Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hutt v Medical Board of Australia; Porter v Medical Board of Australia [2023] NSWCATOD 145 Hearing dates: 3 July and 6 July 2023 Date of orders: 28 September 2023 Decision date: 28 September 2023 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr D King, Senior Member Dr E Kuan, Senior Member Hon Prof P MacNeill, General Member Decision: (1) The appeals of Drs Hutt and Porter are dismissed. (2) Unless the appellants seek a different order within twenty-one (21) days of the date of publication of these Reasons for decision, they are ordered to pay the costs of the Board. Catchwords: HEALTH – appeal against decision of Medical Board to decline renewal of specialist registration – original registration in error – discretion - costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 Health Insurance Act 1973 Cases Cited: Arakkal and Medical Board of Australia [2016] WASAT 130 Arakkal v Medical Board of Australia [2017] WASCA 219 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Dr Kathryn Hutt and Dr Scott Porter (Appellants) Medical Board of Australia (Respondent) Representation: Counsel: B W Jellis (Appellants) S Lloyd, SC and O R Jones, Barrister (Respondent) Solicitors: Meridian Lawyers (Appellants) Minter Ellison (Respondent) File Number(s): 2022/00386572 (Hutt) and 2022/00386560 (Porter) REASONS FOR DECISION Introduction 1. Doctors Kathryn Sarah Hutt and Scott John Porter have each appealed to this Tribunal against the refusal of the Respondent, the Medical Board of Australia (the Board), to renew their registration as Specialist General Practitioners (SGP – their Tribunal applications are to be found at tabs 4 and 10 of the tendered documents). 2. Both appellants agreed with the Board that their appeals be heard together, with evidence in one to be evidence also in the other. Pursuant to s 175(3) of the Health Practitioner Regulation National Law (NSW) (the National Law), this Tribunal must conduct a "de novo" review of the refusal decision in each case. 3. The parties also agreed upon a three-volume "appeal book" of documents (Ex 1), and the Board also tendered an information brochure, dating from October 1989, entitled "Your Guide to the New General Practitioner Arrangements" (Ex 2 – those new arrangements commenced on 1 December 1989). 4. In addition to the various written submissions put before the Tribunal, the Board also relied upon an "Authorities Bundle" ("AB"), which includes some case reports, and extracts from relevant statutes and regulations. 5. The Board acknowledges that the two doctors involved in this matter enjoy good reputations in the profession and the community, and have never been the subject of complaint. 6. However, it contends that neither appellant was ever entitled to be registered as a SGP, a classification unknown in NSW before 1 July 2010, and that their SGP registration, and annual re-registrations, were in error. 7. Those errors were discovered only when the register was reviewed in and/or since 2016, and the Board decided on 28 November 2022 to refuse to renew the appellants' SGP registrations on the grounds that it had "made a mistake" when it granted them SGP registration at the time of the commencement of the National Law in NSW in July 2010. 8. The Board further acknowledges that the mistake was entirely on its part, and not in any way the responsibility of the appellants. It makes no criticism of the appellants' performance as General Practitioners (GPs), and has no objection to their continued general registration as medical practitioners. In its reasons for refusal of re-registration in each case, the Board expressed "gratitude for [their] contribution to the profession", and acknowledged in each case "many years of service to the community as a general practitioner" (Ex 1, pp 37 and 789). 9. The appellants contend that the alleged error in 2010 is "not substantiated by the materials filed by the Board", and that, in all the "relatively unusual" circumstances of each case, including their reliance in good faith, and somewhat to their detriment, on the Board's 2010 decision to register them as SGPs, this Tribunal, standing in the shoes of the Board, should exercise an asserted discretion in their favour, and again renew their SGP registration. 10. In assisting the Tribunal to navigate through the complex governance arrangements attending specialist registration over time, the Board relied upon the affidavits (Ex 1, tabs 6 and 13) and oral evidence of Adam Carl Young, National Manager – Registration (Performance, Quality and Experience) at the Australian Health Practitioner Regulation Agency (AHPRA) since September 2018. 11. One of Young's duties in 2019 to 2022 was to identify GPs who may have been granted specialist registration in error as the system transitioned to the National Law, and to audit, retrospectively, the material relied upon by AHPRA to confer specialist registration on GPs in that transition. 12. Much of the material in Exhibit 1 comprised annexures to Mr Young's affidavits (tabs AY 1 to AY 71 concerning Dr Hutt, and AY 72 to AY 86 concerning Dr Porter). 