FEDERAL COURT OF AUSTRALIA

Sklavos v Australasian College of Dermatologists [2016] FCA 179

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 9 September 2015 be dismissed.

2.    The applicant pay the respondent's costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1.    BACKGROUND

1.1    Factual context – a brief overview

1    Sometimes the single-minded pursuit of a worthy goal can involve a price which is too high. This is one such case.

2    Angelo Sklavos, the applicant, is a medical doctor. While still an undergraduate, he started to focus his mind on becoming a specialist dermatologist. After graduating, he undertook work overseas focused on dermatology. He returned from overseas determined to become a dermatologist. He became registered as a medical practitioner in Australia in January 1994. To become a dermatologist in Australia he needed to gain entry into the Australasian College of Dermatologists (the College), as it is the only body in Australia which has the capacity to confer Fellowship on a person so that they may be recognised and practice as a dermatologist. The College's training program (initially a five, and then a four year program) is accredited by the Australian Medical Council (the AMC) for this purpose.

3    Between 1994 and 1996, Dr Sklavos undertook work as an intern, then resident, and then registrar in the New South Wales public hospital system, which is required before any medical practitioner may apply to the College for entry as a trainee.

4    Not every medical practitioner who applies to the College is admitted as a trainee. The College has to make arrangements with hospitals for training purposes and only admits the number of trainees for whom it can obtain placements in the hospital system. Trainees are selected based on an examination and interview process. In 1996 and 1997, Dr Sklavos applied for entry but failed the examination. He tried again in 1999 and passed the examination but did not gain entry as a trainee. In 2000, believing it would assist him to gain admission as a trainee of the College, he enrolled at the University of Sydney as a doctoral (PhD) candidate, his proposed thesis relating to melanoma.

5    Between 1999 and 2006, Dr Sklavos applied for admission as a trainee of the College in every year but was unsuccessful. He supported himself through part-time work as a general practitioner and also undertook such other dermatology related work as he could, which he thought might increase his chances of gaining entry to the College as a trainee.

6    From early on in his dealings with the College, Dr Sklavos considered that he was disadvantaged compared to other candidates because he did not have connections in dermatology. His perception of his disadvantage was reinforced by his repeated failure to obtain admission to the training program. At the same time, he perceived that he had to complete his PhD in order to obtain entry as a trainee when other candidates did not face this hurdle. This also caused him to develop a sense of grievance against the College. He also found his PhD supervisor difficult and unhelpful.

7    While he completed his PhD thesis in 2006 he was not awarded his PhD until 2009 because the examiner required amendments which Dr Sklavos was unable to complete due to family obligations. In the meantime, however, he was finally admitted as a trainee of the College in its 2007 program. He thus became a trainee feeling aggrieved at the College for, as he saw it, making decisions based on connections and not merit, for a lack of transparency in the admissions process, and for being required to complete his PhD before he could obtain admission when he felt that this was not a requirement imposed on other candidates.

8    On admission as a trainee, Dr Sklavos felt euphoric but also anxious. He was euphoric to have achieved his goal but anxious the College would not treat him fairly based on what he perceived he had had to go through in the admissions process.

9    Dr Sklavos started to perceive things going wrong with his training in his second year, 2008. Despite his concerns, he passed all requirements that year. However, things went very wrong for Dr Sklavos from 2009. In early 2009, Dr Relic, his supervisor at the John Hunter Hospital, Newcastle, where Dr Sklavos had worked during 2008 as part of the College's system for rotations through training positions, saw a patient at the Hospital clinic, CM. CM's file contained a letter written by Dr Sklavos to CM's general practitioner referring to CM having attended the clinic in May 2008. Dr Relic was informed by CM's mother that CM, a child, had been scheduled to attend the Clinic in 2008 on a number of occasions but had not done so, 2009 being the first time CM had attended the Clinic. This, and the College's subsequent investigation and dealings with Dr Sklavos about this including the College's referral of Dr Sklavos to the New South Wales (NSW) Medical Board, is referred to as the "clinic list incident" or "conduct". Dr Sklavos's concerns about and sense of grievance against the College increased significantly during this period.

10    Things continued to go wrong for Dr Sklavos in late 2009 when he was assigned to a training position at the Royal North Shore Hospital and required to undergo an interview before his placement would be accepted. The supervisor at the Royal North Shore Hospital had heard of the clinic list incident and was not willing to have Dr Sklavos as a trainee without first interviewing him. Dr Sklavos felt he would not be treated fairly at that hospital due to this and, at his request, the College arranged an alternative placement in a training position at the Liverpool Hospital. Dr Sklavos's experience with the Royal North Shore Hospital reinforced his anxieties about the College's treatment of him.

11    Dr Sklavos was scheduled to sit the College's final examinations in 2010. In late 2009, the College changed its procedures concerning the circumstances in which a trainee would be able to carry over a pass in the written examinations into subsequent years. Dr Sklavos perceived this to be somehow targeted at him.

12    Dr Sklavos then had a problem with his case reports, which were another College requirement. His second case report was rejected for publication, which he took as a "slap in the face". He then felt further aggrieved because he did not know that the College might have accepted a different form of publication (a letter to the editor) as sufficient and felt cheated of the opportunity to use this means to meet his publication requirements. Despite this, Dr Sklavos, along with three other candidates, was permitted to sit for the final examinations in early June 2010 without having completed his publication requirements beforehand.

13    Dr Sklavos's troubles continued, however. In early July 2010, he was given an unsatisfactory performance review for his first half at Liverpool Hospital and was subjected to a performance improvement requirement. This made Dr Sklavos very anxious and distressed.

14    Dr Sklavos was informed by the College on 30 June 2010 that he was invited to take the clinical examinations. Unbeknownst to him, however, the College later discovered it had made an error in this regard and it considered that Dr Sklavos's marks were not sufficient for him to be invited to take the clinical examinations. Dr Sklavos's actual performance in the 2010 written examinations is an issue in dispute. The College decided that it would not rescind the invitation to Dr Sklavos to sit the clinical examinations and not to inform him of the issue about his written examinations as it might adversely affect his performance in the clinical examinations. This was because the College considered that if he passed the clinical examinations he should be admitted as a Fellow irrespective of the written examinations.

15    Dr Sklavos took the clinical examinations starting on 24 July 2010. He did so feeling nervous and aggrieved that he had not been given the peace of mind needed to prepare properly. He had been unable to arrange leave from the Liverpool Hospital to prepare for the examinations and was continuing to work. His wife was late into pregnancy with their second child. By the end of the process of the clinical examinations, he felt physically and mentally exhausted and anxious. He did not pass the clinical examinations. He was then told that he had not in fact passed the written examination and would be required to re-sit both the written and clinical examinations the following year.

16    Dr Sklavos completed his year at Liverpool Hospital without further incident. He continued to work at Liverpool Hospital until the College notified him that his supervised training would be completed by 31 July 2011 (the training program having been reduced from five to four years). The College had arranged for Dr Sklavos to work at the private practice of Dr Younger in Campbelltown one day a week since February 2011 and his work there increased after his training at the Liverpool Hospital ended. Dr Sklavos enjoyed working in Dr Younger's practice and he experienced no problems while working there.

17    Dr Sklavos applied to sit for the Fellowship examinations in 2011. He had yet to complete his publication requirements but was permitted to sit the 2011 examinations. While he still felt deeply aggrieved and troubled by all that had occurred, which he now characterised as not only unfair and arbitrary but also malicious treatment of him by the College, he considered that he could pass the examinations in 2011. At the same time, however, he thought the College was running a campaign against him to ensure he could not be admitted as a Fellow. He experienced more severe anxiety symptoms than in 2010. In any event, he sat the written examination in June 2011. He did not pass and thus was not invited to sit the clinical examinations in 2011. The College allowed candidates four attempts to pass the examinations in a 10 year period from the start of training.

18    Dr Sklavos continued to work at Dr Younger's practice. By 28 July 2011, Dr Sklavos's solicitor had written to the College making many allegations against it and claiming that Dr Sklavos should be admitted as a Fellow without undertaking further examinations. By this time, and probably before, Dr Sklavos had no doubt that members of the College were involved in a conspiracy against him. The College refused to admit Dr Sklavos as a Fellow and denied the allegations against it.

19    By late 2011, Dr Sklavos had seen a psychiatrist. By a letter dated 22 December 2011, Dr Sklavos again sought to be elected as a Fellow of the College without having to undertake and complete the College's examinations, relying instead on his qualifications and experience. In late January 2012, the psychiatrist diagnosed Dr Sklavos with a specific phobia, the phobia relating to sitting the College's examinations. By another letter dated 7 February 2012, Dr Sklavos's solicitor provided to the College a copy of the psychiatrist's report and asked that it be considered in the context of the letter from Dr Sklavos of 22 December 2011.

20    By letter dated 21 February 2012, the College informed Dr Sklavos that his application to be elected as a Fellow had been refused. The letter also said that the College would consider any reasonable request for special conditions in the 2012 examinations. Dr Sklavos notified the College on 8 March 2012 that he intended to sit the 2012 Fellowship examinations and requested that certain steps be taken to allow him to do so. Correspondence ensued with the adequacy of the adjustments the College was prepared to make being an issue in dispute. Ultimately, however, and with the benefit of advice from his psychiatrist, Dr Sklavos decided he was unable to sit for the 2012 examinations. He then lodged a complaint with the Australian Human Rights Commission (the AHRC) about alleged disability discrimination by the College.

21    Dr Sklavos ceased to work at Dr Younger's practice in September 2012, in circumstances which are in dispute. Thereafter, in the context of this proceeding, Dr Sklavos thought he would be able to undertake an alternative form of assessment, if offered by the College. His present position, however, is that his psychiatric condition has become more severe and he is unable to engage in any process involving any assessment of him by the College at this time or in the foreseeable future (a view supported by a psychiatrist who gave evidence in Dr Sklavos's case). Dr Sklavos has worked casually as a locum general practitioner at various times since he ceased work at Dr Younger's practice.

22    The AHRC terminated his complaint in April 2013. This proceeding was commenced in June 2013. It has an unfortunate procedural history which caused delays in the fixing of the matter for hearing (including a dispute about subpoenas which was the subject of an appeal to the Full Court, see Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378).

1.2    Claims

23    Dr Sklavos's makes three claims against the College.

24    The first involves an application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) by which Dr Sklavos alleges that the College engaged in either direct or indirect disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act). The relief he seeks is an order that he be made a Fellow of the College and compensation.

25    The second involves allegations that in multiple respects the College breached a contract or contracts into which it entered with Dr Sklavos in respect of his training. The relief he seeks is damages.

26    The third involves allegations that the College negligently breached a duty of care it owed to Dr Sklavos by reason of the clinic list conduct. The relief he seeks is damages.

27    It is unfortunate but necessary to observe that the written submissions which each party provided have made the task of resolving the issues more difficult than might have been hoped. Those on behalf of Dr Sklavos delved into the minutiae of every event that occurred to Dr Sklavos in his attempts to become a dermatologist from 1996 onwards and how each such event impacted on Dr Sklavos's state of mind, without apparent regard to the importance of the event to the causes of action. Those on behalf of the College touched but lightly on some, but by no means all, of the key issues.

2.    THE DISABILITY DISCRIMINATION CLAIMS

2.1    The claim in the context of the statutory provisions

28    Dr Sklavos claims that at all times since at least 28 January 2012 he has suffered from a disability for the purposes of the Disability Discrimination Act. Under s 4(1) of the Disability Discrimination Act, "disability" is relevantly defined to include:

(g)    a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;

29    Dr Sklavos's case is that since at least January 2012, he has suffered from a recognised psychiatric illness known as specific phobia, situational type (the relevant situation being examinations of the College). He alleges unlawful discrimination by the College against him in respect of which he made a complaint to the AHRC on 29 June 2012 (amended on 16 October 2012). The complaint was terminated by the AHRC on 17 April 2013. In accordance with the time limit of 60 days prescribed by s 46PO(2) of the AHRC Act, Dr Sklavos commenced this proceeding on 5 June 2013.

30    Section 46PO(1) of the AHRC Act provides that if a complaint has been terminated by the President of the AHRC, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. By s 46PO(3) the unlawful discrimination alleged in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. This requirement is satisfied in the present case.

31    The Court's powers if the allegation of unlawful discrimination is sustained are contained in s 46PO(4) of the AHRC Act which is in these terms:

If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)    an order requiring a respondent to employ or re-employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

32    It will be apparent that Dr Sklavos's claim for compensation is founded on s 46PO(4)(d) of the AHRC Act. His claim for an order that he be made a Fellow of the College is based on s 46PO(4)(b).

33    "Unlawful discrimination" is a defined term. Insofar as relevant, it is defined in s 3(1) of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 2 of the Disability Discrimination Act.

34    In the Disability Discrimination Act, "discriminate" is given meaning by ss 5 and 6 (s 4(1)).

35    Section 5 of the Disability Discrimination Act defines direct disability discrimination as follows:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

36    Section 6 of the Disability Discrimination Act defines indirect disability discrimination as follows:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

37    Section 4(1) is a form of deeming provision. Under s 4(1), an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. "Unjustifiable hardship" is defined in s 11. Section 11 is in these terms:

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

(2)    For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

38    In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [22] Mortimer J said that:

The word "adjustment" is left undefined by the statute and is to be given its ordinary meaning as "an alteration or modification": Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the court in the second instance to determine whether an adjustment is "reasonable". Although the word "reasonable" is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.

39    Justice Mortimer continued in these terms at [27]:

The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it "for" the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose … One consequence is that what constitutes "hardship" and the circumstances in which it might be "unjustifiable" may be broader than if the statute used reasonableness as a criterion of liability.

40    Section 12 controls the application of the Disability Discrimination Act. The College conceded that its conduct was subject to the provisions of that Act. I infer that the College accepts for the purpose of this case that it is a trading or financial corporation (see s 12(9) of the Disability Discrimination Act).

41    Part 2 of the Disability Discrimination Act identifies kinds of unlawful discrimination. Dr Sklavos relied on ss 19 (qualifying bodies), 22 (education authorities and providers), 27 (clubs) and 29 (administration of Commonwealth laws and programs) to found his claims. He also relied on s 32 (contravention of disability standards).

42    The College admitted that it was a qualifying body and education provider (but not education authority) for the purposes of ss 19 and 22 respectively of the Disability Discrimination Act. The College admitted also that it was subject to s 32 (disability standards) as an education provider and educational institution, the relevant standard being the Disability Standards for Education 2005. The College denied it was a club and contended that s 27 did not otherwise apply given that the alleged discrimination involved work and not other areas. The College also denied that s 29 and related provisions concerning administration of Commonwealth laws and programs applied to it. Given the College's admissions about it being a qualifying body and an education provider, and that it was subject to s 32, it is not necessary to resolve these other disputed issues.

43    The relevant provisions of the Disability Discrimination Act which the College accepted applied to its conduct at all material times, accordingly, are these:

19    Qualifying Bodies

It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's disability:

(a)    by refusing or failing to confer, renew or extend the authorisation or qualification; or

(b)    in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or

(c)    by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.

22    Registered Organisations under the Fair Work (Registered Organisations) Act 2009

…

(2A)    It is unlawful for an education provider to discriminate against a person on the ground of the person's disability:

(a)    by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or

(b)    by accrediting curricula or training courses having such a content.

…

31    Disability Standards

(1)     The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person.

32    Unlawful To Contravene Disability Standards

It is unlawful for a person to contravene a disability standard.

2.2    Specific phobia – the evidence

44    Dr Sklavos was first diagnosed as suffering from a psychiatric disorder (that is, specific phobia) on 28 January 2012 in a report prepared by a psychiatrist, Dr de Saxe. Dr Sklavos first became aware of this report on or about 6 February 2012, when his solicitor received a copy of Dr de Saxe's report and felt the diagnosis explained his symptoms and was thus correct.

45    Two psychiatrists gave evidence concurrently during the hearing. Dr Sklavos called Professor Nicholas Glozier, who is a Professor in the Disciplines of Psychiatry and Sleep Medicine at the University of Sydney and a practicing consultant psychiatrist. The College called Professor Anthony Samuels, who is an Associate Professor of Psychiatry at the University of New South Wales and a practicing consultant forensic psychiatrist.

46    In his report of February 2014, Professor Glozier diagnosed Dr Sklavos as suffering from the recognised psychiatric illness of specific phobia, noting that:

The constellation of symptoms that developed in late 2011/early 2012 of anticipatory anxiety with heightened physical symptoms of arousal, insomnia, somatic features of palpitations, dry retching and nausea, in the context of examinations, have the characteristics of a phobic reaction. As such, I agree with Dr De Saxe that these symptoms of marked fear and anxiety, provoked by exam related phenomena, leading to avoidance and being out of proportion to the anxiety others would have in an exam situation, would meet the criteria for a Specific Phobia. Because of the duration criteria, e.g. six months, one would not have actually been able to diagnose this until early 2012 as these symptoms require their presence to be there for six months.

47    Professor Glozier's diagnosis was based in part on Dr Sklavos's report of symptoms meeting all the diagnostic criteria for specific phobia identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The diagnostic criteria for specific phobia outlined in DSM-5 are as follows:

A. Marked fear or anxiety about a specific object or situation (e.g., flying, heights, animals, receiving an injection, seeing blood).

Note: In children, the fear or anxiety may be expressed by crying, tantrums, freezing, or clinging.

B. The phobic object or situation almost always provokes immediate fear or anxiety.

C. The phobic object or situation is actively avoided or endured with intense fear or anxiety.

D. The fear or anxiety is out of proportion to the actual danger posed by the specific object or situation and to the sociocultural context.

E. The fear, anxiety, or avoidance is persistent, typically lasting for 6 months or more.

F. The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

G. The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in posttraumatic stress disorder); separation from home or attachment figures (as in separation anxiety disorder); or social situations (as in social anxiety disorder).

