Cabading v Medical Board of Australia [2016] QCAT 95

CITATION: Cabading v Medical Board of Australia [2016] QCAT 95 PARTIES: RHANDY SORIANO CABADING (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) APPLICATION NUMBER: OCR240-12 MATTER TYPE: Occupational Regulation Matters HEARING DATE: 10 December 2013 HEARD AT: Brisbane DECISION OF: Judge Horneman-Wren SC, DCJ DELIVERED ON: 24 March 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Medical Board of Australia of 12 June 2012 refusing Dr Cabading’s application for limited registration is confirmed. 2. The stay of the Board’s decision ordered on 19 July 2012 is removed. 3. Dr Cabading is to pay the Medical Board of Australia’s costs of and incidental to the review proceedings on the standard basis for matters in the District Court. CATCHWORDS: PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS- DOCTORS- SHOW CAUSE –where doctor failed AMC MCQ examinations- where Medical Board of Queensland refused to renew the Applicant’s limited registration- where the Applicant submitted that the preferred course was the -- 1 of 7 -- 2 granting of limited registration subject to supervision- whether the Board’s decision to renew the Applicant’s registration was the correct and preferable decision- where the Tribunal found that examinations apply uniformity to the measurability of competence- where repeated failure of examinations show a person is unable to demonstrate a sufficient level of competence – where the Tribunal found that the Board’s decision to refuse the renewal of the Applicant’s registration was the correct and preferable decision- where the tribunal ordered the Applicant to pay the Board’s costs of and incidental to the review proceedings Tabanas v Medical Board of Australia (No. 3) [2013] QCAT 524 APPEARANCES and REPRESENTATION (if any): Mr D O’Gorman SC instructed by Avant Law for the applicant Mr Fryberg of counsel instructed by McGinness Wilson for the respondent REASONS FOR DECISION Dr Rhandy Soriano Cabading holds limited registration under the Health Practitioner Regulation National Law to practice as a medical practitioner in an area of need. In July 2012 the Queensland Board of the Medical Board of Australia refused Dr Cabading’s application to renew that registration. Dr Cabading applied to the Tribunal for a review of the Board’s decision. The History of Dr Cabading’s Registration Dr Cabading obtained his medical degree in the Philippines in 1984. In 1990, again in the Philippines, he obtained a doctor of medicine. He was certified as a family physician by the Philippines Academy of family physicians in 1998. In 1999 he commenced working as a medical practitioner in Fiji. He came to Queensland in 2002. At that time he was granted what was then special purpose registration pursuant to s 135 of the Medical Practitioner Registration Act 2001. On 7 September 2004 the registrar of the then Medical Board of Queensland wrote to Dr Cabading noting his special purpose registration in 2002 and that this category of registration was only available on a temporary basis. Dr Cabading was informed that it was the expectation of the Board that he would confirm his competency by obtaining a more permanent form of registration either by completing the Australian Medical Council examinations; obtaining fellowship of the Royal Australian College of General Practitioners; or obtaining fellowship of an Australian specialist college. He was asked to advise the Board of his progress towards achieving any of those outcomes. -- 2 of 7 -- 3 In August 2005 Dr Cabading informed the Board that he had been unable to sit the AMC examination in May 2005 due to inadequate preparation because of a heavy workload. He advised that as he would soon be moving to a practice in Brisbane he would be enrolling in a bridging course with the Centre for International Medical Graduates at the University of Queensland in preparation for the examination. In January 2007 Dr Cabading again wrote to the Medical Board of Queensland advising of his progression towards attaining full and unconditional registration. He advised that he had decided to forego the AMC examination in favour of following the RACGP pathway. On 17 March 2007 Dr Cabading was advised by the Board that his special purpose registration had again been granted. He was advised that the Board had imposed as a condition of his registration that he must apply for general, specialist or s 138 registration within four continuous years of special purpose registration. That condition was consistent with s 140A of the Medical Practitioners Registration Act 2001 which had been introduced by amendment 2006. Notwithstanding the advice provided by him in January 2007 that he was forgoing the AMC pathway, in February 2008 he wrote to the Board informing that he had in fact sat, and failed, the AMC Multiple Choice Question examination in November 2007. He said that he would be retaking the examination in May 2008. He said that he would also be sitting the RACGP examination, he thought, in September 2008. His registration was renewed in 2008, again subject to that condition. In March 2009 Dr Cabading was required to show