Medical internships – favouring local medical students discriminatory to overseas trained doctors

On 30 June 2016 the ACT Civil and Administrative Tribunal (ACAT) handed down its decision in Wang v Australian Capital Territory [2016] ACAT 71, finding that ACT Hospitals had discriminated against Mr Wang, an overseas trained doctor by following its Intern Policy which favoured local medical students to overseas trained doctors in allocating internship places. In this blog post I examine the reasoning of the tribunal and consider whether the decision will result in less internship places for local medicine students.

Facts

Mr Wang was a neurologist in China before moving to Australia and becoming an Australian citizen. He completed the Australian Medical Council examinations to have his Chinese medical qualification recognised and in 2013 applied for an internship position at Canberra Hospital to qualify for registration as a medical practitioner.

Since 2013 the number of medical graduates applying for internship positions has exceeded the number of internship positions available. To combat this, states and territories entered into a number of intergovernmental agreements on the availability of internships. ACT Hospitals adopted an Internship Policy that prioritised applicants into 8 categories:

1.       Guaranteed first round offer: ANU graduates who do not make applications elsewhere;

2.       Guaranteed first round offer (capped at 5): domestic graduates of NSW universities;

3.       First round offer not guaranteed: graduates of other Australian universities who completed Year 12 in the ACT;

4.       First round offer not guaranteed: ANU graduates not offered a category 1 placement;

5.       First round offer not guaranteed: graduates of other Australian universities;

6.       First round offer not guaranteed: graduates of Australian university campuses outside Australia accredited by the AMC;

7.       First round offer not guaranteed: graduates of New Zealand universities; and

8.       First round offer not guaranteed: international medical graduates.

Under this policy, overseas trained doctors such as Mr Wang, who was an experienced neurologist, would have no real possibility of obtaining an internship in the ACT. In 2013 Canberra Hospital received 463 applications for 96 internship and RMO positions. Seventy eight positions were offered to ANU medical school graduates and 18 positions were offered to domestic graduates. Mr Wang was in category 8 and did not receive an offer. Mr Wang was also unsuccessful for the RMO applications he made in other states and territories. To be registered as an Australian medical practitioner, Mr Wang was required to complete an internship of 47 weeks supervised practice. Unable to secure an internship in Australia, Mr Wang was unable to register as a medical practitioner.

Direct discrimination

A person will racially discriminate against another person if the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7 (Section 8(1)(a) of the ACT’s Discrimination Act 1991 (Discrimination Act)). “Race” is an attribute in s.7 and is defined as including ethnicity, national origin and nationality. The intention of ACT Hospital’s Intern Policy is to distinguish between people of Australian national origin and those who are not, a differentiation that exists in the policy despite the fact a person of non-Australian national origin may be an Australian citizen, as is the case for Mr Wang. The concept of “attribute” is extended by s.7(2) of the Discrimination Act to include ‘characteristics’ that people claiming to be the subject of the discrimination ‘generally have’ or ‘are generally presumed to have’. ‘Characteristic’ includes more than just the physical features of a people of national origin and extends to their education. The Intern Policy does not consider the merits of the university or the quality of the degree. For the Intern Policy to distinguish only on the national location of the university is a criteria that operates as a proxy for national origin. As the elements in s.8(1)(a) were satisfied, Senior Member Anforth found that direct racial discrimination had occurred.

Indirect discrimination

After finding that direct discrimination had occurred, Senior Member Anforth considered Mr Wang’s alternative argument, that indirect discrimination had occurred. For indirect discrimination to be established, the criteria in sections 8(1)(b), 8(2) and 8(3) of the Discrimination Act must be satisfied.

Section 8(1)(b) of the Discrimination Act provides a person discriminates indirectly against another person if “the person imposes or proposed to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7”. “Race” is an attribute in s.7. ACAT found that:

·         The relegation of overseas trained doctors to the last category of the Intern Policy amounts to the imposition of a condition on those doctors, including Dr Wang;

·         The relegation to the last category of the Intern Policy disadvantages those doctors, including Dr Wang;

·         For the reasons given above in relation to direct discrimination, to differentiate on the basis of the university from which the overseas trained doctor graduate is to differentiate on the basis of an “attribute” referred to in s.7 of the DA Act.

These factors are prima facie sufficient for a finding of indirect discrimination in the DA Act.

