1998

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Parliament of Tasmania

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LEGISLATIVE COUNCIL SELECT COMMITTEE
 
 
 
 
 
 

REGISTRATION OF OVERSEAS TRAINED MEDICAL PRACTITIONERS
 
 
 
 
 
 

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REPORT

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MEMBERS OF THE COMMITTEE

Mrs Sue McLeod (from 9 June 1998)
 

EXECUTIVE SUMMARY 3
 
 
 
 

CHAPTER 1 – INTRODUCTION 5

1.1 Terms of Reference 5

1.2 The reason for establishing the Committee 6

1.3 Proceedings 6
 
 
 
 

CHAPTER 2 – KEY ISSUES 7
 
 
 
 

CHAPTER 3 – RECOMMENDATIONS 22
 
 
 
 

ACKNOWLEDGEMENTS 24
 
 
 
 

APPENDIX A – WITNESSES 25
 
 

APPENDIX B – WRITTEN SUBMISSIONS TAKEN INTO EVIDENCE 28
 
 

APPENDIX C – DOCUMENTS TAKEN INTO EVIDENCE 31
 
 

APPENDIX D – Minutes of Proceedings 33
 

On 25 November 1997 the Legislative Council resolved to establish a Select Committee to inquire into matters raised during debate on the Medical Registration (Dr Konstantin Yastrebov) Bill 1997, including consideration of the Mutual Recognition Act 1992 (Commonwealth).

There was a great deal of support given to Dr Yastrebov by patients, nursing and administrative staff at the Mersey General Hospital throughout the Committee’s deliberations. The need for flexibility in the registration of Dr Yastrebov, and other overseas trained medical practitioners, was strongly promoted in order to provide adequate medical services to regional and rural areas in Tasmania.

The procedures for medical registration adopted by the Australian Medical Council and the Medical Council of Tasmania at the time of hearing evidence were seen to be appropriate, given that passing the examination is no more than is required of an Australian medical student. A compulsory period of supervised practise has been recommended however as a further step to ensure the competence of the overseas trained medical practitioners.

Having considered the evidence the Committee recommends that Parliament not be involved in the process of individual medical registration as it does not have the appropriate knowledge or expertise. If Parliament did proceed to deal with the legislation it would create a precedent allowing other doctors to avoid the proper procedures and to seek registration from the Parliament.

It was recognised by the Committee that there was a need to consider separately the overseas trained medical practitioners who came to Tasmania prior to 1992. Before this time doctors came believing that they would be granted full registration and be able to stay in Tasmania and work for as long as they wished. The Committee has recommended that these doctors be treated more favourably than those who came with knowledge of the Australian Medical Council requirements. It is appropriate therefore for the conditions of registration to be clearly outlined and accepted by overseas trained medical practitioners prior to registration being granted. This information should include the details of registration, the circumstances in which it will be continued and the circumstances in which it will be terminated.

The Committee has also recommended that assistance be provided to overseas trained medical practitioners undertaking the examination requirements in the form of locum support, computer facilities and access to the necessary information.

Since the time of the Committee’s hearings and deliberations, the Medical Council of Tasmania has amended its requirements for medical practitioners seeking "area of need" registration. The Committee views these amendments as a remedy for a number of the concerns identified.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Hon J. S. Wilkinson MLC Parliament House, Hobart

Chairman 4 November 1998
 

1. the status of the provisions of the Bill in respect of the provisions of the Mutual Recognition Act 1992 (Commonwealth);
2. the options available to the Medical Council of Tasmania to extend the period for which Dr Yastrebov is eligible for registration with conditions in accordance with the provisions of the Medical Practitioners Registration Act 1996;
3. the established procedures utilised by the Australian Medical Council and the Medical Council of Tasmania for the recognition of medical qualifications, including specialist medical qualifications, for medical registration, with particular emphasis on medical qualifications gained other than in Australia or New Zealand;
4. the established procedures utilised by the Australian and New Zealand College of Anaesthetists for the granting of specialist recognition (as a specialist anaesthetist) to Australian and New Zealand trained doctors and to overseas trained doctors;
5. the appropriate extent to which Parliament should become involved in the detailed and individual application of the established procedures referred to in terms of reference (3) and (4);
6. the status of the specialist anaesthetist workforce in Tasmania, with particular emphasis on the North West Region;
7. the extent to which doctors who do not have specialist recognition should be involved in the provision of specialist medical services;
8. the role of overseas trained general practitioners and specialists in the provision of public sector and private sector health services in Tasmania;
9. matters incidental thereto;


