See also The struggle for justice for overseas-trained doctors
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This submission focuses on only one element of the RACS submission - the RACS’ processes for assessing the qualifications of overseas-trained doctors. The operation of these processes, in the past, has resulted in the refusal to admit to membership or recognise the overseas qualifications of many highly trained overseas surgeons.
The result has been devastating for many highly qualified surgeons who have languished in either unemployment or under-employment. The cost in terms of lost skills has never been calculated and the human cost is immeasurable. Reitz (2001) estimated recently that the cost of the non-recognition of skills in Canada was $55 billion per year and in Australia the problem is of only a slightly smaller scale.
The ADTOA believes that the RACS should not be granted the authorisation that has been applied for, on the grounds that it has a track record of discrimination and lack of transparency and credibility.
The RACS’ processes must be scrutinised and subject to the usual legal tests that apply under the Trade Practices Act 1974. It is particularly the case that the ACCC should be in a position to investigate the processes and practices of the College due to the fear that most doctors have of taking legal action. The prospect of retribution by the College, in terms of never being able to gain membership, has prohibited legal action in the past. In fact, this is the reason that this submission is prepared by an academic rather than a specialist. Most people are unwilling to speak out and in all but two cases, names have been left out of this submission. In the case the Dr Gast, the one specialist named, she has ‘given up’ with the RACS and has followed another career in Australia in kinesiology. But this is not without great stress and financial loss.
The ADTOA bases its submission on the experience of many overseas-trained practitioners who belong to the association as well an on the numerous formal inquiries that have been conducted into this issue in the past. The most significant of these have been the following:
All the above reports have consistently found that most overseas-trained specialists have been excluded from membership of the Colleges. Prior to 1980, the National Academic Specialist Qualifications Advisory Committee (NASQAC) established a list of ‘recognisable specialist qualifications - based on individuals’ knowledge of overseas institutions in mainly Commonwealth countries. This was largely a reciprocity type of arrangement to enable freedom of movement between Australia and similar English speaking countries. The former Committee (later Council) on Overseas Professional Qualifications (COPQ) within the Department of Immigration also assessed specialist qualifications. Dr X., who had 21 years of experience as an ear, nose and throat (ENT) specialist in Germany and who will be referred to later, received the following assessment from COPQ (Nakhoul 1991: 33):
‘your qualifications are comparable with the academic level of a four-year Bachelor’s degree in Australia’.
From 1980 to 1990, most overseas-trained specialists were required to pass the Australian Medical Council (AMC) examination - this was the only means of entry to a specialty for most doctors. Only those from Commonwealth countries and a few others were automatically accepted if their qualifications were on the National Academic Specialist Qualifications Advisory Committee (NASQAC) list. This list only contained qualifications from English speaking countries. Some specialists continued to be imported on a temporary basis to fill vacancies and they were exempt from any such assessment. They came from a wide range of source countries - often to meet the needs of specific migrant communities (eg Turkish psychiatrists, etc).
In 1990, it was acknowledged that the AMC examination was an inappropriate means of assessing specialists and assessment was put in the hands of the individual Colleges. After that, each College went its own way and the RACS set up an ad hoc process which only now seems to have been written down and published.
After 1990 when overseas-trained specialist became exempt from the AMC examinations, Dr X approached the RACS for membership but the Medical Board of NSW sent the following letter:
‘The Royal Australian College of Surgeons has advised the board that they are unable to support your application for specialist recognition. Accordingly, your only avenue for registration as a medical practitioner in NSW is the successful completion of the AMC examinations’.
This was after Dr X had sat the AMC exams twice and failed and received a letter from the AMC which stated that ‘they were not designed to assess the OTS’ medical knowledge and clinical skills’ (Nakhoul 1991: 34). Dr X unsuccessfully approached Medical Boards in NSW, Queensland and South Australia, hospitals and specialist colleges. He moved to Queensland in the 1990s and became President of the Queensland branch of the ADTOA. In 1991, he stated (Nakhoul 1991: 33):
All medical authorities I have ever contacted thoroughly destroyed by faith and confidence in justice, trustworthiness and the dignity of the system’.
Dr X had been a distinguished scientist and clinician. He had won prizes (especially for his PhD thesis) and scholarships and became a professor in 1972.
‘Seven years later, after training in Switzerland, Sweden and the US, he achieved additional qualifications in plastic surgery. From 1977 until his arrival in Australia, [Dr X} was executive director of the ENT centre at the University Hospital of Frankfurt’ (Nakhoul 1991: 34).