13. Drs Hutt and Porter were critical of Mr Young's standing and his evidence, especially when it ventured into opinion as to various regulatory events that had occurred since 2009. 14. While this Panel acknowledges the relevant limitations of Mr Young's role in the particular cases of the present appellants, we found him an honest, helpful and objective witness – the things for which he was criticised were positives for us, as they made him an independent source of crucial information. 15. Both appellants gave oral and affidavit evidence before us, and impressed us as honest and well-intentioned witnesses. As indicated above, neither the Board nor the Tribunal takes issue with their credentials. 16. We also had the benefit of various submissions they have made over the years to the relevant regulatory authorities. In addition, Dr Porter relied on an affidavit from his solicitor, Kellie Dell'Oro (Ex 1, tab 11) and its annexures (KDO1-KDO8). 17. Dr Porter graduated in 1981, and is now 66 years old. He identifies as indigenous, and these days practises in the North West of NSW as part of the Aboriginal Medical Service. 18. Dr Hutt was first registered generally with the old NSW board on 9 January 1995, and has worked as a GP since 2003. In recent years she has devoted fifty per cent of her professional time to "Doctors Health", and one of her concerns is that loss of her SGP status may affect that appointment. 19. Both appellants have completed the requirements of the MOMPs programme and both are undertaking studies towards a master's degree in public health (MPH). 20. Part of the Board's case against the appeals is that these practitioners needed qualifications as a Fellow to qualify for registration as a SGP and lacked those qualifications then and now. 21. Their case in response is that having achieved registration as SGPs, both of them chose to pursue the MPH qualification, rather than a College fellowship. Background 1. New South Wales medical practice was regulated by the Medical Practice Act 1992 until NSW joined the national scheme on 1 July 2010. 2. The Australian Medical Council (AMC) was established in 1985 and accredits medical education providers and qualifications. The AMC played a critical role in questions concerning qualifications before the national scheme commenced, and its central role was reinforced by the National Law. 3. The Royal Australian College of General Practitioners (RACGP) was established in 1958, and the Australian College of Remote and Rural Medicine (ACRRM) was established in 1996. These are the only colleges accredited, so far, under the national scheme, to award a qualification in the specialty of general practice. 4. Alongside, but separate from, this national registration scheme, Medicare registers doctors as vocationally registered GPs. Prior to 1994, a medical practitioner could be so registered on the basis of experience, but, from 1 January 1995, fellowship of one or other of the colleges became the criterion for eligibility. 5. Dr Porter completed his primary university medical training in 1981, and Dr Hutt in 1994, so it is necessary to review briefly the governance arrangements in place from time to time over the years. 6. The "new arrangements" introduced on 1 December 1989 (as explained in Ex 2) included voluntary vocational registration, managed through the RACGP, or Vocational Registration Eligibility Committees (VRECs), and the introduction of Quality Assurance (QA) and Continuing Medical Education (CME) programmes as a professional requirement for vocationally registered GPs. 7. Vocational registration was governed by ss 3F, 3G, and 3H of the Health Insurance Act 1973 (see AB, tab 12), and regulations made under that Act (tab 9). From 1 January 1995, vocational training became a pre-requisite for vocational registration. To become vocationally registered, doctors would need to obtain "certification of eligibility" from either the RACGP or a VREC, and apply to the Health Insurance Commission (HIC). 8. Prior to 1 January 1995, to obtain "certification of eligibility", a practitioner had to "practise predominantly general practice" (defined), and fulfill one other criterion (one of which was working for five years in general practice, as defined). 9. After 1 January 1995, a practitioner had to "practise predominantly in general practice", and either be a Fellow of the RACGP, or have completed post-graduate qualifications, and/or training approved by the RACGP. (The Board submits before the Tribunal that Dr Porter may not have satisfied the definition of "predominantly in general practice" (Ex R2, p 6)). 10. The changes foreshadowed in Exhibit 2 were duly made in the mid-1990s (AB, tab 11), including setting out the eligibility provisions in respect of vocational registration. So-called "grandparenting" involved a one-off registration arrangement for those who registered between 1989 and 1995, and such vocational registration facilitated access of practitioners to higher rates of remuneration. 