possible...". The word "eligible" did not appear in earlier editions of the pamphlet and its presence in the current edition was attacked as tautologous by Mr Tilmouth QC, counsel for the applicants. His argument was effectively that if a medical practitioner was eligible for certification, the Act and the Regulations required that he be so certified. I do not think that much turns on this point. Probably it represents no more than an indication by the College that whilst registration was not compulsory, all eligible practitioners should be encouraged to apply. Upon that premise it would have been appropriate to amend the pamphlet to insert the word "eligible".
PRE - AND - POST 1 JANUARY 1995 APPLICATIONS
Further criteria are set out in the College's pamphlet, which distinguish between applications for vocational registration received before and after 1 January 1995. Fourteen of the fifteen applicants in the present proceedings sought certification before 1 January 1995. The remaining applicant, Dr Tattersall, lodged his application on or about 25 July 1995.
"CRITERIA FOR REGISTRATION
QUALIFICATIONS, TRAINING AND EXPERIENCE
Applications received before 1 January 1995
The RACGP will provide certification of eligibility for Vocational Registration of a medical practitioner who is predominantly in General Practice as defined in Section B and who fulfils the following criteria:
1. Fellow of the RACGP or
2. Member of the RACGP or
3. Holder of a Certificate of Satisfactory Completion of Training of the Family Medicine Program (now RACGP Training Program) or
4. Will have been in General Practice (as defined) for at least two sessions a week for at least five years by 1 January 1995 or
5. Has a qualification or certification acceptable to the RACGP or
6. Has, prior to the end of 1989, passed the RACGP examination in addition to having undertaken a year of post-intern hospital training.
Applications received after 1 January 1995
The RACGP will provide certification of eligibility for Vocational Registration of medical practitioners who are predominantly in General Practice as defined in section B and who fulfil the following criteria:
1. Fellow of the Royal Australian College of General Practitioners (FRACGP) or
2. Have completed other postgraduate qualifications and training, approved by the RACGP, of a standard equivalent to that accepted for award of the RACGP."
It can be seen that the College's criteria made it more difficult to obtain certification after 1 January 1995. In one sense it might be thought that the RACGP contemplated that there would be a five year phasing-in period prior to 1995, during which time actual and literal compliance with the practical experience referred to in par 4 (or one of the other qualifications) would be sufficient. Thereafter, Fellowship of the College or an approved post-graduate qualification would be the only criteria. The arguments in these proceedings have, however, challenged this simplistic statement, arguing that the tests for pre 1995 eligibility are more flexible.
But there is, however, an additional area of concern. The certification by the College of eligibility for Vocational Registration in respect of a particular medical practitioner is most important when an application for registration is made to the Commissioner under s 3F of the Act. The Managing Director of the Commission will not enter an applicant's name in the Register unless he is first satisfied that the College has given its certification. The College's criteria lay down the circumstances in which that certification will be given. Thus, it can be seen that although the College is not the decision-maker, it plays a pivotal role in the decision-making process. By contrast, the position when an application is made to the Eligibility Committee is different. It does not require a certificate from the College. It must, under reg 7, "have regard to" the College's criteria (and the meaning of this will be discussed later). However, unlike the Managing Director of the Commission, it need not be satisfied that the College has issued a certificate which addresses the two conditions; the Eligibility Committee, acting under reg 5 will, instead, address those two issues.
The pamphlet continues as follows:-
"DETERMINATION OF GENERAL PRACTICE CONTENT
The second criteria of eligibility for Vocational Registration is based on the concept of "predominantly in General Practice".
"Predominantly in General Practice" means that more than 50% of clinical time and more than 50% of services that are rebated against Medicare are in General Practice.
"General Practice" is defined as the provision of primary, continuing, comprehensive whole-patient care to individuals, families and their community.
Indicators of compliance with the RACGP definition include the acceptance of unreferred patients presenting to the practice, acceptance of a direct responsibility to ensure that practice patients have access to care by an appropriately qualified medical practitioner at all times and at locations away from the practice and the undertaking of continuing as well as episodic care.
Restriction of the practice population to patients with a particular special need or social or ethnic group will not necessarily preclude the practitioner from Vocational Registration if the general principles embodied in the definition are met.
Certain special areas are sufficiently general in their scope to be considered predominantly General Practice even when the practice is limited to that area provided that the obligations inherent in the definition are appropriately met.
..."
There then follows some detailed comments about medical practitioners who practise exclusively or predominantly in certain areas of "special interest within General Practice".
If one pauses at this stage and considers, in summary form, the two conditions in the legislation and the two criteria in the College's pamphlet, one can see that they are almost, but not quite, the same. The legislation contains two conditions. The first is that the practitioner's medical practice is predominantly general practice. The second condition is that the practitioner has training and experience in general practice which make it appropriate for the practitioner to be registered. In the pamphlet the same conditions appear but in reverse order and further the word "qualifications" has been added to "training and experience". That addition was not the subject of comment during submissions and I express no view on its presence. The College's criteria, unlike the legislation, has proceeded to define "predominantly in general practice" and "general practice". Those definitions appear under the heading "General Practice Content" - the second of the College's criteria which equates with the first of the two conditions in the legislation.
CRITERIA: IS THERE A FIVE YEAR RULE?
Although the word "criteria" specifically appears in different places in the pamphlet, it was not suggested that the Appeal Committee is only to have regard to that part of the pamphlet that is so identified. It was accepted that the Appeal Committee was to have regard to the whole of the document for the purpose of gaining a better understanding of the views of the College: (see also sub-reg 2(2) which states that a reference to criteria is a reference to the relevant document). This is, I think, a matter of importance. The objective of the legislation and the work of the College is to improve the standard of general practitioners. The ultimate plan of the College aims for Fellowship of the College or an equivalent post graduate qualification as the criteria for registration on the Vocational Register of General Practitioners.
However, in the meantime, in order to avoid the visitation of any hardship on existing general practitioners, the College nominated five years practical experience as one of its guidelines for certification. It also had regard for those practitioners who only worked part-time, nominating two sessions per week throughout a five year period as sufficient for certification. Thus, when the Appeal Committee has regard to the College's criteria, it must have regard to all matters that are set out in the College's pamphlet. By this means the Appeal Committee will be aware that, in the eyes of the College, the requisite practical experience is not to be acquired within a short span of time; it is the experience that will come to a practitioner over an extended period. Furthermore, it is apparent from its s 13 reasons in each of these matters, that the Appeal Committee shared these views.
It will be necessary to return to this subject later in these reasons to discuss whether there is a strict five-year rule that is binding upon the Appeal Committee.
THE SECOND READING SPEECH
An understanding of the scheme of the amending legislation is assisted by referring to some selected passages from the Minister's second reading speech (Hansard: House of Representatives 10 May 1989 pp 2386-2388):-
"... The new GP arrangements are the most far reaching advances which have ever been achieved in general practice in this country and are consistent with advances occurring in many similar Western nations. The new arrangements will promote better quality patient care, resulting in improved treatment and assessment outcomes through the provision of incentives to GP's to take part in continuing medical education and quality assurance programs.
...
The amendments in part 3 of the Bill relate to an agreement between the Government and the Royal Australian College of General Practitioners on a package of measures designed to improve the quality and cost effectiveness of medical services provided by general practitioners. The package provides a number of interrelated measures to provide incentives for general practitioners to strive to improve the quality of care. These measures are: a vocational register of general practitioners; the requirement that for general practitioners to remain on the register they undertake continuing medical education and quality assurance programs accredited by the RACGP; the introduction of new items into the Medicare benefits schedule for consultations by vocationally registered general practitioners; the new items to attract higher fees than those currently available to general practitioners and to be generally based on both complexity of the service provided and the time taken: and the introduction of improved audit and monitoring arrangements, involving an independent professional organisation, for services provided by vocationally registered general practitioners, which will extend to examining, referral and prescribing patterns and the ordering of diagnostic tests.
...
The Bill provides that the Commission shall register a medical practitioner who has been certified by the RACGP - or other body as determined by the Minister - as practising predominantly in general practice and as having appropriate training and experience in general practice or who is otherwise eligible in accordance with the regulations. Enrolment on the register will be voluntary.
In assessing a practitioner's medical practice, the RACGP will have regard to whether the practitioner provides a comprehensive primary medical service, including treating a wide range of patients and conditions using a variety of accepted medical skills and techniques, providing services away from the practitioner's surgery on request - for example, home visits - and making appropriate provision for the practitioner's patients to have access to after hours medical care.
