Civil and Administrative Tribunal New South Wales Medium Neutral Citation: D'Rozario v Dental Board of Australia [2015] NSWCATOD 19 Hearing dates: 27 February 2015 Decision date: 23 March 2015 Jurisdiction: Occupational Division Before: D Robinson, Principal Member A Blinkhorn, Professional Member T Boland, Professional Member F Taylor, Lay Member Decision: 1.The Appeal is dismissed and the decision of the Dental Board is confirmed. 2. The Appellant is to pay the costs of and incidental to the proceedings of the Respondent as agreed and failing agreement liberty to restore before the Tribunal for assessment. Catchwords: Decision by Dental Board to refuse specialist registration – Appeal - sections 57 and 58 of the National Law - Does the Tribunal have a discretion to allow specialist registration where qualifications once were but are no longer recognised as sufficient for specialist registration Legislation Cited: Health Practitioner Regulation National Law No 86 A Civil and Administrative Tribunal Act 2013 Cases Cited: Chinese Medicine Board of Australia v Lee [2014] QCA 149; Draper v Psychology Board [2013] NSWPST 13; Pereira v Psychology Board [2014] VSC 417; Briginshaw v Briginshaw (1936) 60 CLR 336; Susan McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4; Barrett v Medical Board of Australia [2012] NSWMT 21 Category: Principal judgment Parties: Robin D'Rozario, (Appellant) Dental Board of Australia, (Respondent) Representation: R D'Rozario, (Appellant in person) Crown Solicitor's Office (Respondent) File Number(s): 1420329 reasons for decision Introduction 1. Dr D'Rozario studied dentistry at the University of Adelaide and was first registered to practice on 13 March 1985. He currently holds specialist registration in Oral Surgery. 2. On 6 March 2013 Dr D'Rozario applied to the Dental Board of Australia for specialist registration in Oral and Maxillofacial Surgery (OMS). After considering additional information from both Dr D'Rozario and others, the Dental Board determined to refuse his application, on the basis that Dr D'Rozario is not qualified for specialist registration as an oral and maxillofacial surgeon. 3. Dr D'Rozario now appeals against that decision. Nature of the Appeal 1. Dr D'Rozario has appealed pursuant to section 175 of the Health Practitioner Regulation National Law (the National Law). It is generally accepted that an appeal under section 175 is dealt with as an appeal de novo. (see Susan McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 and Barrett v Medical Board of Australia [2012] NSWMT 21.) 2. It is not necessary for Dr D'Rozario to demonstrate error on the part of the Dental Board. The Tribunal will consider his application for specialist registration afresh, having regard to the relevant legislative requirements, all available evidence and considering submissions made. The Tribunal is able to confirm or amend the decision or substitute another decision, and if substituting a decision, can exercise the same powers as the Dental Board. Onus and Standard of Proof 1. As the appellant, Dr D'Rozario bears the onus of proof. As such he must persuade the Tribunal that he is able to be and should be registered as a specialist in oral and maxillofacial surgery. 2. The proceedings are civil proceedings and the standard of proof is on the balance of probabilities. Given the nature of the appeal and the consequences for Dr D'Rozario's professional registration, the standard of proof is to the Briginshaw standard (see Briginshaw v Briginshaw (1936) 60 CLR 336). The Hearing 1. Dr D'Rozario represented himself at the hearing. The Dental Board of Australia was represented by Ms Belinda Baker, Solicitor Advocate, with the Crown Solicitor. 2. Dr D'Rozario provided several documents (marked as Exhibit A) and gave evidence on his own behalf. The Dental Board produced a folder of documents (marked as Exhibit 1) and Dr Jocelyn Shand gave evidence for the Board. There were no objections to any of the documentary materials before the Tribunal. 3. The Tribunal explained the process of the hearing to Dr D'Rozario, including the fact that he could seek an adjournment at any time. Although he did not do this, several adjournments were allowed, to provide Dr D'Rozario with sufficient time to consider his case and prepare submissions. 4. The Dental Board provided written submissions and both Dr D'Rozario and the Board made oral submissions to the Tribunal. Legislative framework 1. The National Law recognises specialist registration for dentists and the Dental Board of Australia is the body charged with establishing and managing the standards and requirements for such registration. 