Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ibrahim v Medical Board of Australia [2014] NSWCATOD 108 Hearing dates: 8 August 2014 Decision date: 01 October 2014 Jurisdiction: Occupational Division Before: Acting Judge K. P. O'Connor AM, Deputy President Dr Louise King, Professional Member Dr Saw-Hooi Toh, Professional Member Dr Judith Mair, Lay Member Decision: 1. Appeal dismissed. Respondent's decision confirmed. 2. The following order is substituted for that of the Board: The appellant's application for limited registration on an area of need basis is refused under s 82(1)(c)(i)(E) of the National Law. 3. If the parties wish to be heard on costs: respondent to file and serve submissions within 21 days; appellant to file and serve submissions within a further 14 days. Tribunal to deal with the matter on the papers, unless either party applies for an oral hearing, in which case the Tribunal will give directions for dealing with any such application. Catchwords: REGISTRATION AS MEDICAL PRACTITIONER - International Medical Graduate - Application for Limited Registration on an Area of Need Basis - Refused by Board - Appeal - Whether compliance with relevant standards - Gap in clinical practice - extent of adequacy of supervision plan - performance in pre-employment structured clinical view - Appeal dismissed - ground for refusal confined to failure to meet requirements for registration. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: McMahon v Nursing and Midwifery Board of Australia [2013] NSWMT 4 Category: Principal judgment Parties: Ashraf Ibrahim Abdou Ibrahim (Applicant) Medical Board of Australia (Respondent) Representation: M Paton, Georgiou & Co (Applicant) Clayton Utz (Respondent) File Number(s): 1420181 reasons for decision 1Ashraf Ibrahim Abdou Ibrahim is an international medical graduate who holds registration as a medical practitioner in Egypt and practised there for most of the period between 1990 and 2007. On 11 October 2013 he applied under the Health Practitioner Regulation National Law (NSW) No 86a (the National Law) to the Medical Board of Australia (NSW Branch) for limited registration to practise as a medical practitioner in an area of need. (The Medical Board is the delegated authority for the exercise of the powers conferred on the National Board by the National Law that are relevant to this case. The National Law commenced in NSW on 1 July 2010.) 2On 8 April 2013 the Board refused his application. He now appeals to this Tribunal, exercising the right to appeal conferred by s 175(1)(a) of the National Law. Under s 175C the Tribunal may confirm the decision of the Board, amend the decision or substitute another decision for the appellable decision. In substituting another decision, the Tribunal has the same powers as the entity that made the appellable decision (as to which see s 82 set out later in these reasons). Mr Ibrahim has applied for a substitute decision, granting his application. The Board opposes Mr Ibrahim's application. (The proceedings fall within the 'external appeals' jurisdiction of the Tribunal - see Civil and Administrative Tribunal Act 2013 (NSW), ss 31, 79 - not the 'review' jurisdiction, a subject to which we return later in these reasons.) Statutory Framework 3Limited registration allowing an applicant to practise in an area of need is a facility available to international medical graduates who do not qualify for general registration under s 52 of the National Law or for specialist registration under s 57. Sections 65 and 67 provide: 65 Eligibility for limited registration (1) An individual is eligible for limited registration in a health profession if- (a) the individual is not qualified for general registration in the profession or specialist registration in a recognised speciality in the profession; and (b) the individual is qualified under this Division for limited registration; and (c) the individual is a suitable person to hold limited registration in the profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for registration in the profession by imposing conditions on the registration under section 83. 67 Limited registration for area of need (1) An individual may apply for limited registration to enable the individual to practise a health profession in an area of need decided by the responsible Minister under subsection (5). (2) The individual is qualified for the limited registration applied for if the National Board is satisfied the individual's qualifications and experience are relevant to, and suitable for, the practice of the profession in the area of need. (3) The National Board must consider the application but is not required to register the individual merely because there is an area of need. (4) If the National Board grants the individual limited registration to enable the individual to practise the profession in the area of need, the individual must not practise the profession other than in the area of need specified in the individual's certificate of registration. (5) A responsible Minister for a participating jurisdiction may decide there is an area of need for health services in the jurisdiction, or part of the jurisdiction, if the Minister considers there are insufficient health practitioners practising in a particular health profession in the jurisdiction or the part of the jurisdiction to provide services that meet the needs of people living in the jurisdiction or the part of the jurisdiction. (6) If a responsible Minister decides there is an area of need under subsection (5), the responsible Minister must give the National Board established for the health profession written notice of the decision. (7) A responsible Minister may delegate the Minister's power under this section to an appropriately qualified person. (8) In this section- appropriately qualified means having the qualifications, experience or standing appropriate to the exercise of the power. health services means the provision of services by health practitioners in a particular health profession. 