Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rahman v Medical Board of Australia [2015] NSWCATOD 26 Hearing dates: 24 March, 2015 Decision date: 24 March 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr S Ieraci, Professional Member Dr V de Carvalho, Professional Member Dr C Berglund, Lay Member Decision: 1 The appellant is entitled to renewal of his limited registration for the period ending 11 March 2015 notwithstanding his failure to satisfactorily complete the AMC clinical examination. 2 The respondent is to pay one half of the costs of the appellant of the appeal Catchwords: Medical Practitioner- continual failure to pass examination required for continuation of limited registration-HELD appeal against refusal to renew limited registration allowed Legislation Cited: Health Practitioner regulation National Law (NSW) Category: Procedural and other rulings Parties: Dr Mahammad Abdur Rahman (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: K Richardson (Respondent) Solicitors: Dibbs Barker (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1420355 reasons for decision Introduction 1. In these proceedings the appellant, Dr Mohammed Abdur Rahman appeals to this Tribunal under section 175 of the Health Practitioner Regulation National Law (NSW) ("The National Law") from a decision of the respondent Medical Board of Australia made on 11 of November 2014 to refuse an application for renewal of limited registration. It was common ground that these proceedings were properly constituted and that the appeal was to be determined as an appeal de novo. Because there was some urgency, we advised the parties at the conclusion of the hearing on 24 March 2015 that we had determined to allow the appeal. We said; "The appellant is entitled to renewal of his limited registration for the period ending 11 March 2015 notwithstanding his failure to satisfactorily complete the AMC clinical examination." We also made a costs order in favour of the appellant. The material which follows represents our reasons for our decision. Factual Background 1. The narration which follows is based on documentary material tendered into evidence in these proceedings and the oral evidence of the appellant and of Dr Michael Gerard Hession. 2. The appellant was born on 10 November 1954. He graduated in medicine from Dhaka University, Bangladesh in 1979 and was registered to practise in that country. After emigrating to Australia he commenced as a resident medical officer in the ACT and between 2003 and 2006 he did rotations in a number of different departments at hospitals in that Territory. From January 2007 to January 2010 he worked at the Westmead Children's Hospital as a senior resident medical officer and also at other hospitals within the Sydney region, undertaking rotations in a number of different departments. After working in regional hospitals, he commenced at Blacktown and Mount Druitt Hospital as a senior resident medical officer in emergency medicine in January 2011. He was promoted to the position of career medical officer in January 2011 and continued working in that role until the renewal of his limited registration was declined on 12 November 2014. It was the failure to obtain renewal of this limited registration which has given rise to these appeal proceedings. 3. When first registered in the ACT, the appellant obtained conditional registration requiring him to practice under the supervision of a medical practitioner in a public hospital. The renewal was subject to "review". When first registered in New South Wales, the then Medical Board granted the appellant conditional registration as a Post Graduate Trainee. He was required to work as a Resident Medical Officer at the Children's Hospital at Westmead. A condition of his registration included, inter-alia, the fact that it was to be granted for a one-year period "but may be renewed on demonstration of satisfactory progress and on the board being satisfied that the training goals and objectives for the proposed extension are appropriate." His limited registration appears to have been renewed on the same basis, but applying to different hospitals and, more latterly, to the position of Senior Medical Officer without any particular difficulty until January 2012. If the appellant had wished to pursue unconditional registration, he was required to pass an AMC multiple choice exam, which he accomplished in 2000, and then pass an AMC clinical exam, which has thus far eluded him despite several attempts. 4. It appears from the evidence made available to us that at this time, and for the first time, a question was raised by the then relevant authority, AHPRA, seeking details as to the progress made during the last registration period towards meeting "the qualification required" for his registration. The appellant responded by saying that he had applied to undertake the AMC clinical examination in 2010 but his application for a placement in an exam had been declined. He planned to apply for the examination at the end of 2012. His further registration was then approved. When his progress in sitting for this further exam was queried in December 2012 the appellant replied by saying that he had been unable to prepare himself for the examination "due to unavoidable family circumstances" but he intended to make this a priority for the next year. 5. By letter dated 6 February 2013 the appellant was informed by AHPRA that his application for limited registration as a Career Medical Officer at Blacktown and Mount Druitt Hospitals was to be considered subject to the imposition of a condition that he successfully complete the AMC Clinical Examination within 12 months. He accepted that condition a few days later. 