and that –

10. hearings of the Committee be open to the public and accredited representatives of the media unless the Committee resolves otherwise;
11. the Select Committee be authorised to disclose or publish, as it thinks fit, any evidence or documents presented to the Committee prior to such evidence being reported to Council.

As a result of the contention regarding the legislation it was widely accepted that a committee should be appointed to analyse the relevant issues involved.
 
 
 
 

Evidence regarding the registration of overseas trained medical practitioners in other jurisdictions was obtained through discussions with departmental officers and the Australian Medical Council.

Information on submissions and documents received and witnesses heard together with the Minutes of Proceedings, are included in the Appendices to this report.

The Committee was dissolved on 17 March 1998 following the Prorogation of Parliament and reconstituted on 24 March 1998. The Committee along with the Parliament was dissolved on 29 July 1998 and reconstituted on 6 October 1998.

The Committee has the honour to present its report.
 
 

Agreement to introduce mutual recognition arrangements was reached at the Heads of Government level in 1991 and was implemented in the Commonwealth Mutual Recognition Act 1992. All states enacted legislation which gave effect to the agreed uniform national standards for registration of doctors.

Mutual recognition operates on the principle that a medical practitioner who satisfies the standards for registration in one state is entitled to practice in all other states or territories of Australia. A state or territory which registers a doctor to practice medicine in effect is doing so on behalf of all others.

It was indicated to the Committee that if the ‘Yastrebov’ bill was passed by the Tasmanian Parliament then Dr Yastrebov, because of mutual recognition, would be allowed to practice throughout Australia.

Legal advice given to the Committee regarding the status of the provisions of the Yastrebov bill relative to the provisions of the Mutual Recognition Acts (Commonwealth and State) suggested that the registration effected by Clause 4(1) of the bill would entitle Dr Yastrebov to apply (at any time) for registration in any other state or territory, and there would not appear to be any basis upon which a registering authority in another Australian jurisdiction could refuse such an application.

Section 20 sub-sections (1) to (3) of the Commonwealth Act provides that once registration has been granted elsewhere to Dr Yastrebov he would be entitled to continuing registration in that jurisdiction even if he ceased to be registered in Tasmania.

A letter which was received from the Acting Minister for Health in Queensland to the Tasmanian Minister for Health expressed real concern at the intention of the Yastrebov bill. The Minister described the joint effect of the Yastrebov bill and the Mutual Recognition Act as potentially requiring the Queensland Medical Board to provide registration and assume responsibility for Dr Yastrebov despite the fact that the board had previously refused his registration on the grounds that he did not meet the required standard. The Minister’s letter referred to three specific areas of concern being as follows:

1. "The direct intervention in the functioning of a medical board challenges the independence of the registration process from political interference;
2. Registration is being granted without reference to any established performance standard, evaluation of training or nationally agreed formal assessment;
3. The Legislative Council is not medically qualified nor constituted to determine the professional competence, clinical skills or safety of the practitioners who have been granted registration by the actions of the Legislative Council;
4. The Legislative Council is imposing its decision on registration standards on all other states and territories in Australia through mutual recognition;
5. Because of mutual recognition the action by the Legislative Council contravenes the provisions in the state and territory medical acts which prescribe the minimum national standards for registration in that it requires another state to grant registration to a practitioner who does not meet the prescribed standards in that states own legislation;
6. The principle on which mutual recognition was agreed by the Heads of Government in 1991 was that it should not interfere with the regulation by the states of initial entry to, conduct of, or practice in occupations;
7. Should the legislation be enacted it could result in requests from a number of other doctors, on conditional registration, working in areas of need, for special legislation to change their registration in Tasmania, and consequently under mutual recognition provisions in other states and territories. This could make a farce of agreed standards of registration.
8. The registration of doctors who have not passed the standards required by all other Australian doctors would be grossly unfair to them and to the overseas trained doctors who have gone through the process of achieving the standards set out."