4'Unsuitability' for registration is addressed by sections 55 and 70. Section 55 deals with unsuitability to hold general registration, and its criteria are made applicable to applications for limited registration by s 70. 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. (2) In this section- relevant law means- (a) this Law or a corresponding prior Act; or (b) the law of another jurisdiction, whether in Australia or elsewhere. 70 Unsuitability to hold limited registration (1) Section 55 applies to a decision by a National Board that an individual is not a suitable person to hold limited registration in a health profession. (2) For the purposes of subsection (1), a reference in section 55 to general registration in the health profession is taken to be a reference to limited registration in the health profession. 5It will be seen that s 65(1)(e) refers to the need for compliance with approved registration standards. In this case the Board took into account two approved registration standards: (a) Limited registration for area of need registration standard (approved by the Australian Health Workforce Ministerial Council (AHWMC), effective 1 July 2010) (the Area of Need Standard); and (b) Recency of practice registration standard (approved by AHWMC, effective 1 July 2010) (the Recency of Practice Standard). 6The Area of Need standard deals with the scope of the application to be made by an applicant for limited registration in relation to an area of need, the requirements for initial registration, the pathways to registration, and the requirements placed on limited registration. The standard gives emphasis to the following passage: On the basis of the application and any additional information requested, the Board will decide whether the applicant has the necessary skills, training and experience to safely meet the particular need for health services. All medical practitioners granted limited registration for area of need must comply with the requirements of registration set out in this standard, including: - compliance with a supervision plan - compliance with a professional development plan - authorising and facilitating the provision of regular reports from their supervisors to the Board regarding their safety and competence to practise - satisfactory performance in the area of need If intending to practise medicine in Australia longer-term, providing evidence to confirm the satisfactory progress towards the qualifications required for general registration or specialist registration. These requirements are established under this standard to ensure safe and competent practice for the period of limited registration. 7The Recency of Practice Standard places strict limits on re-entry to the profession on practitioners who have not practised for more than three years. As to what may amount to 'practice' for the purposes of the Recency of Practice Standard, the standard contains the following definition: Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. For the purposes of this registration standard, practice is not restricted to provision of direct clinical care. It also includes using professional knowledge in a direct nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession. 8In this case the Board also had regard to the Guidelines for Supervised practice for limited registration (issued by the Medical Board of Australia, effective 1 May 2012) (Guidelines for Supervised Practice). 9Section 82 provides: 82 Decision about application (1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must- (a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or (b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or (c) decide to refuse to grant the applicant registration in the health profession if- (i) the applicant is ineligible for registration in the profession under a relevant section because the applicant- (A) is not qualified for registration; or (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or (ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular. (2) In this section- relevant section means section 52, 57, 62, 65 or 73. Board Decision 10Mr Ibrahim submitted his application on 11 October 2013. In support of the application, Mr Ibrahim produced the offer of employment (KRS Health, Wagga Wagga), and its terms, the position description and a plan in relation to the supervision of his work. He also provided his work history, and referred to the various professional courses he had undertaken in the period 2010-2013. As required, he then undertook a pre-employment structured clinical interview (PESCI) held before a panel of experienced practitioners (16 December 2013). He was assessed in relation to three patient scenarios. The panel found his performance satisfactory overall (his response to scenario 1 being assessed as having 'demonstrated a borderline performance in this scenario', with his performance in answer to the other two scenarios descried as 'satisfactory' without qualification. 