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.   

Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139 – Federal Court slams lower court for not finding racial discrimination in “black babies” case.

The latest racial discrimination case involves several remarks made by a Department of Education employee towards an indigenous graduate Vata-Meyer. The employee who made the remarks was incredibly unsophisticated and insensitive, but this was only one factor and an overreliance on this finding and a failure to consider the elements of the s.9 test misguided the lower court.

Background

Vata-Meyer is an indigenous woman who was employed by the Department of Education under the Indigenous Graduate Recruitment Program. On the 28 September 2011 whilst at work she was the target of a series of comments from an “obtuse” and “remarkably unsophisticated” employee, Mr Lee, who held a role in human resources management. The matter was originally lodged with the Australian Human Rights Commission, who issued a “no reasonable prospect of resolution” certificate on 5 September 2012, enabling Vata-Meyer to commence proceedings in the Federal Circuit Court (FCC). On 10 September 2014, the FCC dismissed the application, and Vata-Meyer appealed to the Federal Court. 

The alleged discriminatory conduct

Three separate incidents allegedly occurred on 28 September 2011:

1.       “Black babies” incident

Mr Lee had a packet of Chiko jelly babies and offered some to Vata-Myer and said “have some black babies”. A colleague said “you can’t talk like that” to Mr Lee. Vata-Myer made it clear that the comment was unwelcome.  Mr Lee conceded he said “here are some black babies”, as he had referred to Chikos as “black babies” since he was a child.

2.       “Michael Jackson” incident

At a team afternoon tea Mr Lee interjected in a conversation and said “like Michael Jackson”. Mr Lee denied this comment occurred.

3.       “Coon” incident

Cheese was served at the team afternoon tea. A colleague asked about the difference between camembert and brie. Mr Lee interjected with “I like Coon”. There was a discrepancy between Vata-Myer’s version that Mr Lee interjected and Mr Lee’s version that he was asked what kind of cheese he liked and he responded with “I just like plain old Coon cheese”. One meaning of coon as defined in the Macquarie dictionary is “(derog.)(racist) a member of dark-skinned people, as an Indigenous Australian or an African American” and is capable of racial connotations.  

Section 9 Racial Discrimination Act 1975 (Cth)

There are three components to the racial discrimination test under s.9 of the RDA (see also [57]-[60] of the judgement):

1.       An act involving a distinction, exclusion, restriction or preference;

2.       The distinction, restriction or preference must be based on race, colour, descent or national or ethnic origin;

3.       The act must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work.

Problems with the lower court decision

The Full Court of the Federal Court was scathing on the FCC’s decision which contained inadequate analysis, applied the wrong standard of proof, and placed emphasis on certain evidence without explanations as to why that evidence was preferable over other evidence. The Full Court identified these main errors:

1.       Failure to consider the “Michael Jackson” incident

The FCC did not decide whether the “Michael Jackson” comments were made, let alone whether the elements in s.9 RDA were established ([68)]. 

2.       Failure to properly consider the “Coon” incident

The FCC stated that the word “coon” can have several meanings including a racially pejorative meaning, but did not decide on the meaning the word took on in the context ([70)]. The primary judge did not reconcile competing accounts of whether the phrase was said without prompting (Ms Vata-Meyer’s version) or whether the phrase was said in response to a direct question about the type of cheese Mr Lee likes (Mr Lee’s version). The primary judge accepted Mr Lee’s version without engaging with the alternative account ([70)].

3.       Application of the wrong standard of proof

The standard of proof for civil proceedings is “on the balance of probabilities” (s.140 Evidence Act 1995 (Cth))). However, the primary judge imposed a higher standard by finding Mr Lee did not understand his comments might cause offence and giving him the benefit of the doubt on the basis of his examination and cross-examination in the witness box ([73]). The mere availability of innocent explanations does not mean the purpose was a lawful one. The question is meant to be determined on the balance of probabilities, while the standard applied by the FCC was closer to “beyond reasonable doubt” the criminal standard of proof.

4.       Failure to properly consider Mr Lee’s purpose in making the comments

The FCC fixated on their finding that Mr Lee did not understand that his comments might cause offence. This finding does not address any element in s.9 of the RDA.  The primary judge was entitled to have regard to Mr Lee’s behaviour in the witness box, but was required to evaluate the answers given against ostensibly reliable evidence of other witnesses ([82]).

5.       Failure to consider Mr Lee’s training and position

Mr Lee held a relatively senior position in human resources management and had undertaken comprehensive cultural awareness training including several modules on indigenous culture and awareness. Someone of this position who had received this training would not be oblivious to the hurt they might cause to an indigenous person through the comments made ([84]). The Full Court found that the primary judge did not “weigh up the strength of the cumulative evidence to determine whether on the balance of probabilities” Mr Lee was actuated by an unlawful purpose ([88]). Identifying purpose is one component of the offence under s.9 and the primary judge failed to engage with this component.

6.       Failure to consider the alleged discriminatory conduct separately from the subsequent investigation

The primary judge muddled the consideration of elements of s.9 with the way the Department subsequently handled the complaint. The steps taken to investigate a complaint cannot deprive the offending conduct of its discriminatory nature ([92]). The primary judge failed to consider whether the conduct of Mr Lee on its own infringed s.9 of the RDA.

7.       Failure to consider steps taken after the alleged conduct

The FCC also failed to properly consider subsequent action taken by the Department. This consideration is relevant to s.18A(2) which states an employer will not be vicariously liable for the conduct of an employee where they “took all reasonable steps to prevent the employee or agent from doing the act”.

Outcome

There was a clear miscarriage of justice in the trial ([100]). While the Federal Court has the power to correct a judgment and the orders made, the Full Court could not do so in this instance due to the lack of evidence and lack of transcript before them and the inability to hear or see witnesses. This is very unfortunate for Vata-Meyer, as she cannot be sure of the outcome which will flow from the retrial in the Federal Circuit Court. She is seeking a variety of remedies including:

·         Order for redeployment within the Australian Public Service;

·         Compensation for economic loss, medical expenses and hurt, distress and humiliation;

·         An apology;

·         An order that the Department require Vata-Meyer’s supervisors to undergo anti-discrimination, anti-bullying and harassment training; and

·         Costs.

It is open to the Department to argue the s.18A “all reasonable steps” defence, though it is not clear from the facts on Appeal whether the Department will try and avoid vicarious liability.