Escamilla v Medical Board of Australia [2013] QCAT 632

CITATION: Escamilla v Medical Board of Australia [2013] QCAT 632 PARTIES: Dr Sharmen Escamilla (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR222-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Horneman-Wren SC, Deputy President DELIVERED ON: 11 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the decision of the Medical Board of Australia of 6 August 2013, to refuse Dr Escamilla’s application for renewal of limited registration, is refused. 2. The application to stay the decision of the Medical Board of Australia of 6 August 2013, to refuse Dr Escamilla’s application for limited registration, is refused. CATCHWORDS: HEALTH PRACTITIONER – MEDICAL PRACTITIONER – LICENCES AND REGISTRATION – where the registrant applied for renewal of her limited registration in an area of need – where the Board refused the application for renewal – where the registrant sought a stay of the Board‟s decision – where the Board submits that a stay is of no utility where the period for which registration could be renewed has already expired – whether a stay should be granted -- 1 of 6 -- 2 HEALTH PRACTITIONER – MEDICAL PRACTITIONER – LICENCES AND REGISTRATION – where the registrant applied for new limited registration in an area of need – where the Board refused the application for limited registration – where the registrant sought a stay of the Board‟s decision – where the Board submits that a stay is of no utility as there is nothing to be preserved by the stay – whether a stay should be granted Health Practitioner Regulation National Law (Queensland) s 67, s 73(2), s 112, s 202, s 272(2), s 279(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 22(4) Jaravaza v Medical Board of Australia [2013] QCAT 44, cited Tabanas v Medical Board of Australia [2013] QCAT 522, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 9 October 2013, the Tribunal made orders refusing applications for stays of two decisions by the Medical Board of Australia concerning Dr Sharmen Escamilla. These are the reasons for the orders made by the Tribunal on that date. [2] Until 12 August 2013, Dr Sharmen Escamilla was registered as a medical practitioner. She held limited registration to practice as a medical practitioner in an area of need.1 Her registration ceased and her name was removed from the Register of Medical Practitioners on 12 August 2013 as a consequence of a decision of the Queensland Registration Committee of the Medical Board of Australia made on 6 August 2013 and notified to her by notice dated 9 August 2013 to refuse her application for renewal of her registration.2 [3] On the same day, the Committee refused a separate application by Dr Escamilla for new limited registration for practice in an area of need. 1 Health Practitioner Regulation National Law (Queensland) („National Law‟), s 67. 2 National Law, s 112. -- 2 of 6 -- 3 [4] Dr Escamilla has applied to the Queensland Civil and Administrative Tribunal for a review of each of those decisions. She has also applied for a stay of each of the decisions. [5] Dr Escamilla was first registered, under the name of Villaluz, as a medical practitioner in Queensland on 31 July 2008. At that time she was granted what was then special purpose registration pursuant to s 135 of the Medical Practitioners Registration Act 2001. Her registration was valid for one year to 30 July 2009. The registration was subject to conditions, one of which was that she was required to apply for general, specialist or, what was then, s 138 registration, within four continuous years of attaining her special purpose registration. Her registration was renewed in July 2009 for a further year. With the enactment of the National Law, with effect from 1 July 2010, Dr Escamilla‟s special purpose registration transitioned as limited registration under the National Law.3 It remained subject to the former conditions.4 [6] Upon transition, the anniversary date of Dr Escamilla‟s registration remained the same. Her limited registration was renewed for the periods from 31 July 2010 to 30 July 2011 and 31 July 2011 to 30 July 2012. Limited registration under the National Law may not be renewed more than three times. A person who wishes to be registered to practice in an area of need who has had his or her registration renewed for that purpose three times must apply for new limited registration.5 Therefore, Dr Escamilla‟s limited registration could only have been renewed on one further occasion; for a period of one year from 31 July 2012 to 30 July 2013. [7] Subsequent to her application for the further renewal of her limited registration in 2012, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to Dr Escamilla on 29 August 2012 to inform her that as she was not currently in a position to seek general or specialist registration, and thus unable to satisfy the condition on her registration, it was highly possible that the Board would refuse her renewal application.6 [8] AHPRA further informed Dr Escamilla that she would be eligible to apply for new limited registration for her current position if she could meet the mandatory requirements in accordance with the registration standards of the Board. Those requirements were that she would need to successfully undertake a Pre-Employment Structured Clinical Interview (PESCI). I note that Dr Escamilla had successfully undertaken a PESCI on 9 May 2011, however, to progress a new application, a successful PESCI had to have been undertaken in the 12-month period preceding the application. It would appear that this correspondence from AHPRA prompted Dr Escamilla to make her application for new limited registration. 3 National Law, s 272(2). 4 National Law, s 279(2). 5 National Law, s 73(2) and the note to that section; see also, the Limited registration for area of need registration standard approved by the Australian Health Workforce Ministerial Council. 