48    More recently, in Professor Glozier's report of June 2015, he concluded that Dr Sklavos continues to suffer from specific phobia, stating that:

Dr Sklavos still presents as someone who has a Specific Situations Phobia of the examinations with reports of the same beliefs and avoidance as previously. His fear would appear to be out of proportion, particularly for someone who has taken many previous examinations. I would note that some aspects of associated stimuli, e.g. spending two days with dermatologists and seeing people whom he believes are involved in the conspiracy, led to a brief episode of anxiety with a short-lived panic attack that resolved and was not subsequently disabling. Again this would confirm the suggestion that this situational phobia still exists.

49    In his report of October 2014, Professor Samuels concluded that while the anxiety which Dr Sklavos exhibited in respect of the College examinations was towards the severe end of the spectrum, he would not diagnose the psychiatric illness of specific phobia despite accepting that the reported symptoms satisfy the criteria in DSM-5 for Specific Phobia. Professor Samuels said:

I accept that with a very literal interpretation of the DSM-IV-TR and DSM 5 criteria it might be possible to apply the criteria of Specific Phobia to Dr Sklavos but you would need to be convinced he was suffering from an illness and I am not persuaded in this regard.

50    Professor Samuels considered that Dr Sklavos had experienced ongoing difficulties with the College because of dysfunctional personality traits, observing this:

In my opinion it is, in fact, far more likely that it is his underlying personality style rather than a situational phobia that is impeding his ability to fulfil his training and Fellowship requirements. His personality dysfunction is the factor most likely to lead his supervisors to have some reservations about his competence and abilities to function autonomously as a consultant dermatologist.

51    In oral evidence Professor Samuels said:

First of all, another cautionary note in the front of DSM-5 is the use of DSM-5 in the courtroom. It's called the Diagnostic and Statistical Manual, but there are no diagnoses in DSM-5; they are descriptions of various conditions. Unfortunately, we're at the stage in psychiatry where we don't actually fully understand the biological origin of many of our psychiatric disorders. We treat things symptomatically. We have some understanding that some neurotransmitter systems are awry. We can show some brain changes on MRI scans, but we actually don't really understand what the disease is. You can say that somebody had tuberculosis; you can identify the tubercle bacillus. We can't do that in psychiatry.

So these are descriptors, and DSM-5 is a useful way for clinicians to communicate with each other about a cluster of symptoms. But one really has to decide whether that condition has clinical significance.

52    The cautionary note in DSM-5 regarding its use in court proceedings states as follows:

Cautionary Statement for Forensic Use of DSM-5

Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals. It is also important to note that DSM-5 does not provide treatment guidelines for any given disorder.

When used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations. …

…

However, the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. …

53    Professor Samuels also gave weight to the fact that, other than in relation to the College's examination requirements, Dr Sklavos was essentially asymptomatic. He explained this in oral evidence in these terms:

You could shoehorn him into the criteria that are specified in DSM-5. The problem is that I don't believe his anxiety is a clinical psychiatric condition. It's extremely circumscribed, it only occurs in the context, or the prospect of sitting an examination. For the rest of his life he's getting on with things, he's doing his job, he's participating in family and social life. Generally, psychiatric disorder is something that pervades all aspects of your functioning. There also is a cautionary note in the front of DSM which expands the definition of "disorder". Generally, "disorder" relates to impairment in social, occupational and other functioning.

There's also a small note in the front of DSM-5 which says that:

A disorder is not – where an individual has a conflict with society this should not be construed as a disorder.

And in a sense this is what this is. This is an individual who is at odds with part of our society; the College of Dermatologists. I am very sceptical that this is an illness because it rarely – I agree that it needs some management. If he is to pass his exams, like all trainees he is going to have to find some strategies to manage that anxiety or possibly the College of Dermatologists may modify their examination processes to accommodate him to make him less anxious. I – in terms – there are also in terms of – while I say we can – he could – I can agree with Professor Glozier that we could make a DSM-5 diagnosis, my thesis is that doesn't really mean very much in the real world.

54    The definition of mental disorder to which Professor Samuels was referring is as follows:

Although no definition can capture all aspects of all disorders in the range contained in DSM-5, the following elements are required:

A mental disorder is a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.

The diagnosis of a mental disorder should have clinical utility: it should help clinicians to determine prognosis, treatment plans, and potential treatment outcomes for their patients. However, the diagnosis of a mental disorder is not equivalent to a need for treatment.

55    Other relevant evidence, which captures the difference in approach of Professor Glozier and Professor Samuels, or which is otherwise relevant to the issues which must be resolved in this proceeding, included the following:

56    Professor Glozier:

    "what has made me even more certain about that diagnosis is that over time this has become more entrenched and more severe, such that recently, when faced with the option of actually having to go and do – when I wrote a more recent report, which hasn't been tabled, suggesting work based assessments, his response was so extreme he actually ended up being hospitalised in a public psychiatric hospital for a few days, because his response was so extreme. I would suggest that is not a normal part of the human continuum of a fearful response, so that is why I've been even more certain that he has this specific disorder. And he meets those criteria. We don't have to shoehorn him. He meets those criteria";

    "In terms of the personality disorder – I'm glad Dr Samuels agrees with me – he doesn't have a personality disorder. Conversely, I also agree with Dr Samuels, he does have a number of obsessive, and paranoid, and somewhat narcissistic traits. He has those. Doctors have them in spades. Loads of doctors have them";

    "I too mulled over the idea of a delusional disorder, which is a psychotic disorder, complete loss of bounds with reality. And like my colleague here, I don't think he meets the criteria for that, but actually the ideas he holds do – around the College do show underlying, sort of, paranoid and obsessive traits which have led him to those beliefs… So the presence of those things – of those personality traits – does not undermine or invalidate the presence of a specific situational phobic disorder";

    "the idea that one can only have a diagnosis if there is a treatment for it is – is complete category error. We have a whole pile of diagnoses we don't have a treatment for: frontotemporal dementia being a classic one, which we know has an underlying pathology. We don't have a treatment for it. It's a diagnosis. We can't treat the underlying dysfunction of autism, for instance. So a diagnosis is there for a bunch of reasons. It's there for – you know, to help doctors communicate to each other, particular kinds of syndromes, to give a patient some kind of meaning to what they're experiencing, to give them some idea of when they might experience it again, so that's one thing";

    "Secondly, the idea that actually – yes, with – with these situational things, we cleave nature at the joints. In fact, medicine does that not just in psychiatry, but across the board, you know. We decide that diabetes occurs at a certain cut point on a glucose tolerance test. Underneath you ain't got diabetes, above it you do. It is a completely artificial distinction. We are not the only branch of medicine that makes completely artificial distinctions saying, 'That is a disorder. That is not a disorder'. And I think, in this case – and what happens is, people agree…";

    "by definition, a social and specific or situation phobia – specific phobia is transitory. That is the definition – the core definition of it. It is – it is only existing in the presence of the feared situation. Outside of the presence of the feared situation, one would expect to see no clinically significant symptoms, no impairment, no disability outside of those situations. Faced with the situation or faced with the threat of being in – in that situation, which is called anticipatory anxiety, one develops symptoms and impairment";

    "So we all have personality traits and they can be accentuated in very different areas. They're our characteristics, if we like, and some can be stronger. I think both of us agree that Dr Sklavos has certain strong characteristics or personality traits, but does not have an actual disorder, which again is that box, that sort of extreme end.

These are like any kind of vulnerability. Whether you've had early child abuse, whether you've had some neurodevelopmental problems, you've had drug dependence in your – in your – they form one of a range of vulnerabilities to the development of another psychiatric disorder. And so I would suggest that, yes, as Dr Samuels says, they were part of a vulnerability to him developing this specific disorder, but they're only a vulnerability. This disorder is not part of those traits.

If you look, the specific situational phobia is not part of the diagnostic criteria of any of the personality disorders. So, yes, the personality traits were a vulnerability, but they – which may have enhanced the likelihood of him developing this specific phobia, but the specific phobia exists as a separate entity and a separate diagnosis and disorder".

57    Professor Samuels:

    "my view is that he has obsessional personality traits, not an obsessive compulsive disorder";

    "I think he has a number of personality traits that are dysfunctional. And these have been evident throughout his training. He had problems getting to training. I suspect that may have been related to his personality. He has problems in training. He didn't want to work with particular doctors. He – all sorts of special arrangements were made. It brought him to the attention of people and probably did heighten some of the antagonism that occurred. He also is not very responsive to feedback";

    "I think Dr Sklavos has quite a lot of mixed traits. He has narcissistic traits. He probably has paranoid traits. He certainly has some obsessional characteristics to his personality. He finds it very difficult to change course once he has set the course";

    "There is one other issue that we haven't touched on, and that's the issue of whether he has a delusional disorder, because he certainly has quite strongly held beliefs that the College of Dermatologists are singling him out, persecuting him, not wanting him to proceed because he has special knowledge or – he has come up with a whole range of idea[s] which are unlikely. Now, I don't think that he has a psychotic illness or a delusional disorder. And I actually think that that – the paranoid aspects of his presentation probably relate to some adverse experiences. There probably is some – some hostility in the college because of the way that he has interacted with them at various times, but I actually think it comes from a core of narcissism.

You actually have to believe you are quite special and important for people to pick on you. Basically, most people don't really care about other people, and it's highly unlikely that this organisation would particularly single out this doctor as being a commercial threat, a knowledge threat or whatever it might be. So I actually would see that sort of paranoid stuff as probably stemming from personality dysfunction. So essentially I don't think he has a psychiatric diagnosis in the form of an anxiety disorder, but I do think he has dysfunctional personality traits";

    "There are some people who just – whether it's anxiety, whether it's personality, whether they're just not intellectually good enough, can't get through examination processes.

And I guess the question is, how does – is – can you really ascribe that to psychiatric disorder? In any training program there are going to be successes and failures, and the candidate who does continually badly is going to become more sensitised, more phobic – for want of a better word – about the process, more paranoid about the organisation that keeps denying him what he wants, but I still have reservations that that is truly a psychiatric disorder";

    "It is normal to be anxious in the exam situation. It only becomes – and you will have some of those symptoms, but hopefully you will control them, and if you have some anxiety you will actually do better than the person who doesn't. But I agree, if those symptoms are sustained and severe, you probably won't do well. And part of your way of getting through an exam, or managing the exam process is trying to control that anxiety through a range of techniques";

    "I accept that you can potentially develop a phobia about examinations, and I – and the setting that has – the setting in which that has then occurred, repeated failure and adverse outcomes, would sensitise anybody, I think, to the fear of failure. And I agree that his response and avoidance has become pretty severe. And we could call it a psychiatric disorder. I am, you know, aligned with Professor Glozier in that degree, but I still think that – this is the problem: you can find a diagnosis in DSM-5, but what does it mean in the real world. And I accept in DSM-5 terms we could probably make – we can make a diagnosis; I accept that. But the issue is, is this a clinical condition – condition that requires a specific psychiatric treatment? I – my view is that it's not.

It requires some management. He needs to learn some techniques to minimise his anxiety to cope with the exam process and get through it, and he would probably be well suited to work with a psychologist. But I still – I would still not ascribe – this is – this is a phenomenon that's experienced by – by many people and it's still – I would see it at the – at the extreme end of a normal anxiety response. He is undoubtedly a very anxious man and his anxiety is preventing him from passing the exam, but whether this is really at the extreme – this is someone who is at the extreme end of anxiety as opposed to having a psychiatric clinical condition is the difficulty for me. And I think that I would – I conceptualise this as somebody who is extremely anxious and at the extreme continuum of anxious people across the population, but whether – but I hesitate to say this has become a true psychiatric clinical condition";

    "But I think that his prognosis in terms of treatment is quite limited by his personality, so I think there's a psychiatric issue, but I think the psychiatric issue is, really – I think that this anxiety state should be manageable, and I – I – I'm not particularly fussed whether we're going to say – and I will – I can concede that it's a specific exam situational phobia, but it doesn't really – the point of it is that it's actually his personality dysfunction that is going to be the limiting factor, I think, in terms of him passing the hurdle of the exams. It's not actually the – the exam phobia";

    "So he doesn't have a [personality] disorder, I agree, but just as much as the anxiety symptoms are clinically significant, his traits are clinically significant because they have led to problems, and his career problems, and not working with this consultant, not working with that consultant, conspiracies, et cetera…ultimately, they've led to a lot of anxiety for him, and probably the reason why we're sitting in the courtroom today. But they actually create real problems. He had problems at North Shore Hospital because he felt that the Professor there was going to discriminate him – against him, or cause problems for him, so he went through a whole process of having to meet with the Director of Medical Services and try to get placed elsewhere. I mean, these have in a real and practical sense impeded his placements, affected his training, probably soured the attitudes of various supervisors because of all the stuff that went around them.

So these traits – he was not a – an easy trainee. He was somebody who by dent of his behaviours brought himself to the attention of the system, and probably did develop a reputation of being a difficult trainee. So some of his – which probably fed into his anxiety as well. Some of his perceptions that he wasn't liked, or there was a conspiracy, probably has some basis in reality because his particular personality traits engendered reactions from people around him".

58    Professors Glozier and Samuels also agreed that, irrespective of his own perceptions that he only became anxious when confronted with the College's examinations, Dr Sklavos's personality traits meant that he would have been ruminating about the perceived unfairness of the College's treatment of him and that, for Dr Sklavos, this kind of rumination would have become normal, thereby fuelling his anxiety about the examinations. By 2011, they both characterised Dr Sklavos's reported symptoms as indicative of severe anxiety about the examinations which appeared to have worsened over time to the point where, in 2015, Professor Glozier's view that Dr Sklavos might be able to submit to work-based assessments by the College resulted in him having suicidal thoughts and a hospital attendance.

59    Professor Glozier also gave evidence that Dr Sklavos had been referred to a psychologist who undertook exposure therapy with him in 2015, which was unsuccessful. Professor Glozier explained that:

in Dr Sklavos' case, undertaking the treatment – because none of our treatments are a hundred per cent effective – he was one of those people who actually became – certainly did not improve, and possibly became worse as a result of that course of treatment, which is the evidence-based treatment..

60    Professor Glozier now thought it "incredibly unlikely" that Dr Sklavos could be successfully treated for his specific phobia about the College's examinations given that his phobia had worsened over time, had enlarged to include any form of assessment by the College including work-based assessments which Professor Glozier had thought Dr Sklavos would be capable of undergoing before his recent suicidal ideation, and had proved unresponsive to exposure therapy by an experienced clinical psychologist. He also said this:

…one of the real difficulties in undertaking the treatment is recreating the feared exposure, because it's incredibly difficult to recreate an exam. So it's actually a really, really difficult treatment to undertake, and I – I – and I know the psychologist who did it, and she called me at the time when he became really unwell about it. She was just saying how incredibly hard it is to do that treatment, so that's one of the difficulties in envisaging any form of actual treatment in this.

2.3    Specific phobia - discussion

61    The concerns expressed by Professor Samuels about the risks of labelling anything within the ordinary spectrum of human experience, including the experience of severe anxiety which many people might suffer when undertaking a potentially career determining examination process, are readily able to be understood.

62    It would be surprising if many, even most, people undertaking the kind of examination process conducted by the College did not experience high levels of anxiety. People undertaking this process had already spent many years studying and being examined in order to be registered as a medical doctor. Before this, they undoubtedly had to excel in their school years in order to be admitted into the study of medicine. After successfully completing their medical studies and required further training, they then chose to subject themselves to at least five (and now four) more years of specialised training involving an entry exam, ongoing assessment and supervision and final examinations, both written and clinical, which would determine whether they could become a dermatologist. Assuming a medical degree of five years, and the required two years of training in the hospital system before entry to the College as a trainee could be obtained, along with five years (as it was) as a trainee of the College, such a person would have invested a minimum of 12 years in their pursuit of their goal of becoming a dermatologist. Dr Sklavos had invested many more years than this because it took him eight years to be admitted to the College as a trainee. It would be fair to say that Dr Sklavos had invested virtually all of his energies available for his career on his goal of becoming a dermatologist for 13 years, between 1994 and 2006, before he was finally admitted to the College as a trainee in 2007. By the time Dr Sklavos sat for his final examinations it was 2010, representing a total investment by him of 16 years of his life. In these circumstances, for Dr Sklavos to approach his final examinations in a state of anxiety, even severe anxiety, could not reasonably be seen as outside the spectrum of normal human experience.

63    A number of factors persuade me, however, that Professor Glozier's ultimate conclusion that Dr Sklavos is suffering from a specific phobia is to be preferred.

64    First, there seems little doubt on the evidence that Dr Sklavos's anxiety about the College has worsened over time. While I accept that this litigation is likely to be a material contributor to this worsening, the fact is that Dr Sklavos's condition has developed to the point where the mere anticipation of having to undergo work-based assessments involving the College recently caused Dr Sklavos to become very unwell, including suffering from suicidal ideation. Such a reaction, on any view, is well outside what might be expected of a person who had been undergoing therapy with the aim of being able to undertake alternative forms of assessment.

65    Second, the fact that Dr Sklavos's current position is that it is impossible for him to undergo any form of assessment by the College is to be weighed in the context of him having focused on the goal of becoming a dermatologist since 1994. I consider that he would not rule out the possibility of other methods of assessment unless he found them impossible to contemplate without triggering a severe, possibly life threatening by reason of suicide risk, anxiety reaction. I do not accept that his current position involves any form of strategy to increase his chances of success in this litigation.

66    Third, his ability to function normally otherwise than in the context of assessment by the College is consistent with the criteria for the diagnosis of a specific phobia. That context, which is highly significant for achieving his career goal, is the one in which he experiences the severe anxiety reactions. Professor Samuels' concern about the specific nature of the anxiety reaction is part of the diagnosis of specific phobia and thus cannot or should not be used as a disqualifying feature.