11. Higher Medicare rebates were also facilitated by participation in various Medical Practitioner Programmes, called "Other Medical Practitioners" (OMP) programmes, accessible by doctors without fellowships, who meet various eligibility requirements (eg, after hours practice, rural practice, outer metropolitan practice, or, "Medicare Plus" for districts of workforce shortage – Ex 1, tab AY 25). Both appellants have participated in these programmes. (During the hearing, while it appeared that Dr Porter had completed the programme, it appeared that Dr Hutt may not have. However, we have now seen a letter, subsequently provided by her solicitor, establishing that she completed the programme as at 31 December 2019). 12. The National Law was applied to NSW, with some modifications, by a state Act passed in 2009. The object of the National Law was to establish a national registration and accreditation scheme for, inter alia, the regulation of "health practitioners" of various types (s 3(1)(a)). The objectives of the national registration and accreditation scheme are set out in s 3(2), and its guiding principles in ss 3A and 3B, including that it is to "operate in a transparent, accountable, efficient, effective and fair way" (s 3A(2)(a)), to protect the public, as the paramount consideration (s 3A(1)). The scheme envisages that only those qualified to be specialists are so registered, and that "approved qualifications" are obtained only by completion of an approved programme of study (definition in s 5). 13. Section 82 of the National Law mandates that a decision must be made on any application for (initial) registration, whereas s 112 provides for discretion in determining any application for renewal. "May" and "must" are defined in item 14 of Schedule 7. Part 7, Division 10 (ss 113ff) regulates the use of "protected" titles, including "specialist" (see especially s 118). Part 12 (from s 250) contains transitional provisions, and confirms that 1 July 2010 is "commencement day". Division 11 (ss 269ff) deals with registration, including (in s 277) registration transition plans. 14. On 24 February 2010 (Ex AY 30, p 583), the Board discussed a range of issues involved in preparing for the scheme's commencement on 1 July 2010. One of its key focuses was the establishment of the specialist register, and a key issue was how to deal with GPs on the vocational register, which had been established in 1990, and closed in 1996. 15. The Board decided to include them on the specialist register as a "one-off transitional arrangement", recognising the valuable services they provided to their communities, and the education in which they participated to maintain their vocational registration. 16. A press release (tab AY 29) noted the recognition of general practice in its own right in 1989, and that "there [were] currently close to 11,000 GPs in Australia with vocational registration, and approximately 11,000 GPs who [were] Fellows of either the RACGP or ACRRM", all of whom could be registered as SGPs (p 582). 17. From 1 July 2010, the necessary qualifications (set by the AMC) for registration as a SGP became fellowship with either of the two colleges (tab AY 40). These requirements, including the cut-off at 1 July 2010, were re-stated by the Board on 13 April 2012 (tab AY 49). 18. The Board settled an actual "Registration Transition Plan" (tab AY 28), and promulgated it on 1 July 2010. (Useful background to the Plan is provided in the 18 November 2009 background paper at tab AY 27). Item 30 in Schedule 1 of the Plan (Ex 1, tab 2, p 15, par 15) makes clear that, in order to be "migrated" to registration under the National Law, doctors needed to be on a list "provided by Medicare", or by a specialist medical college, "as qualified to practise in a recognised speciality", including SGP (see Ex 1, pp 557 and 573). 19. This was clearly a complicated process which the evidence before us shows to have proven confusing and difficult for all concerned. 20. The present appellants were included in lists submitted to the registration authorities in 2010 (as per listing described at tab AY 37, p 606), but such inclusion neither established nor verified their entitlement to registration as SGPs (as having satisfied the criteria of having been assessed as having qualifications "substantially comparable" to Fellowship). 21. Advice obtained in 2022 (Ex 1, tab AY 14, p 444, par 4) confirms that their inclusion in the lists was simply "for completeness", given that the doctors listed were non-Fellows who were entitled to "differing rebates", and confusion regarding entitlement to "vocational registration" led to the erroneous inclusion of many not strictly entitled (see Ex 1, tab AY 23). Discussion 1. The National Law envisages (in s 5) a "program (sic) of study" as the basis for a qualification underpinning registration. Specialist registration is not a function of vocational registration, nor of entitlement to particular rates of remuneration, nor of completion of MOMPs or OMPs training (Ex 1, pp 442 and 498). 