2. The National Law contains several provisions in relation to specialist registration. These provisions are as follows: 57 Eligibility for specialist registration (1) An individual is eligible for specialist registration in a recognised specialty in a health profession if – (a) the individual is qualified for registration in the specialty; and (b) the individual has successfully completed - (i) any period of supervised practice in the specialty required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the specialty; and (c) the individual is a suitable person to hold registration in the health 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 specialty; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the specialty. (2) Without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by imposing conditions on the registration under section 83. 58 Qualifications for specialist registration An individual is qualified for specialist registration in a recognised specialty in a health profession if the individual - (a) holds an approved qualification for the specialty; or (b) holds another qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification for the specialty; or (c) holds a qualification, not referred to in paragraph (a) or (b), relevant to the specialty and has successfully completed an examination or other assessment required by the National Board for the purpose of registration in the specialty; or (d) the individual - (i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and (ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty." The decision of the Dental Board 1. The Dental Board wrote to Dr D'Rozario on 26 September 2014 and informed him of their consideration of his application and their decision, Decision The Committee resolved to refuse the application for specialist registration as Dr D'Rozario is not qualified for specialist registration under section 58 of the National Law or eligible for specialist registration under section 57 (1) (a) of the National Law.Reasons for Decision Dr D'Rozario does not meet the requirements for qualification in the specialty of oral and maxillofacial surgery as he does not hold general registration as a dentist and as a medical practitioner, and has not completed the Dental Board of Australia's approved program of study in oral and maxillofacial surgery delivered by the Royal Australasian College of Dental Surgeons (RACDS). D'Rozario's appeal Training and qualifications 1. Dr D'Rozario's appeal is based on his assertion that he met all the requirements to qualify as an oral and maxillofacial surgeon when he completed his training in 1986. He asks that this be acknowledged and accepted as establishing his qualifications for specialist OMS registration. 2. Dr D'Rozario holds a Bachelor of Dental Surgery (1977) and a Bachelor of Science (Dentistry, Hons.) from the University of Adelaide. He also trained in oral and maxillofacial surgery at the University of Adelaide, completing his Master of Dental Surgery (Oral Surgery) in 1985. Dr D'Rozario then spent some time gaining clinical experience in West Germany. 3. The documents Dr D'Rozario provided from Dr Tideman, Dr Goss and Dr Sambrook confirm that he trained in oral and maxillofacial surgery in the early 1980s and completed the training requirements at that time to be a specialist in OMS. 4. Dr D'Rozario also noted that several of his colleagues who completed the same training pathway and have the same qualifications as he does, are registered as specialist oral and maxillofacial surgeons. Professional associations and employment 1. Dr D'Rozario stated that his peers recognise his qualifications as an oral and maxillofacial surgeon and this has been his area of practice over the last 30 years. 2. Dr D'Rozario has been a Fellow of the Royal Australian College of Dental Surgeons (FRACDS) since 1982. He has not been awarded FRACDS (OMS). However, he was a member of the Section of Oral and Maxillofacial Surgery of the RACDS while that Section existed. 3. Dr D'Rozario is also a member of the Australian and New Zealand Association of Oral and Maxillofacial Surgeons, (ANZAOMS) and the International Association of Oral and Maxillofacial Surgeons and the New South Wales Society of Oral and Maxillofacial Surgeons. 4. Dr D'Rozario's application states that since 1986 he has been in private practice in oral and maxillofacial surgery in Wollongong and between 1986 and 2002 he held the position of visiting oral and maxillofacial surgeon for the Illawarra Area Health Service. 5. He states he is currently employed as a visiting oral and maxillofacial surgeon at Figtree Private Hospital, St George Private Hospital and Wollongong day surgery. Registration 1. Dr D'Rozario was registered as a dentist in March 1985. In 1987 Dr D'Rozario was granted specialist registration in Oral Surgery by the then Dental Board of New South Wales. He stated that at that time the specialty of OMS was not recognised. This did not occur until 1988. 