The Government has accepted that fellowship of the RACGP, or an equivalent postgraduate qualification in general practice, should ultimately be the only experience and training which make it appropriate for a practitioner to be placed on the vocational register. This will apply from 1995. However, to protect doctors already engaged in general practice, other qualifications and training will be accepted in the meantime, including membership of the RACGP, a certificate of satisfactory completion of the family medicine program, or five years experience in general practice. This will ensure that doctors who are currently in practice will be able to qualify for vocational registration on the basis of experience before the tighter requirement comes into effect in 1995.
I want to stress that any medical practitioner whose practice has been predominantly in general practice as defined for five years - whether full time or part time - will be eligible. The RACGP has defined part time practice as a minimum of two sessions a week, which I regard as a generous provision.
...
What the Government and the RACGP are in effect seeking are changes in work practices which result in increased productivity in general practice through an improvement in the quality of patient care. The Bill also makes provision for a doctor's name to be removed from the register in certain circumstances.
The proposals provide an active role for the relevant professional body, the RACGP, in ensuring the quality of general practice in Australia. It conforms with the role of other specialist medical colleges as the arbiters of professional standards in this country.
..."
The object of the amending legislation was described by Lee J in Jayasuriya v Vocational Registration Appeal Committee (1994) 34 ALD 189 at 191 in these terms:
"It was perceived by the legislature that the standards set for registration of a vocationally registered general practitioner, would assure the community of the quality of the services rendered by the registered practitioner leading to increased use of the services provided by those practitioners and, therefore, to more efficient delivery of medical services and reduction of claims for the payment of medical benefits."
THE APPEAL COMMITTEE
In my opinion, the role of the Appeal Committee under the regulations can be summarised as follows. First, it is required to certify that a medical practitioner is eligible for registration if the practitioner's medical practice is, at the time of the consideration of the application, "predominantly general practice". I take that temporal view because of the presence of the word "is" in par 3F(6)(a) of the Act and sub-regs (1) and (2) of reg 5 of the Regulations. By the use of the present tense, the regulation requires the Appeal Committee to determine a practitioner's eligibility for registration by reference to his or her qualifications at the time when the Committee considers the application. Furthermore, the requirement that a practitioner's medical practice be "predominantly general practice" is also ongoing. Thus, there are provisions in the Act and in the Regulations for the removal of a practitioner's name from the Register if his or her practice is no longer "predominantly general practice": (see sub-s 3G(1) and reg 6). It has transpired that this particular expression has not represented any difficulty in these proceedings save for Dr Gregg. With respect to the individual circumstances of the other fourteen applicants, the Appeal Committee found as fact, that each was predominantly in general practice. Those findings have not been challenged in these proceedings. I will discuss the finding of the Appeal Committee with respect to Dr Gregg when I give individual consideration to his application.
The Appeal Committee must also be satisfied that the practitioner has accumulated training and experience in general practice that make it appropriate for the practitioner to be registered. I respectfully adopt the views expressed by Carr J in Tan v Vocational Registration Appeal Committee (unreported: judgment delivered 21 June 1996). It would be incumbent on the Appeal Committee to have regard to an applicant's past training and experience both inside and outside Australia.
Secondly, before proceeding to consider the two conditions set out in the legislation, the Appeal Committee "must have regard to" the criteria published by the RACGP relating to eligibility for registration: (see par (a) of reg 7). The first of the two criteria developed by the RACGP lists six alternative qualifications, (also described as "criteria") each of which would have been acceptable to the College prior to 1 January 1995. It is not disputed that the Appeal Committee did, in each of the fifteen applications, have regard to each of the six criteria. But, even though the Appeal Committee must have regard to each of these six criteria, I am satisfied that the Committee was correct in proceeding upon the premise that none of the fifteen applicants met criteria 1, 2, 3, 5 or 6. None of them was a Fellow or Member of the RACGP (pars 1 and 2) nor did he or she hold the Certificate referred to in par 3. None of them had a qualification or certification acceptable to the RACGP (par 5) and none of them presented evidence that he or she qualified under par 6. The case for each applicant was essentially that there had been a sufficient or a substantial compliance with par 4 - that the particular applicant "will have been in General Practice (as defined) for at least two sessions a week for at least five years by 1 January 1995".
Finally, the Appeal Committee must then revert back to par (b) of reg 7 and to the direction that it "must ... then proceed to consider the case on its merits".
MUST HAVE REGARD TO
A feature of sub-reg 4(4) raised by Mr Tilmouth QC, is that the Appeal Committee is not to certify that a medical practitioner is eligible for registration until after it has allowed his or her appeal. But before so certifying, it must first have regard to the RACGP's published criteria relating to a practitioner's eligibility for registration and then to the merits of his or her application (reg 7). Mr Tilmouth QC suggested that this meant that the appeal is to be heard and determined as required by sub-reg 4(4), but without reference to the criteria or the merits. In my opinion, that would make a nonsense of the whole appellate scheme. I am of the view that the Appeal Committee's consideration of the criteria and of the merits is part of the whole appellate process and that they are to be considered as part of the process of determining whether the Appeal Committee will allow or dismiss an appeal. If, having considered the RACGP's criteria and the merits of the practitioner's application, it decides to allow the appeal, the Appeal Committee will then be in the position of being able to certify that the applicant has complied with the two conditions.
In my opinion, a fundamental question that must be determined for the disposition of these proceedings is the meaning to be attached to the mandate in reg 7 that a Committee "must have regard to" the College's criteria. Does that mean that the Committee must have regard to only that Criteria and nothing else, or does it mean that the Committee must have regard to it and such other matters (if any) as it may consider relevant? Does it mean that if any applicant does not fall within one of the six criteria, the applicant is ineligible for registration or does it only mean that certification by the College will be assured to an applicant if he or she conforms with one of the six criteria?
The expression "must have regard to", which is found in statutory instruments from time to time, will always take its meaning from the context in which it appears. Thus the matters to which a decision maker, such as the Appeal Committee,"must have regard to" might be exhaustively listed: (see, for example, Re BHP Petroleum Pty Ltd and Others and Minister for Resources (1993) 30 ALD 173 at 180). Alternatively, the relevant provisions might be "so generally expressed that it is not possible to say that he is confined to these ... considerations ...": (Re Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552 at 554 per Mason J). But whether the listed subject matters are or are not exhaustive, they are matters to which regard must be had by the decision maker. It is essential that the decision-maker, to adopt the words of Gibbs CJ in The Queen v Toohey: Ex Parte Meneling Station Pty Ltd 158 (1982) CLR 327 at 333, "give weight to them as a fundamental element" in coming to a conclusion.
In Tan's case (supra) Carr J noted that the Appeal Committee had taken the view that its role was to apply the criteria and only the criteria. His Honour rejected that proposition and I respectfully agree with him.
The presence of the words "and ... then" in reg 7 envisages a cumulative exercise. The decision-maker must have regard to the criteria. However, they are not exhaustive. The decision maker must make a determination, not merely by having regard to the criteria, but by having further regard to the individual merits of each case. In my opinion, this means that there could be a practitioner who, by virtue of the merits of his or her application, warrants certification even though he or she is unable to meet any one of the six listed criteria.
If the Appeal Committee could only certify a practitioner's eligibility for registration where it perceived that the practitioner's application fell within one of the six criteria: in other words, if it were constrained by the criteria, this would obviate the need for the regulations to require the Committee to consider each case on its merits. Nor could it be said that the "merits" are confined to the two subjects that are nominated in pars (a) and (b) of sub-reg 5(1) and (2). If that had been intended, it would have been sufficient to have said in reg 7 that before certifying a practitioner's eligibility, the Committee must have regard to the criteria - there would have been no need to make further reference to "merits".
PREDOMINANTLY
It is significant that when consideration is given to whether a practitioner "has training and experience in general practice that make it appropriate for the practitioner to be registered" the word "predominantly" is absent. In my opinion that means that the test with respect to the applicant's historical training and experience is the lesser. He or she must have had training and experience in general practice that make it appropriate for registration. However, that training and experience might have been gained at a time when the applicant's medical practice was not predominantly general practice.