67    Fourth, while I accept that DSM-5 has limitations, I do not consider Professor Glozier's evidence to be the result of a mechanistic or "tick-a-box" application of DSM-5. At the same time, I accept Professor Glozier's evidence that DSM-5, whatever its limitations, is the best tool currently available to ensure that psychiatric diagnoses are made consistently and on the basis of widely agreed criteria.

68    Fifth, Professor Samuels' reluctance to agree with the diagnosis of a specific phobia, to my mind at least, involved reservations about DSM-5 at a level of principle. Professor Samuels accepted that Dr Sklavos's description of symptoms satisfied the DSM-5 criteria for specific phobia and that the information now available indicated that his symptoms had worsened over time, but appeared to believe that the diagnosis, specific phobia, would be a label without real meaning or function. Professor Glozier, however, saw the worsening of the symptoms over time as confirmatory of the initial diagnosis. Given the severity of Dr Sklavos's more recent reaction to the possibility of alternative forms of assessment by the College, the opinions of Professor Glozier carry weight.

69    Sixth, the fact that Dr Sklavos appeared calm when giving evidence during the hearing is immaterial. His specific phobia relates to assessment by the College of his capacity to be a dermatologist.

70    Insofar as it is necessary to say so, I do not accept any of the criticisms made of either Professors Glozier or Samuels. Both were highly trained and skilled. I have no doubt that they were giving evidence based on their expertise as frankly as they could. I have no concern about the fact that Professor Glozier amended part of his opinion in response to a letter from the solicitor instructing him. The part of the opinion he amended, in my view, had little to do with his expertise in any event because it related to the adjustments the College had made at Dr Sklavos's request which is a matter ultimately of fact, not opinion. Nor do I have any concern about his view that usually the person suffering from the disability is best placed to assess what adjustments need to be made to account for their disability. To the contrary of the submission for the College that this is self-evidently wrong, in many cases, this will be true. But it is also true that this generalisation says nothing about this particular case and the requests for adjustments Dr Sklavos made. I also do not accept that Professor Glozier's diagnosis was inappropriately influenced by anything Dr de Saxe might have said. I have no doubt that Professor Glozier held his own opinions based on his own expertise.

71    In short, I found Professors Glozier and Samuels to be highly articulate and helpful experts who each gave clear evidence with a view to assisting resolution of the issues about which they had been asked to express opinions.

72    Having regard to the matters set out above, I am satisfied that Dr Sklavos currently suffers from a specific phobia and that the subject-matter of his phobia is assessment by the College of his capacity to be a dermatologist. I consider that it is so unlikely that he will recover from this psychiatric disorder that the possibility of him being able to undertake any form of assessment by the College in the foreseeable future is so small that it can and should be disregarded.

73    When did this disability start? It is clear that Dr Sklavos was not suffering from this specific phobia when he undertook the examinations in 2010. He reported only usual levels of anxiety at that time. Although his anxiety had increased by the time he had to prepare for the 2011 examinations, warranting the description of clinically significant or severe at that time and Dr Sklavos said he thought his phobia crystallised while studying for the 2011 examinations, it is not clear that he was then suffering from the specific phobia. As noted, for such an important life event, even severe anxiety (with symptoms of insomnia, heart palpitations, sweating and some dry retching) would not be outside the normal range of human experience such as to warrant a psychiatric diagnosis. Based on the evidence, it seems to me that after he failed the 2011 written examinations, his condition again deteriorated. It is at this time that he reported feeling "immobilised" by the mere thought of having to sit the examinations in 2012, with his anxiety symptoms so severe that he ultimately withdrew from the examinations despite having set himself the task of sitting for them. In December 2011, he saw Dr de Saxe who gave the specific phobia diagnosis in January 2012 which, said Dr Sklavos, "absolutely resonated" as the explanation for what he had been feeling. Given the requirement in DSM-5 for the symptoms of specific phobia to be present for at least six months, I consider that Dr Sklavos has suffered from this psychiatric disorder since January 2012 or possibly late in 2011 but not at any earlier time.

74    The College did not directly dispute that such a specific phobia would be a disability for the purposes of the Disability Discrimination Act. I agree.

75    Otherwise, I also accept the evidence that Dr Sklavos has strong obsessional, paranoid and narcissistic personality traits which made him vulnerable to the development of an anxiety disorder (of which specific phobia is one type). The presence and strength of these traits is evident from the brief history of the relevant facts as set out above. He entered the College believing he had been unfairly treated and, in effect, primed to react adversely to any dealings with the College which he perceived to be directed against him. Thereafter, it is apparent from his evidence that he almost routinely perceived slights, criticisms and hostility from others when a number of those others gave evidence and denied not so much the event itself but Dr Sklavos's perception of the event. A few examples are enough for this purpose but there were many others in the evidence.

76    Early in his training, he received a telephone call from Dr Artemi, a dermatologist whom he knew from many years before and had socialised with when Dr Sklavos was working in Newcastle. The call related to a photograph in a local newspaper of Dr Sklavos at a social function which described him as a dermatologist. According to Dr Sklavos, Dr Artemi told him that this "had better not happen again", "I have a file on you", and "I had better not hear of anything further". Dr Sklavos said he felt threatened by Dr Artemi's aggressive tone. Dr Sklavos was taken to an email he had written after the conversation with Dr Artemi in which he had thanked Dr Artemi for making him aware of the reference to him as a dermatologist. The email contains nothing but an expression of shock at the description of him as a dermatologist and expressions of gratitude by Dr Sklavos to Dr Artemi for drawing the matter to his attention; saying that "I really appreciate your concern", ending with "[k]ind regards and cheers from Angelo". Dr Sklavos said the terms of the email were because he was trying to be polite, deferential, humble and not inflammatory. He said that he was "trying to placate the anger of Dr Artemi". He also said that subsequent events involving Dr Artemi (relating to the clinic list conduct) confirmed his "worst fears" that Dr Artemi had unfairly judged him.

77    Dr Artemi said that he and Dr Sklavos had become friends in 1997 when they both worked in Newcastle, Dr Artemi then being in his third year of dermatological training (he has been a dermatologist since 1999). Both are of Greek heritage. They would socialise together. Dr Artemi gave Dr Sklavos advice about the College's training program. When he was shown the newspaper article, it was in the context of having been asked if he knew another Greek dermatologist, Dr Sklavos. Dr Artemi was concerned that if the College became aware of this it might think Dr Sklavos was holding himself out to be a dermatologist. He told Dr Sklavos that this was not the kind of image that should be circulating as it would not create a good impression. He denied saying anything to the effect reported by Dr Sklavos, noting that he would not do that to a person he considered to be friend. Dr Artemi was not cross-examined about his version of this conversation.

78    While I accept that Dr Sklavos was giving evidence of what he now actually recalled about this interaction with Dr Artemi, I do not accept his perception of events to be accurate. It is highly unlikely that a person in Dr Artemi's position (he had been a dermatologist since 1999 and had known Dr Sklavos since 1997 and considered him to be a friend) would have threatened Dr Sklavos or said he had a file on him. Dr Artemi's version of the event is inherently plausible. It is consistent with the email which Dr Sklavos sent Dr Artemi, the tone and content of which are suggestive of the existence of a friendly relationship. Dr Sklavos's version is thus inherently implausible and inconsistent with such contemporaneous evidence as exists. Yet I do not consider Dr Sklavos was being untruthful when he gave his evidence by affidavit and orally. Whether at the time or subsequently, Dr Sklavos's perception and recollection of the event has taken on a character and significance which is consistent with a belief of a pattern of him being unfairly singled out, threatened and harassed by members of the College. It is difficult not to conclude that Dr Sklavos's perceptions are a result of the obsessive, narcissistic and paranoid personality traits which Professors Glozier and Samuels considered characterised his interactions with others (at least in a professional context).

79    Next, after many of the difficulties he had experienced during his training, the College arranged for Dr Sklavos to be placed in the private practice of Dr Younger, a very experienced dermatologist, at Campbelltown. Dr Sklavos felt that he thrived working at Dr Younger's practice. It appears that they had nothing but a close professional relationship for the entirety of their time working together. However, after Dr Sklavos failed the 2011 examinations, Dr Younger suggested to Dr Sklavos that he should try to become a dermatologist some other way. Dr Sklavos said that he was "devastated" to hear this. He took it to mean that he would never become a Fellow of the College. He wondered why Dr Younger had said this to him. He speculated that Dr Younger's comment might have been a message to him from prominent dermatologist (and later College President) Dr Shumack, noting that Dr Shumack's wife was "Dr Younger's wife's employer". Subsequently, when the arrangement between Dr Younger and Dr Sklavos came to an end in 2012, Dr Younger perceived this as a mutual decision on the basis that Dr Sklavos had been given all the practical training possible. Dr Sklavos, however, perceived it as part of the conspiracy of the College to deprive him of further dermatological training. In oral evidence he identified Dr Younger as part of this conspiracy, on the basis that Dr Younger was acting in accordance with the College's requirements. Dr Younger, unsurprisingly, denied this.

80    Viewed on any reasonable basis it is not difficult to understand why Dr Younger might have suggested to Dr Sklavos that he try another route to becoming a dermatologist. I have no doubt that Dr Younger suggested this only to assist Dr Sklavos and was not in any way delivering a covert message from the College that it would ensure Dr Sklavos never became a Fellow. Dr Sklavos's perceptions, and his apparent unwillingness to take any alternative course of action, appear consistent with the personality traits observed by Professors Glozier and Samuels. Further, the idea that Dr Younger, who had been so helpful to Dr Sklavos and had no reason to not want to see him succeed, was part of a conspiracy with other College members, on any reasonable view, is bizarre to say the least. Yet, again, however, I accept that Dr Sklavos genuinely believed what he was saying. I do not think that he was embellishing his evidence. The fact is that when a useful and sensible suggestion was made to him by Dr Younger, Dr Sklavos immediately perceived the suggestion to be part of the larger conspiracy (for which, it must be said, there is not a shred of actual evidence other than Dr Sklavos's perceptions) against him. This demonstrates the overall unreliability of Dr Sklavos's perceptions, coloured as they are by the dysfunctional personality traits the psychiatrists agreed he has and the subsequent unshakeable beliefs he developed about the College being involved in a conspiracy against him.

81    Further, Dr Sklavos attended the annual conference of the College in May 2012. Dr Fischer, who was a College member with whom Dr Sklavos had had dealings which he considered adverse to him, was giving a paper. Dr Sklavos saw her and had an anxiety reaction (which I do not doubt and do not find odd given his personality and specific phobia). He started to ruminate about his difficulties with the College (again, a reaction I do not find odd for the same reasons). But he then said that, while giving her paper, Dr Fischer made eye contact with him in the audience. He felt intimidated and connected this to his belief that Dr Fischer knew the College had succeeded in accomplishing the object of the perceived conspiracy (that is, Dr Sklavos never becoming a Fellow of the College). In oral evidence, Dr Sklavos confirmed that the audience was large, but could not accept the possibility that Dr Fischer might have been merely glancing around the room. Dr Fischer, again unsurprisingly, had no recollection of making eye contact with anyone during her presentation.

82    Dr Sklavos's evidence contains numerous examples of other perceptions of his that seem consistent with the personality traits observed by the psychiatrists including from before he became a trainee of the College and, when he was a trainee, before the clinic list incident. For example, according to Dr Sklavos, from the outset he felt the College selected trainees based on nepotistic practices. He felt isolated because he was from Newcastle. He found his PhD supervisor difficult. He felt trapped into completing his PhD or else he would not be admitted as a trainee of the College. He entered the College as a trainee already feeling aggrieved because admission as a trainee had taken so long. He had, by then, already started to consider that people within the College wanted to delay or prevent him from becoming a trainee. He also already wondered if he would be treated fairly as a trainee. He perceived Dr Relic's treatment of him at Newcastle Hospital in 2008 to be curt, rude, abrupt, disrespectful and hostile to him (this is before the clinic list incident). He found another dermatologist there also disrespectful and inappropriate towards him. Because of his perception of Dr Relic's hostility to him, he thought Dr Relic would review his letters with "a heightened level of scrutiny". He believed Dr Relic had singled him out and thought the direction that Registrars give Dr Relic copies of their letters was directed personally at him (which Dr Relic denied). He was so unnerved by one assessment he was given that he thought assessment results could be arbitrary, or even concocted, and thus started taking photographs of his surgical work (again, this is in 2008 before the clinic list incident). When asked about a letter to a general practitioner, he perceived the question to be "accusatory and confrontational". He felt he had "survived" 2008 but had been under "constant threat" all the year. He wondered whether Dr Relic's hostility to him was "linked to a plan for me which was proposed or approved by the College" (the plan, presumably being the alleged conspiracy).

83    Having regard to these matters, two points need to be made. First, while I accept Professor Glozier's evidence that medical doctors might have obsessive and narcissistic personality traits "in spades" which, in many cases, will be useful and functional for their careers, I do not consider that Dr Sklavos' combination of obsessive, narcissistic and paranoid personality traits was useful and functional for him. I accept Professor Samuels' evidence that, to the contrary, these traits proved to be dysfunctional for Dr Sklavos, and seriously so. I also accept the psychiatric evidence that these traits made him vulnerable to the development of an anxiety disorder in respect of the College. Indeed, it seems to me that, based on his own account of events, these personality traits made it highly likely that he would perceive any and every possible adverse event arising during his training as personally directed to him and to involve unfairness and hostility to him. As explained below, this creates a problem for the claims in contract and tort against the College which the case put for Dr Sklavos failed to confront. Second, while I accept that Dr Sklavos has given his evidence honestly about his perceptions and state of mind, I do not consider this evidence to be a reliable indicator of anything other than what Dr Sklavos perceived and thought. I consider it unlikely that what Dr Sklavos perceived and thought reflects any reasonable view of the reality of any situation involving the College. While Dr Sklavos was prepared to accept his feelings about the College made it difficult for him to be objective, he nevertheless considered his view of things to be accurate. I disagree. To the contrary, his evidence shows the strength of his tendency towards paranoia, a trait observed in him by both psychiatrists. I consider that this has substantially affected his perceptions and recollections of events to the point where, in a contest between Dr Sklavos and any other witness about what was said or what occurred, I prefer the evidence of the other witness.

2.4    Direct discrimination

2.4.1    Overview of Dr Sklavos's claims

84    Dr Sklavos's case is that there are three alternative adjustments the College should have made in response to his request before the 2012 examinations, identified as follows:

(a)    he could have been assessed by a method that did not involve the use of examinations conducted by the College (Adjustment One); or

(b)    the College's Fellowship examinations, as they applied to Dr Sklavos, could have been modified as set out in or by reference to Dr Sklavos's correspondence requesting adjustments on the basis of Dr de Saxe's recommendations (Adjustment Two); or alternatively,

(c)    he could have been assessed using a combination of workplace-based assessments that would have allowed for an assessment of his competence to practise, conducted in a manner that would minimise the symptoms of his disability (Adjustment Three).

85    It was contended that the failure to make each of these adjustments involved direct disability discrimination as defined in s 5(2) of the Disability Discrimination Act.

2.4.2    Adjustment One

86    It was submitted for Dr Sklavos that the College had adopted a restricted construction of what the submissions called Rule B of its Constitution (cl 11.1.1(a)(2)(B)) but, on its proper construction, "Rule B embraces any qualification that the Board might properly consider to be relevant, either alone or in combination with the candidate's experience".

87    Clause 11.1 of the Constitution deals with election as a Fellow of the College which is necessary before a person can hold themselves out to be a dermatologist. Clause 11.1, insofar as relevant, is in these terms:

11 MEMBERSHIP

11.1 Classes of Members

The Members shall consist of the following classes:

11.1.1        Fellows

(a)    To be eligible for election as a Fellow a candidate must:

(1)    be a medical practitioner who holds a medical qualification approved by the Board for the purposes of this clause; and

(2)    either:

(A) undertake and complete a training program approved by the Board and pass an examination by the College; or

(B) in lieu of the training program and examination, have such other qualifications and experience as the Board considers adequate.

(b)    A candidate for election as a Fellow shall make application for the examination and application for membership in such form and containing such information as the Board may from time to time by Regulation have prescribed.

(c)    The Board shall consider the application for membership, the report and recommendation of the Board of Education and all relevant information in respect of the application for membership and in its absolute discretion may:

(1)    elect the candidate to membership;

(2)    reject the candidate's application; or

(3) suspend final determination for further evidence as to the candidate's qualifications.

88    The submissions continued:

Dr Sklavos has undergraduate and postgraduate degrees, and has been admitted to practice as a medical practitioner…

…

On or about 22 December 2011, Dr Sklavos sought election to the College as a Fellow based upon his qualifications and experience. His letter of 22 December 2011 provided a detailed account of his training, qualifications, experience and knowledge relevant to dermatology. He also asked the College to inform him if it required any further information in relation to those matters and, if appropriate, to identify any areas of shortfall in his qualifications and experience. The letter was explicit that Dr Sklavos was seeking election to Fellowship under Rule B.

…

At its 10 February 2012 meeting, the College's Board of Directors adopted the Board of Education recommendation and rejected Dr Sklavos's application for election as a Fellow, determining that he was required to pass the Fellowship examinations.

The College conveyed its decision to reject Dr Sklavos's request for admission to Fellowship under Rule B by letter dated 21 February 2012. That letter also advised Dr Sklavos that the College would consider any reasonable request for special conditions in the examinations in 2012. (footnotes removed)

89    These circumstances were said to found the further submission that the College (whether through its Board of Education or its Board of Directors) never genuinely considered whether Dr Sklavos's qualifications and experience were sufficient for eligibility for Fellowship and never "made or considered making any request for Dr Sklavos to provide further information relevant to the issue, and … never indicated to Dr Sklavos any steps that Dr Sklavos might take to reach the required standard of proficiency and competence that the College might adopt to be satisfied as to that matter".