2. At the time of their specialist registration in 2010, the appellants appeared on a list provided by the RACGP, but their qualifications were not investigated, and it transpires they should not have been granted specialist registration, pursuant to the Transition Plan, on this or any other basis. We reject the appellants' submission that the question of error is in any way "murky", and we are satisfied that error occurred. 3. In arguing against any discretionary re-registration, the Board contends that that original error cannot be overlooked, no matter how much time has passed, nor what discretionary grounds in favour of the appellants can be found in their present circumstances. 4. Nor is the principle of finality applicable where the original registration clearly was legally erroneous. We are also not satisfied that we should be concerned that success in these appeals might open "floodgates" to similar applications, but we accept the correctness of the Board's insistence, when exercising its discretion, that specialist registration be accorded only to "appropriately qualified persons" (KDO 6 – letter to Porter 28 November 2022, p 3, par 9, and p 4, pars 15 and 16). 5. It is regrettable that the erroneous registrations were not discovered until the lists and qualifications were interrogated after many years (Ex 1, p 498), but it is equally regrettable that the appellants did not review their own situations despite invitations to do so (especially in 2016), in the light of errors having been discovered. 6. The major relevant authority cited during argument was the Western Australian case involving Dr Joan Francis Arakkal: Arakkal and Medical Board of Australia [2016] WASAT 130 (AB, tab 1), and Arakkal v Medical Board of Australia [2017] WASCA 219 (AB, tab 2) 7. The appellants sought to distinguish this case on its own facts, but we are satisfied of its relevance, applicability and persuasiveness in the current appeals. 8. As with the two appellants before this Tribunal, Dr Arakkal was refused renewal of her registration, in her case as a specialist orthopaedic surgeon. The Board in her case asserted that the original registration resulted from an administrative mistake, and that she had not met and did not meet the specified qualifications to be registered as a specialist orthopaedic surgeon. 9. In the event, her registration as a specialist on 19 August 2000 was recorded "in error", and, when the National Law commenced in Western Australia on 18 October 2010, both her general registration as a medical practitioner and her specialist registration as an orthopaedic surgeon were "migrated". After succeeding in having her registration renewed as a specialist until August 2014, her application for renewal from that date was refused. 10. She appealed unsuccessfully to the State Administrative Tribunal of Western Australia (SAT), and then, further, to the Western Australian Court of Appeal, which upheld the decision of the SAT. The Court of Appeal endorsed the reasoning of the SAT, except in one matter of detail immaterial to the present case. 11. The effect of the Arakkal decision is that, a doctor having never been entitled to specialist registration at the time of transition to the national scheme or since, discretionary renewal of registration could not correct the error, and the regulatory authorities were entitled to review eligibility at the time of any renewal. 12. Arakkal is equally applicable to the circumstances of both appellants in the present case. 13. On re-assessment of the circumstances, the registration authorities concluded that neither appellant should have been registered in the first place, and, despite meritorious service to the profession and the community since obtaining specialist registration, no discretion justified overturning the refusal to renew. Conclusion 1. The Tribunal has decided to follow and apply Arakkal, and reinforce the integrity of the register. 2. We have determined that the two appeals before us must and should be dismissed. Costs 1. In these circumstances, normally the Tribunal would make an order for costs in favour of the Board, on the principle that "costs follow the event": see Qasim v Health Care Complaints Commission [2015] NSWCA 282, at [85]. 2. However, the question of costs was not fully argued before us. 3. Mr Jellis's submissions in the Hutt matter, dated 31 May 2023 (par 47), argue that, as the proceedings arose from an administrative error allegedly made by the Board, and disputed by the appellants, the "event" was unusual, and costs ought not follow it. 4. In response, Mr Jones argued (Ex 1, pp 23 and 745, including fn 32 on p 23 and fn 8 on p 745) that, there being no "disentitling conduct" on the Board's part, the "usual rule" should apply. Orders 1. In these circumstances, the Tribunal makes the following orders: 1. The appeals of Drs Hutt and Porter are dismissed; 2. Unless the appellants seek a different order within twenty-one (21) days of the date of publication of these Reasons for decision, they are ordered to pay the costs of the Board. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2023