11His application was considered by the Registration Committee of the Board at its meeting on 4 February 2014. The Committee advised that it had resolved to propose to the Board that his registration be refused under s 55 of the National Law as, in its opinion, he was unable to practise the profession competently and safely in the position promised to him. The Committee advised that its recommendation was based on his gap in clinical practice since 2007, the role and responsibilities of the general practice position offered to him and the conflicting information submitted regarding the availability of supervision. 12In accordance with the National Law, s 81, he was given an opportunity to make further submissions to the Board and produce any further evidence. Mr Ibrahim took up that option, submitted additional material (in particular an amended supervision plan). He was again unsuccessful, with the Board deciding on 8 April 2014 pursuant to s 82 to refuse his application. He lodged this appeal on 3 May 2014. 13In its reasons for refusing the application the primary matters of concern for the Board were: (a)The adequacy of his performance in the PESCI process. The Board was critical of his performance in relation to two of the scenarios. (b)The adequacy of his supervision plan. The Board was not satisfied that the level of supervision to be provided by the practice that had offered him employment would be sufficient. (c)His lack of recency of clinical practice. He had not practised since 2007. In the Board's view, his more recent work history in the health sector did not qualify as experience that might overcome this difficulty. The Appeal 14At the appeal hearing held 8 August 2014 the Tribunal had before it: * From Mr Ibrahim: the External Appeal Form, with a number of annexures containing documents of relevance to the case; his affidavits, 3 July 2014, and 6 August 2014, each of which included several annexures; a letter from the head of the practice KRS Health, Wagga Wagga, dated 7 August 2014. * From the Board: a statement of reasons for decision, filed 30 July 2014; affidavit and expert report of Dr Kamerman in relation to the application filed 7 August 2014; submissions handed up at the commencement of the hearing on 8 August 2014; the material before the Board at the meeting where it made the decision under appeal, also handed up at the hearing. 15Oral evidence was given at hearing by Mr Ibrahim and by Dr Kamerman. Nature of the Appeal 16Both parties accepted the authority of McMahon v Nursing and Midwifery Board of Australia [2013] NSWMT 4 at [76], holding, after a careful review of the relevant authorities, that the unqualified right to 'appeal' provided by s 175 is one to be conducted as a hearing 'de novo'. That means that the Tribunal deals with the applicant's appeal as it was a fresh application for registration. That means, analogously with the regime that applies to merits review of administrative decisions elsewhere in the Tribunal, that both parties may present additional evidence and material relevant to consideration of the application. They are not bound by the state of their cases as they were considered by the first decision-maker, here the Board. 17As noted in the Board's submissions, the jurisdiction exercised by the Tribunal is a protective one, in line with the objective stated at s 3(2)(a) of the National Law: (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 18Procedural Aspects: We heard the case following the sequence that we understand had been customary in appeals of this kind before the predecessor tribunal to this Tribunal. That is, the appellant opened and presented his case, with the respondent then presenting its case in reply. 19As noted earlier, this type of proceeding belongs to the 'external appeals' jurisdiction of the Tribunal. Even though is an appeal against an administrative decision, it is not governed by the provisions that apply to most of the administrative appeals business of the Tribunal, those found in the Administrative Decisions Review Act 1997 (ADR Act). 20We note that there is no similar complication in Victoria. There health profession appeals of the present kind are not the subject of special provisions and are treated as belonging to the merits review jurisdiction of that State's equivalent Tribunal, and are governed by provisions similar to those in the ADR Act (Drury v Medical Board of Australia [2011] VCAT 858 at [11] ff). The result is that the National Law is being administered in relation to like business in like tribunals in the two major population centres of the country by different methods and by reference to different overarching concepts (appeal de novo learning versus merits review principles). 21In the Tribunal's view, it would have assisted the hearing of this case had the procedure conventional in the merits review jurisdictions been followed in this instance. Under this procedure the decision-maker opens and explains the regulatory context, then presents the evidence in support of its decision, with the review applicant (here the appellant) responding with his or her case as to why there should be a different decision. It did not become clear to us until well into the hearing that the issues addressed by the appellant in opening were not the totality of the issues seen as relevant by the Board. This lack of clarity would have been avoided had the approach we commend been adopted. Consideration 22We will not recite in detail the contents of the material placed before us. 23Mr Ibrahim's Background. In December 1988 at the age of 23, Mr Ibrahim graduated in medicine from Ain Shames University, Cairo, Egypt after a six year course. He then completed one year's internship split between the El Demerdash and El Matareya Public Hospitals. Early in 1990 he was registered as medical practitioner by the relevant authority in Egypt. He has a record of continuous practice from 1990 to 2000. His major difficulty is the discontinuous nature of his work as a general practitioner since 2001. 