90    Further, according to the submissions, when the application for election as a Fellow relying on so-called Rule B was rejected and Dr Sklavos requested adjustments to the examinations, the College proposed limited adjustments in response because it did not accept that he was suffering from a specific phobia. While Dr Sklavos attempted to prepare for the 2012 examinations he withdrew as a result of the increasingly debilitating anxiety caused by his specific phobia.

91    I accept that Dr Sklavos's specific phobia, on and from at least January 2012 or possibly late 2011 (but not at the time he sat for the 2011 examinations when he was suffering from severe anxiety but not, in my view, the specific phobia), would adversely affect his performance in the examinations. As the evidence of the psychiatrists disclosed, anxiety is necessary for optimum performance. A person who is not anxious at all will not perform well. Performance tends to be adversely affected once anxiety has increased to a level which is counter-productive. I am not satisfied that Dr Sklavos's anxiety at the time of the 2011 examinations had reached this counter-productive level, although it was probably close to having done so. In any event, for present purposes it is sufficient to record that I am satisfied that by January 2012 his specific phobia made it difficult for him to study for the examinations, difficult to contemplate undergoing the examinations and, if he had sat for them, difficult to do his best in the examinations.

92    I accept that the College was put on notice of Dr Sklavos's specific phobia on or around 7 February 2012 when it was sent a copy of Dr de Saxe's report with a request that this report be considered as part of the College's consideration of Dr Sklavos's request that he be elected as a Fellow without having to undertake the examinations at all. It is important to appreciate, however, that in his report Dr de Saxe said this:

Were he to be given special consideration by the College, this might, to some extent, ameliorate the anxiety. This would entail, for example, sitting the exams in another centre where he is less known, and being given extra examination time.

93    While Dr de Saxe considered that Dr Sklavos's performance in the examinations was likely to be sub-optimal, there is no suggestion in his report that, by reason of the specific phobia, Dr Sklavos should be excused from sitting the examinations altogether. Nor does the covering letter from the solicitor suggest that Dr de Saxe's report was supportive of Dr Sklavos being excused from having to sit the examinations. The letter said only that the report was relevant to Dr Sklavos's request.

94    The first point is that it is not the case that Dr Sklavos requested that he be elected as a Fellow of the College, based on the so-called Rule B, without having to pass the final examinations by reason of his specific phobia. That is not the effect of the covering letter from the solicitor or of the report of Dr de Saxe. To the contrary, Dr de Saxe's report contemplated that some adjustment might need to be made to the examination process for Dr Sklavos, not that Dr Sklavos would be relieved of having to sit the final examinations.

95    The second point is that I do not accept that the College's approach to Rule B of its Constitution involves any misconstruction. The College's approach to Rule B was that the reference therein to "such other qualifications and experience as the Board considers adequate" means such other qualifications and experience as a dermatologist. In other words, where a person has qualified as a dermatologist in another country, outside of the scope of the College's training program which applies Australia-wide, then Rule B is available. For people within Australia, however, the only method to become elected as a Fellow is so-called Rule A - undertake and complete a training program approved by the Board and pass an examination by the College. Given that Rule B vests in the Board alone the power to determine what qualifications and experience are considered to be adequate, it cannot be the case that the Board misconstrued Rule B by consistently considering only qualifications and experience as a dermatologist to be potentially adequate to engage Rule B.

96    The evidence establishes that no-one has ever been elected as a Fellow under Rule B, other than persons who had already qualified as dermatologists in another country. Even where such persons held qualifications as a dermatologist in another country, the evidence establishes that the College reserved the right to reject an application and to impose conditions on the applicant including supervised training programs. Dr Sklavos believes he is qualified to be a dermatologist but he had never been accepted by the College as having passed its final examinations. In this regard, while there is a dispute about the written examinations (Dr Sklavos thinks he passed in 2010 whereas the College does not) there is no dispute about the fact that he failed the 2010 clinical examinations. While, as Dr Baker said, the "end game is always competency", there is a material difference between recognising overseas qualifications as a dermatologist and recognising qualifications of a person who had not advanced beyond the stage of a trainee of the College and holds no qualification as a dermatologist. Dr Sklavos's PhD makes no difference in this regard. It was a research project. It did not involve him in treating people as a dermatologist. His training as a dermatologist was just that – training. Unlike the people elected as Fellows under Rule B, Dr Sklavos was not in fact a dermatologist.

97    The third point is that the pleaded case was that a person in Dr Sklavos's position, with his qualifications and experience, would have been assessed for election as a Fellow without any impairment on the capacity of that person to perform to the best of his or her ability. It is difficult to understand this proposition. Insofar as I am able to do so, it involves the idea that if a person with the qualifications and experience of Dr Sklavos but no disability had applied under Rule B, the College would have either approved the application or approved it conditionally by imposing requirements such as working under supervision for a period. The problem with this is that all of the evidence is to the contrary. It was clear that the College had never used Rule B other than for persons actually qualified as dermatologists outside Australia.

98    In written submissions, the case put for Dr Sklavos was somewhat different. That case appeared to assume that Dr Sklavos was necessarily being treated less favourably than a person without his disability in circumstances that are not materially different as required by s 5(2)(b) of the Disability Discrimination Act because persons qualified as dermatologists overseas, who might not have had to pass an examination, were elected as Fellows to the College under Rule B despite the College sometimes imposing conditions on such persons, such as periods of supervised training to ensure their competency. This assumption is also not sound.

99    It may be accepted that an overseas dermatologist might have obtained his or her dermatology qualifications without having passed any examinations. There might be some countries in which all assessment is work based (the evidence suggesting that perhaps New Zealand is one such country). But the relevant point is that the evidence supported the inference that every person who has been elected as a Fellow of the College under Rule B held qualifications as a dermatologist already from a country other than Australia. Whatever the way in which they have been assessed overseas for the purpose as admission as a dermatologist, they had all satisfied all components of the required assessment.

100    The real comparator with Dr Sklavos's situation, accordingly, is not an overseas dermatologist seeking to be elected as a Fellow of the College. A possible comparator is a person who has failed to obtain a dermatological qualification overseas (whether as a result of examinations or work based assessments or otherwise) who then applies to the College to be elected as Fellow. There is no suggestion that the College has ever used (or would contemplate using) Rule B in such a case. The fact that the College was willing to recognise overseas qualifications as a dermatologist, in some cases on the basis of requirements for periods of supervised training rather than having to sit the College's examinations, does not make these persons comparable to Dr Sklavos because in every such case those people already held qualifications as a dermatologist.

101    Another possible alternative comparator is a person who has failed the College's final examination but had the practical experience and qualifications that Dr Sklavos has. Again, the evidence was that the College had never used Rule B in any such case and would not do so. The requirement to pass its final examinations was, and is, applied by the College to all Australian trainees, irrespective of their experience or the holding of any other qualification. The relevant comparator is not, however, either a person who has qualified as a dermatologist overseas or in Australia (see, by analogy, Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [7]-[12] and [213]-[232]).

102    The consequence is that it cannot be accepted that the College's refusal to make Adjustment One meant or means that Dr Sklavos has been (or will be) treated less favourably than a person without the disability would be treated in circumstances that are not materially different. The College would have treated a person in the same position as Dr Sklavos without his disability in exactly the same way it treated Dr Sklavos. Section 5(2), accordingly, is not engaged.

103    The fourth (and related to the third) point is that the direct discrimination case put for Dr Sklavos has not grappled with the causation requirement in s 5(2). The evidence on causation is all to the same effect. The only reason that caused the College not to make Adjustment One was that it was not satisfied that Dr Sklavos was competent to practice as a dermatologist. Indeed, putting the proposition in the positive, it is plain that the College was satisfied that Dr Sklavos was not competent to practice as a dermatologist. Dr Sklavos's disability was irrelevant to the position of the College in refusing to make Adjustment One. Indeed, while the College was prepared to assume the existence of the disability for the purposes of Dr Sklavos's specific requests for certain adjustments to be made for him to undertake the examinations in 2012, the College never accepted that Dr Sklavos was suffering from any disability. In these circumstances, the reliance placed on direct discrimination in Dr Sklavos's case seems misplaced altogether. Nothing the College did or did not do was caused by Dr Sklavos's disability in the sense required by s 5(2). The College's requirement that all Australian trainees pass its final examinations was applied to every Australian trainee. The only object of the College in imposing that requirement on all Australian trainees, including Dr Sklavos, was so that the College had available a means whereby it could satisfy itself that the trainee was competent to practice as a dermatologist.

104    I do not accept the submissions for Dr Sklavos to the contrary. In particular, the "substantive outcome" (Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [241]) of the College not waiving its examination requirement is that Dr Sklavos was treated the same as, and equally to, someone in the same position as him who did not have the disability. There was "substantive equality" (Watts at [246]) because a trainee in exactly the same position as Dr Sklavos but without his disability would have been required to pass the final examinations. This cannot be avoided by pitching the case, as was done for Dr Sklavos, at such a high level of generality that any comparator is said to have been able to perform at the best of his or her ability, but Dr Sklavos was prevented from doing so because his phobia prevented him from doing his best in examinations. This is because it is clear from the evidence that the real comparator (a person who has completed the training program approved by the College Board, who has not passed an examination by the College as required by cl 11.1.1(a)(2)(A) of the College's Constitution, with the same or substantially the same level of qualifications and experience as Dr Sklavos and who does not have a disability affecting his or her capacity to be examined by means of the College's examinations) would not have been elected as a Fellow of the College without having passed the examinations. Election as a Fellow for an Australian trainee (the relevant comparator for Dr Sklavos) follows automatically from the College determining the trainee has passed the final examinations. It is the requirement to sit the examinations that is the relevant criterion or "treatment". That treatment applies equally to every Australian trainee.

105    In any event, I do not accept that Adjustment One was or is a reasonable adjustment. It was put for Dr Sklavos that the College had not adduced any evidence that hardship would be imposed on it by the adjustment so that the adjustment is deemed to be reasonable. There was evidence, however, that satisfies me that such an adjustment (if it be an adjustment, as to which, see below) would impose an unjustifiable hardship on the College.

106    The parties provided limited assistance on how the College fits within the broader scheme of the regulation of medical specialisation in Australia. For present purposes, it is sufficient to refer to certain provisions of the Health Insurance Act 1973 (Cth) (the HI Act) and the Health Insurance Regulations 1975 (Cth) (the HI Regulations).

107    By s 3D(1) of the HI Act, a "medical practitioner is taken to be recognised as a specialist in a particular specialty, for the purposes of this Act, if a relevant organisation in relation to the specialty gives the Chief Executive Medicare written notice stating that the medical practitioner meets the criteria for the specialty". Section 3D(2) provides that:

A medical practitioner meets the criteria for a specialty if the medical practitioner:

(a)    is domiciled in Australia; and

(b)    is a fellow of a relevant organisation in relation to the specialty; and

(c)    has obtained, as a result of successfully completing an appropriate course of study, a relevant qualification in relation to the relevant organisation.

108    A relevant organisation "in relation to a specialty, means an organisation declared by the regulations to be a professional organisation in relation to the specialty".

109    Regulation 4 of the HI Regulations provides that relevant organisations and relevant qualifications are identified in the table in Schedule 4. Schedule 4, part 1, item 108 includes the College in respect of the qualification of Fellowship of the Australasian College of Dermatologists (FACD). A former President of the College, Dr Shumack, explained the role of the Australian Medical Council (the AMC) as follows:

29. The Australian Medical Council ("AMC") is an independent national standards body for medical education and training that (among other functions) develops accreditation standards, policies and procedures for medical programs of study and assesses, using the approved accreditation standards, medical programs and the institutions that provide them.

30. The Australian Medical Council (AMC) has assessed and accredited specialist medical education and training and professional development programs since 2002. From 2002 to July 2010, the AMC process for accreditation of specialist education and training programs was a voluntary process in which the College and all other specialist colleges had agreed to participate for quality improvement purposes. From 1 July 2010, the process became mandatory as the Health Practitioner Regulation National Law Act 2009 made the accreditation of specialist training programs an element of the process for approval of programs for the purposes of specialist registration.

31. The College last underwent the AMC's accreditation process last year [2013]. The College is due to be re-accredited in 4 years' time [2017]. The AMC's accreditation process is described in its document "Procedures for Assessment and Accreditation of Specialist Medical Education Programs and Professional Development Programs by the Australian Medical Council 2013", a copy of which is annexed and marked SPS8.

32. While the College is undergoing the AMC's assessment process, the AMC assigns to the College a committee which conducts the assessment. During this time, there is a very close relationship between the College and the AMC because conducting an assessment is a rigorous process that requires a significant amount of work on the part of the College and the AMC. In years where accreditation is not being conducted, the College is required to regularly report on certain matters to the AMC. These reports cover what progress the College is making in relation to any issues the AMC raised as areas further work during the last accreditation process. For example, one of the matters the College is currently reporting on to the AMC is a recommendation by the AMC that the College take steps to ensure greater representation of non-dermatologists on some of the College's committees.

110    The AMC's Procedures for Assessment and Accreditation of Specialist Medical Education Programs 2013 includes the following information:

2.1    Legislative Framework

The AMC has been appointed to conduct accreditation functions under the Health Practitioner Regulation National Law (the National Law).

This set of procedures relates to the following AMC accreditation functions:

•    acting as an external accreditation entity for the purposes of the Health Practitioner Regulation National Law;

•    developing accreditation standards, policies and procedures for specialist medical programs and continuing professional development programs based predominantly in Australia and New Zealand;

•    assessing medical education providers and specialist programs of study and continuing professional development programs based predominantly in Australia and New Zealand leading to specialist medical registration of the graduates of those programs to determine whether they meet the approved accreditation standards;

•    advising on the recognition of new medical specialties.

The approved accreditation standards relevant for the accreditation assessments covered by these procedures are at http://www.amc.org.au/index.php/ar/sme.

When the AMC assesses a program of study and the medical education provider against the approved accreditation standards and decides to grant accreditation, the AMC provides its accreditation report to the Medical Board of Australia. The Board makes a decision to approve or refuse the accredited program of study as providing a qualification for the purposes of registration to practise medicine.

111    The remainder of this document sets out detailed provisions for the assessment by the AMC of the education provider's training program, including procedures relating to the refusal of accreditation, ongoing monitoring, requirements the education provider must meet in order to continue to be accredited, and reviews of accreditation.

112    Dr Shumack also explained that the College is an organisation which has five regional faculties (NSW and the ACT, Victoria and Tasmania, Queensland, South Australia and Western Australia). Each faculty has to nominate one director to sit on the Board. He said further that:

20. …The Regional Faculties play a role in the operation of the College's training program in that each faculty appoints a Director of Training to manage trainee placements. Other duties which may be required to be fulfilled by a Regional Faculty include hosting of the Fellowship Examinations (the State where this takes places changes each year) and provision of representatives to the trainee selection committee.

21. The College has a large number of committees which manage different parts of the College's areas of operation. …

22. All committees which have an education brief report to the National Committee whose Chair, the Dean of Education, sits on the Board of Directors. The current Dean of Education [in 2014, was] Associate Professor Gayle Fischer.

23. The committees make recommendations to the Board in respect of issues that fall within its purview. The Board then considers the reports from the committees at Board meetings and makes a decision. Often the Board will adopt a recommendation made by a committee and makes a decision in accordance with that recommendation. However, occasionally, the Board will make a different decision to what has been recommended by a committee or it may also request further information from the committee prior to making a decision.

24. The members of the College are not employees of the College. Similarly, the Board and members sitting on the College's committees are not employees of the College. None of the members sitting on the Board or College committees are paid a salary or wage for doing so.

…

26. The College employs approximately 11 administrative staff plus the College's Chief Executive Officer (who is not a Fellow or member). These employees carry out the decisions of the Board and the College committees and provide general administrative support to allow for the day-to-day functioning and operation of the College.

27. The College has a direct and on-going relationship with the hospitals (and some other institutions, such as the Skin and Cancer Foundations) in which it places its trainees into College-accredited training positions. These are paid positions in which the College's trainees may work in rotation as registrars. The institution is the trainee's employee for the time of the rotation and is responsible for that trainee's wages.

28. It is through these institutions that the College provides its training. The College ensures that the institutions in which trainees are placed will meet the requirements of the College's specialist training program. It does so by imposing an accreditation regime under which the institutions may be deemed as offering accredited training positions. While a trainee is undertaking his or her training under the College's program, he or she will only be placed in accredited training positions. …

113    In each year between about 20 to 30 people are elected as Fellows of the College, the vast majority of whom have competed the College's accredited training program. Dr Shumack described this process as follows:

33. There is no right to become a fellow of the College. The College admits persons as fellows only if the person meets the appropriate standards developed by the Fellows of the College over time so that Australian dermatologists can provide specialist medical services safely and competently to the public.

34. The first step to becoming a fellow of the College is to be accepted into the College training programme.

35. In order to become a trainee of the College in its program to train as a specialist dermatologist, candidates must undergo a selection process which takes into account different factors including the quality of a candidate's CV, references and performance at an interview. The candidates submit to the College an application form with various details including a CV and references, usually from Fellows of the College. Those applications are assessed and those candidates who rank best are then invited for an interview. The interview is conducted by a panel which includes Fellows and lay persons. The candidates are then ranked and those who rank best are offered trainee positions in accordance with the available number of trainee positions being admitted from each Regional Faculty.

36. Each year, the College appoints approximately 20 trainees. It may vary slightly from year to year. The number of available trainee positions is something which the College has no control over. The number of trainees is dictated by how many accredited training positions are available at the institutions providing those positions. This is essentially dependent on the level of government funding available to employ the trainees. Usually, New South Wales (which includes the ACT) has a trainee intake that ranges from 3 to 8 in any one year. Victoria (which includes Tasmania) usually appoints 2-5 trainees. Queensland appoints zero to 4 trainees. South Australia (incorporating the Northern Territory) and Western Australia usually appoint zero to 2 trainees each.