Thus, when it came time "to consider the case on its merits" (reg 7(b)), it would be wrong for the Appeal Committee to ignore medical experience (such as work in a Hospital or locum or sessional work) only because the applicant's practice was not then predominantly general practice.
REGULATION 5
In my opinion, the role of both the Eligibility Committee and the Appeal Committee is primarily governed by the provisions of reg 5. Both committees are to use their professional and technical expertise to assess whether an applicant practitioner has:-
"(a) a medical practice that is predominantly general practice; and
(b) training and experience in general practice that make it appropriate for the practitioner to be registered."
In making its assessment, a committee will be aware that neither the Act nor the Regulations define "predominantly" or "general practice". But it will also be aware that in the performance of its duties it "must" have regard to the college's criteria. Expressed in this manner it seems to me to be a logical conclusion to state that the criteria are to be called in aid by a committee in the performance of its duties. They are not to be lightly put aside but the criteria are, however, subordinate to a committee's task as set out in reg 5.
It would not be sufficient for a committee to dismiss an application simply by virtue of the fact that an applicant practitioner did not qualify under any one of the six criteria that are listed in the College's pamphlet. The task of a committee is two-fold. It must assess whether the applicant practitioner's medical practice is predominantly general practice and it must assess whether he or she has the relevant training and experience. To do this, a committee "must" have regard to the criteria. No doubt, it will be aided by the contents of the criteria, but it will not be bound by them or limited to them.
In Southern v Vocational Registration Appeal Committee (unreported: judgment delivered 24 May 1995) Whitlam J came to a conclusion with respect to the effect of reg 7 that differs from that which I have expressed. His Honour said:-
"The sequential step that the relevant committee is to take under reg 7(b) does not permit it to consider the case by reference to its own view of the matters to be stated in paragraphs (a) and (b) of a reg 5 certificate".
Even though the RACGP has defined what it means by "predominantly general practice", there is still room for the Appeal Committee to subjectively assess the applicant's personal circumstances. Whether the applicant practitioner has "training and experience in general practise that make it appropriate for the practitioner to be registered" would, I apprehend, be determined in the practitioner's favour if he or she is able to satisfy any of the six criteria. But it is my opinion that a failure to satisfy one of those criteria is not the end of the matter. The Appeal Committee may, when it proceeds "to consider the case on its merits", find another avenue that would justify certification. This flexible approach is, in my opinion, consistent with the views of Lee J in Jayasuriya (supra) where his Honour discussed the concept of "equivalence". He said:-
"Although reg 5(2) refers to training and experience in general practice, the further requirement in reg 7, that the committee have regard to the criteria published by the College, implies that a broader meaning is to be applied to those words in reg 5(2) sufficient to include training and experience equivalent to training and experience in general practice."
The earlier editions of the College's guidelines (which were considered in Jayasuriya's case) contained express reference to "flexible guidelines" and "equivalence". Those references have been removed and are no longer in the current edition. It may be thought that their removal was an attempt on the part of the college to make the criteria for eligibility more rigid. If that be the case, the attempt was, in my opinion, unsuccessful for the reasons that I have already given.
In general terms, this means that those medical practitioners, who were in general practice in 1989 or who were then eligible to enter general practice, knew that they would be eligible for certification by the College if they then or thereafter complied with one or other of the six criteria. In particular, those relying on practical experience would have been aware of the five year requirement. At the same time, it also meant that those who became medical practitioners after 1989 but before 1995 would know that acquisition of one of the same six criteria would assure them of eligibility. Some of those criteria, such as Fellowship or membership of the RACGP or possession of the Certificate referred to in Criteria No 3 were clear cut. Other criteria, particularly No 5 (having a qualification or certification acceptable to the College) would depend on the exercise of discretionary powers. But by far, the criterion that has caused the most difficulty is the alleged five year requirement articulated in Criterion No 4.
THE FIVE YEAR RULE: IS IT AN ABSOLUTE?
Does Criterion No 4 mean that the medical practitioner must have been in General Practice (as defined) for at least two sessions in each of 260 weeks (i.e., five years) preceding 1 January 1995? If the answer to that question is in the affirmative, it would deny a practitioner usual entitlements such as annual holidays, sick leave and study leave. Or does the reference to two sessions and five years only indicate the College's requirement that eligibility for registration depends upon a practitioner having been in general practice over an extended period of time?
Ms Maharaj, counsel for the second respondent, did not pursue an argument that the reference to two sessions per week for five years was to be read literally. Her submission, which has practical appeal, was that the reference to a "year" meant a normal "working" year, which would allow reasonable periods of time for annual leave, sick leave and so on. She also submitted that the reference to two sessions per week would be accommodated if, over a period of (say) a "working" year, the number of sessions that were worked averaged out at two sessions per week. It would follow, according to this argument, that such matters would be left for the assessment of the Appeal Committee in the exercise of its discretionary powers. However, and notwithstanding the flexibility of that approach, she submitted that the five year period was an absolute. This would mean that no practitioner could obtain certification from the College unless he or she had, over five years, ongoing exposure to, and participation in, general practice. I accept that this might be an appropriate interpretation for an applicant who was seeking from the College certification upon the basis that he or she had achieved "substantial compliance" with an absolute five-year rule. I do not accept, however, that failure to achieve the complete five years would mean, per se, a dismissal of the application by a committee. It would still be necessary to consider "the merits" of the case. Those "merits" necessitate a personal consideration of the circumstances of each individual applicant. Those circumstances would, of course, have to include substantial exposure to the work of a general practitioner. Regard would also be had to the period of five years but the Appeal Committee would not be bound to, or limited by, that period.
Ms Maharaj submitted that the reference to a consideration of the merits is not a cumulative exercise, but rather, an exercise that is to be carried out within the confines of and restricted by the College's criteria. I reject that submission. It suffers from an inherent inconsistency. It would require strict adherence to the period of five years but no like adherence to two sessions per week or work in each of the fifty two weeks in each of the five years. If the respondent's submission is correct and the five year rule is an absolute, it would mean that final year medical students of 1989 and thereafter would not be eligible for vocational registration via the five year rule. A period of one year's internship in 1990 would mean that they could only commence general practice in 1991. Hence they would have only worked four years in general practice on 1 January 1995. But such applicants were not thereby wholly denied certification. There were the remaining five options; in particular, the College's Training Program (par 3) was an available route for these practitioners.
There is, in my opinion, another reason why the five year period should not be regarded as an absolute. The Appeal Committee has set out in its s 13 reasons the grounds for admission to membership of the RACGP. Persons are eligible for membership of the College if they:-
"(a) are a registered medical practitioner (sic) who has not less than five years full time experience in general practice or the equivalent thereof, have undertaken a further twelve months training following the intern year in a situation relevant to general practice and be sponsored by a Fellow or Member of the RACGP.
(b) have other appropriate qualifications acceptable to the RACGP."
It is to be noted that membership can only be obtained if the applicant has not less than five years full time experience. There can be no doubt that in those circumstances the five years is an absolute. But in comparing that reference to five years with the period of five years referred to in Criterion No 4, one is immediately struck by the differing qualifications. For membership of the College one must be engaged "full time" over the five years. However, in the far more flexible criterion in par 4 it is only necessary to work two sessions per week. Moreover, membership of the College also requires a further twelve months training following the intern year in a situation relevant to general practice. That requirement is absent from Criterion No 4.
The words "at least" which precede "five years" in Criterion No 4 suggest certainty, but the Appeal Committee has already established that it does not interpret the criterion literally. For example, if a particular applicant has, as a matter of fact, been in general practice for 3 to 3 1/2 years, the Appeal Committee is prepared, in appropriate cases, to credit his or her hospital experience and his or her special skills as equivalent training and experience and so build the applicant up to five years. (This subject is discussed in more detail when I consider Dr Reid's application). But in so doing the Appeal Committee is ignoring the literal words of Criterion No 4: such an applicant would not have been in general practice for at least five years. I think the Appeal Committee is right to adopt this flexible approach but once it does so it deprives itself of the opportunity to treat the five year rule as an absolute. The period of five years is only an important criteria to which the Appeal Committee must have regard.
Before moving to a consideration of the individual circumstances of each of the fifteen applicants, there are some subjects that can be addressed in the broad because of their similar application to two or more of the applicants.