Twenty years after arriving in Australia he/she was granted membership of the RACS as a ‘Fellow’ who was admitted on the basis of his/her international reputation. This seems to be an irony and occurred after he/she was ‘adopted’ by a number of Australian surgeons who felt that the system was unfair. He/she spent years observing and doing unpaid ‘work experience’ in hospitals. At all times, he/she maintained his/her composure and with the support of family and friends did not react negatively.
Many doctors who are put into this situation become angry and depressed. They suffer emotionally and eventually give up or lose faith in the system. Their skills atrophy and they lose confidence in themselves. The problems for families are very severe and Dr X is unusual in his/her ability to remain calm, balanced and focussed.
In the early 1990s, he/she was advised by a number of doctors to relinquish his Presidency of the ADTOA as this was seen as detrimental to his application for membership of the RACS (Personal interview with Dr X, 1998). Membership of a lobbying body was seen as prejudicial to him/her being accepted as a RACS member.
In addition, the fear of retribution that exists among doctors cannot be under-estimated and must be taken into account by the ACCC. Most doctors will not take political action, will not lay a complaint with the Human Rights and Equal Opportunity Commission (this avenue as closed off by the Race Discrimination Commission, Ms Zita Antonios, in the late 1990s) and cannot afford to take legal action.
The ADTOA maintains that the RACS has operated for the past 10 years without a transparent process and membership has largely been granted on the basis of precedent, connections, favour or pressure.
The major points that this submission will focus on are the following statements in the RACS submission:
A. ‘that the College has almost no control over the barriers to entry which appear to be of concern to the ACCC and to certain complainants’ (Page 3 of 3);
B. ‘The College also argues that the arrangements themselves do not unduly restrict participation and that there are clear rules in operation as well as extensive appeal mechanisms in place for persons who are aggrieved by any of its decisions’ (Page 3 of 3 and 4 of 4).
In relation to (A)
The College argues that in the ‘State-based markets for specialist surgical services, the College has almost no control over barriers to entry’. The ADTOA contests this statement.
This statement is contrary to the way that events transpire or some other body (such as a Medical Registration Board (MRB)) is playing a role that has not been acknowledged. The RACS is abrogating responsibility and implying that MRBs have the major role in deciding who gains membership.
Even if the latter were the case, the reality is that close cooperation between the two bodies ensures that applicants for membership of the RACS do not know the source of their denial. Nevertheless, letters used in this submission do not support this position.
We suggest that the ACCC ask the RACS to submit data showing the number of applications for membership over the last 20 years and the rates of acceptance/denial, the reasons for the outcome and the results of appeal proceedings. If these data are not available we suggest that the ACCC investigate why these data are not collected and what alternate data sources are available. Notes from meetings, lawyers’ notes, etc could all be drawn upon.
The RACS has developed its own informal method for assessing overseas-trained surgeons. This is based on a combination of precedence, individual’s knowledge of overseas institutions, contacts, examination of paper qualifications and other ad hoc mechanisms.
The RACS’ submission states that they have produced a comprehensive policy and procedures package relating to the assessment (Attachment 4). An interview is ‘normally’ held with the applicant, according to the RACS submission (page 38), if they are deemed to be a probable member. Prior to this they are asked to submit their formal qualifications, training and describe an assessment team assesses their experience and this. The team consists of three members of the RACS and one of the College’s staff. No outsiders are present.
At the interview, they are asked some questions on the spot as the submission points out on page 38.
‘The primary purpose of the interview is to clarify any aspects of surgical practice and training, although it may also include an assessment of the applicant’s:
- adeptness in professional communication skills;
- ability to evaluate surgical practice;
- professional ethics; and
- familiarity with the Australasian health care system’.
Clarification takes the form of asking some questions and applicants are assessed on their communication and other skills during the interview. The interview allows the applicant to demonstrate his or her knowledge on the relevant issues, according to page 38 of the submission.
Dr L, who had been selected for a position in a prestigious hospital, wrote to the ACCC in 1999 and states that:
‘Unfortunately the interview turned out to be a mini fiasco because it was clear within 5 minutes that the College had already decided that I should sit the clinical FRACP exam’.
This evidence and that of others leads us to dispute the fact the RACS comes to the interview with an open mind.