37. On successful completion of the College's training program, a trainee should be able to practice safely and independently as a specialist dermatologist. It is designed to cover all of the significant areas of dermatological medicine, in skills and knowledge, to allow trainees to achieve that level of competency. …

38. The College's training program is currently a four year program (up to around 2010, it was a 5 year program). Assessment takes place during the year through a Summative-In-Training Assessment Process [referred to as SITAs] whereby a trainee's progress is assessed with reference to certain learning areas. This is conducted with the trainee's supervisor in training and is designed to allow trainees to identify areas for improvement. At the end of the four year training program, trainees must successfully complete the Fellowship Examinations.

39. Once a trainee has passed the Fellowship Examinations, completed the training program and completed the College's other requirements (by which time trainees should have also completed other requirements such as their publications and log books) they are automatically presented to the Board for election as Fellows and, after election by the Board, the trainee becomes a Fellow of the College. The election process usually takes up to one week after completion of the Fellowship Examinations and training program. Trainees, however, need not do anything further once they successfully complete the Fellowship Examinations. …

114    The Fellows of the College who addressed the issue of Dr Sklavos's competence to be a dermatologist expressed the conclusion that because he had not passed the final examinations he had not demonstrated the required competence to practice as a dermatologist. For example, Dr Younger explained the following:

    "…he saw a mixture of all of the patients that would present to the practice, but they were all informed that he wasn't yet a fully fledged specialist, he hadn't passed his exams";

    "…he was working at a level competent to his level of training";

    "…I always believed he had to pass his exam, so he – I would believe he had had enough – well, he has had plenty of experience – been provided with plenty of experience, and he really needed to buckle down and pass his exam";

    "…dermatology is an unusual part of medicine in that we do lots of physical things like removing little skin cancers and biopsies and things that other doctors don't do, and he was certainly very competent at that, but we also have this medical training in our scheme that requires lots of theoretical knowledge, knowledge of a whole range of medical problems… you can only become a fellow if you pass the… exams, the theoretical exams, and he hadn't done that, so… At the practical level, he's fine… If he had passed his exam, I would have no hesitation in… saying he was fine…– a lot of what we do in our jobs, we do very easily, and then there's that small bit which is very, very hard. So he had completed his four years training. He had been given all his training, all his opportunities…";

115    Dr Younger also gave evidence in this exchange:

And in relation to that, I think you described your particular practice at Campbelltown at the time as a general dermatology practice; correct? Yes, yes.

And so it involved, is it right, general dermatology work such as dealing with melanomas, for example? Yes.

Skin cancers? Yes.

Other day to day conditions that many in the general population would confront in respect of dermatological conditions? Yes.

And you would acknowledge that there were several other, more specific facets of dermatology that perhaps you wouldn't come across as frequently in your practice; is that right? Yes. Hospitals tend to have tertiary dermatology. We don't have very much of that…

Okay? …in the community.

And what does that particularly involve, Dr Younger? Just another level of – a high level of competence, I would say. So I imagine the same thing happens in the law.

And practically speaking, in terms of someone that might visit a hospital for that type of treatment, what's an example of a condition that you can think of as you sit there that might be treated in that regard? Well, the very, very difficult cases that don't respond to traditional therapies. You know, so – and they're often referred to hospitals. We have dedicated clinics for very difficult problems. And this is why our registrars circulate the hospitals of Sydney, so that they get exposure to all the difficult and rare areas of dermatology, so – and you're less likely to get that in private practice.

Yes. Particularly a private practice of a general kind? Yes.

And am I right that the college's final examinations endeavour to test for the rarer conditions as well as the more general ones? Yes. Of course, yes.

And endeavour to test for the conditions that come up for treatment less frequently in the community as well as the more common ones? Yes.

116    Dr Fischer recalled that, after the 2010 clinical examinations which Dr Sklavos failed, a number of examiners in the examiners' meeting described Dr Sklavos's performance as "unsafe" or "dangerous". She said:

I've been an – I had, at that point, been an examiner for a decade and I had sat through very many exam meetings and seen many candidates fail over the years. And, in general, candidates fail because they simply don't know their work and they don't have enough knowledge. I had never heard a candidate described as dangerous or unsafe by so many examiners.

117    I do not find Dr Fischer's subsequent invitation to Dr Sklavos to re-sit the examinations on the basis that she believed he was capable of passing inconsistent with her view that, as at 2010, he was not safe to practice as a dermatologist. The College allows candidates to sit for the final examinations four times in a 10 year period. It must not be uncommon for some people to fail the final examinations and have to re-sit them. A candidate would have the benefit of an extra year's study and training before having to re-sit the examinations. A person assessed to be unsafe due to lack of competence one year might be assessed to be safe and competent the following year. As one of her emails said, Dr Fischer told Dr Sklavos that he needed a further year of "upskilling". There is no reason to think that Dr Fischer believed other than that Dr Sklavos was capable of passing the examinations if he applied himself in this further year of upskilling. Dr Sklavos was thus given the opportunity to which he was entitled by Dr Fischer's invitation to him to re-sit the examinations.

118    Despite suggestions to the contrary, nothing in the circumstances suggests anything improper on Dr Fischer's part in this regard. She did not like Dr Sklavos and, in one email (albeit sent in the aftermath of the massive undertaking which she had overseen as the College's then Chief Censor of arranging the College's examinations in 2010), said she "really can't stand him". She thought he was a "schmuck". Dr Fischer felt this way because Dr Sklavos personally had not made a good impression on her. While much was sought to be made of this in cross-examination of Dr Fischer, and it is readily understandable that Dr Sklavos might be upset by knowing Dr Fischer's personal opinion of him, all this is beside the point. The contemporaneous emails in which Dr Fischer expressed these opinions also consistently disclosed something else Dr Fischer believed. That is, no matter what she thought of Dr Sklavos personally, he had to be and would be treated fairly. Thus, Dr Fischer said "we need to help him as much as anyone" (that is, help him to pass the examinations). She said that, much as she did not like the idea of Dr Sklavos qualifying, "we have to give him as much support as the others". I do not accept that this meant that Dr Fischer simply did not want Dr Sklavos to qualify. Read in the context of her emails, and recognising that she was writing to others in the College involved in the examination process (or about to be), it is reasonably clear that Dr Fischer was firmly of the view that, as at the 2010 examinations, Dr Sklavos was not competent to practice as a dermatologist, that she could not countenance him practicing as such at that time, and that while she disliked him she thought that if he dedicated himself to another year's training he was capable of passing the examinations and thus becoming a dermatologist. Even if Dr Fischer is to be understood as expressing a view that she did not like the idea of Dr Sklavos qualifying even after a further year of upskilling because she personally disliked him, it is plain from the context that she is expressing a personal view of Dr Sklavos which Dr Fischer knew must not be permitted to have any effect on the way in which she dealt with Dr Sklavos so that he had to be given exactly the same help as every other trainee. I have no doubt that Dr Fischer acted consistently with these requirements at all times.

119    For present purposes, however, the key part of Dr Fischer's evidence is her firmly held view that Dr Sklavos's performance in the 2010 clinical examinations meant that he was not competent to practice, to the extent that he had been described to her by a number of the examiners as "dangerous" and "unsafe". The further year of upskilling which Dr Sklavos undertook did not result in him passing the written examinations in 2011, thus he was not invited to sit for the clinical examinations in that year. These circumstances provide a strong evidentiary foundation for the view taken by the College in 2012 that Dr Sklavos should not be admitted as a Fellow by reason not of his disability (which the College did not accept existed in any event) but by reason of his lack of competence.

120    Nor did I find the approach on behalf of Dr Sklavos to the raw marks given by examiners in the clinical examinations particularly helpful. First, the fact that some of the marking sheets show that the examiners might initially have passed Dr Sklavos in respect of one or other questions, but then decided that his performance was only a borderline pass or fail, does not support the inference that, in reality, he passed the question. It is the final assessment which matters. Second, the raw marks are not the basis the College uses for determining competency. Because there are so few candidates each year, the College uses a relative system of assessment. A candidate who is more than one standard deviation below the overall mean is taken to have failed the examinations. Dr Sklavos was assessed to have failed the 2010 clinical examinations, a fact about which there is no challenge. He also failed the written examinations in 2011.

121    Given that s 11(a) of the Disability Discrimination Act requires that "the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned" be taken into account in determining whether a hardship imposed on the alleged discriminator would be unjustifiable, the assessment of the College that Dr Sklavos was not competent to practice as a dermatologist in 2010 and 2011 is significant. I can see no reason why a detriment might not include potentialities such as risks to the public. The College is the body entrusted by the AMC with the education and qualification of dermatologists in Australia. The public is entitled to expect that the College will not confer Fellowship upon a person the College is not satisfied is competent to practice as a dermatologist. The evidence is that the persons responsible for assessment within the College had reached a clear view, through the examination process in 2010 and 2011, that Dr Sklavos was not then competent to practice as a dermatologist.

122    The notion that this was part of a conspiracy, although believed by Dr Sklavos, finds no foundation in the evidence. The Fellows of the College who gave evidence were plainly aware of the importance of the College diligently performing its function to ensure that only competent persons can be Fellows of the College. The election as a Fellow of Dr Sklavos in 2012 or thereafter, as he sought, would have involved the College in enabling Dr Sklavos to practice as a dermatologist when it did not in fact believe he was competent to do so. Irrespective of whether Dr Sklavos thought the College was wrong in this regard or motivated by malice against him (another belief for which there is no rational foundation), the fact is that the persons responsible within the College did not in 2010 or 2012, and do not currently, believe Dr Sklavos is competent to practice as a dermatologist. The basis for their belief is reasonable, even compelling, given the evidence. For the College to facilitate Dr Sklavos being registered to practice as a dermatologist, given this actual belief and the evidence supporting it, would have involved the College in a gross breach of the trust placed in the College by the AMC and the Australian public. The potential legal, reputational, functional and even existential risks to the College of engaging in such conduct, given its assessment of Dr Sklavos's lack of competence, would have been substantial. This is not mere speculation. Given the strict systems in place for accreditation of the College as the body responsible for educating and satisfying itself that a person is competent to practice as dermatologist, the fact (if it had been done) of the College electing as a Fellow an Australian trainee who had failed the College's own assessment procedures, let alone one who had been described as "unsafe" and "dangerous" in his clinical examinations in 2010, would have rightly called into question the College's suitability to continue to perform its functions. The kind of risks to which the College would have exposed itself by making Adjustment One involved unjustifiable hardship to the College.

123    It is no answer to this that the College might have placed Dr Sklavos under a program of continued supervision. As Dr Younger said, Dr Sklavos already had enormous supervised practical experience. But dermatology involves more than hands-on practice. It involves medical theory. It involves different degrees of complexity. A dermatologist in general practice has to know when a patient needs to be referred for highly specialised dermatological care (what Dr Younger called "tertiary dermatology"). The College's examinations are designed to ensure competency across this full spectrum. No-one explained how Dr Sklavos, a person who had already had the benefit of a vast amount of supervised training, could have benefited from yet more training to ensure his competency across the full spectrum. The idea that the College, the Fellows of which design and manage the education program on a voluntary basis, should also design and supervise an individual program of yet more supervised training for Dr Sklavos, in my view, itself involves an unjustifiable hardship.

124    I also consider that the risks to all people who might thereafter have been one of Dr Sklavos's dermatological patients constitute an unjustifiable hardship. Every potential patient of Dr Sklavos if he were elected as a Fellow of the College is a "person concerned" for the purpose of assessing detriment within the meaning of s 5(2)(b). Unbeknownst to such people (at least until some problem arose), if Dr Sklavos were made a Fellow, they would be seeing what I infer would be the only dermatologist trained in Australia who had not passed the College's final examinations, and the only dermatologist elected as a Fellow that the responsible College considered to be not competent to practice. This involves at least two kinds of detriment. The first kind of detriment is lack of information. Potential patients are entitled to assume that a specialist has not been permitted to be registered as such unless the responsible body is satisfied that the specialist is competent to practice. The second kind of detriment is a risk to safety. If not considered by the responsible body to be competent to practice as a dermatologist despite having been given an abundance of supervised practical training, then Dr Sklavos should not be permitted to practice as a dermatologist. I cannot see how the capacity of the College to ensure an overseas qualified dermatologist undergoes further training or supervised practice in Australia as a condition of election involves circumstances that are not materially different from those of Dr Sklavos. Dr Sklavos has already had the benefit of all the training and supervised practice the College makes available to its trainees. Therefore, on this basis also, the adjustment involved by Dr Sklavos being elected as a Fellow under Rule B involves unjustifiable hardship to every member of the class of persons who are potential dermatological patients of Dr Sklavos.

125    Finally, I am not satisfied that election as a Fellow of the College under Rule B of its Constitution involves "an adjustment to be made by a person" as required by the definition of "reasonable adjustment". The requirement that applies to all Australian trainees is that they pass the College's final examinations. Seeking election under Rule B involves by-passing the examination requirement for an Australian trainee in an attempt to rely on a rule which pre-supposes the applicant holds qualifications and experience that the Board considers adequate. The Board only considers qualifications and experience as a dermatologist overseas as potentially adequate on the basis, I infer, that such a person has necessarily already satisfied all training and assessment requirements that applied to them in the relevant country. For Dr Sklavos, who has not satisfied all training and assessment requirements that apply to him in his country, to be elected as a Fellow does not involve any adjustment (that is, modification) to the requirement that he pass the College's final examinations. It involves the requirement being by-passed or abandoned altogether.

126    The submission that was put for Dr Sklavos exposes the failure of the case put for him to grapple with the requirements of a comparator and causation. The submission was that:

Adjustment One was available, and could have been used to assess Dr Sklavos's eligibility for Fellowship. In the absence of unjustifiable hardship the Act deems it to be reasonable. Whether Dr Sklavos would have been assessed as eligible for Fellowship if this method had been genuinely applied to him is not relevant to the question of whether it constitutes a 'reasonable adjustment' (although it may be relevant to the assessment of his damages).

127    This overlooks the critical requirements of s 5(2) that "the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different". The fact that the College could have made Adjustment One (at least in theory, albeit that I consider to do so would have involved the College in a grave dereliction of its responsibilities) does not answer the statutory test. It is not the case that the failure to make any adjustment which could be made if the adjustment does not necessarily involve unjustifiable hardship satisfies the requirements of s 5(2) in respect of direct discrimination. The case put for Dr Sklavos does not confront the actual requirements of s 5(2).

128    For these reasons, I do not accept that in not making or proposing to make Adjustment One the College discriminated against Dr Sklavos as provided for in s 5(2) of the Disability Discrimination Act.

2.4.3    Adjustment Two

129    Adjustment Two is said to involve the adjustments to the examinations in 2012 in fact sought by Dr Sklavos from the College in his letter dated 5 April 2012.

130    One aspect of the proposed adjustments can be dispensed with immediately. Based on Dr de Saxe's report, Dr Sklavos requested that he be provided with an explanation for the events involved in the clinic list incident in 2009. This is not an adjustment at all. It is a matter unconnected with any requirement of the College that Dr Sklavos pass the College's final examinations. Given that the definition of "reasonable adjustment" involves the concept of an "adjustment", I do not see how this aspect of the request fits within the scheme of the Disability Discrimination Act at all.

131    Whether or not this is so, I consider that Adjustment Two confronts the same difficulties about causation and the relevant comparator as Adjustment One.

132    The relevant comparator is a trainee of the College who has not passed the College's final examinations. Even if, as Dr Sklavos maintains, the comparator is taken to have nearly passed the written examination in 2010, the College's requirement that a person in Dr Sklavos's position in 2012 sit for and pass all components of the written examination applied generally. The College's refusal to waive any part of its examination requirements was not caused by Dr Sklavos's disability. It was caused only by the College's position at that time that, in order for it to be satisfied that a trainee had demonstrated competence, the trainee had to pass all aspects of the Fellowship examinations. It follows that Dr Sklavos was not, because of his disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

133    Consistent with the discussion above, I am also satisfied that any adjustment which involved Dr Sklavos not having to sit for the whole or part of the written examination in 2012 would impose an unjustifiable hardship on the College and the members of the public within the class of future patients of Dr Sklavos if he were to practice as a dermatologist. The College would not have granted any such request by a person otherwise in Dr Sklavos's position but without his specific phobia and thus s 5(2) is not satisfied.

134    Otherwise, I accept that Dr Sklavos sought "adjustments" for the purposes of the Disability Discrimination Act.

135    Through a series of communications, the College responded to Dr Sklavos's request of 5 April 2012. For present purposes, a table provided for the College, which I consider to be accurate, can be used to compare what he had sought over time with what the College offered. The table is as follows:

136    It will be apparent that the College did not waive any requirement to sit the written examinations. Nor did it provide an explanation of the clinic list incident. Those matters have been discussed above. Otherwise, the College met all of Dr Sklavos's requests as ultimately pursued by him in his letter of 5 April 2012 (in which he confined his requests) other than:

    the independent observer of the clinical examinations was to be a medically-trained (specialist) from Adelaide not from the AMC;

    one examiner from NSW would be involved in one of the three long case vivas; and

    the examiners in NSW would be involved in the examiners' meeting when the entire cohort's results were to be discussed, or at the stage of de-identified candidate discussion, but not during discussion of Dr Sklavos's results.

137    In these circumstances, the first difficulty for Dr Sklavos is again one of causation. It was accepted for Dr Sklavos that:

[i]t is relevant to enquire whether the adjustments proposed by Dr Sklavos would be likely to have ameliorated the symptoms and consequences of his Specific Phobia, because unless they could do so the College's failure to make them could not, within the meaning of s.5(2)(b), have had the effect that because of his disability he was treated less favourably than a person without his disability would be treated. It is submitted that the evidence establishes that the adjustments proposed by Dr Sklavos would be likely to have ameliorated the symptoms and consequences of his Specific Phobia.