SUBSEQUENT EXPERIENCE
Should the Appeal Committee have any regard to an applicant's training and experience subsequent to the date of his or her application and subsequent to 1 January 1995? In fourteen of the fifteen cases, the Appeal Committee considered and determined the application after that date. In my opinion, it would be proper for the Appeal Committee to take any such training and experience into account. How much weight it should warrant would, of course, be a matter entirely for the Committee. I have come to this conclusion for the following reasons. First, the application that is before the Appeal Committee for its consideration is one from a medical practitioner that had been lodged prior to 1 January 1995. Secondly, such an application has come from a practitioner who was relying on his or her actual practical experience and training to justify eligibility. Thirdly, although the Appeal Committee is bound to have regard to the criteria that was published by the RACGP, it is not bound to adhere literally to those criteria. But it is bound, in terms of par 3G(6)(a) of the Act and Reg 5 to certify that a medical practitioner is eligible for registration if it is satisfied that the practitioner's medical practice "is predominantly general practice" and it is further satisfied that the practitioner "has training and experience in general practice that make it appropriate for the practitioner to be registered". If, contrary to the conclusion that I have reached, the Appeal Committee is bound by (in the sense of being restricted to) the contents of the criteria then I recognise that no applicant could make use of post 1 January 1995 experience. But if there is no such fetter on the Committee - if it is truly free to consider the merits of each application (even though bound to have regard to the criteria) - I see no reason why subsequent training and experience should not be taken into account. I consider therefore, that a failure by the Appeal Committee to take account of an applicant's experience attained after 1 January 1995 could, in an appropriate case, amount to an error of law.
INTERNSHIP
In some of the applications for review complaint was made that the Appeal Committee had failed to give credit to the applicant for the training and experience an individual applicant enjoyed during his or her internship. For example, in its s 13 reasons with respect to Dr Moss, the Appeal Committee said that it did not "... consider any year spent as an intern to be equivalent to General Practice because an intern is only provisionally registered." No evidence was led by either side about the detail of internship. In particular, it is not known whether the requirements of internship differ between the States and Territories. The subject was discussed with counsel upon the premise that it was a period of twelve months or so of practical training in an approved hospital as a condition precedent to unqualified registration as a medical practitioner. In those circumstances, and in the absence of more detailed information, I am of the opinion that the Appeal Committee was correct in disregarding such training and experience as may have been gained by an applicant during a period of internship. Having regard to the requirements of Criterion No 4, it would be inappropriate to give to applicants any credit for their basic academic and practical qualifications.
ASSOCIATE MEMBERSHIP OF RACGP
Some of the applicants were associate members of the RACGP. It was claimed that this entitled them to some credit and that the Appeal Committee had erred in not addressing this subject. I do not agree. The Appeal Committee in its reasons identified the grounds for admission to membership of the College as including five years full time experience in general practice or otherwise having appropriate qualifications acceptable to the College. The Appeal Committee noted that an associate member need only be registered as a medical practitioner with a State or Territory Medical Board. Associate membership did not therefore carry any special qualification and the Appeal Committee was correct in ignoring it.
LOCUM WORK
Some of the applicants have complained that their locum work was not taken into account by the Appeal Committee when it assessed whether they had the requisite training and experience. Locum work is one aspect of medical practice. For that reason, it is necessary for the Appeal Committee to assess its worth in the individual circumstances of an applicant's case. But it is not for this Court to determine whether locum work should or should not be credited for the purpose of assessing whether a particular applicant was eligible for registration. That is the particular function of the tribunal of fact which will use the expertise of its members to determine that issue. But it is incumbent on the Tribunal to state its reasons for its treatment of locum experience. In particular, if it intends to deny an applicant any credit or if it proposes a credit that is less than that sought by the applicant, it should state its reasons for its conclusions.
HOSPITAL EXPERIENCE
It would seem that the Appeal Committee has adopted a policy of crediting some applicants for certification with a period of up to twelve months for "general practice" based on an applicant's experience when working in hospitals. It would also appear that this is the maximum period that will be credited, irrespective of the actual period worked. Counsel for the applicants submitted that this showed an attitude of rigidity and inflexibility and indicated a failure to assess applications on their merits. Apart from the bold assertion, this submission was not enhanced by particular facts that would substantiate it and I am not prepared to react as if the Appeal Committee had erred. Indeed there is reason to suggest that the Appeal Committee might even be overly generous in some cases. One must remember that a basic criterion is that applicants should have training and experience in general practice. One does not have to be a member of the medical profession to understand that hospital experience is not necessarily the same as private practice. In particular, there is not the ongoing doctor/patient relationship. One might feel that the Appeal Committee is straining the bounds of generosity in giving up to twelve months credit for hospital experience. I find no cause to interfere as a result of the manner in which the Appeal Committee has dealt with an applicant's hospital experience. In every case it would be a question of fact to assess what value should be attributed to that experience for the purpose of assessing training and experience in general practice. As a matter of fact, in assessing some of the applications, the Appeal Committee made a specific finding of fact that no credit would be given for the particular hospital work because the Appeal Committee did not consider that it could be equated with general practice.
I turn now to an individual consideration of each of the fifteen applications.
DR MICHAEL ALASTAIR REID
Although born in Australia in 1957, Dr Reid was resident in Canada between 1964 and 1980. As a result, he obtained his secondary education and part of his tertiary education in Canada. Dr Reid's academic qualifications are impressive. They are set out in his affidavit of 28 June 1996:-
"Bachelor of Science; preventative medicine - "BSc" University of Victoria 1979;
Master of Science; Clinical Cardiology - "MSc" University of Melbourne 1982;
Bachelor of Medicine Bachelor of Science - "BMBS" Flinders University of South Australia 1991;
PHD: Pharmacology - Flinders University of South Australia 1991;
Radiation Licence: South Australian Government 1993;
Early Management of Severe Trauma Certificate 1994; and
Diploma of Obstetrics of the Royal Australian College of Obstetricians and Gynaecologists (DORACOG) 1995"
Dr Reid's practical experience commenced with his year as an intern at Flinders Hospital. As I have already said, I reject the submission of counsel for the applicants that the Appeal Committee should have, in some manner, given Dr Reid some value or weight for this experience.
Despite the impressive nature of Dr Reid's academic record, I am not able to say that the Appeal Committee was incorrect in not attaching any significance to it. The primary task of the Appeal Committee was to consider whether the applicant was eligible for certification as a general practitioner. That task necessitated a consideration of the applicant's practice at the time of his or her application. Was it "predominantly general practice" and did the practitioner have the "training and experience in general practice" to make it appropriate for the practitioner to be registered? Included in that task was the need for the Appeal Committee to have regard to the College's criteria as well as to the merits of the case. But the task that confronts the Appeal Committee in each case is dominated by the practical aspects of the practitioner's past and present circumstances. It is therefore a matter for the Committee to asses and determine whether additional academic qualifications are intended as a substitute, to some degree, for practical training and experience. The ground of failure to take into account a relevant consideration can only be made out if the decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. I do not consider Dr Reid's academic achievements are a factor the Appeal Committee was bound to take into account.
Dr Reid, who obtained his registration with the Medical Board of South Australia on 19 December 1991, listed his practical experience in his affidavit as follows:-
"Hospital Intern: Flinders Hospital, Bedford Park Adelaide: January 1991 to December 1991 - 1 year.
Registrar: Flinders Hospital: January 1992 to September 1992 - 9 months.
Flinders Hospital: Resident Medical Officer: May 1994 to December 1994 - 8 months.
General Practitioner: Locum: January 1992 to May 1993: averaging 8 sessions per week - 1 year 5 months.
General Practitioner: Locum: June 1993 to March 1996: averaging 2 sessions per week - 1 year 10 months.
General Practitioner: Partner Medical Practice "Szewczuk & Reid": June 1993 to March 1995: Averaging 8 sessions per week - 1 year 10 months.
General Practitioner: Own practice trading as "McLaren Vale Family Practice" Main Road McLaren Vale: March 1995 to date: averaging 14 sessions per week - 1 year 4 months."
The Appeal Committee accepted that Dr Reid was predominantly in general practice as at the date of his application. Having stated that conclusion it went to say:-
"The Appeal Committee then considered whether Dr Reid met any of criteria 1-6 published by the RACGP bearing in mind that he only had to comply with one of them. The Appeal Committee found that Dr Reid had not provided any evidence that he had met any of the criteria, and therefore found that he did not meet any of those criteria."