6 See Affidavit of Bernadette Thompson filed 27 September 2013, Exhibit BNT6A. -- 3 of 6 -- 4 [9] On 19 March 2013, she undertook a PESCI conducted by the Australian College of Rural and Remote Medicine. She was assessed as being unsuitable for the position for which she sought registration. On 19 April 2013, Dr Escamilla wrote to AHPRA seeking an opportunity to take the PESCI again. She also referred to the fact that she had enrolled for the Australian Medical College (AMC) Clinical Examination and was awaiting the offer of an examination date. [10] I note Dr Escamilla had previously passed the AMC Multiple Choice Question Examination on 19 February 2011. General registration may be obtained by passing both the AMC Multiple Choice Question and Clinical Examinations. [11] Dr Escamilla did sit a further PESCI on 13 June 2013. She was again assessed as being unsuitable for the position for which registration was being sought. She was, on that occasion, assessed as satisfactory only in respect of her communication skills and professionalism. She was assessed as unsatisfactory in respect of her medical interviewing skills, physical examination skills, clinical judgment, treatment/advice, procedural skills, and familiarity with social and cultural idioms. [12] On 13 September 2013, solicitors acting for Dr Escamilla emailed the Tribunal. The email attached, purportedly by way of service, various documents which were said to have been already served on the Board. Those documents included an offer from the AMC to Dr Escamilla to sit the Clinical Examination on 26 October 2013 and a tax invoice evidencing Dr Escamilla‟s acceptance of that offer. The documents also included the results of the Royal Australian College of General Practitioners (RACGP) applied knowledge test (AKT) sat by Dr Escamilla on 10 August 2013 and an affidavit of Dr Kalpana Singh. The AKT results show that Dr Escamilla failed the examination. In order to progress further with RACGP registration, both the AKT and the KFP test must first be passed. [13] The affidavit of Dr Singh,7 a consultant gynaecologist, merely puts in solemn form the matters which he had stated in a reference dated 6 February 2012, and which Dr Escamilla had exhibited to her affidavit. [14] The Tribunal has jurisdiction to order that a reviewable decision be stayed if a proceeding for the review of the decision has been commenced.8 [15] The Tribunal may only order a stay of the decision if it considers it desirable, after having regard to the interests of any person whose interest may be affected by the making or not making of the order, any submission made to the Tribunal by the decision-maker and the public interest.9 [16] The Board opposes each of the stay applications. In respect of the decision not to grant new limited registration, the Board contends that 7 Filed by leave on 11 October 2013. 8 See Queensland Civil and Administrative Tribunal Act 2009 s 22(3) 9 See QCAT Act, s 22(4). -- 4 of 6 -- 5 there is no utility in granting a stay because, effectively, a stay would achieve nothing of assistance to the applicant and nothing would be preserved by the stay. In my view, the Board is correct. [17] The stay of the decision to refuse the new limited registration would not result in Dr Escamilla having any right to practice preserved. A stay would not permit her to do anything which she is prohibited from doing as a consequence of that decision. The application for a stay of the decision refusing her new limited registration is therefore refused. [18] The Board also submits that there is no utility in the substantive application to review the Board‟s refusal for Dr Escamilla‟s limited registration, because any such renewal would only be for a period which is now expired. If there is no utility in the substantive application then the stay of the decision should be refused. In my view, there is also merit in the Board‟s submission concerning this decision. [19] The refusal was of the renewal of the applicant‟s limited registration for a limited period; the period has now expired. Even if successful in the substantive application, the relief which could be granted would be limited to renewing the registration for that now-expired period.10 [20] This limitation does not appear to be appreciated by the applicant. In both her substantive application for review and her stay application, she seeks an extension “of her registration” for 10 months or until June 2014 to be able to obtain full registration as a general practitioner in Australia. That relief is beyond that which can be granted. This is particularly so when, for the reasons discussed above, Dr Escamilla‟s limited registration could not have been renewed for a fourth time from 31 July 2013. [21] There is no utility in the stay of a decision to refuse the renewal of Dr Escamilla‟s limited registration for the period from 31 July 2012 to 30 July 2013 and it should be refused. [22] I would also refuse Dr Escamilla‟s application for a stay of the decision to refuse her renewal of limited registration on other discretionary grounds. There are persons whose interests will be affected by the making or not making of the stay order. Foremost amongst them are the patients of Dr Escamilla. For reasons which I developed in Tabanas v Medical Board of Australia,11 given that Dr Escamilla was granted limited registration to practice medicine in an area of need for medical services, that she was granted a subclass 457 employer sponsored visa in order to do so, and that she has deposed to a considerable patient load in the practices in which she works, it is open to be inferred that the patients of those practices will be adversely affected. [23] However, as submitted by the Board, there is no sworn evidence in support of the stay application about the effect the absence of Dr 10 See National Law, s 202(2). 11 [2013] QCAT 522. -- 5 of 6 -- 6 Escamilla may have on the ability of the practices to cope with the patient loads. The inference is open that her absence would not create an intolerable burden given that she had substantially reduced her hours from time to time in order to study and prepare for examinations. There is also an absence of evidence as to any difficulties which the practices may have experienced in attracting and retaining a replacement practitioner in the period since Dr Escamilla was required to cease practice in early 2013. [24] Dr Escamilla deposes to the impact on both her and her dependent son; they are each persons whose interests are affected. However, as I discussed in Jaravaza v Medical Board of Australia12 and Tabanas, those impacts are not of the same order of significance as potential impacts upon patients. They are the natural consequence of the removal of the right to practice from any professional. Here, that right would have expired in any event on 30 July 2013 and was not renewable. Furthermore, unlike in Tabanas, Dr Escamilla does not require registration to sit the one remaining examination for which she is enrolled, that being the AMC clinical examination. If she is successful in that examination she will be able to apply for general registration. [25] Dr Escamilla‟s immigration status does not, in my view, warrant the grant of a stay. A stay should not be granted which has the effect of extending her limited registration beyond the date upon which it would have ultimately expired simply to ensure that she was not in breach of her visa conditions in order to facilitate her remaining in Australia so that she can sit an examination which may permit her to apply for general registration. [26] Dr Escamilla has failed the AMC clinical examination in October 2012 and a re-test in February 2013. [27] The material put before the Tribunal does not otherwise satisfy me that a grant of a stay is, in the circumstances of this case, in the public interest. The applications for stays of the decisions are refused for those reasons. 12 [2013] QCAT 44. -- 6 of 6 --