138    Given the existence of Dr Sklavos's specific phobia by January 2012, I am not persuaded on the evidence that anything the College could have done in 2012, other than waiving the requirement for Dr Sklavos to sit any of the examinations, would have made any difference to Dr Sklavos in 2012. It may be accepted that Professor Glozier said that the person with the disability is usually best placed to know what adjustments will assist them. But this is a case where the disability relates directly to the requirement. It is a specific phobia about the very requirement in respect of which adjustments were sought. In these circumstances, and given that Dr Sklavos ultimately could not sit the examinations at all in 2012 by reason of his disability, I am unable to accept that if the College had simply accepted all of Dr Sklavos's proposals (other than waiver of the examinations) Dr Sklavos would have been in any different position. In other words, given the nature of Dr Sklavos's disability and how it relates to the requirement of the College, I am not persuaded that the failure of the College to do anything less than waiver of the examinations "has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different".

139    It follows that I do not accept that Dr Sklavos's opinion that had the College simply done as he asked in respect of all adjustments (excluding the waiver) he would then have been in a different position from the one he was in in 2012. I note that this is supported by Professor Glozier who said that "actually I doubt whether any accommodation would enable him to reduce his level of anxiety to that of a normal person who has not had such experiences". If the College had agreed to the AMC observer in the clinical examinations and that no NSW examiner be involved in any part of the clinical examinations of Dr Sklavos, the evidence does not suggest that these matters could have put Dr Sklavos in any materially different position. The College agreed that an independent medically-trained (specialist) observer from Adelaide would observe the clinical vivas and attend the examiners' meetings. There is no logical reason why this arrangement would have been any less likely to ameliorate Dr Sklavos's anxiety symptoms than an observer from the AMC.

140    Further, I accept Dr Fischer's evidence that arranging the final examinations is a substantial undertaking for the College and the dermatologists who volunteer their time to act as arrangers and examiners of the examinations. While the College has not proved that arranging for examiners from outside NSW to test Dr Sklavos in all parts of the clinical examinations involves unjustifiable hardship, I am prepared to infer that excluding the NSW examiners from the discussions of examiners about the cohort as a whole would involve unjustifiable hardship. Other trainees were being examined by examiners from NSW. Those examiners had to be permitted to be involved in the discussion relating to the cohort or else the entire clinical examinations could miscarry to the detriment of all involved in that process including other trainees. What this leaves is Dr Sklavos's desire not to be examined in any respect by a NSW examiner and the College's proposal to have him examined in one long-case viva by a NSW examiner.

141    It is difficult to accept that this adjustment could have made any difference. It was put for Dr Sklavos that his conviction that Fellows of the College were involved in a conspiracy against him meant that having an AMC observer would have reduced his anxiety so that he could sit the 2012 examinations. Given the College's agreement to have another independent observer unconnected to the College present, I do not accept that submission. But Dr Sklavos's conviction that the College was involved in a conspiracy against him supports the conclusion that nothing the College could have done, other than waive its examination requirements altogether, could have assisted Dr Sklavos in 2012. It is implausible that, given his personality traits and beliefs in 2012, there would be any difference for Dr Sklavos in having no NSW examiners or one in respect of one part of the clinical examinations.

142    Dr Sklavos's response to the College's proposals confirms this conclusion. Given the contents of the table set out above there cannot be any real doubt that, despite its scepticism about Dr Sklavos suffering from the specific phobia, the College was prepared to make substantial adjustments in its attempts to enable Dr Sklavos to sit the examinations in 2012 on a playing field level with all other trainees. Yet Dr Sklavos saw the College's response as "insincere and almost mocking", and this too inflamed his anxiety and mistrust of the College.

143    Contrary to the submissions put for Dr Sklavos, the suggestion that the College's proposed adjustments were insincere or mocking of him finds no foundation in the evidence. The fact that the College was sceptical about the disability does not mean that it failed to engage with Dr Sklavos assuming the existence of the disability and in good faith. In working out what adjustments should be made, the College was entitled to have regard to the impact on itself. The fact that its communications with Dr Sklavos use the language of compromise does not suggest insincerity. If anything, it suggests the genuineness of the College's attempts to try to reach a solution with Dr Sklavos. Despite this, Dr Sklavos perceived the College to be insincere and his anxiety worsened as a result. I consider this supports my conclusion that there is nothing the College could have done which would have made any difference to Dr Sklavos's positon in 2012, other than waive its examination requirements altogether. Another fact which supports this conclusion is that, although the College met all of Dr Sklavos's requests in respect of the written examination (the few matters where it did not fully meet his requests relating to the clinical examinations only, once waiver and an explanation for the clinic list incident are put to one side), he withdrew from the examinations altogether in 2012. He did not attempt to sit for the written examination.

144    The final point that should be made in this regard is that Dr Sklavos's disability is one thing; his personality traits and conspiracy beliefs are another. I accept that his conspiracy beliefs are genuine (as already said). I accept also that his conspiracy beliefs are related to his development of a specific phobia (as the submissions for Dr Sklavos put it "the evidence…establishes the intimate connection between Dr Sklavos's Specific Phobia and his conviction that senior and influential figures in the College were conspiring against him"). However, his specific phobia was fear about sitting the College's examinations (and is now fear about any assessment by the College). Whatever the College did in 2012, Dr Sklavos's conspiracy beliefs (which persist) would have remained unaffected. Given this and the fact that, ultimately, it is the College's examinations which he had to sit and pass, the notion that the College could have done anything for Dr Sklavos in or after 2012 except waive its examination requirements is implausible. As such, once the notion of waiver is put to one side, it cannot be concluded that the adjustments he requested would have made any difference had they been made. He still would be a person suffering from a specific phobia about sitting the College's examinations who had to sit those examinations if he wished to be elected a Fellow of the College.

145    The reliance in the submissions for Dr Sklavos on communications between Dr Fischer and Dr Elliott as expressing "their real views about the need to make adjustments for disabled candidates" is misconceived. No doubt, with hindsight, Dr Fischer and Dr Elliott (who were responsible for the examinations in successive years as Chief Censor) would have preferred it if they had not made comments in emails between them expressing their incredulity that a trainee with a form of dyslexia and another with narcolepsy had managed to pass all medical examinations and post-graduate requirements before application could be made to the College to be accepted as a trainee. Similarly, it may be accepted that describing these trainees as "attempting to pull the wool over our eyes" and involving them in "this sort of crap" is unfortunate. A number of other observations should be made, however.

146    First, it is not the case that emails uniformly disclose a person's true opinion because they are being unguarded. To the contrary, because many people are unguarded in what they think of as private email communications, their language is often less well considered than might otherwise be the case. Email content is more likely to be extreme for the sake of the making of a point, or for humour, than a considered communication reflecting the person's real views. The emails between Dr Fischer and Dr Elliott bear these hallmarks.

147    Second, and most importantly, it was clear from the emails themselves, and not just the evidence of Dr Fischer and Dr Elliott, that no matter what they personally felt about the validity of some of the applications for adjustments to the examination requirements, every application would be treated properly. Dr Elliott said that "it behoves us to go thru the due process" and I have no doubt he meant it. Dr Fischer in her email in reply to Dr Elliott said "which we will".

148    Third, while the language is inflammatory and regrettable, the subject-matter is relevant. Trainees of the College are already medical doctors. They must have already sat and passed numerous examinations and performed adequately under difficult circumstances. The kinds of disability of dyslexia and narcolepsy probably are surprising in a person who had managed to qualify as a medical doctor.

149    It follows that I do not accept the submission that:

This is of a piece with their approach to other requests for special consideration made at about the same time by other candidates.

150    In fact, the evidence discloses that even where the College was sceptical about certain claimed disabilities and associated adjustments to examination requirements (including that of Dr Sklavos, but also about the trainees with dyslexia and narcolepsy), the responsible Fellows gave real consideration to the requests, assuming in favour of the trainee the existence of the disability, and made adjustments largely (even if not entirely as in the case of Dr Sklavos, leaving aside the examination waiver request) as had been sought.

151    For these reasons, I do not accept that the College's failure to make the adjustments Dr Sklavos had pursued in relation to the 2012 examinations had the effect that, because of his disability, he was treated less favourably than a person without the disability would be treated in circumstances that are not materially different. Waiver of the examinations was not a reasonable adjustment. Yet nothing less than waiver would have placed Dr Sklavos in any different position in 2012.

2.4.4    Adjustment Three

152    Adjustment Three involves the proposition that, although he made no request to this effect in 2012, the College ought then to have proposed to waive the examination requirements in favour of a system of workplace based assessments of Dr Sklavos.

153    In reality, this is no different from Adjustment One and all of the reasons why I do not accept that the case of direct discrimination based on Adjustment One has been made out apply equally to Adjustment Three. None of the submissions put for Dr Sklavos about the availability of workplace based assessments, their capacity to enable an assessment of competence, or Dr Sklavos's belief that in 2012 he could have subjected himself to workplace based assessments, affect the applicability of my conclusions about Adjustment One to Adjustment Three. In short, Dr Sklavos's case fails in both respects on the basis of causation and less favourable treatment than a relevant comparator.

154    In addition, it is one thing to accept the proposition put for Dr Sklavos that the Disability Discrimination Act "does not constitute the aggrieved person the exclusive and definitive arbiter of what adjustments should have been made by the discriminator". It is another to accept that the putative discriminator has to conceive of every possible adjustment whether or not sought by the aggrieved person. The concept of a "failure to make the reasonable adjustments" in s 5(2) indicates that there must exist some circumstance calling for action by the putative discriminator. If, for example, Dr Sklavos had requested that he be the subject of a regime of workplace based assessments instead of examination then the College could have considered, for example, whether that would involve unjustifiable hardship. If, in such a case, the College had refused to do so then there would exist some "failure" to which s 5(2) could attach. As it is, however, what is now put is that, although Dr Sklavos made specific requests (waiver and, if not, other matters) and the College dealt with those requests, the College nevertheless has failed to make reasonable adjustments because it did not unilaterally suggest something else altogether (workplace based assessments). I have considerable difficulty accepting that these factual circumstances are capable of engaging s 5(2), which pre-supposes the existence of some failure on the part of the discriminator.

155    Insofar as it is necessary to say more, I accept that it is more likely than not that Dr Sklavos would have been able to initially agree to subject himself to workplace based assessments in 2012. I do not accept, however, that all of these assessments could have been conducted in Dr Younger's practice which was a general dermatology clinic only. If this had been done, the assessments would have been too limited to demonstrate competency. Other arrangements, which were not explored in the evidence, would have been required to ensure that the assessments covered the same substantive material as the College's examinations. If such assessments could have been devised (as to which, see below) and had been carried out, moreover, I consider that it is unlikely that Dr Sklavos could have performed satisfactorily in those workplace based assessments given his performance in the 2010 and 2011 examinations and the fact that, ultimately, it would be the College which was responsible for determining satisfactory progress by Dr Sklavos in circumstances where, over time, his phobia about the College has expanded and become more debilitating to him.

2.4.5    Conclusions

156    In my view, the case for direct discrimination relying on s 5(2) of the Disability Discrimination Act cannot be sustained. The essence of the case attempts to take the College's refusal to waive a requirement (passing the College's final examinations) which applies to all Australian trainees equally for the sole purpose of ensuring competency to practice as a dermatologist as the foundation for an allegation of direct discrimination. In so doing, the case fails to grapple with the fact that, on the evidence, a person in the same circumstances as Dr Sklavos but without the disability would be subject to exactly the same requirement. Accordingly, it cannot be said that the College's refusal to waive any part of its examination requirements has or would have had the effect of treating Dr Sklavos, because of his disability, less favourably than a person without the disability would be treated in circumstances that are not materially different.

2.5    Indirect disability discrimination

2.5.1    Overview of Dr Sklavos's claims

157    Dr Sklavos relies on both ss 6(1) and (2) of the Disability Discrimination Act. Section 6(1) concerns a person who does not comply with a requirement or condition because of the person's disability where the requirement or condition has the effect of disadvantaging the person with the disability. Section 6(2) concerns a person who because of the person's disability would be able to comply with a requirement or condition if reasonable adjustments were made but the discriminator does not do so or proposes not to do so and that failure has the relevant disadvantaging effect.

158    It will be apparent that s 6, the indirect discrimination provision, involves requirements or conditions which appear fair or equal but which have a different impact on a person with a disability because of their disability. On this basis, it should be evident that Dr Sklavos's case is one which is more likely to find some traction in the indirect discrimination provisions than the direct discrimination provisions. This is because the College's examination requirements are facially neutral. They apply equally to all Australian trainees. As explained above, this makes it impossible to accept Dr Sklavos's case of direct disability discrimination because nothing the College did was because of Dr Sklavos's disability. The College did what it did because it perceived (rightly) that it was responsible for ensuring only competent persons could practice as dermatologists and it did not accept (reasonably) that Dr Sklavos was competent. It did not accept that Dr Sklavos was competent because he had not passed the College's final examinations (leaving aside, for this purpose, the dispute about the written examinations).

2.5.2    Elements of the statutory provisions

159    Sections 6(1) and 6(2) each involve the discriminator requiring compliance with a "requirement" or "condition". The College concedes this element is established. On the evidence, it is clear that it is a requirement or condition of the College that, in order to be elected as a Fellow (necessary so that he can practice as a dermatologist), Dr Sklavos must pass the College's final examinations.

160    Section 6(1)(b) relates to cases where the disabled person is not able to comply with the requirement or condition at all, whereas s 6(2)(b) relates to cases where the disabled person is able to comply with requirement or condition but only if adjustments are made. As such, there cannot be discrimination under both ss 6(1) and 6(2). The provisions operate in the alternative.

161    In the present case, and based on the discussion above relating to the adjustments the College offered, I do not accept Dr Sklavos's case that he was or would have been able to sit the final examinations in 2012 if the College had simply done as he asked. In other words, I consider this to be a case arising under s 6(1), not s 6(2). In common with Professor Glozier, given the nature of Dr Sklavos's specific phobia, I consider that there is nothing the College could have done in 2012 or thereafter to enable Dr Sklavos to comply with the examination requirement other than waiving that requirement altogether. There is no dispute that, when confronted with the 2012 examinations, Dr Sklavos's anxiety increased as the examinations approached. He ended up in a severe anxiety state. His condition was such that he withdrew from the 2012 examinations. Given Dr Sklavos's history, the idea that he would have done so if he was in fact able to take the examinations (not suggested by the College) may be dismissed. Even if Dr Sklavos secretly believed that he was likely to fail the examinations (highly unlikely given Dr Sklavos's apparent self-belief, the psychiatrists' view about his narcissistic personality tendencies, and also not suggested by the College and certainly not conceded by Dr Sklavos), everything else in the evidence indicates that had he been able to do so he would have taken the 2012 examinations. As a result, I have no doubt that Dr Sklavos withdrew from the 2012 examinations because, by reason of his specific phobia, he was unable to take those examinations. That he might have been capable of taking the examinations at serious risk to his mental health does not, in my view, mean that he would be able to comply with the requirement.

162    In this regard it is sufficient to refer to Rees N, Rice S and Allen D, Australian Anti-Discrimination Law (2nd ed, Federation Press, 2014) at [4.3.38] where this is stated:

The issue of whether a person is unable to comply with a requirement of condition is a question of fact. While the statutory language which is used to connote 'inability to comply' with the challenged requirement or condition is not uniform, there do not appear to be any differences of substance. Most of the statutes deal with this issue by use of the words 'does not or is not able to comply'. The decision of the House of Lords in Mandla v Dowell Lee [[1983] 2 AC 548] is authority for the proposition that a person's inability to comply with a particular requirement or condition is to be judged practically. In that case the condition in question was a rule imposed by a school that students were not permitted to wear a turban whilst in school uniform. An issue in the case was whether the complainant, who was an orthodox Sikh boy, was unable to comply with that condition because he was physically able to attend the school without a turban on his head. While the precise language employed in the Race Relations Act 1976 (UK) was that the requirement or condition was detrimental to the complainant 'because he cannot comply with it' [Section 1(1)(b)], the general statements made by members of the House of Lords concerning inability to comply are of relevance when considering this fourth element of indirect discrimination in Australian anti-discrimination law. Lord Fraser of Tullybelton said:

It is obvious that Sikhs, like anyone else, 'can' refrain from wearing a turban, if 'can' is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules … The word 'can' is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976 it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the racial group' …Accordingly I am of opinion that the 'No turban' rule was not one with which the second appellant could, in the relevant sense, comply [[1983] 2 AC 548 at 565-566].

Australian courts have tended to follow this liberal approach to the question of whether the complainant is unable to comply with the requirement or condition in question.

163    Applying this approach, it is not practical that Dr Sklavos seriously compromise his mental health by forcing himself to take the College's examinations about which he has developed a specific phobia. Despite his belief to the contrary, I am satisfied also that it was not practical for Dr Sklavos to do so in 2012. As I have said, the idea that because the College did not meet all his required adjustments (albeit in the relatively minor respects I have identified once the demand for an explanation of the clinic list incident and waiver of the examinations altogether are put to one side, as they should be), Dr Sklavos experienced such severe anxiety in 2012 that he had to withdraw from the examinations - but that had all such adjustments been made he would have been able to sit for the examinations - in my view, is untenable on the evidence. Even if the College had made every adjustment sought I am satisfied that, having developed the specific phobia by January 2012, Dr Sklavos would have been unable to take the examinations in that year. Everything he experienced as the 2012 examinations approached (extreme agitation and anxiety, marked sweating, increased heart rate, dry-retching and insomnia) would have been experienced whether or not the College had agreed to all his requests about adjustments to the examination processes.