As I have endeavoured to explain, that statement, without qualification, reveals an error in the reasoning of the Appeal Committee. Dr Reid did not have to comply with any of the published criteria. He might have been eligible because of the merits of his application and because the Committee was of the opinion that he had satisfied the two conditions. But the Appeal Committee addressed, in turn, each of the six criteria and the evidence that was before it, concluding in each case, that the evidence was insufficient to amount to compliance. The manner in which the Appeal Committee went about its task gave the appearance, at first, that it was of the opinion that it was to have regard only to the six criteria. Such a restrictive approach would have been incorrect. However, in the course of that exercise, it summarised Dr Reid's work history, explaining why it had come to the conclusion that it would not be appropriate to certify that he had satisfied the two conditions that are set out in the legislation. It referred to reg 7(b) and the question of merits in these terms:-
"The Appeal Committee has, in the past, certified practitioners applying under the 1994 criteria who have at least between 3 and 3 1/2 years of General Practice, providing that it could ascribe to the practitioner experience spent in practice where the practitioner would learn and acquire knowledge of general practice - eg obstetrics- which would bring the practitioner's experience in General Practice to that of 2 sessions a week for at least 5 years by 1 January 1995. In such a case, the Appeal Committee would allow the period of time it considered appropriate. The Appeal Committee has done this on the basis of Reg 7(b) "then proceed to consider the case on its merits" - using the concept of equivalence stated in the Second Reading Speech.
That passage, which appears consistently in each s 13 statement of reasons, indicates to me that the Appeal Committee went beyond the strictures of the six criteria. It indicated a willingness to consider the case having regard to the personal merits of Dr Reid. It carried out the exercise but, unfortunately for Dr Reid, the Appeal Committee found itself unable to issue the required certificate.
It is not the province of this Court to make an independent assessment of the facts that relate to each of the applicants. That is the role of the Appeal Committee. It is the specialist tribunal of fact that has been given the task of assessing the individual circumstances of each applicant for registration. This Court will intervene if the Appeal Committee has made an error of law but it will not otherwise intervene in questions of fact. The Appeal Committee was criticised for stating that it gave "a maximum of 1 year equivalence for relevant hospital experience and up to 1 year for the acquisition of special skills". It was said by counsel for the Applicants that such a statement was arbitrary and therefore wrong. I disagree. The willingness of the Appeal Committee to engage in the exercise of equivalence showed that it did not regard itself as bound by the language of the six criteria. It showed its willingness to look at the merits of Dr Reid's case. The complaint was, in reality, a complaint about the manner in which the Appeal Committee had assessed those merits. But that was the function of the Appeal Committee and not of this Court. It was not, however, satisfied that Dr Reid had satisfied any of the criteria that had been laid down by the RACGP. As to Criterion No 4 (the so called five-year rule) the Appeal Committee said:-
"He will not have been in General Practice (as defined) for at least two sessions a week for at least 5 years by 1 January 1995. In this regard, the Appeal Committee noted that Dr Reid in his application stated that he was only registered with the Medical Board of South Australia on 19 December 1991, and therefore could only have been in general practice (as defined), or indeed in any kind of medical practice, as and from that date. Therefore Dr Reid could only have been in medical practice for 3 years and 2 weeks by 1 January 1995. The committee considered that this criterion can only be met by someone who has been in general practice for at least 5 years by 1 January 1995."
Thus it may be seen that in the last sentence of the above passage, the Appeal Committee stipulates that Criterion No 4 will only be satisfied where an applicant has been in general practice for at least five years by 1 January 1995. In my opinion, this view of the criteria is unnecessarily restrictive and amounts to an error in the reasoning of the Appeal Committee. Elsewhere in these reasons I have endeavoured to explain why I have come to that conclusion. In the personal circumstances of Dr Reid, the question now arises whether the error warrants the intervention of the Court. Would it be a futile exercise of the Court's power to send the matter back to the Committee because it would arguably arrive at the same conclusion? Dr Reid does not have any other practical experience or training which could be accumulated with his three years and two weeks of accredited general practice. Notwithstanding the number of sessions that were worked by Dr Reid in that period I do not see how it could amount to an equivalence of the detail set out in the criterion. Although I reject the argument that there is a fixed period of five years, I otherwise share the views of the Appeal Committee when they say:-
"... that the period of 5 years is important to enable a practitioner to have experience in providing continuing and comprehensive whole patient care to individuals, families and their community which is part of the definition of "General Practice" in the criteria.
As to this criterion, equivalent experience in general practice cannot be generated simply by calculating the number of sessions per week by the number of weeks. A practitioner who has practised in general practice full-time for a year or so does not have the equivalent of providing continuing and comprehensive whole patient care to individuals, families and their community for 5 years.
The elapsed time in general practice relates specifically to the experience required in matters such as:
. child development;
. progression of chronic illness and its relationship to the care of the patient in the community; and
. the management of complex patient cases." (Emphasis in original)
That passage appears in each of the s 13 statement of reasons.
Mr Tilmouth QC submitted that once error had been recognised, this Court had no choice but to remit the matter to the Appeal Committee: it had to send the matter back. He cited Kioa v West (1985) 150 CLR 550 at 603 per Wilson J as authority for that proposition. In my opinion, the circumstances in Kioa v West were quite different. In that case his Honour had identified a breach of the rules of natural justice. Even though he stated that he came to his decision "with some reluctance" his Honour felt compelled to intervene, stating:-
"... However, having decided that decisions under s. 18 must be attended with procedural fairness, it would frustrate the purpose of the A.D.(J.R.) Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred by s. 16, merely because the breach was not shown to have affected the decision. ..."
That was a different situation. In this case the Appeal Committee failed to take into account a relevant consideration. But if it had taken it into account it might be said that it would have arrived at the same conclusion. Hence it is open to the argument that it would be an exercise in futility to send this application back to the Committee. The court has power under s 16(1) of the ADJR Act to refuse to grant relief to a successful complainant. But there is a danger in refusing to grant relief on the basis that it would be futile to do so. As a Full Court of this Court said in Century Metals v Yeomans [1989] FCA 273; (1989) 100 ALR 383 at 419, it may compound the injustice already done to the applicant if he were denied an opportunity, on discretionary grounds, to seek a reversal of a public authority's decision. It is a well known principle of procedural fairness that a court should not deny relief for a breach of procedural fairness, even where it is clear that the decision-maker will arrive at the same conclusion. Where, as in this case, there has been a failure to take into account a relevant consideration, denying relief on the basis of futility should only be done in rare circumstances, even though it may only provide a phyrric victory for a successful complainant. Certainly, this is the tenet of the Full Court's decision in Century Metals (supra).
DR TIMOTHY MOSS
Dr Moss' academic qualifications are:-
1984: Bachelor of Science, majoring in Psychology from Monash University
1989: Bachelor of Medicine, Bachelor of Surgery from Flinders University
He obtained full registration with the Medical Board of South Australia on 1 January 1991. Hence, he only had the qualifications of a medical practitioner for four years on 1 January 1995. On that basis alone, the Appeal Committee concluded that it could not grant him certification. It said:-
"The Appeal Committee considered Dr Moss' experience both as a locum and a sessional practitioner as detailed in his application, and considered that this experience was equivalent to 4 years in General Practice, as defined (ie from 1 January 1991 - 31 December 1994). The Appeal Committee could not credit Dr Moss with a further 1 year's practice experience to bring his accumulated experience up to the required 5 years by 1 January 1995 ... because he had no other experience to so credit.
I agree with the Appeal Committee's finding, that the year of internship should not be taken into account. Furthermore I reject the submission of counsel for the applicants that some credit could or should be given for the applicant's Science degree. The issue that concerns me however, is the arbitrary manner in which the Appeal Committee adhered to the period of five years. I have already explained that in my opinion, the RACGP could not have intended that there be literal adherence to the five year rule because of such matters as annual leave. In addition, the Appeal Committee has shown its preparedness to depart from any such rule by giving some credit to an applicant who has (for example) acceptable hospital experience. It seems to me as if the Appeal Committee has made a decision (although it has not expressed itself in these terms) that an applicant for certification must have, at least, been registered to practise as a Medical Practitioner for five years or more before 1 January 1995. If the applicant met that fundamental requirement, then, and only then, would the Appeal Committee have regard to his or her personal circumstances. If I have correctly interpreted the reasons of the Appeal Committee then I must say that such a restrictive view would amount to an error of law.
