Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606

CITATION: Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606 PARTIES: Chamudri Sagarika Attudawage (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR010-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Acting President Assisted by: Ms Fiona Petty Dr John Phipps Dr Edward Weaver DELIVERED ON: 29 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Board is invited to reconsider its decision, taking into account these reasons and Dr Attudawage’s recent application for registration based on her satisfaction of the requirements for Fellowship of the Royal Australian College of Physicians. 2. The decision under review is stayed until the Board notifies the Tribunal and Dr Attaduwage : a. Whether it will set aside that decision; and b. Its decision on Dr Attudawage’s application referred to in order 1. 3. Dr Attudawage must notify the Tribunal within 7 days of receiving the notice referred to in order 2, whether she wishes to continue with the application to review the decision or requests leave to withdraw it. CATCHWORDS: PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – -- 1 of 7 -- 2 REVIEW OF BOARD DECISION –– where applicant overseas trained doctor – where transition to national Register of Practitioners – where details of registration amended – whether decision was correct at the time the Board made it – where doctor now qualified for specialist registration – what orders should be made Queensland Civil and Administrative Act 2009, ss 20(1)-(2), 23 Health Practitioners Regulation National Law Act 2009 Health Practitioner Regulation National Law, ss 25, 57(1)(a), 58, 67, 270, 272, 280 Medical Practitioners Registration Act 2001, s 135 Attudawage v Medical Board of Australia [2011] QCAT 97 cited Attudawage v Medical Board of Australia (No 2) [2011] QCAT 452 cited Australian Communist Party v Commonwealth (1951) 83 CLR 1 applied APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009. REASONS FOR DECISION Background [1] On 21 September 2011, the Tribunal reopened the hearing of Dr Attudawage’s application to review the decision by the Board to change her registration status.1 Earlier, the Tribunal stayed the Board’s decision pending the outcome of the review.2 At a directions hearing on 23 September, the Board confirmed that Dr Attudawage has attained the necessary qualifications to be eligible to apply for specialist registration. Both parties requested the Tribunal finalise the review proceedings by providing reasons on Dr Attudawage’s application, taking into account her change of qualifications, but also addressing the arguments raised by her case as it stood at the time the Tribunal panel convened to hear the matter. [2] Dr Attudawage’s case involves the transition of her registration as a medical practitioner from a state based to a national scheme. This involves consideration of transitional provisions of the new legislation and 1 Attudawage v Medical Board of Australia (No 2) [2011] QCAT 452. 2 Attudawage v Medical Board of Australia [2011] QCAT 97. -- 2 of 7 -- 3 the application of a transition plan to manage the migration of practitioners’ registration. [3] When the scheme commenced,3 Dr Attudawage held registration in both New South Wales and Queensland, although, for some years, her practice was in Queensland. In New South Wales, she held general registration. In Queensland, she held general and special purpose registration. This allowed her to practice in an area of need position as a deemed specialist in medicine at Redland Hospital. [4] Initially, the Board transitioned Dr Attudawage onto the national Register of Practitioners as both a general practitioner and a specialist in General Medicine (without limitation to a particular area). At that time, Dr Attudawage had not completed the requirements for specialist recognition with the Royal Australasian College of Physicians (RACP) and the Australian Medical Council. The Board’s position is that this rendered her ineligible for registration as a specialist and that to transition her to specialist registration under the national scheme was an error. On 9 December 2010, it decided to void the registration as a specialist in the Register of Practitioners. That is the decision under review. Dr Attudawage was not qualified for unlimited specialist registration under the National Law either at the time of transition or at the time of the hearing [5] At the time of transition and when the Tribunal convened to hear the application, Dr Attudawage was not eligible for registration as a specialist under the Health Practitioner Regulation National Law. [6] To be eligible for registration as a specialist under the National Law, a practitioner must be qualified for registration in the specialty.4 A practitioner is qualified for specialist registration in a recognised specialty if they hold an approved qualification or hold another qualification the Board considers is substantially equivalent to the approved qualification or which previously qualified the practitioner for specialist registration.5 [7] The approved qualification for registration as a specialist in general medicine is Fellowship of the Royal Australasian College of Physicians (FRACP).6 This is the qualification that Dr Attudawage did not possess at the time of the hearing, but does now. Under the transitional provisions of the National Law, Dr Attudawage is not taken to hold unlimited specialist registration 3 On 1 July 2010, the national scheme commenced in full in Queensland (Health Practitioner Regulation National Law Act 2009) and in a modified way in New South Wales (Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)). 4 Health Practitioner Regulation National Law, s 57(1)(a). 5 Health Practitioner Regulation National Law, s 58. 6 Approved qualifications for specialist recognition in a recognised specialty, Medical Board of Australia (as at 19 July 2011). -- 3 of 7 -- 4 [8] The National Law provided for transition of registrations through a series of provisions set out in Part 12 Division 11. Relevant to this case, it provided to migrate the various forms of general, special, and limited registration, however described, under the state scheme to their equivalents under the National Law. It also provided for transition for any class of persons not captured by those provisions through a registration transition plan. Dr Attudawage is not taken to hold unlimited specialist registration under any of those provisions. Dr Attudawage’s former registration in Queensland migrated to limited registration under the transitional provisions [9] Under the National Law, a practitioner who held specialist registration under a state scheme is taken to hold specialist registration, unless their registration was limited to a corresponding purpose.7 [10] In Queensland, Dr Attudawage held special purpose registration for an area of need.8 Limited registration for an area of need is available under the National Law.9 Because she held registration limited to practise for a corresponding purpose, Dr Attudawage is not taken to hold specialist registration. [11] The transitional provision that properly applied to Dr Attudawage on the basis of her Queensland registration provided for limited registration only.10 It provided that a practitioner who held a type of registration (however described) that was granted for practice for a corresponding purpose is taken to hold limited registration for that purpose under the National Law. Under the National Law then, she is taken to hold limited registration for an area of need.11 Dr Attudawage’s former registration in New South Wales migrated to general registration under the transitional provisions [12] Dr Attudawage’s registration in New South Wales did not qualify her to transition to unlimited specialist registration either. She held general registration in New South Wales from 2007. This would not qualify her to transition to specialist registration whether limited or unlimited.12 [13] It seems the National Law contemplates that a practitioner might be taken to hold two different types of registration because of prior registration in more than one state.13 7 Health Practitioner Regulation National Law, s 270. 