The ADTOA contends that this interview is not a fair means of assessing their skills. In a situation where the candidate is obviously very nervous, has flown to Melbourne for the interview, is mostly unaccompanied and has generally not had access to the Australian medical system, they have little chance of performing well.
It is largely a test of equivalence - that is, whether the applicant is trained on the same knowledge and skills base as Australian members of the college and trainees. The RACS’ submission (page 38) states that ‘the College assesses the qualifications, training and experience of the overseas trained practitioner and determines what further requirements, if any, he or she must meet to be assessed as equivalent to Australasian trained surgeons’.
Thus, variations in training schedule, procedures and depth/width in the field are seen as not being ‘equivalently trained’ and therefore not recognisable or eligible for membership of the RACS. This chauvinistic approach which sets Australian training up as the pinnacle of surgical training in all fields, around the world, is questionable. Many specialists from overseas question the view held by the profession in Australia.
Moreover, the need to find ‘equivalence’ runs counter to the whole move to competency-based assessments that has been promoted by the Commonwealth Government. We can elaborate on this further but there is a vast body of literature on the move away from the test for ‘equivalence’ to a system of assessment that allows room for slight variation, for different specialties, for new technologies and new approaches and for different cultural backgrounds.
The key objectives of an assessment system should be to enable flexibility in assessment mechanisms (by interview, by on-the-job assessment, etc) as required, and to have a system that is both credible and transparent. The RACS’ processes do not meet these criteria.
Some years ago, soon after 1991, the RACS decided to accept one overseas-trained surgeon for re-training per year. Competition for this one place was tough and depended on various factors - including connections.
Unfortunately we do not have access to Attachment 4 but we have evidence from actual interviews.
Dr A. Gast applied in 1990 to RACS for membership and was advised that she could not become a member on the grounds:
‘that her training in Orthopaedic and Trauma surgery is not comparable (their error) training requirements in Orthopaedic Surgery of the Royal Australian College of Surgeons. Mr Davidson has made the observation that training in Germany is vastly different from training programs in Australasia. Training, in Germany, is either in Trauma Surgery or in Orthopaedic Surgery - the practices differing substantially from those in Australia (see Attachment 1)’.
She was advised in September 1990 to apply for:
‘admission to an Approved Advanced Surgical Training Post in Orthopaedic Surgery in the College Training Program and if successful in obtaining such a post, to undertake a period of training of at least one year and possibly up to three years. … [Further] I [Rush] have been asked by the Chairman of the Board in Orthopaedic Surgery to emphasis (their error) that there is intense competition to join Approved Advanced Training Programs in this country…’ (see Attachment 2).
There was one such position available each year. Dr Gast applied in September 1991 to RACS for the training post but was unsuccessful. She arranged an interview with RACS in August 1993, four years from the time she started to get her German qualifications assessed. A lawyer accompanied her and the RACS’ transcript of the meeting is attached (see Attachment 3). The following points are of particular interest.
First, on page 2 (see Attachment 3), J. H. Rush stated that applicants for training positions must be prepared to go anywhere
‘as this was a position that enabled an assessment to occur, rather than a training position as such, and it was imperative that the College satisfy itself that persons registered to practice Surgery in this country were of the required standard’.
Dr Gast, a mother and wife, would have found it extremely difficult to move wherever they chose to send her. There also seems to be some confusion as to whether it is actually a training position or an assessment position. We suggest that this should be investigated.
Second, in response to a question that was posed by Gast’s lawyer as to why there was only 1 training position for overseas-trained specialists, Rush’s answer was (page 2):
‘there was very strong competition for surgical posts with many applicants unable to be accommodated and to allocate more than 1 post for overseas trained doctors would be discriminatory against well prepared and well qualified applicants for training posts from Australia’.
This is a situation of clear discrimination as overseas-trained doctors are not eligible to take up any other post besides the one allocated.
Dr Gast was rejected at her first attempt to get the training post but some years later was offered the same position. The reason for the change of heart is not evident. Dr Gast is a highly qualified orthopaedic and emergency specialist from Germany and she continued to return home to work in Germany for some years.
The ACCC must try to understand why the RACS changed its mind about offering her the training post. The reason given will probably relate to ‘competition’ from other applicants in the relevant year but the ADTOA does not trust this explanation.
The test that has been construed for applicants, and that is conducted in the interviews, is not open or subject to scrutiny. What is the failure rate at this test? How is the test applied? By whom? And has it been validated?