2. Dr D'Rozario told the Tribunal there was a time after 1988 when his training would have been accepted as qualifying him for specialist registration in OMS. This was confirmed by the report of Dr Bowler, dated 25 March 2014. However Dr D'Rozario acknowledges that until 2013 he has never sought specialist registration in the field of OMS. 3. He stated he has no recollection of receiving a letter from the Dental Board, informing him of the recognition of OMS as a specialty and inviting him to apply for specialist registration in OMS. He described his practice in Wollongong in the late 1980s as being a somewhat isolated regional practice and said he was unaware of his colleagues applying for specialist OMS registration. He said if he had been aware he would not have ignored the opportunity. 4. Dr D'Rozario was asked why he had left his application for specialist OMS registration until 2013. He stated that he sought specialist OMS registration now as a matter of principle. He understood that registration would not affect the scope of his practice and said he has been working as an oral and maxillofacial surgeon for many years. He said that his peers regard him as an oral and maxillofacial surgeon and it is important to him, as a matter of principle, to be similarly recognised by the Dental Board. Submissions of Dr D'Rozario 1. Dr D'Rozario acknowledged that section 57 and section 58 of the National Law are relevant and that the Tribunal is bound by the National Law. However he stated that those statutory provisions relate to the current qualifications required for registration as a specialist OMS. He asked the Tribunal to consider his application for specialist registration in the light of his qualifications at the time that he completed them. 2. He said that failing to seek specialist registration as an OMS when the possibility first became available to him, was an oversight on his part. He said he fulfilled the requirements to be a specialist OMS in 1986 (and to be registered as such in 1988) and he asks that the standards which applied at those times be upheld rather than the requirements for registration today. 3. Dr D'Rozario was unable to point to any legislative provision or legal precedent, which would provide the Tribunal with the basis for this kind of determination. 4. Dr D'Rozario also stated that he accepted there were no conditions, which could be imposed on this registration in accordance with section 57 (2). The Dental Board's case Evidence 1. As well as providing documentary evidence, the Dental Board called evidence from Dr Jocelyn Shand. Dr Shand, a registered specialist in oral and maxillofacial surgery, is the Chair of the Board of Studies - Oral and Maxillofacial Surgery with the Royal Australasian College of Dental Surgeons. She is also the Director of Training of the Victorian and Tasmanian OMS Training Centre and the past President of the ANZAOMS. 2. Dr Shand explained the difference between oral surgery and oral and maxillofacial surgery. She also explained some of the complexities of OMS and the onerous training requirements for oral and maxillofacial surgeons. 3. Dr Shand stated that the specialty of OMS evolved over time and explained that surgical dentistry was first recognized as a specialty, then oral surgery and finally OMS. The scope of the specialty also evolved. While oral surgeons treat conditions of the oral cavity and dentition, oral and maxillofacial surgeons will be involved in surgery for the hard and soft tissues of the head, forehead, neck and face. There is a significant overlap with neurosurgery and plastic surgery and accordingly OMS carries additional risks associated with airway, facial and eyesight issues. For these reasons since 1996 all applicants for specialist recognition in OMS must have both dental and medical qualifications as well as undertake extensive surgical training and attain the FRACDS (OMS). 4. Dr Shand gave evidence that the approved qualification for specialist registration as an OMS is the five year Fellowship training program of the RACDS, with subsequent admission as FRACDS (OMS). 5. She provided detailed evidence of what is involved in this training program. She stated in her letter dated 2 February 2015, "Surgical trainees in OMS must complete all of the following components that comprise courses, education and training and a range of assessment processes * Medical degree with registration * Completion of medical intern year * Completion of one year of general surgical resident training * Dental degree with registration * Completion of the Royal Australasian College of Surgeons (RACS) courses (EMST, CCriSP, ASSET) * Pass in the Surgical Science and Training (SST) examination, RACDS * Four full-time years of Oral and Maxillofacial Surgery clinical training * Pass in the Fellowship in Oral and Maxillofacial Surgery examination, RACDS * Mandatory research requirements * Award of the Fellowship, FRACDS (OMS)" 1. Dr Shand also explained that the Continuing Professional Development (CPD) requirements for oral and maxillofacial surgeons are different to the CPD requirements for oral surgeons. As OMS have dual medical and dental registration they must complete dual CPD requirements. Submissions of the Dental Board 1. The Dental Board's position is that Dr D'Rozario is not qualified for and so not eligible for specialist OMS registration as required by the National Law. 2. S 57(1) sets out the requirements for eligibility for specialist registration. The issue for Dr D'Rozario is whether he is qualified for registration in the specialty of OMS. (S57 (1) (a).) 