164    As such, it is s 6(1) that is potentially applicable, not s 6(2). To the extent Dr Sklavos attempted to run both cases, I consider the claims to be true alternatives in the sense that a person cannot succeed on both grounds. The sections are mutually exclusive. If I am wrong about s 6(1) applying, then my conclusions above about the three proposed adjustments (which Dr Sklavos also relied on for the purposes of s 6(2)) apply. In summary, to the minor extent that the College did not make the adjustments to the examinations which Dr Sklavos ultimately pursued, it could not be said that any such failure had the effect of disadvantaging Dr Sklavos. He would have been in exactly the same position because of his specific phobia.

165    In respect of s 6(1)(c), there cannot be any real doubt that a person who has developed a specific phobia will be at a disadvantage compared to a person without that disability in respect of the examination requirement. Accordingly, the College's examination requirement has the effect of disadvantaging persons with this particular disability.

166    The real question, accordingly, is that provided in s 6(3) – whether the requirement or condition is reasonable having regard to the circumstances of the case – in which event neither ss 6(1) nor (2) apply. By s 6(4), the College bears the burden of proving that the requirement or condition is reasonable having regard to the circumstances of the case.

167    Dr Sklavos relied on the observations in Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115]:

…

(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [[1989] FCA 342;] (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission [[1991] HCA 49; (1991) 173 CLR 349], at 395–396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82–83, per Lockhart J.

(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61–62, per Heerey J; Commonwealth Bank v HREOC [(1997) 80 FCR 78], at 112–113, per Sackville J.

(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383–384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.

168    I accept that these principles continue to be relevant, despite subsequent legislative amendment.

169    In Commonwealth Bank v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, Sackville J summarised the applicable principles (albeit again in a different statutory context) as including the following (at 110-113):

First, the starting point in determining whether a requirement or condition is "not reasonable having regard to the circumstances of the case" are the observations of Bowen CJ and Gummow J in Styles (at 263) that:

"the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."

This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Dopking (No 2) [[1993] FCA 1067; (1995) 63 FCR 74], at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in AMC v Wilson [[1996] FCA 591; (1996) 68 FCR 46], at 60, per Heerey J (with whom Black CJ and Sackville J agreed).

In Dopking (No 2), at 82-83, Lockhart J said that the test

"required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s6(2) of the [Sex Discrimination] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable."

Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement. In Dopking (No 2), at 83, per Lockhart J, subjective preferences:

"may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts."

…

Fourthly, reasonableness (or non-reasonableness), for the purposes of s5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but "in a less discriminatory way": Waters, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J.

As Brennan J pointed out in Waters, reasonableness cannot be determined in the abstract (at 378):

"[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which para(a) and para(b) of s17(5) [equivalent to s5(2)(a) and s5(2)(c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable."

Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the "correct" one…

…

The fact that a distinction has a "logical and understandable basis" will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case.

170    In its defence, the College contended that the requirement that all Australian trainees must pass the College's final examinations to be elected a Fellow was reasonable given the following circumstances (see the particulars to para 60(b) in the Further Amended Defence):

i.    the overall objective of the Respondent's training program is to produce dermatologists who are safe, skilled and competent in the diagnosis and management of all aspects of diseases of the skin and its appendages and able to respond to the change health needs of the Australian community;

ii.    the structure of the training program over a four-five year full-time period is designed to ensure that the trainees pass through Basic Training in the initial two years and Advanced Training in the final three years. Trainees must pass through the defined stages to facilitate the progressive and cumulative acquisition of knowledge and skill;

iii.    during the Basic Training, the trainee must acquire detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin. Trainees are assessed on their knowledge and competence in this area;

iv.    a further aspect of training through formative assessment, aims to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Trainees must become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in:

1.    interviewing skills

2.    clinical examination skills

3.    procedural dermatology skills

4.    professional conduct

5.    research skills

v.    each stage of training must be completed to a satisfactory level;

vi.    the training is designed to ensure that the trainees acquires skills in the treatment of complex dermatological conditions and can meet the demands of increased responsibility for patient management;

vii.    the assessment is undertaken in an objective and appropriate manner to ensure that the high standards expected of trainees is meet;

viii.    the Respondent currently holds an accreditation from the Australian Medical Council as the specialist medical program in Australia which allows a medical practitioner to be registered as a specialist dermatologist, conferring upon that medical practitioner the qualification of Fellowship of the Australasian College of Dermatologists.

ix.    the assessment requirements of the Respondent have been accredited by the Australian Medical Council.

x.    the Respondent undertakes assessment of trainees by a number of different means including both summative and formative assessments which are formulated to ensure that trainees who successfully complete the program of the Respondent are competent and safe to practise as a junior dermatological specialist.

xi.    the Respondent had a Special Consideration policy which operated to permit trainees have their examinations held under alternative or varied conditions in certain situations;

xii.    the Australasian College of Dermatologists Training Program Handbook 2009 at Appendix Three provides an internal appeals process for any person who claims to be adversely affected by a decision of the Board or Committee of the Respondent.

171    Other than particular vii as set out above, it was not in dispute that the evidence established the existence of each particular. The case for Dr Sklavos was that the College's objective – ensuring competence – could be satisfied by processes other than a trainee having to sit for and pass the College's final examinations. As the submissions for Dr Sklavos put it:

The College's case does not establish why it was reasonable, having regard to all of the circumstances, including Dr Sklavos's disability, to require Dr Sklavos, if he was to be eligible for Fellowship, to pass the examinations, as distinct from a modified or alternative form of assessment directed to and capable of achieving the same objective.

172    In support of this proposition, the submissions for Dr Sklavos made the following points:

(a)    Dr Fischer gave some evidence that her view was that the clinical examinations are difficult to organise, meaning that it would be 'extremely difficult' to examine candidates outside the normal arrangements. Her evidence is also that the College considers the clinical examinations 'to be the best way to maintain a fair, transparent and reproducible assessment process.'

(b)    Dr Shumack and Dr Corderoy gave evidence that the College's training program has been accredited by the AMC, a body required to assess and accredit specialist medical training programs. Since 2010, accreditation by the AMC has become compulsory, to ensure that trained specialists are 'safe to practise.' This overarching concern is re-emphasised by Dr Corderoy, who indicates that:

When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist?

However, no evidence has been called that suggests that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists for this key competency.

(c)    Dr Corderoy makes reference to the 'Eminent Pathway' or IMG process. As already submitted, the College's method of assessing whether IMGs are suitable to be recognised as Australian specialists and eligible to apply for election to Fellowship does not necessarily require any examination to be undertaken. That is authorised by and consistent with the terms of cl 11.1.1(a)(2)(B) of the College's Constitution.

(d)    Dr Corderoy gives evidence about the process of the examinations, but this evidence itself cannot speak to the reasonableness of a requirement that a trainee sit and pass all components of the examinations if they are to be assessed as eligible to be elected as a Fellow of the College.

(e)    All of Dr Corderoy's evidence about the rationale for the examinations goes to the capacity of the examinations as a method of assessment to ascertain whether a person is 'safe to practise.' Nothing in this evidence suggests that another method of assessment, or a modified form of the examinations, would not be equally or even more appropriate.

(f)    Professor Jolly was overwhelmingly the best qualified and most objective witness on this issue. His uncontradicted and unchallenged evidence was that examinations were a, but not the only, method of reliably assessing postgraduate medical trainees' proficiency and competence.

173    I accept that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. The College, sensibly, did not suggest otherwise. But what the College did contend was that its requirement for all Australian trainees to pass its final examinations was reasonable in all of the circumstances.

174    There is some tension in the case put for Dr Sklavos. On the one hand, he believes that his qualifications and experience qualified him for election as a Fellow in 2012. I am unable to agree. Not one of the dermatologists who deal with this question thought he should be able to practice as a dermatologist because, given that he had not passed the examinations, he had not demonstrated competence. Dr Fischer believed that as at 2010 he was not in fact competent to practice as a dermatologist, based on his performance in the clinical examinations. His failure in the 2010 clinical examinations indicates a lack of competence to practice. On the other hand, Dr Sklavos seemed to accept that it would have been necessary, even in 2012, for him to subject himself to further assessment, perhaps by way of supervised practice, so that his competence could be ensured. His current position is that while he accepts he would need to be subjected to further assessment his phobia will prevent him from undertaking this because it is the College, necessarily, that will ultimately be responsible for that assessment. The notion that, having failed the final examinations, the College would simply elect Dr Sklavos as a Fellow in 2012 is unrealistic. He had not demonstrated competence to practice as a dermatologist, irrespective of his qualifications and experience. The only possible option, which the submissions for Dr Sklavos seem to accept in some respects, is for an individualised assessment program to have been developed for Dr Sklavos, excluding examinations, after which an application for Fellowship might have been considered.

175    In this context, circumstances relevant to the reasonableness of the College's examination requirement include, first, that the AMC has accredited the whole of the College's existing training program which includes its final examinations. I do not accept that it would be open to the College to waive its examination requirements for an Australian trainee without having developed and having obtained accreditation from the AMC for the full details of an alternative assessment program to stand as a substitute for every component tested by the College's examinations. In other words, variation of its examination requirement is not within the unilateral control of the College. It would necessarily involve the AMC. The College would have to persuade the AMC that the alternative program would perform the same function as the College's examinations in all material respects. In these circumstances to say that the College has not proved that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists is to gloss over the reality that it is the whole of the College's training program, of which the final examinations form a significant part, which has the benefit of AMC accreditation.

176    Second, it is apparent from the AMC's Procedures for Assessment and Accreditation of Specialist Medical Education Programs that the requirements to obtain accreditation are detailed and rigorous. There are numerous steps involved which, it may be inferred, involve substantial time, effort and cost on the part of the body seeking accreditation. Because it is critical that every medical specialist be not just competent but demonstrably competent there is no reason to infer that the AMC would accredit a program for any doctor seeking to be registered as a medical specialist outside the scope of an accredited scheme specifically applicable to that speciality, unless plainly satisfied that the alternative program ensured competency to the same level and across all areas of theory and practice as the already accredited training scheme. This would necessarily involve the AMC itself in substantial work. Professor Jolly (whose evidence is discussed below) described the role of the AMC in accreditation of bodies, such as the College, as training providers, as follows:

The AMC accredits specialty colleges, such as the Royal Australasian College of Physicians (RACP), to train and assess trainees in a specific area of medical practice, in the case of the RACP – internal medicine. The AMC accreditation process involves a detailed evaluation of a college's curriculum, including the specified outcomes, training activities, mentoring and support processes, assessment and governance procedures. It is a comprehensive and demanding evaluation involving analysis of all documentation pertaining to a training program, and usually a visit to the institution and several training and assessment sites. It also involves interviews with trainees, supervisors, college officials, hospital employers, and others. However, the AMC has no direct role in the decision to award designation as a Fellow of the respective college, to an individual. That is left to the College's discretion, as long as they are accredited to do so by the AMC.

177    Third, it is obvious that the College's examination requirements represent an extraordinary amount of work for the dermatologists involved, work which is undertaken on a wholly voluntary and unpaid basis. Dr Fischer, who held the position of Chief Censor in 2010 has volunteered her time to the College since 2003 in respect of the College's examinations. She explained that:

21. The Chief Censor is the organiser of Board of Censors. The duties of the Chief Censor included, but were not limited to:

(a)    chairing each meeting of the Board of Censors;

(b)    re-marking written answers where two (2) examiners give marks for an answer to an essay question in the Fellowship examination that exceeds a 10% difference. The Chief Censor re-marks the candidate's response and then an average of the two closest marks is taken as the final result for that essay question. All written papers are de-identified.

(c)    the Chief Censor oversees the creation of every question that goes into the Fellowship examination (including multiple choice questions, viva voce scenarios and essay questions); and

(d)    the Chief Censor liaises with the Dead of Education and College Board regarding any issues that arose concerning the examinations.

22. The Board of Censors (now called the National Examination Committee) is responsible for overseeing the entire Fellowship Examination process each year. This involves writing the examination questions, determining the rubrics of assessment for the examinations, organising the arrangements for the examinations to be conducted and assessing the candidates. Each censor on the Board of Censors needs to be sufficiently experienced, skilled and knowledgeable to be able to write examination questions and to participate in creating an examination that will be sufficiently test all the areas in which a trainee of the College must demonstrate sufficient skill and knowledge so that they can be assessed as being safe to practice as a junior specialist dermatologist. This is the standard that must be met by a trainee before the College can assure consumers of medical care that they are considered safe to practice as a junior consultant and can be conferred Fellowship of the College.

23. The written Fellowship Examination consists of three main parts. First, a section comprising long essay questions. These are questions which members of the Board of censors have written from their own clinical experience. They are based on cases which censors have come across in their practice. As Chief Censor, I would request that each censor write a long essay question. Once each censor has written their long essay, the Board of Censors meets to discuss the questions, refine the questions, decide on an acceptable answer and then decide which questions will be used in the Fellowship Examination. This is not necessarily how every Chief Censor arranges for the long essay questions were prepared, however this is how it was done under my leadership.

24. Secondly, there are multiple choice medical questions which are done in two papers. One paper comprises questions regarding a combination of factual knowledge of dermatological conditions, investigation and treatment in one half and the other half involves problem-solving. The second paper comprises factual knowledge of dermatological surgical conditions and treatments.

25. The Fellowship examination also includes a viva voce examination which takes place after the written Fellowship examination. There are two viva voce examinations: the first is run in individual states and comprises questions on histopathology, laboratory technique and dermoscopy (dermatological microscopy). The second is a clinical viva voce examination, usually held at the beginning of August each year in one centre only, where candidates examine patients and then are required to talk about their findings to the examiners. This examination also has a surgical component where candidates need to demonstrate their competency and knowledge of dermatological surgery.

178    Dr Corderoy, who is not a dermatologist but an education specialist employed by the College, said this:

58. When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist. In this statement where I refer to the indicator, 'safe to practice', it is to this question I am referring.

59. In order to determine whether a person is safe to practice, the College has, over many years and with input of various experts (both medical and educational) and with reference to the standards set down by the AMC, developed its system of examinations as the best way in which it can objectively determine who is safe to practice and who is not.

60. The College has carefully developed a comprehensive curriculum in relation to material that a specialist dermatologist should know. It is benchmarked against international curricular, [sic] is regularly reviewed and is of course in alignment with the standards required by the AMC. The curriculum is very broad and the College must be able to assess whether a trainee has developed an adequate knowledge of the material in the curriculum. This knowledge can be tested efficiently and objectively through the examination process, using written exams to test the acquisition of knowledge and skills and clinical vivas to test the ability to apply this knowledge and skills in a simulated real world setting… The feedback of a trainee's supervisors is significant, however it ultimately is only the option of those individuals, not a standardised or an objective opinion. The examination process is a safeguard against an un-controlled subjective approach to verifying a 'safe to practice' standard has been achieved.

61. The objective assessment of 'safe to practice' is demonstrated when the examination committee sits down to look at the final result and make a decision about borderline candidates. They discuss what happened in the exam over the 2 days of the Vivas, in relation to the candidate being discussed from the perspective of each of the examiners. Given the state based nature of the exams, only a small proportion of the candidates are 'known' to the majority of the examiners. Examiners are only really familiar with candidates sitting from their own state. At this final meeting, everybody is asked for comment, 'how do you really feel about this candidate and how they performed in the cases/stations you were examining'. Discussion can be quite extended. After all of this discussion, they vote on whether they consider that person safe to practice.

62. The statistical way in which the nominal pass mark is determined is a frequently used statistical measure which takes into account, at the same time, variations in the degree of difficulty of examinations from year to year, and the variations in the cohort. Setting an arbitrary pass mark of say 75% does not take such variables into account. The AMC is satisfied with our approach in this regard.

63. After knowledge is assessed in the true/false or multi-choice papers, the written essay papers then combine that knowledge into the scenarios that are clinically based. The candidate is asked to use a written approach to display their knowledge, skills, attitude and processes. In the experience of the examinations committee, the written paper is the beast measure of how a candidate is going to go in the vivas, since it is simply an on-paper replication of a clinical situation. The written exam is like the vivas but instead of being verbally examined, the candidates are given half an hour to use the information provided to formulate a response (using text to outline a diagnosis), what they would do or how they would treat a patient, what treatment regime they might adopt and how they might manage the patient. The written exam demonstrates whether a candidate can synthesise the knowledge and the experience to write down the analysis. The written exams are a less pressurised situation than having to give a logical recount verbally, since more time is allocated than in the vivas.

64. It is in the viva exams that the College is able to reliably make a decision as to whether a candidate is safe to practice as an independent junior practitioner. The exams replicate as close as possible a real clinical situation. The candidate is observed working with patients, and going through the process of taking the history, looking through related facts, diagnosis, management plan, treatment plan.

65. The long case vivas are the best indicators of whether a candidate [can] work safely and independently in a clinical situation because they are being assessed by their expert peers operating in clinical situations. The exams are a pressure situation but are designed to mimic the pressure that the candidates will likely have to deal with in clinical practice. The candidates have to be skilled enough to synthesise their knowledge and observations made during their examination of the case quickly and make an accurate diagnosis.

66. Long cases mimic a clinical situation. The candidate goes into the examination room in which the patient is sitting, they are with that patient by themselves for 30 minutes. They are then given 5 minutes at the end of that time to finalise their notes/thoughts. They then go into the viva room where the 2 examiners sit, the two peers sit. Very often, the first question the examiners ask is to the effect, "Tell me about Mrs X". The process that the candidate has to go through in the consultation room – that is, to take a history, make a diagnosis, do some differential diagnoses, make a further examination, then think about what is the pathway, then discuss a treatment regime and management regime – all these areas are covered and it replicates the approach the candidate would take working independently in his/her own practice.