We argue that the test is arbitrary and non-validated. Most people fail the test but the grounds given are vague. Even people who have been working in the Australian medical system for years have been known to fail this interview test - which they had to undertake once they moved from temporary to permanent residence.
The experience of another overseas-trained surgeon, Dr Y, is that he/she worked for 7-8 years as a surgeon in Australia before becoming a permanent resident in 1991. Entitlement to work was withdrawn and an application was made to the RACS for membership in order to be able to continue to work as a Specialist. Membership was denied. The applicant then applied for the traineeship position but information supplied by an informant, whose word can be trusted and who can be named in confidence, is that the person was rejected because they were seen as being ‘too old’. The question of both race and age discrimination cannot be eliminated in this instance. Dr Y still does not have membership though he/she has been given a trial period of employment on temporary registration.
Another highly qualified surgeon (Dr Virdi), with many years of training and experience from the UK and with existing membership of Britain’s Royal College of Surgeons, also worked in a high level position in Sydney from 1986. ‘For the next eight years, he preformed more than 160 coronary bypass and valve replacement operations, at first under the tutelage of Dr Shanahan and later without supervision’ (Kremmer and Marsh 1999: 1). Again, on acquiring permanent residence in 1989, Dr Virdi person was denied the right to work and applied for membership of the RACS.
‘My temporary registration in Australia came to an end in April 1991. Dr Shanahan and Dr Chang made all possible efforts to convince the NSW Medical Board to extend my temporary registration until my Senior Registrarship in Wales started, but the NSW Medical Board refused. I was therefore unable to be employed as a surgeon in Australia from April, 1991 and for the next eight months had no work’ (Virdi 2001).
After a few years of correspondence with the AMC and others,
the AMC wrote back to me on 27 May 1993 confirming my eligibility to be assessed by the Royal Australaisian College of Surgeons (RACS) & also confirmed that the detailed documentation with form SB conformed with the requirements of the R.A.C.S. I was also informed in this letter that I needed to fill form SC and send it directly to the College along with $ 500/-. The College would then instruct me directly about the date and location of interview. While I was waiting for my interview letter from the College, I received a letter from the AMC in July 1993, informing me that the College’s Chairman of the Board of Cardiothoracic Surgery and the Censor-in-Chief had determined further steps that I must complete to be recognized by the College and recommended for registration as a specialist practitioner (Enc. 36). I was advised in this letter to seek an advanced training position and if I were successful in finding one (despite being warned of the intense competition) I would need to complete up to four years of advanced surgical training and present for the part II exam. of the college. (Virdi 2001).
Thus the RACS rejected his application on the grounds that he needed further training. He was described by his boss (Dr M. Shanahan) at St Vincent’s Hospital in Sydney as being:
‘in the top five in the world that I have worked with - and that includes Victor Chang. I can assure you that many times I have cried tears for this man. … It is a closed shop. I am prepared to say it was bias. I am not prepared to say what sort of bias, but I hate it. It’s unjust. They will deny everything. They will say they are protecting high standards. They turned their back on this man. There is absolutely no excuse’ (Kremmer and Marsh 1999: 1).
There was no communication from the college and no formal interview. The following transcript from Dr Virdi documents elements of what transpired in the six years from 1993 to 1999:
and all that I had achieved in the past 12 years in Cardiothoracic Surgery had been assessed by the College and the result communicated to me within a month. Then, as a result of pressure from various doctors it was suggested that he come to Australia to meet with Dr. Muecke [AMC] in person and he would organize an official interview with the college. In Sept. 1993 I came to Australia from the U.K and met with Dr. Muecke in Canberra. He listened to all that had happened and said that the correct procedure laid down by the AMC would have to be followed by the College and that after getting in touch with the college he would get back to me. I was informed that the college would interview me in Dec. and so I had to come back to the U.K without achieving anything substantial.