Section 8(2) provides that indirect discrimination will not have occurred where the condition or requirement is reasonable in all the circumstances (“reasonableness defence”). The onus is on the respondent to the discrimination claim to establish the condition was reasonable in all the circumstances. The primary motivation for the Intern Policy was to protect the viability of ANU Medical School by providing guarantees to students who enrol that they will obtain an internship position in the ACT on completion of their studies. ACAT accepted that the financial and academic standing of the ANU was a relevant consideration but needed to be weighed against the discriminatory nature of the Intern Policy itself.

Section 8(3) provides that in deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include:

(a)     the nature and extent of the resultant disadvantage; and

(b)     the feasibility of overcoming or mitigating the disadvantage; and

(c)     whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.

Senior Member Anforth identified the main motivations for the policy as maintaining the financial and academic standing of ANU medical school and to comply with ACT hospital’s perception of COAG’s intention. However, notes from COAG and AHMAC meetings did not evidence an intention that overseas trained doctors should be excluded from practice to favour domestic graduates or that graduates from within a state or territory should be favoured over domestic graduates from other states or territories.

There were a number of factors weighing against these including the extremity of the consequences to Mr Wang, the prima facie undesirability of government policies that are intrinsically discriminatory on the basis of race, the fact that COAG minutes did not envisage an outcome that overseas trained doctors be excluded from eligibility to practice, the unfairness given it had been represented to Mr Wang that after he completed his AMC examinations he could be considered for an internship on his merits, and it is possible to have a merit based system to assess internship applicatns. The “reasonableness” defence was not made out, and indirect discrimination was found to have occurred.

What happened to Mr Wang?

ACAT ordered that ACT Hospitals reconsider Mr Wang’s application on its merits for the next round of internships. ACAT also ordered ACT hospitals make the decision:

·         Free from the assumption that ANU graduates would be superior in merit just by reason of the fact that they are recent ANU graduates;

·         Free from the assumption that the undergraduate clinical placements of ANY students is superior clinical experience to Mr Wang’s years of clinical experience, years spent working in aged care in Australia, and additional study undertaken in Australia.

While Mr Wang was awarded $40,000 in compensation, there is no guarantee Mr Wang will be successfully placed into an internship program in the ACT. However, given Mr Wang was a senior medical practitioner in China, he would presumably rank highly in merits against recent medical school graduates. 

Implications for medical interns around Australia

ACT Hospitals are required to rethink their Intern Policy and ensure allocation is based on merit.  When applicants are considered on merit, overseas trained doctors may be offered internships over domestic medical school graduates, with the effect being some domestic medical students may miss out. Other hospitals have similar policies to that used by ACT Hospitals in allocating places for interns.  While there is a chance these policies are also discriminatory and will have to be revised, this conclusion could vary due to the differences in anti-discrimination laws across Australia’s states and territories.   

Not all anti-discrimination legislation contains the extended definition of ‘attribute’ which was essential to ACAT’s decision, though the anti-discrimination legislation in Victoria and NSW does contain the extended definition:

·         Racial Discrimination Act 1975 (Cth) (RD Act)– s.9 does not contain an equivalent of the extended definition of attribute contained in s.7(2) of the ACT Discrimination Act.

·         Equal Opportunity Act 2010 (Vic) (EO Act)– contains an extended definition of attribute.

·         Anti-Discrimination Act 1977 (NSW) (AD Act) - contains an extended definition of attribute

Also note that the DA Act does not contain a “comparative test” for direct discrimination which is found in other but not all jurisdictions. Senior Member Anforth was of the view that Mr Wang’s case would have passed a comparative test regardless.

In regards to indirect discrimination arguments, the ‘reasonableness’ test appears in various forms in Commonwealth and state anti-discrimination laws:

·         RD Act – ‘reasonableness’ test in s.9(1A)(a) requires the action, requirement or condition first be shown to be ‘not reasonable’ before discriminatory conduct is shown to exist

·         EO Act – test for indirect discrimination contains a test framed in  terms of the actions, requirement or condition being ‘not reasonable’, with the person imposing the requirement bearing the onus of showing that it is ‘reasonable’.

·         AD Act – the act, requirement or condition must be shown to be unreasonable before indirect discrimination is found to exist.

An intern policy should permit a practical and not a merely theoretical chance of selection. In the ACT Hospitals’ Intern Policy the chance of an overseas trained doctor being selected for an internship was merely theoretical and remote. ACAT suggests that a policy that ranks universities based on the quality of the university and courses would be appropriate as well as the merit of the individual applicant. While changes may occur to internship selection practices in the ACT, it is likely other hospitals will wait until their policies are challenged before changing internship selection practices, especially given practice in most states and territories is to favour local applicants prior to considering merit.