8 Medical Practitioners Registration Act 2001, s 135. 9 Health Practitioner Regulation National Law, s 67. 10 Health Practitioner Regulation National Law, s 272. 11 Health Practitioner Regulation National Law, ss 272, 67. At the time of the hearing, she had qualified for general registration and, as such, limited registration was no longer available to her under the National Law. By January 2011, Dr Attudawage was seeking to practise outside the area of need position. 12 Health Practitioner Regulation National Law, ss 270, 272. 13 Health Practitioner Regulation National Law, s 280. -- 4 of 7 -- 5 Dr Attudawage is not taken to hold unlimited specialist registration due to the application of the registration transition plan [14] The National Law provided for transition under a registration transition plan for a practitioner in a class of persons which held registration under the former law but who is not taken to hold registration by another provision of Division 11.14 Such a practitioner is taken to hold the type of registration specified for that class of persons in a registration transition plan prepared by the Board. [15] For medical practitioners, the plan was the Medical Board of Australia Registration Transition Plan – Medical Practitioners. Dr Attudawage relies on Item 30 of the plan. It provides that a practitioner who holds general registration in New South Wales and whose name appears on a list of practitioners provided by Medicare Australia as qualified to practise in a recognised specialty, may transition to specialist registration. Dr Attudawage appeared on such a list and held general registration in Queensland. [16] It is clear enough that the Board applied Item 30 of the plan in migrating Dr Attudawage’s registration from the state databases to the national database. It says it did so in error and that the error is of no legal consequence if Dr Attudawage is not entitled to transition in that way. That is so. [17] Dr Attudawage can only rely on the transition plan if no other provision of Division 11 secures her registration. As set out above, other provisions in Division 11 did confer registration on Dr Attudawage at the time the National Law commenced. [18] The Board may have applied the transition plan, but that does not determine Dr Attudawage’s registration entitlements. That is determined by application of the provisions of Division 11.15 [19] There was argument about whether being included by Medicare in a list of specialists constituted an assessment of competence. The parties also contested whether being included in the list on the basis of her Queensland registration enabled Dr Attudawage to, if you like, attach it to her general registration in New South Wales to secure a different form of registration. [20] Given the conclusions I have reached about the effect of the transitional provisions, it is not necessary to resolve those disputes. By way of observation, however, it seems that the recognition by Medicare relates more to administrative arrangements regarding the funding of health services than the qualification and eligibility for registration of health practitioners. 14 Health Practitioner Regulation National Law, s 277. 15 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258. -- 5 of 7 -- 6 Dr Attudawage is now eligible to apply for specialist registration under the National Law [21] Since the National Law commenced and her registration was transitioned, matters have progressed. Dr Attudawage’s qualifications have changed. By the time of the hearing, she was no longer entitled to limited registration, having qualified for general registration under the National Law.16 [22] Since the panel convened she has become eligible for specialist registration under the National Law. The Board accepts that she is now qualified. Dr Attudawage has now applied for specialist registration. The Board is poised to consider that application on the merits. [23] The consequence of the Tribunal’s findings about the transitional provisions is that, at the time the Board made the decision under review, it was the correct decision. [24] However, the Tribunal must make the correct and preferable decision17 now, because the review is a fresh hearing of the matter on the merits.18 [25] The parties proposed orders that they considered would preserve Dr Attudawage’s authority to practice as a specialist while the Board processes her application for specialist registration under the National Law and maintain continuity of her status. [26] The Tribunal has the power to invite a decision maker to reconsider its decision at any stage of the review proceedings.19 The decision maker then has 28 days to reconsider the decision and may confirm or amend the decision or set it aside and substitute a new decision. If it does the last of those options, the substituted decision becomes the decision for the review, which continues unless the applicant withdraws the application for review. [27] This would seem to be a more appropriate mechanism for achieving the mutually desired objective. In the interim, there will be a further order that the stay will operate until the Board determines whether to set aside the decision under review and notifies Dr Attudawage and the Tribunal of its decision on her application for registration as a specialist. Directions will be made to require Dr Attudawage to notify the Tribunal if she does not wish to withdraw the application. Orders 1. The Board is invited to reconsider its decision, taking into account these reasons and Dr Attudawage’s recent application for registration 16 Health Practitioner Regulation National Law, ss 52, 65. 17 Queensland Civil and Administrative Tribunal Act 2009, s 20(1). 18 Queensland Civil and Administrative Tribunal Act 2009, s 20(2). 19 Queensland Civil and Administrative Tribunal Act 2009, s 23. -- 6 of 7 -- 7 based on her satisfaction of the requirements for Fellowship of the Royal Australian College of Physicians. 2. The decision under review is stayed until the Board notifies the Tribunal and Dr Attaduwage : a. Whether it will set aside that decision; and b. Its decision on Dr Attudawage’s application referred to in order 1. 3. Dr Attudawage must notify the Tribunal within 7 days of receiving the notice referred to in order 2, whether she wishes to continue with the application to review the decision or requests leave to withdraw it. -- 7 of 7 --