I again traveled from the U.K. to Melbourne in December 1993 for a formal interview at the RACS. The attendees from the RACS were Mr Bruce Davies, Chairman of the Cardiothoracic Board and Mr Brendan Dooley, Censor-in-Chief of the RACS. Mr Davies drew my attention to a letter of either late 1986 or early 1987, written to me by Dr Doug Baird, Chief Cardiac Surgeon Royal Prince Alfred Hospital who at that time as the Chairman of the Cardiothoracic Board of the RACS. I no longer have a copy of this letter, but the letter was written to inform me that if I wanted to become a Fellow of the RACS, I would need to do four years of accredited training after passing the Primary examination. Mr Davies insisted at the interview that I was aware of the requirements for obtaining a Fellowship of the RACS, and I deliberately chose to ignore the advice they had given me earlier. Mr Davies suggested that I had tried to get in ‘through the back door’ by sitting the examination conducted by the Intercollegiate Board of the Four Surgical Royal Colleges of Great Britain. I informed Mr Davies and Mr Dooley that in 1986 I had made the query from Dr. Baird on the basis of the information that Dr. M.R. Girinath (an oversees Fellow in training at Green Lane Hospital, New Zealand; who subsequently worked for a short time in St. Vincent’s)) and Dr. K.M. Cherian (an overseas fellow in training at St. Vincent’s, Australia) in the late 70Â’s had been allowed to take the F.R.A.C.S. examination on the basis of just three months training in Australia & two years training respectively without having to do either a primary or having a period of accredited training and went back to their parent country with those additional letters after their name. …
The outcome at the end of [this] interview was that the possible concession made to me earlier that I was not required to sit the primary exam. was withdrawn. I was now asked to first do Part 1 FRACS, then find an accredited training post, followed by four years of training and then successfully complete the Part II Examination before becoming a Fellow of the RACS. I received a letter from the RACS in Feb 1994 confirming the outcome of our meeting (Enc. 38). I wrote to the AMC complaining about the incorrectness of the procedures followed (Enc. 39) in that the College was telling me what I would need to do in order to become a Fellow of the RACS which was never my aim. All I wanted from them and for which purpose my application was sent to the College by the AMC was to determine whether or not my qualifications and experience in my chosen specialty was comparable to that of an Australian trained specialist to which question there was no mention from the College. I also informed Dr. Shanahan who wrote a letter to the then President of the College (Dr. David Thiele) explaining to him about my circumstances and that in his opinion I had been unfairly treated. …
In April 1994 I wrote to Mr Peter Carter of the RACS attaching a letter of appeal for the Chairman of the Appeals Committee of the College (Enc. 41) indicating that, as I had advised them from the outset, I did not want to become a Fellow of the RACS. Rather, I wanted to have my qualifications and experience assessed by the Cardiothoracic Board for registration as a specialist medical practitioner under the specialist recognition pathway formulated by the AMC.
On November 7 1994 I received a response to my appeal from Mr Carter of the RACS (Enc. 42). I was told that while I was not required to do the primary examination (Which was what they had indicated initially!) I would have to find a training position for a limited training period and would need to do the Part II examination before I was allowed to become a Fellow of the Royal Australaisian College. …
I therefore accepted a position of Senior Cardiothoracic Surgeon at Indraprastha Apollo Hospital in New Delhi in 1995. While accepting the position in New Delhi, I was waiting to hear from the secretary of the College about the final outcome of my appeal once the Re-deliberations of the Appeals Committee were completed. I did not receive any communication from the College for the next four years.
After starting my practice at the Apollo Hospital in New Delhi, I soon became recognized as one of the leading Cardiothoracic Surgeons of India. I have done more than 1000 major heart, lung and blood vessel operations to date. The results I have achieved have been comparable to those achieved in the best units in the world.
In January 1999 I was contacted by a journalist for the Sydney Morning Herald. He called me in my office and told me about a report The Race to Qualify resulting from a NSW Government inquiry. He interviewed me and the thoughts and hurt feelings I had suppressed in my psyche for the past four years with great deal of mental discipline surfaced once all over again. This prompted me to write to the college on 12 February 1999, seeking information about the outcome of the deliberations of the Re-convened Appeals Committee of the College. …
In March 1999 I received a letter from Mr Peter Carter, Secretary of the RACS the contents of which I really could not understand. I wrote back to him in April 1999 to which he replied on 14/4/99 (Enc. 48) and instructed me to reapply to the AMC for specialist recognition and registration. I did not understand why Re-Applying should make any difference as there was no new information that was not available on my original application, apart from the experience I had obviously acquired and the fact that I had been elected to the Royal College of Surgeons of Edinburgh & had obtained permanent registration with the General Medical Council of UK. This additional information I had already given to the College with my previous letter of 12/2/99.