There was a great deal of evidence provided to the Committee in relation to the expertise and competence of Dr Yastrebov. This evidence was received from patients of Dr Yastrebov, nursing staff, administrative staff at the hospital in which he practices and doctors including specialist doctors who have personally witnessed his work.

What other options are available therefore to the Medical Council of Tasmania to extend the period for which Dr Yastrebov is eligible for registration with conditions?

There was unequivocal evidence from both the Tasmanian Medical Council, and the Australian Medical Council indicating that the agreement reached at the Health Ministers Conference should not be read strictly. They stated that a great deal of flexibility was needed. This indicated to the Committee that both the Australian Medical Council and its Tasmanian Branch would do all they could to ensure that in special circumstances they would be flexible with the conditional registration for not only Dr Yastrebov but all other overseas trained doctors in a similar position. The Medical Council of Tasmania could therefore consider further extending Dr Yastrebov’s registration beyond the 2 year maximum if he demonstrated a serious intention to proceed to full registration by following the pathway set down by the Australian Medical Council.

It is evident that certain medical colleges have given registration to overseas trained medical practitioners on the basis of a peer assessment. Evidence was obtained that this was the case in the United Kingdom where you can obtain a consultancy post based on an interview and peer review. Rather than sitting an examination an overseas medical practitioner obtained full registration after a period of 3 years where that practitioner was constantly under the watch of his peers. After a 3 year period if his peers believed him/her to be a medical practitioner worthy of registration that would be given.

The Tasmanian Branch of the Australian Medical Association recommended that the Medical Practitioners Registration Act 1996 be amended to provide specifically for the needs of Tasmanian public hospitals. It was argued that this would provide specialist medical services where such services can only be obtained through the availability of an overseas trained medical practitioner whose medical qualifications have been gained as a graduate of an institution not accredited by the Australian Medical Council.

The Medical Practitioners Registration Act 1996 includes provisions to give effect to that national agreement. The Act also incorporates a number of other changes to the legislation it replaced in order to achieve a nationally consistent approach to medical registration. The legislation sets out what the Medical Council of Tasmania can and cannot do. The Medical Council is provided with certain discretionary powers, although the extent of that discretion is relatively limited in the case of doctors who do not meet the criteria in Section 5(3)(2)(a) and (b).

Presently in Tasmania there are approximately 46 overseas trained specialists and 106 overseas trained general practitioners who have conditional registration. Some of these doctors intend to pursue the AMC examination route to full registration. Overseas doctors have in the past successfully completed the AMC examination and/or the assessment processes of the relevant college and are now fully registered.

Evidence provided to the Committee indicated that the AMC examination is pitched at the same level as the final medical examination of the various Australian medical schools, and passing that examination is no more than is required of an Australian medical graduate. Similarly the passing of the respective specialist college examination is no more or no less than is required of a young Australian trained doctor who wishes to become a specialist. A number of overseas trained doctors however have found the examinations difficult due to their workload and the passage of time since gaining their overseas qualifications.

On completion of the AMC examination the overseas trained doctor is eligible for provisional/conditional registration and must complete a period of 12 months supervised training in a position approved by the relevant state or territory medical board before qualifying for full registration, that is registration without conditions.

Since the national examinations commenced for overseas trained doctors in 1978, evidence showed that a total of 5,136 overseas trained doctors from 102 countries have presented for the examination of which 3,635 (70.40%) have passed the first stage examination and 2,425 (46.97%) of those who commenced the first stage have passed the clinical examination and qualified for registration in Australia.
 