Such a requirement could have been written into the criteria without difficulty by stipulating that the five year rule in Criterion No 4 was only available to those applicants seeking certification who were registered as medical practitioners before 1 January 1990. But the absence of such a provision, coupled with the flexibility which has already been found to exist, points to an opposite conclusion. I appreciate and support the Appeal Committee's view that there cannot be an arithmetical approach to this issue; only an extended exposure over a substantial period of time to the problems identified by the Appeal Committee will justify certification under this criterion. But the Appeal Committee did not ask itself whether the actual exposure of Dr Moss over a period of four years was, in the circumstances of his case, sufficient to compensate for the short fall of 12 months. Instead, it dismissed his application because he had only been in practice for four years. In my opinion, this constitutes a reviewable error.
DR ALEXANDER GREGG
The Appeal Committee found, adversely to the interests of Dr Gregg, that he was not predominantly in general practice as at the date of his application for certification. In his application he had stated:-
"I do sessional work at different locations, the one stated being predominant. The other is sessional after hours work predominantly weekend ..."
In its statement of reasons, the Appeal Committee found that Dr Gregg "was not providing visits to locations other than his surgery" and that he was not "accepting direct responsibility to ensure that practice patients have access to care by an appropriate qualified medical practitioner at all times and at locations away from the practice. Dr Gregg had indicated in his application that he was unsure whether his practice undertook after hours services".
In my opinion, those were findings of fact that were open to the Appeal Committee on the evidence that was before it. That being the case there is no warrant for this Court to interfere.
DR TIMOTHY SIMPSON
Dr Simpson was born and educated in South Australia. He completed his medical studies and internship by the end of 1989. He has engaged in the practice of his profession thereafter almost continuously. As at 1 January 1995 it would have therefore been open to a tribunal of fact to assess his activities for the preceding five years with a view to determining whether he was eligible for certification.
The Appeal Committee accepted that he was at the time of his application predominantly in general practice. However the Committee went on to hold that "while Dr Simpson's training in general practice was excellent, his experience fell far short of the 5 years required by" Criterion No 4.
Dr Simpson's history and experience in that five year period had been varied. In particular, it included a period of seven months general practice at a hospital in Kenya. The second respondent conceded that the Appeal Committee fell into error by failing to give Dr Simpson any credit for this overseas experience. That same concession, based on the decision of Carr J in Tan's case, has been made with respect to all applicants with overseas experience.
In addition to his overseas experience, Dr Simpson spent much of his time between 1990 and 1993 working within the hospital system. That was treated by the Appeal Committee as a factor justifying its conclusion that he had not been "predominantly in General Practice" for the relevant five year period. I have explained elsewhere in these reasons that the word "predominantly" does not appear in the second condition. Hence an applicant for certification had to have training and experience in general practice but his or her practice did not then have to be "predominantly" general practice. The Appeal Committee fell into error. It applied a test that was more severe than that required. This constitutes an error of law justifying the intervention of this court.
The Appeal Committee concluded that Dr Simpson's general practice experience in the five year period prior to 1 January 1995 amounted only to seventeen months. It then went on to say:-
"... The Appeal Committee gives a maximum of 1 year equivalence for relevant hospital experience and up to 1 year for the acquisition of special skills - in the case of Dr Simpson, this was given for his experience in Anaesthetics, Obstetrics and Paediatrics. However, even the addition of this time did not bring Dr Simpson's General Practice experience up to at least 5 years by 1 January 1995 as required."
It is not clear from this passage whether the Appeal Committee was granting him a credit of twelve months for his hospital experience and a credit of twelve months for his experience in obstetrics or whether it was a credit of a total of twelve months for both. This might be a critical question when the time comes to reassess Dr Simpson's earlier training and experience in terms consistent with these reasons.
DR THEODORE ARONEY
Dr Aroney obtained his registration from the New South Wales Medical Board on 30 December 1986. He worked as an Intern for 12 months in 1987 and as a Resident until June 1989. After a short period of about three months as a locum, he took up employment as a medical practitioner at the Shellharbour Hospital where he remained until he entered general practice in April 1993. In his application for registration, he claimed that his work "includes approximately 80% General Practice type patients". He gave some details in support of that claim and he also listed his "extensive base for unsupervised experience" in numerous special interest fields that he then listed. The Appeal Committee was not impressed with Dr Aroney's hospital experience. It said:
"Specifically, the Appeal Committee did not consider that Dr Aroney's experience as an RMO in any of the hospitals and as a Medical Officer at the Shellharbour Hospital amounted to the "provision of primary, continuing, continuing, whole-patient care to individuals, families and their community"."
But despite this assessment, the Committee was still prepared to give him "a period of 1 year equivalence" for his hospital experience.
The decision of Appeal Committee was a decision on the facts; the members of the Committee were competent to assess what Dr Aroney would have done and the experience that he would have gained. I cannot find error in those reasons.
But the Appeal Committee did fall into error when it concluded that his actual and deemed experience "fell short of the 5 years required by the criteria". That statement indicated, as I have earlier said, that the Appeal Committee had treated itself as bound by the five year rule. The Appeal Committee also erred by failing to credit Dr Aroney with the time spent by him in general practice after 1 January 1995. The Appeal Committee gave its decision on 23 June 1995. That meant that the additional experience gained by Dr Aroney in his general practice from 1 January to 23 June 1995 was not taken into account.
It is difficult to see how the short period of 20 months or so in general practice from April 1993 to December 1994, coupled with the credit of one year for his hospital experience and a further six months experience in 1995 could be the basis for a claim that the Appeal Committee's decision should be sent back for review. However, I have already discussed this "futility" argument when considering Dr Reid's application and I need not repeat myself.
DR WILLIAM CHUN WONG
Dr Wong was born in Hong Kong but completed his medical studies in New South Wales. He returned to Hong Kong where he first worked in hospitals for several years before commencing practice as a general practitioner. He returned to Australia and had been engaged in general practice for a period of two years and two months at the time when he made his application in September 1994. In addition to this period of practice, Dr Wong claimed in his application that he had six years and six months further experience in general practice in Hong Kong and another year as an "assistant" in a Hong Kong practice.
Dr Wong's application was refused on 9 December 1994. The Appeal Committee considered that it was not entitled to have regard to his Hong Kong experience. As I have already stated, this amounted to an error of law and the matter is to be remitted back to the Appeal Committee to reconsider the application and to give such weight to Dr Wong's experience and training in Hong Kong as it considers appropriate. In carrying out that exercise the Appeal Committee is also to give appropriate consideration to his hospital experience in Hong Kong.
There is, in my opinion, a further error in the reasons of the Appeal Committee. It considered that it was required to assess whether Dr Wong had been "predominantly in General Practice as defined in the criteria for at least five years by 1 January 1995". I have elsewhere explained that the test of "predominantly" does not apply when making an historical assessment of an applicant's past training and experience.
DR ROCCO SCHIAVONE
The Appeal Committee considered that, at the time of his application, Dr Schiavone was predominantly in general practice. He had obtained his registration on 18 January 1989. He claimed that he commenced work in general practice from 1 February 1989 but he was then also engaged as a Medical Officer in a hospital. His hospital work continued until 31 December 1992 and he thereafter worked full time in general practice. Throughout his hospital work he continued with his part-time work in general practice.
In my opinion, the Committee fell into error when it said that as Dr Schiavone "was not predominantly in general practice as defined in the RACGP from February 1989 to December 1992, his experience in the locum positions are unable to be credited as general practice experience".(Emphasis added). As I have already explained the word "predominantly" does not extend to an applicant's past history. The obligation on the Committee was to assess the training and experience in general practice that Dr Schiavone received in that period of four years. It failed to make that assessment.
The Appeal Committee also concluded that "no equivalence was given for (Dr Schiavone's) hospital experience as the Appeal Committee determined that Accident and Emergency care is not equivalent to general practice, as defined". I do not understand this conclusion nor the Committee's justification for arriving at it. Dr Schiavone's application for certification listed his hospital training as including six months of "General Practice" and four months of "Rehabilitation/Geriatrics" as well as two periods totalling ten months of "Accident and Emergency". Perhaps the Appeal Committee did not attach any weight to this extra training. But as the matter must go back for reconsideration, the Committee should also use that opportunity to review this matter.