I then wrote to the AMC on 6th April 1999 about the demand from the college that I reapply for Specialist Recognition. The AMC informed me that this was not required, as the original application of 1993 was still open without a conclusion. I again wrote to Mr. Carter enclosing a copy of the communication from the AMC (Enc.51) in which I also suggested that as I was coming to Australia I would be happy to present myself for another interview at the RACS.
On 1 June 1999 I came to Australia and was interviewed at length by the College’s Censor-in-Chief, Dr. Ann Colby and Mr. Jim Tatoulis, Chairman of the Cardiothoracic Board. I was informed that the College did not want to dwell on the past, and instead wanted to consider my application in a new light. For over an hour they went over my training and experience even sighting some of the detailed operation reports on patients operated independently by me in Australia and New Zealand. Mr Tatoulis was very keen to know what my plans were. I made it clear to him that I had no intention of returning to Australia to practice. I told them that I intend to stay in India, as I have considerable loyalty to the country that welcomed me as a skilled Cardiothoracic Surgeon when the RACS refused to recognize my ability to practice as a Specialist Surgeon. … the Censor-in-Chief and the Chairman of the Orthopaedic Board had interviewed me and wanted further information on my Training and Experience! I could not believe that Mr Peter Carter himself (who has been a part of this saga spanning six years) did not even know whether I was a Cardiothoracic or an Orthopaedic Surgeon. Despite all the paper work and almost two hours interview, they still wanted further information on my non-operative teaching and research experience!
My last letter to Mr Peter Carter, dated 11th August 1999 is enclosed wherein I have reiterated for the third time that I have no further information to give to the College (Virdi 2001).
Finally, after considerable public pressure and a re-interview (including a cup of tea this time), the applicant was inducted into the RACS in 2001. The reason for the changed position needs is not clear as Dr Virdi did not undergo any further training in Australia. He continued to travel overseas to work in a range of countries though his/her family often remained in Australia.
In the meantime, the doctor who spoke out in the Sydney Morning Herald about Dr Virdi was cautioned by the RACS as to his outspokenness and the possibility of his membership of the RACS being revoked (Personal interview with Jon Marsh, SMH, 1999).
In late 1998, the censored version of the NSW Committee of Inquiry report, The Race to Qualify, came out and was very critical of many of the medical bodies. It stated:
‘The committee is particularly concerned at the lack of public accountability in the current arrangements and the lack of separation of powers … the lack of independence raises questions about conflict of interest and collusion’.
This and many other instances have led us to believe that the RACS plays a major role in terms of who may enter the profession in Australia. It is not accurate to imply that the MRB or the State Health departments are the major arbiters of who gains entry and who does not, though they do play some role.
The differential treatment of permanent resident and temporary resident overseas-trained specialists is a major issue that needs to be tackled. The NSW Committee of Inquiry argued against it and against the different policies for registration of temporary and permanent specialists. In relation to specialists, the committee also stated that:
It appears that staff specialist positions in public hospitals may be exclusively available only to specialists from certain countries of training, mainly English-speaking ones.
Thus, the question of discrimination was clearly on the minds of members of the committee. The evidence presented in these case studies supports the widespread feeling that membership of the RACS is metered out to ‘white Anglo Saxon males who played in Sydney University’s Rugby team’s front line’ as one person put it to me.
In relation to (B),
We argue that the current arrangements restrict entry, the rules are not clear and the appeal provisions are weak.
At the moment, the decision about entry to the RACS is entirely in the hands of the College with no outside or independent involvement. Nieuwenhuysen and Williams-Wynn (1982: 2) stated:
Competition for professions does not imply complete freedom of entry. There is a clear need for qualifications which the public can recognize as prerequisites for professional practices. This has some restrictive entry effect. But self-regulation has permitted professional associations to use entry barriers to serve monopoly profits rather than public interest’.
We note that the RACS maintains that they are acting only in the public interest. This is contested as the denial of membership to many overseas-trained specialist, some of whom have later achieved membership without further training, indicates that the process is flawed.
In 1981, in a paper titled ‘The Trade Practices Act and The Professions’, Pengilley stated:
I have no doubt at all that the professions are more than capable of living within competition law, and the next decade will demonstrate this. ... Protestations of the professions to be ‘different’ are seen by those outside ... as strong on assertion and short on fact. They see the professions as self-interested groups attempting to maintain a stance which business generally has been, or is being, forced to abandon.