3. Section 58 provides four ways by which a practitioner can be qualified for specialist registration. The first requires the practitioner to hold the approved qualification. 4. There is no dispute that the approved qualification for specialist registration in OMS is the five year Fellowship training program of the RACDS, with subsequent admission as FRACDS (OMS). 5. Dr D'Rozario does not have the FRACDS (OMS) and is not eligible for the award of this fellowship as he does not have medical qualifications, he has not completed the required clinical training nor has he passed the SST examination. 6. Secondly, a practitioner may be qualified for specialist registration if he or she has a qualification which is substantially equivalent, or based on similar competencies, to the approved qualification for the specialty. 7. Section 5 of the National Law defines an "approved qualification" as "a qualification obtained by completing an approved program of study for the profession." Section 5 further defines an "approved program of study" as "an accredited program of study" approved by the National Board. 8. The Dental Board asserts that Dr D'Rozario's professional experience over many years cannot be taken into account when considering his "approved qualification". The definition of approved qualification in the National Law relates to formal academic qualifications rather then clinical experience. (See Pereira v Psychology Board [2014] VSC 417 and Draper v Psychology Board [2013] NSWPST 13.) 9. The third means by which a practitioner can qualify under section 58 is if he or she has successfully completed a particular examination. The Dental Board provided information that no such examination exists in relation to specialist registration in OMS. 10. Finally, specialist registration can be achieved through what it is colloquially referred to as the grandfather provisions. Section 58 (d) refers to a situation where an individual – (i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and (ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty." 1. Dr D'Rozario's argument is that he could have been registered as an oral and maxillofacial surgeon on the basis of the qualifications he had at the time he completed his training. On this basis it is accepted he may meet the provisions of section 58(d)(i). 2. However the Dental Board argues that he also has to have been previously registered on the basis of holding the qualification for the specialty and as Dr D'Rozario has never been registered as a specialist in OMS, he does not meet the requirements of S58 (d) (ii). 3. Dr D'Rozario's colleagues, who have been registered as OMS specialists, even though they do not have the FRACDS (OMS), are practitioners who were previously registered as such under earlier legislation and so are deemed to be qualified under the "grandfather" provisions. 4. The Dental Board also referred to section 57(2) of the National Law which provides, Without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by imposing conditions on the registration under section 83. 1. The Dental Board referred to the decision in Chinese Medicine Board of Australia v Lee [2014] QCA 149, where the meaning and application of section 52 (2) of the National Law was discussed in detail. Section 52(2) relates to eligibility for general registration by the imposition of conditions but the reasoning of the Court could equally apply to section 57(2). Morrison JA held that the section provides a means by which compliance with the eligibility criteria can be achieved. "That is, eligibility can be achieved per force of the imposition of conditions." (para 55) 1. The Dental Board's submission is that, given the significant differences between Dr D'Rozario's qualifications and the approved qualifications, there are no conditions, which can be imposed to remedy those differences. 