24He did not practice between February 2001 and December 2003. As to that gap he gave the following explanation. He began by noting that he and his wife had married in 1997 in Egypt and their first child was born in 1998. They first came to Australia in 2002 and spent 15 days here. They decided to migrate and successfully applied for a business visa. (Their second and third children were born in Australia in, respectively, 2003 and 2013.) He explained that he and his wife established in Sydney a business operating child care centres. He stated that the gap in his practice experience between 2001 and 2003 is explained by those developments. 25He returned to practice in Egypt in January 2004. His wife stayed in Australia during the time he was back in Egypt and she ran the child care centre business. He stated that he worked alone in a general practice from January 2004 to June 2007, but also did work at the Abou Sefein Polyclinic and the Glym Hospital. He provided the Board with professional testimonials in relation to that work period. Dr Kamerman questioned the adequacy of his practice experience during that period. 26He returned to Australia in June 2007, and has lived here continuously since then with his wife and family. He explained that he and his wife had sold their two childcare centres for a substantial sum in 2008, had paid out their debts and invested the balance in a new business venture which had failed for reasons explained in his affidavit. His cv does not refer to any employment history between 2007 and 2010. He did refer in his material to undertaking observerships at a medical practice during 2008. 27Responses to Criticisms. In his affidavits and oral evidence, Mr Ibrahim sought to respond to and meet the criticisms contained in the Board's reasons. As to the PESCI interview, he drew attention to the positive aspects of the PESCI committee's assessment, most significantly the excellent standard of his communication in English. In relation to scenario 1, he stated that he was affected by nerves being in the presence of three other doctors, being the members of the assessment panel. He felt that once he settled down, he performed better, and that was reflected in his better assessments for scenarios 2 and 3. 28He offered replies to each of the criticisms made of his performance. He gave a firm commitment to taking up each of the suggestions that the panel made as to how he might improve his knowledge of aspects of practice relevant to a general practitioner position of the kind he had been promised. In relation to the criticism that he not provide the female patient with a chaperone for the testing required in connection with scenario 2, he responded that he would not have thought that necessary as, in a real situation, he would have had Dr Giurgius (his prospective supervisor) in the room with him and his presence would have served that purpose. 29Further, in relation to his attempts to qualify himself for Australian registration, he noted that until he won registration he could not engage in direct clinical care in Australia. So he had sought to plug the gap in his clinical practice since June 2007 by engaging in observerships at medical practices, as outlined in his original application. He referred the observerships he had undertaken in the two year period January 2011 to December 2012. They had occupied ten hours per week (Mt Druitt, the year 2011) and sixteen hours per week (Colyton, 2012), and in addition he had spent eight hours per week at Dr George Ibrahim's practice during both years. He outlined the range of clinical, record taking and record keeping, and medical practice management activities he had observed. He referred to the clerical and administrative tasks that he performed on behalf of those practices. In addition he referred to other voluntary and paid activities that he had undertaken more recently, i.e. observership at the Macquarie Health Centre and Bourke Street Medical Centre between April 2012 and March 2014 (attendance, minimum eight hours, two days a week). He outlined the clinical practice activities that he observed, and the clerical and administrative tasks that he had undertaken. He referred to his work as a medical receptionist at Bourke Street Medical Centre (part-time, March 2011 to April 2012) and the scope of his duties as a senior pathology collector (from November 2010). 30He listed several programs of further professional education that he had undertaken with the RACGP, and noted that he is presently studying for the AMC examinations. He listed various study groups that he has voluntarily attended, mainly at Westmead Hospital, and involving Dr Amir Hanna, since 2008. As to his future professional development plans, he relied on the professional development and re-entry to practice plan found at annexure J to the external appeal form. 31Mr Ibrahim's affidavit evidence was not significantly challenged in cross-examination. In our opinion, Mr Ibrahim is making a sincere and diligent attempt to meet the requirements for Australian registration on a limited basis. 