 

The Australian and New Zealand College of Anaesthetists however does not grant specialist recognition (as a specialist anaesthetist) but rather recommends to the Australian Medical Council, to medical boards and to the Health Insurance Commission whether it regards a doctor as a specialist anaesthetist. It also advises the AMC on what additional training and examinations would be required by a doctor to reach that standard.

- intensive care,

- clinical medicine,

- research,

- other disciplines related to anaesthesia.

5. The appropriate extent to which Parliament should become involved in the detailed and individual application of the established procedures referred to in Terms of Reference 3 and 4.

The medical councils argued however that Parliament does not have the expertise to identify whether a medical practitioner is properly qualified or not.

The counter argument is that Parliament is not making that decision as the relevant medical authority has already determined that the practitioner who is practising in an area of need possesses the expertise to practise.

The Committee believes that Parliament should not be involved in this registration process as it does not have the knowledge or expertise. It should restrict its role to ensuring that the legislation it enacts is appropriate for the protection of the public and if flaws in the legislation are detected then these should be addressed.

Parliament has already enacted the Medical Practitioners Registration Act 1996 which gives authority to the Medical Council of Tasmania to determine the entitlement for registration of doctors in Tasmania and to monitor and review their entitlement. The Medical Council has expertise and experience in this area and it is therefore totally inappropriate for the Parliament to deal with individual applications. It is likely that if Parliament does proceed to deal with an individual application then many others will seek to avoid the procedures of the Medical Practitioners Registration Act and seek registration direct from the Parliament. The implications for mutual recognition would be adverse and it is therefore inappropriate to proceed down this path.
 
 

Notwithstanding lengthy, and extremely costly advertising, certain hospitals in Tasmania found that specialist doctors, including anaesthetists, were not available to take the positions. Evidence clearly indicated that all of the state’s major public hospitals, including the Mersey Community Hospital, have experienced considerable difficulties in maintaining a full or near full complement of specialist anaesthetists in recent years and each hospital has required the services of overseas trained specialist anaesthetists. The concern is that if the specialist overseas medical practitioners who come to Tasmania on conditional registration have to leave after approximately 2 years then these hospitals will experience real difficulties in encouraging other practitioners to take their place.

It was clear to the Committee that the recruitment of Australian trained doctors to rural areas is very difficult. As one medical practitioner on the north west coast stated,

All Australian public hospitals, other than some long established and elite training hospitals in the major capital cities, need to rely from time to time on the appointment of overseas trained specialists to maintain an appropriate level of specialist cover. Where overseas trained specialists have not as yet achieved specialist recognition it is desirable that they work in a hospital environment where they are both supervised and able to obtain the skills and experience necessary to enable them to satisfy the requirements of the relevant specialist college for the granting of specialist recognition.

The concern arises where the doctor who does not have the specialist recognition is working in a smaller hospital or in an outlying area with relatively few specialist colleagues in the same field. It is evident that a doctor in these circumstances has a considerably more demanding task in satisfying the relevant college requirements for the granting of specialist recognition.

There were many examples provided by witnesses of cases where health care in Tasmania would decline if the services of overseas trained medical practitioners were no longer available. As Dr Einoder states in relation to the Acting Director of Radiology at the Launceston General Hospital,

Prior to 1992 a number of overseas trained medical practitioners who travelled to Tasmania to practise were informed that even though they were only to be conditionally registered, they most likely would be able to continue practising for a period far in excess of 2-5 years. These doctors sold their homes and left their country, either by themselves or with their family, to commence a new life in Tasmania believing that they would remain in Tasmania for the rest of their working life as a medical practitioner.

It is inherently unfair to now enact legislation which is contrary to what they were promised prior to leaving their home country. Natural justice dictates that these doctors should be treated more favourably than doctors who have travelled to Tasmania knowing that if they wish to remain they would have to satisfy the requirements of the Australian Medical Council.