cause as to why his application for renewal of his special purpose registration should not be refused given his failure in the AMC MCQ examination on two occasions, and his not having made reasonable progress. By letter dated 28 March 2009 in response to the show cause notice Dr Cabading identified that his failure at the exams could be attributed to insufficient and unsystematic preparation; his heavy workload and adjustment to his new job; and a lack of study time due to fulltime work. He identified steps he was undertaking to rectify those problems. He advised that he had enrolled to sit the AMC MCQ examination again in May 2009. He stated the belief that his past failures in the examination were a “temporary setback” and that he would “surely hurdle this predicament with great success”. His registration was renewed, again subject to the condition requiring him to apply for general, specialist or s 138 registration within four years of special purpose registration. The Board refused to renew Dr Cabading’s registration in 2010. He sought a review of that decision. In the course of those proceedings before the Tribunal arrangements were made for an assessment of Dr Cabading’s performance to be undertaken. Dr Cabading received a satisfactory assessment and the proceedings within the Tribunal were concluded. -- 3 of 7 -- 4 The June 2012 decision In June 2012 the Medical Board of Australia again refused to grant Dr Cabading a renewal of his registration which had, by then, become limited registration in an area of need under the Health Practitioner Regulation National Law. The Board’s reasons for refusing the renewal included that Dr Cabading had, by then, failed the RACGP key feature problem test and the Objective Structured Clinical Examination (OSCE) on two occasions. He had also failed the AMC MCQ test on six occasions, with no improvement being demonstrated at each sitting. He had failed to meet the condition of his registration requiring him to apply for general or specialist registration1 within four years of his initial registration: breach of a condition of registration was grounds for refusal of an application for renewal of registration. Dr Cabading had by then had almost 10 years of registration in Australia to progress towards general or specialist registration. The Board’s publication: Limited Registration – Information on how IMG’s can demonstrate satisfactory progress towards gaining general or specialist registration, advised that the Board may refuse to renew limited registration where satisfactory progress towards general or specialist registration had not been made. Dr Cabading had failed to provide satisfactory reasons for this lack of progression. The Board noted that since the meeting at which it had been decided to refuse the application Dr Cabading had advised that he had passed the OSCE component of the RACGP pathway. The Board did not consider that a reason to reconsider its decision because that pass result did not entitle Dr Cabading to fellowship of the RACGP. The Review Proceedings Dr Cabading commenced these review proceedings. By consent, the Board’s decision was stayed in anticipation of Dr Cabading sitting further examinations. He was required to inform the Board of the results of any examination which he sat. In October 2012 Dr Cabading advised that he had failed the KFP module of the RACGP examinations. Dr Cabading again failed the RACGP KFP in early 2013. At the time of the hearing in these proceedings Dr Cabading had again sat, and failed, the KFP in August 2013. However, he had sought a reconsideration of that result. The Tribunal was subsequently informed that the reconsideration had resulted in the fail result being confirmed. Dr Cabading contends that the correct or preferable decision is that he should be granted a renewal of his limited registration subject to the condition that he 1 Section 138 registration no longer existed with the repeal of the Medical Practitioner Regulation Act 2001. -- 4 of 7 -- 5 be supervised. Dr Cabading submits that he is a more experienced and competent general practitioner than is disclosed by the examinations that he has failed. In that regard, he contends that the examinations which he has passed are a better indication of his performance than the tests he has failed. He contends that the examinations (but presumably only those that he has failed) do not constitute a fair and reasonable assessment of his competency as a general practitioner, let alone his competency as a supervised general practitioner. In that regard, Dr Cabading particularly highlights his experience as a medical practitioner and the expert evidence given by Professor Jacobs in the proceedings. In respect of the former, Dr Cabading identifies that he has had more than 25 years practical experience working as a doctor, with 11 of those years being in Australia. He estimates that since he began practising in Queensland he has seen some 68,500 patients and has not been the subject of any complaints to the regulatory authorities regarding his competence or otherwise. Neither has he been the subject of any complaints from any of his colleagues concerning his