32We will now turn to the difficulties seen by the Board and by Dr Kamerman as to the extent to which Mr Ibrahim's record and his activities since 2007 meet the criteria for registration. 33There was an objection on behalf of Mr Ibrahim on the question of whether Dr Kamerman should be treated as an expert in the matters to which he has deposed. We are not bound strictly by the rules of evidence, and the Tribunal may inform itself as it thinks fit: National Law, Sched 5D, cl 2. Dr Kamerman is an experienced general practitioner and supervisor of persons with limited registration. He has held a number of professional leadership positions especially in relation to general practice in rural settings, and has a close familiarity with the relevant standards and their application. We should give weight to his opinions on that basis, but, we are, of course, not bound by them. 34PESCI assessment. In Dr Kamerman's view a borderline assessment in relation to a scenario is never acceptable, all scenarios had to be rated satisfactory. On this view, he should have been assessed as not passing the assessment. 35We accept that the use of terms such as 'borderline' in a report of this kind are not apt to instil confidence in a reader and the public. It would be preferable if panels used a single final term, and introduced any qualifications into its assessment in the section of their report that gives a general appraisal. Nonetheless we do not share the Board's and Dr Kamerman's concerns to the same degree. 36We accept that Mr Ibrahim's performance in relation to scenario 1 did omit to provide as a possible explanation for the sclerotic lesion shown at T9 by the CT a metastatic deposit. We are prepared, as the panel did, to give him the benefit of the doubt in the circumstances, a difficult assessment environment and the first of the three he was required to undergo. In relation to scenario 2, we think his explanation for not considering a chaperone is plausible - he envisaged a setting as a limited registrant where there would be a supervisor present and available, if he was undertaking a procedure involving examination of a female patient. We accept that he should, possibly, have approached the scenario strictly on the basis that he was in an unrestricted private practice setting, in which case the issue of having a chaperone for the examination would clearly have arisen. 37The weight to be given to Dr Kamerman's assessment is affected necessarily by the fact that he was not personally present at the PESCI assessment, a point he acknowledged. We are not inclined to reject the panel's assessment of Mr Ibrahim's PESCI performance, though we accept, as the panel noted in its report, that it had a number of shortcomings. 38We note in that regard that the panel made detailed recommendations as to the steps Mr Ibrahim was to take while subject to limited registration to improve his performance in the areas noted as deficient. We note the firm commitment given by Mr Ibrahim in these proceedings to implementing those recommendations. 39Supervision Plan. Dr Kamerman acknowledged that his report had not referred to the amended supervision plan lodged with the Board in February and the further amended plan lodged with the Tribunal. But while he acknowledged that the amended plan contained some improvements on the one with which he had been briefed, he considered that it remained inadequate. His principal criticism went to the degree of supervision that was proposed to be exercised on a day to day basis by the intended supervisor, Dr Giurgius. It spoke of 'weekly' review of the work done by the appellant. He said that this was an inadequate level of supervision for someone being considered for registration at Level 1. Level 1 supervisees require a greater level of supervision that Level 2 supervisees. We agree with Dr Kamerman that a weekly review system is not sufficient. 40Dr Kamerman went further, and expressed the opinion that it was essential that the supervisee have the supervisor with him in the consulting room during the key parts of a consultation. Dr Giurgius has now indicated that he will ensure that he is present in a room adjacent to the appellant's consulting room whenever he is seeing patients. In Dr Kamerman's opinion this was still insufficient. 41In our view the Guidelines for Supervised Practice are not so strict as to mandate constant presence in the consulting room by the supervisor. Relevantly to the present situation, they state: Level 1 Supervision The supervisor takes direct and principal responsibility for individual patients a) The supervisor must be physically present at the workplace at all times when the IMG is providing clinical care b) The IMG must consult their supervisor about the management of all patients c) Supervision via telephone contact is not permitted. The supervisor is required to submit an assessment of the IMG's performance in the form of a report to the Board at the completion of the first three months of the IMG's employment (or earlier if requested by the Board) and the Board may direct that Level 1 supervision must continue to apply for a specific period or the Board may direct that supervision shall be provided at one of the following levels [the Guideline goes on to refer to Level 2, Level 3 and Level 4 classes of supervision]. 