DR RAMESH PILLAI
Dr Pillai obtained his academic qualifications from The University of Bhopal, India in 1983. He worked in hospitals in India from 1983 to 1987 and in general practice for about four years from 1984 to 1988.
Dr Pillai came to Australia in September 1988. His medical experience in this country started in February 1991 when he commenced work as a Resident Medical Officer in a Hospital. Thereafter he gained experience as a locum and in general practice. The Appeal Committee accepted that Dr Pillai was, at the time of his application, predominantly in general practice, but concluded that he had not met the requirements of Criterion No 4. After reviewing his experience in Australia, it was only prepared to credit him with having accumulated two years and two months general practice experience.
The Appeal Committee disregarded Dr Pillai's hospital experience in Australia. It came to the conclusion that his experience in hospitals from February 1991 to March 1993 did not constitute experience that "was equivalent to General Practice, as defined". That definition as it is found in the RACGP's pamphlet is as follows:-
""General Practice" is defined as the provision of primary, continuing, comprehensive whole-patient care to individuals families and their community."
The Appeal Committee did not explain why it was that no weight or credit could be attached to his two year's work in hospitals but the absence of such reasons was not the subject of complaint and I take the matter no further. That was, of course, an area in which the expertise of the Appeal Committee could best be utilized; it would know, better than most, whether there was any inter-relationship between the work in the hospitals and general practice.
This matter must be sent back to the Appeal Committee so that it may make its assessment of Dr Pillai's experience and training in hospitals and general practice in India. When giving its reasons with respect to those matters the Appeal Committee should, at the same time, explain why Dr Pillai's Australian hospital experience was not of any value to him.
DR THIRUMANY KARUNAHARAN
The Appeal Committee accepted that Dr Karunaharan was predominantly in General Practice at the relevant time. However, it was not satisfied that he was eligible for vocational registration.
Dr Karunaharan had worked within the Hospital System in Sri Lanka, the United Kingdom and Saudi Arabia from 1970 for various periods of time through to April 1989. He also had had several years experience in general practice in both Sri Lanka and the United Kingdom. In failing to have regard to these qualifications, that is, both the hospital experience as well as Dr Karunaharan's experience in general practice, the Appeal Committee fell into error. But, in this case there was a further error. Dr Karunaharan had obtained registration in Australia in 1991 and claimed that he commenced general practice in Australia in August of that year when he undertook locum positions concurrently with his hospital training. As to this, the Appeal Committee said:-
"The Appeal Committee is unable to credit general practice undertaken concurrent [sic] with full time hospital training as the practitioner could not be considered to be predominantly in general practice during that period."
That statement is incorrect; as I have explained, the word "predominantly" does not appear and therefore does not qualify past training experience. It only applies to the circumstances of the applicant at the time when his or her application for certification is under consideration.
What weight will be given to such hospital experience is, of course, a matter that is within the discretion of the Appeal Committee. It is not for this Court to address that issue. The function of the Court is to state that, as a matter of law, it is open to the Appeal Committee to give such weight to a practitioner's experience as a locum in general practice (if any) as it considers appropriate.
DR MARIA FLORES-VIVAS
Dr Flores-Vivas, who was born in Nicaragua in 1950, obtained her tertiary qualifications in medicine from the National University of Nicaragua in 1974. Prior to obtaining her Degree she undertook six years of study at the School of Medicine, one year's Internship and six months of Rural Practice. Following on from her graduation, she worked in different hospitals, gaining experience in various fields of medicine. In 1975 she had a year's experience in private practice in Paediatrics in Atlanta USA followed by three years training in Radiodiagnostics in Cali, Colombia. Thereafter and until 1987, when she decided to leave Nicaragua because of the political climate, she had a variety of engagements including locum work and work in general practice for periods totalling in excess of four years. After her arrival in Australia she obtained registration in 1990. After about 15 month's experience in hospitals she has, since 1992, accumulated about 2 years and 9 months experience in general practice.
The Appeal Committee considered that it "was unable to give credit for Dr Flores-Vivas' experience in Nicaragua and the United States of America". That factor alone requires that this application be returned to the Appeal Committee for reconsideration. In addition to assessing what credit may be given to Dr Flores-Vivas for her hospital experience in Australia, the Committee should also consider what credit (if any) might be given to her for her hospital experience in Nicaragua.
DR RAJESH BHASIN
From 1987 to 1991, Dr Bhasin worked predominantly within the hospital system in the United Kingdom as a House Surgeon and House Physician. From 1989 to July 1990, Dr Bhasin was a Senior House Officer. He next worked as a Registrar in Accident and Emergency before working as a Senior House Officer until he left for Australia in 1991. On 4 July 1991 Dr Bhasin received registration as a medical practitioner in Victoria and thereafter commenced general practice. By 1 January 1995, Dr Bhasin had accumulated 3 years and 6 months training and experience as a general practitioner. Further, the Appeal Committee was satisfied that at the time of his application his practice was predominantly general practice.
The Appeal Committee said in its reasons that it was "unable to give credit for Dr Bhasin's experience prior to his registration in Australia in 1991". It is conceded by the second respondent that this represents error on the part of the Committee and for this reason the matter must be returned to the Appeal Committee. Upon reconsidering Dr Bhasin's application, it will be for the Appeal Committee to assess whether his hospital experience gives him any credit for training and experience in general Practice; the Committee can also bear in mind his post-1 January 1995 activities. These will be matters touching upon the merits of the applicant's individual application. Their worth is to be assessed after the Committee has had regard to the College's criteria.
DR JIM AADIEL ABRAHAMS
Dr Abrahams was born and educated in South Africa. In 1982 he graduated with an ordinary degree in Bachelor of Science from the University of Cape Town and in the following year he obtained his Honours degree. In 1985 he graduated as a Master of Science (Medicine) in Neuro-physiology and in 1990 he obtained from the same University degrees that are equivalent to ordinary degrees in Bachelor of Medicine and Bachelor of Surgery. Dr Abrahams was an intern at a Hospital in Cape Town in 1990. In 1991 he came to Australia and undertook a further year as an intern at the Royal Hobart Hospital in 1991. He entered general practice in January 1992. In other words, by 1 January 1995 Dr Abrahams had only three years in general practice. When the Appeal Committee reached its decision on 28 July 1995, the applicant had accumulated a further seven months in general practice.
The Appeal Committee accepted that Dr Abraham's practice at the time of his application was predominantly general practice.
The only finding that is the subject of challenge on this appeal is that relating to criterion No 4. As to this, the Committee emphasised the importance of an applicant having practical experience over an extended period of time. Only by this means could an applicant, in the opinion of the Committee, have exposure to such matters as child development, progression of a chronic illness and its relationship to the care of the patient in the community and the management of complex patient cases. These are, in my opinion, compelling arguments.
In the course of its s 13 reasons, the Appeal Committee referred to reg 7(b) and the question of merits, repeating the passage that referred to those applicants with three to three and a half years of general practice (see my reasons when discussing Dr Reid's application). The committee then said:-
"The Appeal Committee considered Dr Abraham's experience as a visiting medical officer as detailed in his application, and was unable to determine that this experience was equivalent to 5 years in general practice, as defined. The Appeal Committee gives a maximum of 1 year equivalent for relevant hospital experience and up to 1 year for the acquisition of special skills. The Appeal Committee was unable to determine from the information provided in his curriculum vitae that any credit should be given to Dr Abrahams for the acquisition of special skills. However even if a period of 1 year was credited for his hospital experience, when combined with his general practice experience of three years, the Appeal Committee determined that his total experience would amount to less than four years, which fell short of the 5 years required by the Criteria.
The adherance to the period of five years constitutes, for reasons stated earlier, an error.
Dr Abrahams listed in his curriculum vitae the many courses and lectures that he had attended; he also listed particulars of his Journal readings and the Audio tapes that he had heard. He complained that the Appeal Committee made no mention of these matters in its reasons - nor did it refer specifically to his abnormally high academic achievements and his intern year in South Africa. It did however, state that it gave him no credit for "special skills". In all probability that was intended to cover all these matters. I regard them as matters of fact, falling within the province of the Committee and not reviewable by this Court.