6. On 6 February 2014 the appellant applied for renewal of his limited registration which was then due to expire on 11 March 2014. He indicated in the application form that he had "made progress towards meeting the requirements" for registration. On 28 February 2014 AHPRA wrote to the appellant noting that he had failed to pass the examination in November 2013, and seeking an explanation. The appellant responded by saying that he had applied to the AMC for a retest, and was offered a position in August 2014. He said that there were "a few issues which negatively impacted on my preparation and performance abilities for the exam" and referred also to the fact that his wife had been unwell and that he was working long hours, full-time during the months prior to the exam. The appellant was granted further renewal of registration subject to successfully completing the examination. 7. The appellant failed the examination. By letter dated 8 October 2014 the appellant was advised that his application for renewal of limited registration was proposed to be declined and he was offered an opportunity to make submissions. In a letter dated 22 October 2014 the appellant listed his then extensive and successful history working in a variety of medical fields within hospital environments in both the ACT and in New South Wales, and his progression to a senior level. He pointed to the willingness of various hospitals to renew his contracts. He said that he had not prioritised passing the exam because he had a false sense of security because he was already working in the system. He apologised for taking this view. He asked for a further opportunity to pass the exam. His application was declined by letter dated 12 November 2014. As we have previously said, these appeal proceedings are brought from this decision. 8. The appellant has secured a placement in the AMC clinical examination to be held on 20 June 2015. In essence, if this appeal is successful this will give the appellant an opportunity to seek an extension of his renewal, and to apply for and regain employment at the Blacktown and Mount Druitt Hospital before sitting the exam. 9. Three medical practitioners provided written support for the appellant, and one of them gave oral evidence. Dr David Melvin is the Deputy Director Emergency Medicine at the hospital. He has worked with the appellant for the last four years and described him as a confident and caring medical practitioner and "an asset to our department." He independently manages patients with the input of staff specialists as needed and at night does so with a staff specialist on call and a senior registrar on hand if needed. He also engages in registrar level teaching. Although Dr Melvin acknowledged that the appellant had struggled to pass the exam, he said that his performance in "real life" had been "exemplary". He said that the hospital continued to have full confidence in the capabilities of the appellant and had reemployed him for the coming clinical year. 10. Dr Richard Lennon is an emergency physician at the hospital and has frequently supervised the appellant since 2011. He described him as "competent, compassionate, sincere and hard-working". He hoped that the appellant would continue to work with him in the future and supported the renewal of his registration. 11. Dr Michael Hession is an emergency physician at the hospital, who attended the hearing in support of the appellant, and readily gave evidence on his behalf when asked to do so. He has worked with the appellant for the last five years and said that he was both capable and professional and was safe to work unsupervised in an emergency department. He thought that the clinical exam as currently formatted did not measure either the value or performance of the doctor in the workplace and thought that the appellant should be given an opportunity of a workplace-based assessment. 12. In oral evidence Dr Hession said that the appellant's medical assessments were solid and he had a professional demeanour. His failure to pass the clinical exams was not consistent with his observations of the appellant. Dr Hession said that he had been involved with a number of practitioners in the same circumstances as the appellant, all of whom have had difficulty in passing the clinical exam in its present format. Overall, it was the opinion of Dr Hession that the appellant's performance at a more senior level than a graduate was at about the median level. 13. Dr Hession conceded that the appellant had communication difficulties and that it was necessary to listen to him carefully. He said that the position formerly occupied by the appellant at the hospital had not been filled, and he would support him in applying for it if this appeal was successful. 14. The evidence of all of these practitioners, who were positive in their support of the competency and capabilities of the appellant is in sharp contrast to his failure to pass the clinical exam on five occasions, with a further two re-tests. The evidence of Dr Hession in particular represents a practical assessment of competency from a workplace supervisor. 15. We also note for completeness that when the appellant submitted his application for renewal in February, 2014, Dr Reza Ali, a Director of Emergency Medicine at the hospital completed the form in his capacity as supervisor. He almost exclusively rated the appellant as performing consistently above the level expected, and described his strengths as "excellent progress, team player, clinical knowledge to standard." 