performance. In respect of the latter, Professor Jacobs expressed the opinion that direct observation of a doctor’s performance in real life situations is the most reliable indicator of performance and that the OSCE and mini-CEX examinations completed by the applicant are more reliable than the MCQ and KFP testing. Although Professor Jacobs had himself not observed Dr Cabading, he expressed the opinion that Dr Cabading is capable of practising under continued supervision. He observed that Dr Cabading clearly had difficulty with exam forms of assessment and would therefore be well advised to consider alternative forms of assessment and competence such as the RACGP practised based assessment. There was also other evidence from other practitioners with whom Dr Cabading had worked, particularly Dr Mark Bennett who was his Board approved supervisor. All that evidence was favourable to Dr Cabading’s competence and knowledge. It was also submitted on Dr Cabading’s behalf that it was of significance that the decision of the Board was not the result of any patient suffering any form of harm at the hands of Dr Cabading. Rather, it was submitted that: It appears that the respondent opposes the application to review a decision merely because the applicant has failed tests which are allegedly ‘directed towards establishing competence by the applicant to safely practice the profession.’ However, the ability of such tests in accurately gauging a practitioner’s fitness to practise is one of the most important issues in this application to review a decision. Having regard to the expert evidence the applicant submits that the tests he has passed are a better indication of his performance than the tests he has failed.2 The question before the tribunal is not whether Dr Cabading is capable of practising under continued supervision. The issue before the Tribunal is 2 Written submissions on behalf of Dr Cabading at paragraph 38. -- 5 of 7 -- 6 whether the Board’s decision to refuse Dr Cabading’s application for renewal of limited registration is, in all the circumstances and on the evidence before the Tribunal, the correct and preferable decision. In Tabanas v Medical Board of Australia (No. 3)3 the Tribunal observed that having seen a large number of patients whilst practising under limited registration, without complaint and with the support of other medical practitioners, was not the most accurate means of assessing competence. As the Tribunal observed, if it were, there would be little if any utility in the examinations which set the measurable standards for admission into general or specialist practice. The Tribunal went on to observe: [24] A non-injurious complaint free period of practice is not necessarily demonstrative of a sufficient level of competence. Examinations apply a uniformity to the measurement of competence. They also serve to set a measurable standard of competence, the attainment of which is considered a minimum necessary requirement to enter, or remain within, the profession. [25] Repeated failures to meet those standard requirements provide a sound basis for concluding that the person is unable to demonstrate a sufficient level of competence. [26] Requiring persons seeking registration to demonstrate their competence by passing such examinations is entirely consistent with the objectives of the National Registration and Accreditation Scheme established under the National Law to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, and to facilitate the rigorous and responsive assessment of overseas trained health practitioners. It also facilitates the guiding principle of the scheme that it operate in a transparent, accountable, efficient, effective and fair way. In my view, those observations of the Tribunal are also applicable in this case. At the time of the Board’s decision Dr Cabading had had more than 10 years within which to attain general or specialist registration. He had failed to do so because of his inability to pass examinations necessary to attain such registration. He had failed to do so on numerous occasions over several years. His identification of difficulties which he had in preparation for examinations seemingly did not result in him being able to rectify the situation as he had hoped, and he continued to fail the exams. Indeed, he failed the RACGP KFP examination two times subsequent to the Board’s decision to refuse his registration. In my view, the Board’s decision to refuse Dr Cabading’s application for renewal of limited registration was the correct and preferable decision. That decision should be confirmed. 3 [2013] QCAT 524 at [23]. -- 6 of 7 -- 7 Dr Cabading should pay the Board’s costs of and incidental to the review proceedings. Disposition [33] The orders of the Tribunal shall be: 1. The decision of the Medical Board of Australia of 12 June 2012 refusing Dr Cabading’s application for limited registration is confirmed. 2. The stay of the Board’s decision ordered on 19 July 2012 is removed. 3. Dr Cabading is to pay the Medical Board of Australia’s costs of and incidental to the review proceedings on the standard basis for matters in the District Court. -- 7 of 7 --