The matter of concern to me is the failure of the Appeal Committee to explain why it was not prepared to utilise its concept of equivalence to the actual sessions of general practice in which Dr Abrahams was engaged in the three years 1992, 1993 and 1994. The Committee, in the passage already quoted, used his hospital experience to give equivalence of one year, but nevertheless concluded that "his total experience would amount to less than four years which fell short of the five years required by the Criteria". This statement indicates that the Appeal Committee did not have regard to the number of sessions in general practice in which Dr Abrahams was engaged during those three years. It would seem that in that period Dr Abrahams conducted in excess of 1400 sessions. I do not suggest that the Appeal Committee is to engage in an arithmetical exercise. After all, twelve months concentrated work could produce 520 sessions but no-one would suggest that such work would have the equivalence of the same number of sessions spread over a period of five years. I do however consider that the Appeal Committee should have addressed whether some equivalence was available to the applicant for the large number of his sessions in that period of three years. In coming to this conclusion, I am aware that the Appeal Committee must have regard to the criteria and I am also aware that the criteria stipulates five years. But I have concluded that failure to meet the five year rule does not mean that an application must automatically be rejected. It will be entirely a matter for the Appeal Committee to evaluate what weight (if any) it might give to the applicant in this exercise. It might be that the Appeal Committee, having made its assessment of Dr Abraham's individual circumstances, will conclude that his work in general practice, both before and after January 1995, coupled with his hospital experience remains inadequate. That would, however, be a decision that could only be reached by the Appeal Committee after it has had regard to relevant matters in the manner identified in these reasons.
I do not however, accept that the Appeal Committee fell into error by failing to give credit to Dr Abrahams for his additional academic qualifications. I repeat the observations that I made when considering Dr Reid's application. Arguably they would not assist when the dominant issue to be determined concerns the applicant's practical training and experience.
The failure to address the two issues that I have identified means that the Appeal Committee erred in law. The matter of Dr Abraham's application should be remitted to the Appeal Committee.
DR ROSS WILLIAM PHILLIPS
Dr Phillips obtained unrestricted Medical Registration in December 1989. Thereafter, he worked for a time in hospitals but engaged in some sessions of general practice at the same time. In 1992 he commenced full time general practice and the Appeal Committee credited him with this three years plus an additional period of four months for the period 22 January 1991 to 28 April 1991. The Appeal Committee also allowed Dr Phillips a further year for his special skills training, thereby crediting him with a total of four years and four months. The Appeal Committee was satisfied that Dr Phillips was predominantly in General Practice at the time of his application for certification but, nevertheless, concluded that he was not eligible for registration. In my opinion, the Committee fell into error when considering Dr Phillip's application. It said:-
"As Dr Phillips was predominantly working within the hospital system prior to 1992, and as honorary attendances are not rebated against Medicare, the Appeal Committee was unable to determine that Dr Phillips was predominantly in general practice prior to 1992, apart from the period 22 January 1991 until 28 April 1991."
I have already explained why the word "predominantly" plays no part in assessing the weight to be given to past training and experience in general practice and I need not repeat those reasons.
The obligation on the part of the Appeal Committee was to have regard to the criteria of the College; it stipulated a period of five years as one of the criteria for registration. Satisfaction of that criteria will assure an applicant of certification from the College, but non- satisfaction is not an automatic barrier, for an applicant's individual merits must also be considered.
In this case the applicant had actual training and experience of three years and four months and was considered worthy of an additional credit of 12 months. Was that close enough to the five-year criteria to warrant registration? If not, would the Appeal Committee be moved by the fact that another twelve months had passed by the time that it made its determination on 15 December 1995?
For reasons given elsewhere, I do not consider that the Appeal Committee erred by failing to give credit to Dr Phillips for his higher academic qualifications and his associate membership of the RACGP. However, I do consider that Dr Phillip's application should be reconsidered because the Appeal Committee adhered to the five year rule as if it were an absolute and not a guide and further because of its misconception about the word "predominantly".
DR IAN TATTERSALL
The case of Dr Tattersall is unique in that he was the only one of the fifteen applicants who applied for certification after 1 January 1995. Dr Tattersall inquired of the RACGP in mid 1994 and was incorrectly told that he was not eligible to apply for certification. Correspondence between the applicant and the College that has been reproduced in the appeal book corroborates these assertions and it also appears that this correspondence was before the Appeal Committee, although it made no mention of the subject in its reasons.
Mr Tilmouth QC argued that the Appeal Committee was not bound by the date, 1 January 1995; he claimed that it was not an "absolute". He contended that there was an overall scheme that gave practitioners with certain qualifications or five year's practical experience a road to registration and that as from 1 January 1995 or thereabouts, stricter entry requirements would be needed. He submitted that the date was only a matter of weighty importance that had to be taken into account where an application was made after 1 January 1995. Mr Tilmouth QC argued that the task of the Appeal Committee was to proceed in accordance with the College's criteria by having regard to them; treating them as relevant matters but not binding. That would allow the Appeal Committee, in appropriate cases, a degree of flexibility that would not be available to it if it were compelled to adhere strictly to the criteria.
Appealing though this argument may be, I do not believe that it can succeed. For a period in excess of five years the medical profession was alert to a radical change in the qualifications of general practitioners. By a combination of Statute, Regulation and the RACGP's criteria, a two-fold program for future registration had been laid out and present and future members of the profession would have had ample opportunity to digest it. There were areas of flexibility, many of which have already been referred to elsewhere in these reasons. However, I cannot see any reason for adopting an attitude of flexibility with respect to the date, 1 January 1995. That was the date that had been ordained by the College as the date from which the second stage of the program would apply. In my opinion the Appeal Committee had to treat that date as an absolute and adhere to it inflexibly.
The Appeal Committee was required, as a matter of law, to consider Dr Tattersall's application having regard to the criteria that existed at the time of the application. It was common ground that Dr Tattersall did not then comply with the 1995 criteria, but did the Appeal Committee have an alternative? In my opinion it did. The College has stated in its pamphlet that it will, in respect of applications received after 1 January 1995, provide certification of eligibility for Vocational Registration of medical practitioners who are predominantly in general practice and who are Fellows of the College or have other acceptable post-graduate qualifications and training. That is the College's criteria and the Appeal Committee must have regard to that criteria. But the primary task of the Committee remains that which is set out in reg 5. Was Dr Tattersall's medical practice predominantly general practice and has he had training and experience in general practice that make it appropriate that he be registered? In answering those questions, the Appeal Committee must have regard to the College's criteria (which, for practical purposes is Fellowship) but it must also have regard to the merits of the case (which include the incorrect advice given by the College to Dr Tattersall).
DR JEGATHEESWARY MARKANDOO
Dr Markandoo, who was born in Malaysia, obtained her medical qualifications in 1966 in South Australia. After completing her one year's internship, she returned to Malaysia where she practised medicine from 1967 to 1991. In her application for certification, her hospital appointments in Malaysia were listed as extending over periods totalling in excess of twenty four years. She also claimed that, from 1 June 1983 to 15 January 1993, she had worked in general practice as an assistant general practitioner at the rate of six sessions per week.
The Appeal Committee accepted that Dr Markandoo has been undertaking general practice since her return to Australia in January 1993. She received a credit of one year and eleven months for her medical experience in Australia but nothing for her work in Malaysia. I have already explained why this amounts to error of law necessitating that the matter be returned to the Appeal Committee for further consideration in accordance with these reasons.
CONCLUSION
I refrain from making any formal orders at this stage. I will merely publish these reasons so that the parties may have time to consider the conclusions that I have reached. In due course I will hear submissions on the detail of the orders that should be made in respect of each applicant. In particular there may be difficult questions of costs. I am aware from submissions already made that the second respondent might be claiming that not all costs should follow the event because of concessions that were allegedly offered to the applicants (or some of them) prior to the matter coming on for hearing. That issue can be the subject of separate submissions should the need arise. At this stage I will merely make the following order, with respect to each of the fifteen matters:-
"This matter stand adjourned with liberty to any party to relist the same for further consideration upon fourteen day's notice in writing to the others."
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.
Associate:
Dated:
Counsel for the Applicants : Mr SW Tilmouth QC
Solicitors for the Applicant
Timothy Simpson : Messrs Nelson
Mansfield
Solicitor for all other Applicants : Messrs Armour &
Allen
No Appearance for the First
Respondent
Counsel for the Second Respondent : Ms S Maharaj
Solicitor for the Second Respondent: Australian Government
Solicitor
Hearing Dates : 26,27,28 and 29 August 1996
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