16. The appellant gave oral evidence. We found his evidence to be less than satisfactory. It is clear that he has misled the relevant authorities over the years in informing them about his attempts, and the lack thereof, in undertaking the clinical exam. As he readily conceded, he hoped that he would "slip through" in the renewal process. Furthermore, we found his evidence as to the reasons why he had failed the exams from time to time unconvincing. In the witness box he proffered an excuse for the first time that he had had a panic attack. 17. The appellant conceded that he had made critical mistakes when undertaking the exams. Consideration 1. In determining this appeal, we are required to exercise our discretion on the basis of the information and evidence available to us at the time of the hearing, and we are considering all of the relevant circumstances de novo. 2. We should state at the outset that in having allowed the appeal we should not be taken to have been critical in any way of the decision made by AHPRA to decline to renew the appellant's limited registration. As will be apparent, there was available to us, and not available to AHPRA, evidence which in all the circumstances persuaded us that the appeal should be allowed. We should also state that whilst we are conscious of the opinion expressed by Dr Hession that the clinical exams conducted by the AMC are not necessarily the best way to assess the clinical capabilities and competence of a medical practitioner, and that workplace-based assessments are a more appropriate form of assessment, we should not be taken to have endorsed such an opinion in determining these proceedings. As is obvious, it would be impossible to express any opinion about this matter without undertaking a comprehensive and thorough examination of both methodologies and determining their relative worth in the context of the assessment that needs to be undertaken. This is something more appropriately to be undertaken by the AMC and other interested bodies. 3. In assessing all of the relevant circumstances surrounding these proceedings we take into account the fact that the appellant has failed the clinical exams on many occasions, which must call into question his competency and capabilities as a medical practitioner, (although this does demonstrate some perseverance in attempting to progress through the system). However, this situation is in stark contrast to the glowing references provided by the three medical practitioners and by Dr Ali which we have summarised above. These references are critical in persuading us that the appellant should, in all the circumstances, be given one last opportunity of sitting for and passing the clinical exam, as he has sought. We repeat that this material, other than that provided by Dr Ali, was not available to those determining to decline renewal which gave rise to the institution of this appeal. 4. Furthermore, even though the appellant has consistently failed the clinical exams over a period which, on the evidence, commenced in 2002, it was not until 2013 that a condition was imposed upon his registration requiring him to pass that exam. It is necessary to draw a distinction between an expectation that there is to be progression through an examination regime, and the imposition of a condition mandating that this occur. Even though one period of grace has been extended to the appellant to enable him to sit the exam in November 2014, we are of the opinion that he should be given that opportunity again in June 2015. If he does reapply for his former position at the hospital, and that application is successful, it would give him an opportunity of studying for the clinical exam in June 2015 in a work environment where he has ready access to other clinicians who could perhaps assist him in preparing for the exam. Of course, all of this presupposes that the appellant will be granted further registration consequent upon the expiry of the current registration on 11 March, 2015, the renewal of which is the subject of these appeal proceedings. This represents a further matter of uncertainty for the appellant, but its presence does not dissuade us from granting the appeal. 5. It is for these reasons that we determined to grant the appeal. Costs 1. There is power to award costs. The appellant sought a costs order in his favour, having been successful in the proceedings. The respondent resisted such an order. The usual order, where costs are available to be awarded as a matter of discretion, is that costs follow the event unless there is some matter which would dictate a contrary conclusion. Whilst the appellant has been successful in these proceedings, his success from a utilitarian point of view may be seen to be of limited value for the reasons which we have outlined. More importantly, it was incumbent upon the respondent to act as a contradictor in the proceedings. Having regard to these matters and to the circumstances pertaining to the proceedings generally we were of the opinion that it was appropriate in all the circumstances that the respondent pay one half of the appellant's costs of the appeal. We note in this regard that they will be of a lesser amount because the appellant did not retain counsel. These represent our reasons for the costs order made. 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: 08 April 2015