In his article on the medical profession in Australia, ‘Over-supply of medico monopoly power’ (Financial Review, 26 February, 1992), Stutchbury argues that the over-supply of doctors is exaggerated and ‘Government and Opposition talk of over-supply is symptomatic of the political power of the doctor’s monopoly and its producer control over the market for medical services’. Stutchbury went on to say that ‘[w]hile the legal monopoly is protected through the lawyers’ capture of Parliament and the judiciary, the medico monopoly is enforced by capture of its regulatory bodies and periodic mass withdrawal of guild labour from public hospitals’.
The relationship between the various medical bodies is difficult to disentangle but the RACS’ role in the web has been clearly evident in the past. Their role in restricting supply is a fundamental part of their mode of operation even though in their submission they attribute this responsibility to the government, relevant medical boards and hospitals.
The Race to Qualify report (NSW Committee of Inquiry 1998: 1) stated:
Fundamental to the Committee’s approach is the principle of the separation of standards from workforce-management questions or membership of particular organisations. The Committee is confident that the recommendations are designed to maintain the highest medical standards in NSW and in Australia generally, ...
In one instance outline above, Dr X took 20 years to gain membership of the RACS. He/she spent many years in observing, work experience, seminars, etc with specialists in the field and finally was admitted to the RACS as a person of international repute. Why did it take 20 years to demonstrate that he/she was an internationally renowned specialist? Was this a labour supply issue or a matter of discrimination?
From when he/she became a permanent resident and then an Australian citizen in 1992, his appeal was progressing. During this time the family was either uprooted or left behind in Australia. The appeal continued for a number of years and in 1999, he told Kremmer and Marsh (1999: 10):
‘All the humiliation and heartache and suffering I went through only I know’.
We disagree that the rules are clear and transparent. On the contrary, the rules are not transparent, they are open to bias and to the influence of networks and connections and they do not preclude against the possibility of various forms of discrimination (race, age and gender).
The appeal provisions appear to be sound on paper but in reality they are again closed with no provision for outside scrutiny. Even with legal support, complainants are unable to achieve a satisfactory explanation for why their competencies are not recognised.
On the evidence provided above and numerous other cases that we are aware of, the ADTOA believes that the RACS should not be granted the authorisation that has been applied for, on the grounds that it has a track record of discrimination and lack of transparency and credibility. Further evidence, if needed, should be sought from the material collected by the NSW Committee of Inquiry into the Employment of Medical Practitioners which is held at the Ethnic Affairs Commission of NSW (now the Commission for Cultural Relations, Ashfield, NSW).
The ADTOA maintains that RACS’ processes must be scrutinised and subject to the usual legal tests that apply under the Trade Practices Act 1974. Bringing professional bodies under ‘the Act’ was an important step that should not now be undone. There are no other avenues for complaint. Complaints are no longer accepted by HREOC and all former complaints were either unsuccessful (on appeal) or withdrawn without conciliation or finalisation.
Cases of this nature are difficult to prove on an individual basis. It is not necessarily that there is no case but the case is difficult to prove especially where discrimination is indirect. The weight should not be on individual complainants to demonstrate discrimination but a profile of ongoing discrimination needs to be built up by a body such as the ACCC. Even then, the ACCC’s ability to win a case is limited by the lack of hard evidence, the unwillingness of overseas-trained doctors to speak out and threats to members of the College if they speak out.
The power imbalance between the RACS and individual doctors is so large that it is essential that the ACCC should be in a position to investigate the processes and practices of the College. As mentioned above, most doctors fear taking legal action, even if they could afford it. The prospect of retribution by the College, in terms of never being able to gain membership, has prohibited legal action in the past. In fact, this is the reason that this submission is prepared by an academic rather than a specialist. Most people are unwilling to speak out and in all but two cases, names have been left out of this submission. In the case the Dr Gast, one of the specialists named, she has ‘given up’ with the RACS and has followed another career in Australia in Kineisiology. But this is not without great stress and financial loss. Dr Virdi finally achieved membership of RACS in May 20001 and now faces the next hurdle of trying to get a job in Australia.
Advisory Council on Multicultural Affairs (1988) Towards a National Agenda for a Multicultural Australia, Discussion paper, Department of the Prime Minister and Cabinet, AGPS, Canberra.
Chapman, B. and Iredale, R. (1990) Immigrant Qualifications: Recognition and Relative Wage Outcomes, Office of Multicultural Affairs, Dept. of Prime Minister and Cabinet, AGPS, Canberra.
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