The Committee believes that there is a need for all overseas trained medical practitioners without the required Australasian qualifications to undertake a period of supervised practise, as recommended by the relevant college. This would ensure that the overseas trained medical practitioner has the required competence to work unsupervised in an area of need. The Committee further suggests that these medical practitioners attend meetings of the RANZCA on a regular basis and participate in the RANZCA Continuing Medical Education Program.

It is also evident that assistance should be provided to those medical practitioners carrying out the requirements of the Australian Medical Council to gain registration. This assistance could be in the form of locum relief to enable a study program to be undertaken and the provision of computer facilities and access to relevant information.
 
 

Recommendation 1 – Prior to appointment to a position in Tasmania, an overseas trained medical practitioner must practise in the area of his/her expertise under supervision for a period of time, as recommended by the specialist college.

Evidence indicated that in some instances overseas trained medical practitioners were not as competent as at first believed due to the fact that the only requirement to practise as an overseas medical practitioner was presentation of a CV and qualifications certificate from the relevant body. Although it is clear that the Australian Medical Council is anxious to ensure the standard of medical care within Australia remains high, the evidence presented to the Committee indicated that there was a need to confirm the written qualifications of other countries for the purposes of conditional registration.

There was no known peer assessment of the practitioner prior to commencing practise within the State. This is a dangerous situation and one which was recognised by most experts who gave evidence to the Committee on this area. The Committee has therefore recommended that this period of supervision, of approximately three months, be undertaken prior to commencing practise.

It is noted that the Medical Council of Tasmania has now amended its requirements for registration to ensure that the applicant is "assessed for one month in the relevant department of the Royal Hobart Hospital or Launceston General Hospital for competence with particular reference to the safety of patients".
 
 

Recommendation 2 – The Australian Medical Council should be encouraged to use the existing flexibility in the system to ensure that areas of need have adequate medical services.

The Committee received evidence indicating that there was flexibility in the system to allow overseas trained medical practitioners more time to complete the necessary qualifications for full registration. The Committee believes however that the Australian Medical Council needs to exercise this flexibility more often to encourage these doctors to undertake the required training.

Correspondence received from The Medical Council of Tasmania dated 6 October 1998 indicates that the Council now appears to be exercising its flexibility in this area.
 
 

Recommendation 3 – Parliament, as a body, should not be involved in the individual registration of medical practitioners.

The Committee acknowledged that Members of Parliament would not be assessing the qualifications of the doctors concerned as that would already have taken place when conditional registration was initially granted. Parliament however does not have the expertise to act as a de facto registration board and to do so would be inappropriate.
 
 

Recommendation 4 – That prior to the granting of conditional registration, overseas trained medical practitioners should be made aware of the conditions of registration and those conditions should be accepted in writing by the applicant.

It is recommended that the conditions of registration be clearly outlined and accepted in writing by overseas trained medical practitioners prior to registration being granted. This information should include the details of registration, the circumstances in which it will be continued and the circumstances in which it will be terminated.
 
 

Recommendation 5 - That appropriate assistance be given to overseas trained medical practitioners to allow them to complete the necessary training.

It was evident that many doctors found it difficult to complete the Australian Medical Council requirements. The Committee found that it would be of assistance to provide computer facilities, access to necessary information and locum services to allow these doctors to study for the examination.
 

The Committee extends its appreciation and thanks to all who participated in this inquiry.

In particular the Committee would like to recognise the efforts of the following persons:

Sue McLeod

Inta Mezgailis

Bryan Stait

Carol Baxter

The Committee was especially grateful to the College of Anaesthetists and the Australian Medical Council who, at their own expense, travelled from interstate to attend the Committee hearings.

Alaraji, A (Dr)

Arvier, P. (Dr), Director Emergency Medicine, North West Regional Hospital and

Spokesperson for group of Burnie Medical Practitioners

Australian and New Zealand College of Anaesthetists

Australian and New Zealand College of Anaesthetists, Tasmanian Regional Committee

Australian Medical Association, Tasmania Branch

Australian Medical Council Inc

Australian Medical Workforce Advisory Committee

Baldock, D.

