On 27 August 2010 the Medical Board of Australia resolved to refuse the renewal of limited (special purpose) registration to Dr Khan. This decision was based on the fact that Dr Khan had failed to demonstrate his competency in progressing toward unlimited registration, a fact that had been illustrated by repeated failures in key competency requirements of his registration. Dr Khan appealed the decision of the Board to QCAT.

The decision of Khan v Medical Board of Australia is an important one for a number of reasons. First of all, it was the first decision of this type to be reviewed by QCAT under the new National scheme. Secondly, the outcome of the matter had the potential to greatly affect the way in which the Board determined registration matters for registrants with limited registration, including limited (area of need) registration. Thirdly, it was a case that affected a matter of public interest; namely the competency of overseas trained doctors who are granted limited registration to practise in Australia.

The competency of overseas trained doctors is an issue that is pertinent to current public debate. There is no doubt this debate has intensified in recent times due to some key factors;

  • firstly, media interest in the competency of overseas trained doctors; 
  • secondly, the increase in overseas trained doctors registered in Australia; and
  • thirdly, the public’s acceptance of the fact that our public health system is heavily reliant on overseas trained doctors and could not properly service the needs of the public without them.

The reliance on overseas trained doctors with limited registration makes it imperative that the Board fulfils its duty to the public by ensuring all limited registrants progress to general or specialist registration by recognised qualification as set out in the legislation. This is important so as to enable limited registration (in areas of need), maintain the standards of the profession, and thereby protect the public.

What is special purpose registration?

Limited registration is an avenue of entry to medical practice for overseas graduates (from recognised tertiary institutions) whose qualifications are not in themselves able to be accepted for immediate general or specialist registration under the Australian law. Limited registration is only intended to be a short term status for a few years until the limited registrant has prepared for and passed the relevant Australian recognised qualification.

Dr Khan’s registration

Dr Khan was first registered with special purpose registration in 2002 (under the laws prior to the national law). Since that time he has worked as a general practitioner in two different suburban medical centres that are classified as areas of need.

Since his initial registration Dr Khan had attempted to demonstrate his competency and progress to unlimited registration by pursuing Fellowship with the Royal Australian College of Physicians (RACP). However, in the time between his initial registration and when the Board refused his renewal of registration, Dr Khan had not attained fellowship and had in fact failed a number of key competency tests.

Since Dr Khan’s initial special purpose registration his registration had been renewed by the Board several times and on occasions his registration renewal was pursuant to undertakings to facilitate his progress toward unlimited registration. On the last occasion his registration was renewed it was subject to an undertaking that he successfully complete a Structured Clinical Interview (SCI). Dr Khan undertook and failed the SCI which recommended that he was not suitable for his current position and that he return to hospital practice (where a high level of supervision is available). It was this failure that was determinative in the Board refusing to renew his registration in August 2010.

Dr Khan’s argument

Dr Khan’s argument was that, despite the fact that he had not demonstrated his competency in line with one of the recognised pathways to unlimited registration, he should not be refused renewal of his limited registration because:

  • he had been in practice since 2002 without any complaints made against him; 
  • his supervisors were glowing in their assessments of his practice;
  • he had shown improvement in his failed attempts to attain fellowship of the RACGP; and 
  • he had received a grade that was one mark short of a ‘marginal performance’ mark, which would have entitled him to a re-sit, in one of the competency tests.

Question for the Tribunal

The Tribunal had to determine whether or not the Board had erred in making its decision to refuse Dr Khan’s registration renewal, particularly in light of his failure in the SCI which was a condition of his most recent registration renewal.

25 July 2011 Hearing (Decision delivered on 9 December 2011)

Expert Evidence

Prior to the 25 July 2011 hearing the Tribunal had been provided with expert evidence from both parties. Both experts were required to provide a joint report outlining points on which they agree and disagree. The joint report indicated that both experts agreed that the Board should not renew Dr Khan’s registration for his current position.

Issue of supervision

Throughout the proceedings the Tribunal was provided with glowing endorsements of Dr Khan from his supervisors. During the hearing these supervisors were cross-examined and it was revealed that the level of supervision was insufficient for a practitioner with limited registration.

Dr Khan worked in a very busy practice and through the cross examination of his supervisors it became apparent that Dr Khan actually received little supervision. It was up to Dr Khan to raise issues and seek guidance and any group discussions with practitioners at the clinic were not structured or scheduled, but were spontaneous and sporadic.1

Tribunal’s invitation to Khan

At the time of the hearing in July 2011, Dr Khan was still in the process of undertaking exams in an attempt to attain Fellowship and progress to unlimited registration. In its decision delivered on 9 December 2011 the Tribunal took this into account along with the fact that Dr Khan had not been effectively supervised during his registration and that he had not received a complaint regarding his practice. Bearing this in mind the Tribunal decided to:

afford to Dr Khan an opportunity to investigate whether he could secure an appropriate position at a hospital in an area of need so that his limited registration might be renewed, but for a different position, with a strict and final timetable for Dr Khan to demonstrate his competence for unrestricted registration.2

The hearing was adjourned for approximately one month, to be heard again on 18 January 2012.

18 January 2012 hearing

At the further hearing of this matter, the Tribunal heard that Dr Khan had failed to secure a hospital position. Dr Khan, at this point sought that his registration be renewed pending his completion of an alternative pathway to registration.

The Decision

On 23 January 2012 the Tribunal handed down its decision in favour of the Board, dismissing Dr Khan’s application.

Conclusion

The effect of the Tribunal’s decision on 9 December 2011 had meant that it had already determined that Dr Khan was not eligible for registration in his current position. The Tribunal’s invitation to Dr Khan to secure a hospital position was essentially a final opportunity for Dr Khan that he was unable to utilise. Therefore, his request to attain unlimited registration via an alternative pathway at the 18 January 2012 hearing had to be ignored, unless the Tribunal was to re-open the hearing.

The fact of the matter was that Dr Khan had 8 years to progress to unlimited registration and he had failed to do so. During this time Dr Khan was aware of his responsibility to progress to unlimited registration and the Board reminded him of this and even imposed undertakings upon his registration to this effect. Despite this Dr Khan had not vigorously pursued the pathway to unlimited registration and the components he had attempted had resulted in repeated failed outcomes.

The Tribunal also noted Dr Khan’s failure to pursue a hospital position, as recommended by the SCI and the joint expert report, until he was invited to do so by the Tribunal in December 2011. This was despite Dr Khan being aware of this recommendation since at least July 2011.

The decision of the Tribunal in Khan vindicated the Board’s decision. It will act as an important precedent in these cases involving the standards for registrants holding limited registration for lengthy periods of time and where insufficient progress to general or specialist registration is made.

This decision might also be applicable to other health vocational cases where overseas qualified health professionals might be entitled to similar limited registration options to allow them to progress to qualifying for an Australian recognised qualification.