2. The Board submits that Dr D'Rozario is asking the Tribunal to exercise a discretionary power to accord him specialist registration. The Board submits that there is no residual discretionary power afforded to the Tribunal under the National Law to make decisions outside the scope of section 57 and section 58. Discussion 1. The objectives and guiding principles of the National Law state, amongst other things, that the objectives of national registration are "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" 1. Registration, as opposed to clinical education, enables the regulation of health practitioners in the public interest. In a sense, registration reflects the endorsement of a practitioner's skills and expertise by a National Board. And importantly, the public is entitled to assume if a dentist is registered as an OMS specialist that he or she has the skills and qualifications to practice as such. 2. The Dental Board has an obligation to ensure that only properly qualified OMS specialists are registered as OMS specialists. As the specialty developed, the nature and complexity of the clinical work evolved and correspondingly, the training requirements increased. The Dental Board now accepts that the FRACDS (OMS) is the appropriate qualification for registration as a specialist in OMS. 3. Grandfathering provisions exist as provided for in the National Law. 4. It was not in dispute that by 1986 Dr D'Rozario had completed the academic qualifications and undertaken the clinical training, which equipped him to practice as an oral and maxillofacial surgeon, to the extent that that specialty existed at that time. 5. However he was not registered as such, initially, as the specialty of OMS was not recognised and/or subsequently as he did not apply under the "grandfather provisions" in 1988 or at any time until 2013 for specialist OMS registration. 6. Dr D'Rozario did however practice as an oral and maxillofacial surgeon. The Tribunal notes with concern that he has described himself as an oral and maxillofacial surgeon without specialist OMS registration and appears to continue to do so. 7. The decision of the Dental Board in relation to Dr D'Rozario is based on the requirements for specialist registration as set out in the National Law. Their case was clearly and comprehensively addressed in the submissions made on behalf of the Board. There is no need to canvass all of the legal analysis contained in those submissions, as Dr D'Rozario does not challenge it. 8. Dr D'Rozario's appeal relies on substantially the same evidence and submissions as his initial application to the Dental Board. 9. He did not challenge the manner in which the Dental Board applied the National Law to his circumstances. He acknowledges that he does not have the FRACDS (OMS), which is the approved qualification. 10. He does not assert that his qualifications are substantially equivalent to the approved qualification. 11. Dr D'Rozario does not assert that he has completed an examination as required by section 58 (c) and while he seeks specialist registration by way of a kind of 'grandfather' arrangement, he acknowledges that he has never previously been registered as a specialist in OMS. 12. Dr D'Rozario also acknowledges that there are no conditions, which could be applied to his registration, as provided for by section 57 (2). 13. In effect Dr D'Rozario asks the Tribunal to accept that his qualifications, obtained in 1986, were sufficient to qualify him a specialist in OMS at that time and so should be sufficient to allow him specialist registration in OMS now. He also relies on his experience and good reputation among his peers to support his claim. 14. Dr D'Rozario was unable to point to any legislative provision or precedent, which supported his submissions. In short he asked the Tribunal to make a discretionary decision in his favour, but for which there is no legislative basis. 15. The Tribunal accepts the submissions made by the Dental Board in relation to the operation of the National Law. The Tribunal does not have a general discretion to accord specialist registration outside of the legislative guidelines. 16. Accordingly, the Tribunal finds that Dr D'Rozario is not qualified for specialist registration as an oral and maxillofacial surgeon. He is therefore not eligible for specialist registration as such. Costs 1. Section 175B of the National Law provides that in relation to an appeal pursuant to section 175, the Tribunal may make any order about costs it considered appropriate for the proceedings. Clause 13 of Schedule 5D of the National Law makes provision for the award of costs in place of section 60 of the Civil and Administrative Tribunal Act 2013. 2. The Dental Board sought an order for costs, submitting that the Board had explained the reasons for its decision to Dr D'Rozario who had nevertheless appealed to the Tribunal and the Board had incurred costs in defending that appeal. 3. Dr D'Rozario did not make an application for costs as he stated he had not incurred any costs. 4. Dr D'Rozario did not oppose the Dental Board's application for costs. 5. In the circumstances the Tribunal considered it appropriate to order that Dr D'Rozario pay the costs of the Board. Orders The Appeal is dismissed and the decision of the Dental Board is confirmed. The Appellant is to pay the costs of and incidental to the proceedings of the Respondent as agreed and failing agreement liberty to restore before the Tribunal for assessment. 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: 23 March 2015