Black, A. (Dr)

Bosanac, Z. (Dr)

Campbell, A.

Chen, C. (Dr)

Department of Community and Health Services

Dolan, R.S.

Dolbey, D.C.

Edwards, K.N. (Dr)

Edwards, L.M.

Employment, Education, Training and Youth Affairs, Department of and Office of the Minister (Commonwealth)

Ghali, M.H. (Mr)

Gilbert, J.

Graham, S.

Hanusiawicz, A. (Dr)

Harvey, K.A.

Hasnain, Q. (Dr)

Health and Family Services, Department of (Commonwealth)

Health Care of Australia

Huon Valley Council

Illes P.L. (Dr)

Katekar, L.V. (Dr)

Kaur, H. (Dr)

King, C & P.W.

Kumar, R. (Dr)

McLaglen, V.J.

Marshall, W

Medical Advisory Committee, Mersey Community Hospital

Medical Council of Tasmania

Pearce, M.

Rouse, P. & S.

Royal Australasian College of Surgeons, Tasmanian State Committee

Royal Australian College of General Practitioners, The

Royal Australian College of Obstetricians and Gynaecologists

Scaddan, G.

Shackleton, J.

Snarski, J. (Dr)

Vickers, E.P. (Cr)

Wood–Baker, R. (Dr)

Yastrebov, K. (Dr)

Zakon, J. (Dr)

DOCUMENTS TAKEN INTO EVIDENCE
 
 

1. Letter dated 9 March 1998 and attachments: Dr John M. Sparrow, Chief Medical Officer, Department of Community and Health Services providing copies of the Solicitor-General’s opinions referred to in the Department’s submission. (Ref No. 1)
2. Chart showing Process for Securing Fellowship with Royal Australian College of Obstetricians and Gynaecologists. (28)

10. Case Report, "Bilateral Ventilation with BIPAP and SIMV – treating rather than »time buying« strategies", Dr Konstantin Yastrebov, Mersey Community Hospital, Tasmania, Australia. (41)
11. "Recommended Medical Specialities and Qualifications" – No. 24 – May 1997, National Specialist Qualification Advisory Committee of Australia. (1)
12. "Letter dated 1 June 1998: Dr John M Sparrow, Chief Medical Officer, DCHS enclosing the following information, as requested –


A draft discussion paper prepared jointly by the Australian Medical Workforce Advisory Committee and the Australian Institute of Health and Welfare entitled ‘Medical Workforce Supply and Demand in Australia: A Discussion Paper – February 1998’.

A memorandum dated 31 December 1996 prepared by Mr Paul Gavel, the Executive Officer of the Australian Medical Workforce Advisory Committee, which provides a useful summary of recent initiatives and strategies relating to the medical workforce.

An extract from an Australian Health Ministers’ Advisory Council document relating to 1996-97 Commonwealth Government Health Budget Initiatives, with particular reference to the sub-sections headed ‘Rural Health’, ‘Temporary Resident Doctors’, ‘New arrangements for overseas trained doctors’, and Additional rural specialist training positions’.

A copy of the draft decisions of the meeting of the Australian Health Ministers’ Conference held on 15 June 1995, with reference to Agenda item 19, Medical Workforce.

13. "The assessment system of overseas medical qualifications in Australia Analysis and Reform" – Martin Lishexian Lee
14. Letter dated 25 August 1998: Mr W.C.R. Bale, Solicitor-General providing opinion regarding mutual recognition.
15. Letter dated 2 September 1998: Mr J.C.H. Morris, President, The Medical Council of Tasmania defining the requirements for "area of need" registration.
16. Letter dated 23 October 1998: Mr J.C.H. Morris, President, The Medical Council of Tasmania confirming the guidelines for registering overseas trained medical practitioners.

The complete Minutes of Proceedings will be included in the printed version of the report.