42The requirement placed on the supervisor is to be physically present at the workplace at all times when the IMG is providing clinical care. In our view, the usual level of supervision of a Level 1 GP would be relatively intensive in the early period (and involve a high degree of presence by the supervisor at the consultation), with the supervisor 's role being less intensive as the supervisor grew more confident of the ability of the new GP to deal with patient presentations. As time passed, we consider the level of presence would often give way to a practice of the kind Dr Giurgius has promised. Similarly, we would expect the Level 1 supervisor to have an interactive relationship with the supervisee that was more than a mere end of the day or end of the week review of any concerns. To those extents, we agree with the Board and Dr Kamerman's criticisms. 43In our view, the supervision plan needs to be redrafted again, and the nature of the relationship between Dr Giurgius, as supervisor, and Mr Ibrahim needs to be spelt out more clearly to meet the concerns of the Board. This is a matter that is capable of being resolved between the parties, and by reference to precedents that have been found acceptable. The Board would need assurance that the plan in its revised form could then be implemented in practice by Dr Giurgius and his team at KRS Health. 44Gap in Clinical Practice. This, as we see it, is the key area of concern. 45For recency of practice purposes the RCAGP confines its assessment to the ten years preceding the application. In this case it treated the three and half years of practice in Egypt (Jan 2004-June 2007) on which Mr Ibrahim relied as being the equivalent of two years and eleven months of Australian equivalent practice (letter, 2 October 2013, annexure to external appeal form). 46We have noted earlier Mr Ibrahim's activities by way of observerships, work in health sector environments, and his professional development courses. In regard to the latter, he referred to the subject matter of some of those courses which he saw as relevant to work as a GP in a remote setting, i.e. clinical emergency management, reproductive and sexual health, polycystic ovary syndrome. He had passed in April 2012 the Australian Medical Council assessment (CAT-MCQ) required of international medical graduates seeking Australian registration. He noted that he was a member of the Royal Australian College of General Practitioners (RACGP). 47The Board found that this activities did not constitute practice for the purpose of the standard and could not be counted. Dr Kamerman supported the Board, and gave a detailed explanation of the relevant standard and how it is applied. 48We do not accept the submission made on behalf of Mr Ibrahim that 'practice' as defined in the relevant standard (set out earlier in these reasons) extends to 'any role' in connection with the practice of medicine, and therefore covers pathology collection, observerships, medical receptions and study courses. The critical aspect of the definition is the reference to activities that involve the 'use of skills and knowledge as a health practitioner', which we read in the present context to be 'use of skills and knowledge as a medical practitioner'. The definition of 'practice' seeks to pick up situations where medical knowledge is being used outside the usual consultation and treatment setting. The definition of 'practice' allows for the use of professional knowledge in 'indirect nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles'. In our view, the statement is referring to the use of professional knowledge in environments such as the management of professional programs in a medical research centre, teaching in a university medical school, or senior roles in the administration of the health protection functions of a public health agency where specialised knowledge is required. 49We agree with Dr Kamerman and the Board that the work done by Mr Ibrahim by way of observerships, as a medical receptionist and as a pathology collector do not qualify as clinical experience that might meet the standard. He needs, as Dr Kamerman explained, to show some greater level of involvement in clinical activities than that which is involved in observing procedures or undertaking tasks of a narrow, though not unimportant , kind as is involved in, for example, pathology collection. As noted by counsel for the Board, there have been decisions to similar effect affecting applicants for nursing registration: see, for example, McMahon, cited earlier; and De Navi v Nursing and Midwifery Board of Australia [2013] NSWNMT 24. 50Dr Kamerman in his report notes various options that would fall within the definition of 'practice', such as working as a physician's assistant to a general practitioner; or completing his AMC registration and working in a position that only requires a provisional registration, as within a public hospital. He also mentions, what we apprehend from Mr Ibrahim's evidence to be unfeasible for him, a return to Egypt and the acquisition within that country of six months' practice experience. Finally he canvasses another, we assume, unfeasible possibility, entry into a university medical course in Australia. 51Conclusion. The Board's primary submission before us was that we should find that Mr Ibrahim does not presently meet 'a requirement for registration stated in an approved registration standard' (ground (E) in s 82(1)(c)(i)) or, alternatively or in addition, that he is 'not a suitable person to hold a registration' (ground (C) in s 82(1)(c)(i)). We think it sufficient to dispose of the case on the ground (E) basis, i.e. we are satisfied, for the reasons given, that he because he does not meet the limited registration for area of need standard in the ways indicated, and he does not meet the recency of practice standard. 52In its decision the Board relied on another of the possible grounds for refusal, that provided by s 55(1)(h)(ii) - that it was satisfied that the applicant was 'unable to practise the profession competently and safely'. 53In our view, cases of the present kind should ordinarily be decided by reference to the ground which is least negative to the applicant's next application for registration. Here the applicant is a person with some significant prior practice experience, and has been taking steps now for some years both in the medical services environment and the professional education environment to meet the standards applicable to Australian registration. It is sufficient, we think, in cases of this kind simply to dispose of the case by reference to a ground connected with compliance with registration requirements. 54A finding that a person is not 'suitable' is more appropriate to a case where, in addition, there are character or personal fitness issues of significance. This is not a case of that kind. Similarly a finding that a person is unable to practise the profession 'competently or safely' carries a level of implied condemnation that is perhaps not fair to a person in Mr Ibrahim's position with a significant, albeit now non-current. Moreover, Dr Kamerman himself acknowledged that on the key matter of overcoming the recency of practice difficulty all that Mr Ibrahim may need to do is spend six months in a practice setting in his home country. 55Accordingly, we must dismiss the appeal. We should indicate that if the gap in clinical practice issue can be overcome, we regard the other shortcomings, especially in relation to the supervision and professional development plan, as remediable. Costs 56If the appeal did not succeed, as has occurred, the Board applied for an award of costs under s 175 of the National Law which provides: provides: 175B Costs The responsible tribunal may make any order about costs it considers appropriate for the proceedings. See further Sched 5D, cl 13 which provides for enforcement of any costs award by entry of judgment in the District Court. 57As noted by the Board's submissions, this Tribunal is generally a non-costs jurisdiction: see Civil and Administrative Tribunal 2013, s 60. The primary provisions of s 60 state: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. 58These provisions are displaced by s 175B of the National Law. 59The Board's submissions drew attention to decisions endorsing the usual exercise of the costs discretion in the heath appeals jurisdiction (costs follow the event), referring to decision made since the National Law came into force in Health Care Complaints Commission v Mazzaferro [2011] NSWMT 9 at [67]. The Board referred to the adoption in that case at [69] of the Court of Appeal's approach in Ohn v Walton (1995) 36 NSWLR 77. 60We are disinclined to make an order without additional submissions. We note in this regard the recent observations of Meagher JA (Basten, Emmett JJA agreeing) in Health Care Complaints Commission v Do [2014] NSWCA 307 (4 September 2014). His Honour noted at [50] that s 175B is a provision with national operation, and 'should not be subject to local rules'. Significantly he added: 'It should, therefore, be treated as conferring an unfettered discretion on the Tribunal.' He acknowledged at [52] that the 'compensatory principle militated in favour of a successful party obtaining an order for costs.' 61This is a case where an international medical graduate has appealed against a decision refusing him registration on a limited, area of need, basis. There is a public interest in allowing appropriately qualified migrants to Australia entry into the medical profession, especially in the case of areas of need. It may be that the costs discretion should be exercised more sparingly in relation to unsuccessful appeals that have these features. His case was not without merit, and turned, ultimately, in our view on the recency of practice issue. We also note that because of the filing of key material by the Board so close to the commencement of the hearing (the statement of reasons, the expert report, the written submissions of counsel), the appellant did not have the usual opportunity to reflect on the material, obtain advice and, perhaps, decide not to continue with the appeal. Order 1. Appeal dismissed. Respondent's decision confirmed. 2. The following order is substituted for that of the Board: The appellant's application for limited registration on an area of need basis is refused under s 82(1)(c)(i)(E) of the National Law. 3. If the parties wish to be heard on costs: respondent to file and serve submissions within 21 days; appellant to file and serve submissions within a further 14 days. Tribunal to deal with the matter on the papers, unless either party applies for an oral hearing, in which case the Tribunal will give directions for dealing with any such application. ********** 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: 01 October 2014