67. The examiners 'know' the patient (they have seen the patient notes/photographs previously and have their own consultation with the patient prior to the commencement of the Viva). It is during this session that they are able to check the presentation on the day and carry out a final refinement on the rubrics and marking guides that had been prepared during the setting of the vivas and at the pre-exam examiners meeting. Note that the patients are generally drawn from the state examiners practice or those of colleagues in the state. During the Viva, the examiners work their way through the candidate's process, and consider what the candidate picked up and what did they miss. Critical items on the rubric that were not picked up (for example indicators of life threatening illnesses) may lead the examiners to conclude that although a correct diagnosis was made the candidate is not 'safe to practice'. The clinical vivas also give examiners the best chance of assessing a candidate's ethics and interaction with the patient, which are difficult to assess objectively.

179    A system which has been developed and refined over many years, which has involved an extraordinary amount of work to bring it to its present standard, is not lightly to be waived. While Dr Sklavos was highly critical of the College's examinations and how they were marked, not only is the system accredited by the AMC, there is no evidence that it has been ineffective in ensuring that Australians are provided with competent dermatologists. No-one suggested the current system of assessment of the College – including the final examinations – was failing to deliver to Australia competent dermatologists. Every system will have its strengths and weaknesses but, in the case of the College's system, it has been in place for many years and must be inferred to have been working satisfactorily to obtain current accreditation from the AMC (which the College has obtained, albeit with a significant amount of work to refine its processes of assessment, including its examinations). On the evidence, Dr Sklavos appears to be the only trainee of the College who, not having passed the final examinations, has nevertheless sought election as a Fellow based on his qualifications and experience, and the only person to have sought waiver of the examinations altogether by reason of a disability. There is no evidence that other trainees of the College have been dissatisfied with the College's requirements in the same way or to the same extent as Dr Sklavos.

180    Fourth, another obvious fact is that as at 2012 when Dr Sklavos sought waiver of the examination requirement, the College did not have available to it a program which would have enabled it to assess Dr Sklavos's competency other than its final examinations. Such a program was not then (and is not now) available for application to Dr Sklavos. The assessment of international medical graduates might have been a starting point for the development of such a program (as to which, see below) but, as noted, these people are already dermatologists qualified as such overseas. Dr Sklavos was still a trainee who had not passed his own country's requirements to be a dermatologist. To contemplate waiver of the examination requirement, it is likely that the College would have had to carry out substantial work to ascertain whether it was feasible for it to ensure Dr Sklavos's competency across all the areas covered by the examinations by some alternative method.

181    Fifth, and contrary to the case for Dr Sklavos, the situation in respect of international medical graduates is not directly comparable. While it is true that the College is prepared to assess the competency of some of these graduates on a basis that does not involve examinations but, rather, workplace based assessments, each such application is considered on an individual basis. The applications are made ad hoc. The assessment proceeds from the assumption that the person has already qualified as a dermatologist in another country. It is also apparent that the AMC carries out an initial assessment of an overseas specialist in accordance with specific AMC procedures. Accordingly, the AMC itself has already accepted that for certain international medical graduates there will be no requirement to sit further examinations. However, another thing which is apparent is that some overseas dermatologists are rejected outright as non-comparable to Australian requirements, and others are required to undertake up to two years of the College's training program for Australia trainees and to pass the College's final examinations, depending on the comparability of their training overseas with Australian requirements. As Dr Baker explained in his second affidavit, since 2007/08:

11. …the process for International Medical Graduates who wished to be considered as Fellows followed a particular policy which became known as the "Specialist Recognition Assessment Pathways" program (the Pathways program)… once an application is made by an IMG, the College considers the application and, in substance, decides whether an IMG's qualifications are:

(a)    "Not comparable" to those the subject of the College's program (in which case the applicant is ineligible for specialist recognition by the College);

(b)    "Partially comparable" to those the subject of the College's program – in which case the College assesses the extent of qualification of the candidate, identifies what further training or assessment is required for it to be satisfied the candidate has the necessary competence to be admitted as a Fellow of the College, and then puts in place particular further requirements for the candidate, on a case by case basis. Though the extent of steps that are to be followed is devised by the College on a case by case basis (as appropriate), one example might be that the College may require an IMG to complete 2 years of the College's training program that applies to Australian based candidates, followed by requiring the candidate to complete the final Fellowship examinations; or

(c)    "Substantially comparable" to those the subject of the College's program – in which case it is possible that immediately or usually after a period of supervised practice the college might make a recommendation for an IMG to be recommended for specialist recognition and admission for Fellowship of the College.

12. Therefore, over time (commencing 2007/2008), the Pathways program was used to assess the suitability for Fellowship of overseas trained specialist dermatologists who were either:

(a)    From around 2007/2008, IMGs who were specialist dermatologists overseas but lacked further pre-eminent academic experience and/or qualifications – these candidates were assessed under the Pathways program and were required to complete all assessments and training requirements set by the IMG Committee (a particular education committee within the College); or

(b)    IMGs who were specialist dermatologists overseas but also had pre-eminent academic experience and/or qualifications, however those candidates' applications only formerly began being considered as applications under the Pathways program from around 2011. Prior to then, they were provided to and considered by the College's board.

182    According to the material annexed to Dr Baker's second affidavit, about 82 international medical graduates have been assessed under these procedures since 2007. A table shows how those applicants were assessed:

The table below provides information on the assessment outcomes of 82 applications received over the last 7 years.

183    It will be apparent that nearly a quarter were rejected as not comparable (that is, not eligible for the program). Nearly another quarter required two years of training. The proportion required to pass the College's final examinations is not apparent but, if it is considered appropriate, Dr Baker's evidence discloses that international candidates will be required to do so. The requirement for examinations is thus a component not only of the AMC accredited system for training Australian dermatologists, but also a component which assists the College to ensure the competence of international dermatologists who wish to practice in Australia.

184    Sixth, while I accept that in theory at least an alternative system of assessment of competency to the College's examinations could be developed with enough time and thought, I do not consider it can be inferred that such a task would be other than difficult and time consuming. Professor Jolly, an expert in medical education, recorded in his report that the AMC's position is currently that "no single method can assess all the elements that contribute to good medical practice" so that it is "essential to use a variety of assessment methods that complement each other in the elements they assess" (emphasis removed). Professor Jolly also noted that the AMC's position is that:

[t]he strength of an assessment program is judged at the overall program level rather than on the psychometric properties of individual instruments. In such an approach highly reliable methods associated with high stakes examinations such as multiple choice questions (MCQ), modified essay questions (MEQ) or objective structured clinical examinations (OSCE) are used alongside instruments to measure domains such as independent learning, communication with patients and their families, working as part of a health team, development of professional qualities and problem solving skills where reliability is less well established. The AMC encourages the development of assessment programs for their educational impact. A balance of valid, reliable and feasible methods should drive learning to the program goals and outcome… The AMC encourages education providers to utilise direct observation of trainee performance using performance-based assessment, as well as other forms of clinical assessment.

185    The College's accredited training program did not (and does not) consist merely of a series of examinations including the final examinations. The College's four year program involves a combination of examinations, supervised training including workplace based assessment via a summative in-training assessment process (called SITAs), publications requirements and final examinations which involve both different components of multiple choice and essay questions and a variety of clinical examinations by way of vivas. In other words, the current training program satisfies the AMC requirements for a variety of assessment methods, including examinations which the AMC's publications recognise as valid assessment tools. Professor Jolly also said that using a number of different assessment methods assists in making an assessment process reliable. Examinations are part of the range of assessment methods, widely recognised across many fields, as providing a reliable indicator of competence.

186    I accept also the submissions of the College that Professor Jolly's evidence confirmed:

(a)    that SITAs represent a form of workplace-based assessment, in the sense of being ongoing clinical interactions by a trainee where a trainee is marked or scored at the end of periodic points in time: see TS Day 6 at 414.43 – 414.45;

(b)    that final fellowship exams are still used as part of the assessment program in several specialty training colleges in Australia and internationally: TS Day 6 at 415.10-13 and 415.26;

(c)    that a lot of exams used as final exams test for knowledge, and expertise depends on knowledge: TS Day 6 at 415.30-33

…

(d)    that several of the subjects that are part of the Bachelor of Medicine at the University of Newcastle, where Professor Jolly works and has a role in putting in place the assessment program, use final examinations as part of the assessment program, and do so at least in part because final examinations can be used in medical education as a useful tool for assessing competency in a particular field of medicine: TS Day 6 at 418.1 – 8.;

(e)    that workplace based assessments contain some disadvantages, limitations and constraints (including as to reliability and supervisor engagement): see TS Day 6 at 418 – 422; some of these constraints were the subject of a the paper that Professor Jolly co-authored which … was published in 2014;

(f)    that the AMC accreditation process is rigorous and follows a detailed evaluation by the AMC, and accreditation of a program in most cases reflects that the AMC considers that the program is appropriate: see TS Day 6 at 425; and

(g)    that the "wisest" type of assessment program in medical training utilises a combination of several assessment tools: see TS Day 6 at 417.15-21.

187    Professor Jolly's evidence itself discloses the difficulty of developing a reliable assessment system. In an article of which he was the co-author (Weller JM, Misur M, Nicolson S, Morris J, Ure S, Crossley J and Jolly B, "Can I Leave the Theatre? A Key to More Reliable Workplace-Based Assessment" (2014) 112(6) Brit J Anaesth 1083-91), the following key points were noted:

Background. The value of workplace-based assessments such as the mini-clinical evaluation exercise (mini-CEX), and clinicians' confidence and engagement in the process, has been constrained by low reliability and limited capacity to identify underperforming trainees. We proposed that changing the way supervisors make judgments about trainees would improve score reliability and identification of underperformers. Anaesthetists regularly make decisions about the level of trainee independence with a case, based on how closely they need to supervise them. We therefore used this as the basis for a new scoring system.

…

Conclusions. Supervisors' judgments on trainee independence with a case, based on the need for direct or more distant supervision, can generate reliable scores of trainees performing below expectations, and track trainee progress towards independent specialist practice.

188    This shows that great care would be needed to devise a system of assessment which reliably tested a trainee's competence compared to the College's final examinations.

189    Seventh, even if the College and the AMC were satisfied about the alternative arrangements, unlike an examination which is held over a compressed period of time, the alternative procedures would almost certainly involve a series of workplace based assessments across the relevant spectrum. While the College and AMC have adopted procedures which allow for an international medical graduate (that is, for example and as set out above, a person who has qualified as a dermatologist overseas) to be assessed by workplace based assessments, allowing an Australian trainee to do so may set a significant precedent. Even if Dr Sklavos were the only person to be assessed in this way, it would involve the College in overseeing his ongoing training and assessment for a period that exceeds the training period provided for all other trainees and, in all likelihood, would significantly exceed that period.

190    While I do not know the precedential effect, the impact on trainees without a disability would have to be considered. It is not difficult to infer that other trainees may feel aggrieved by the requirement that they take examinations in these circumstances. I have no doubt that the implementation of an alternative system for final assessment of even a single Australian trainee will raise difficult questions of policy for the College and the AMC which would have to be addressed. Substituting examination requirements for alternative methods of assessment for even one Australian trainee involves such large issues of policy it suggests that the issue might be incapable of resolution other than with regard to the position of all trainees, not merely Dr Sklavos.

191    Eighth, given the time, effort and cost which has been and will continue to be invested in the College's examinations, any risk of an increase in the time, effort and cost involved in training dermatologists in Australia is likely to be undesirable. As Dr Shumack's evidence regarding the College's structure explained, the College is not the equivalent of a university. There are not that many dermatologists in Australia (there are currently only about 450 practising Fellows of the College spread across Australia). The College only operates at all because a sufficient number of those 450 dermatologists are willing in every year to volunteer their time, without compensation, to run the College's various programs, including its training program. The administrative employees of the College (only 11 in all) do not run the training program. They are not competent to do so. Only dermatologists can run the training program. They do so by taking time out of their practices (either private or in our hospital system), when they could be treating patients, to ensure that new dermatologists can be trained and assessed. By so doing, the dermatologists who have served in various positions on the College over the years have performed, and continue to perform, an extraordinarily valuable public service. Any suggestion that, for a single trainee, yet more time and effort should be devoted to the creation, implementation and ongoing oversight of an alternative assessment program is or should be a cause for serious disquiet. Proposing that the trainee could personally pay for the additional costs is no answer. Every hour a dermatologist gives to the College, while undoubtedly a valuable hour, is an hour not able to be spent practising the specialty for which that dermatologist has been trained to the benefit of the Australian public.

192    Ninth, it must not be overlooked that Dr Sklavos has already had the benefit of five years training including all of the work at Dr Younger's practice. While, on the one hand, that represents a substantial public and personal investment in and by Dr Sklavos, it is also apparent that, on the other hand, training positions are themselves a valuable resource. As Dr Shumack explained, hospital training positions are accredited by the College. The College will only place trainees in accredited positions. This process of accreditation involves numerous steps, including an assessment by the College against certain accreditation standards. Accreditation is subject to ongoing reviews. Any further training the College invests in Dr Sklavos is training that could be made available to another trainee who has not had the opportunities Dr Sklavos has had. As to the latter, it is relevant that Dr Sklavos made numerous attempts to be accepted as a trainee. This is evidence that demand for training positions exceeds supply.

193    It is also relevant that, before he developed his specific phobia, Dr Sklavos sat the College's final examinations. Whatever the true position in respect of the written examination in 2010, he did not pass the 2010 clinical examinations. He had no particular anxiety symptoms at that time outside the normal range. He also sat the 2011 written examination but (according to the College) failed. He had severe anxiety by then, but severe anxiety is to be expected in a person who has already failed a life-changing examination. I am not prepared to accept that in such a situation, specific anxiety is itself a disability. However, even if that were the position, a real question arises about the number of opportunities a single trainee should be given. The College has a policy that four opportunities within 10 years is the maximum for any trainee. Dr Sklavos, who started training in 2007 would have only one more year (2016) in which to take and pass the College's examinations.

194    Further, when the College reduced its training program from five to four years it arranged a placement for Dr Sklavos in Dr Younger's practice which he worked in between February 2011 and September 2012. This was a position which Dr Younger chose to make available at the College's request to assist Dr Sklavos because his partner had recently retired. Another relevant factor is that Dr Sklavos has been out of the College's training system, and has not been involved in dermatology, since September 2012. While Dr Sklavos blames the College for excluding him from obtaining further dermatological experience after he ceased working with Dr Younger (and, indeed, believes Dr Younger was part of a conspiracy with the College to ensure his training with Dr Younger ended, which Dr Younger denied, a denial which should not be doubted), the fact remains that he has not been practising any form of dermatology for more than three years. It may readily be inferred that his skills and knowledge have deteriorated over this period. What further investment of public resources might be required to train Dr Sklavos to a level where he is demonstrably competent (assuming, in his favour, this is possible at all and that he had not simply reached the extent of his capabilities in the 2010 examinations) is unknown, but in the circumstances could not be assumed to be a relatively short period. Dr Sklavos considered that training for another medical specialty at his age (he is 45) was now unrealistic. However, if the ongoing assessment to which he would have to be subject to be demonstrably competent as a dermatologist is itself measured in years the same issue arises.

195    Tenth, while it is Dr Sklavos's goal to become a dermatologist, this is not a matter where, if he is unable to become a dermatologist, Dr Sklavos will be left without qualifications and career opportunities. Dr Sklavos is registered as a general practitioner already, albeit a so-called non-vocationally registered general practitioner. He has a right to practice as such. Section 3F of the HI Act provides that certain medical practitioners can become registered as vocationally registered general practitioners. As far as I can understand it (as I was given little assistance about this issue), vocationally registered general practitioners, who undergo a (minimum) three year training program run by the Royal Australian College of General Practitioners, receive a higher Medicare rebate for some items than other general practitioners.

196    Finally, and as noted, while Dr Sklavos's phobia is focused on the College's examinations his beliefs about Fellows of the College conspiring against him relate to the College generally. The College was, and is, the only body in Australia accredited to assess the competence of a person to practice as a dermatologist. If the examination requirement had been waived in 2012, or at any time thereafter, it would still be the College which would be responsible for any alternative method of assessment by Dr Sklavos. He is currently incapable of subjecting himself to any form of assessment by the College. The idea that things would have been different in 2012 because his condition has deteriorated, as I have said, strikes me as unrealistic. Accordingly, in and from 2012 if the College had waived its examination requirement it would have been doing so for a trainee who found engaging with the College at all had an exacerbating effect on his condition.

197    Dr Sklavos accepted that, with his current qualifications as a medical practitioner, he could open a skin clinic within a general practice context or work in a skin cancer clinic. While he is entitled to hold the strong ethical objections to skin cancer clinics he expressed, he gave no explanation as to why he would not find focusing on skin related issues within a general practice context rewarding, other than that he would not be passionate about any medical career other than as a specialist dermatologist and finds it "demoralising" to think of his future employment as "anything other than a specialist dermatologist". I am unable to see these objections as having any foundation in Dr Sklavos's disability. They are his personal beliefs. What they indicate is that if Dr Sklavos's training and experience is to be wasted merely because he cannot become a specialist dermatologist, the major proportion of that waste will be a result not of Dr Sklavos's disability but of his own perceptions.

198    It was put for Dr Sklavos that the College had not provided any detailed justification for requiring Dr Sklavos to sit and pass the final examinations, as distinct from a modified or alternative form of assessment, and had not put forward any cogent evidence of a financial burden that would have resulted from using modifications or alternatives to the examination requirement in relation to Dr Sklavos. It is true that there is no program which the College has identified that Dr Sklavos would have to undertake, nor any costing of such a program. The reason for this, however, is understandable. To develop such a program will itself involve substantial work. It would be unreasonable to expect the College to have done so for this proceeding. Moreover, the College has not asserted that it would be impossible to assess Dr Sklavos's competency by methods other than its final examinations. But this does not mean that there are not sound reasons, as identified above, for refusing to waive the examination requirement and develop an alternative assessment system for Dr Sklavos.

199    All of the matters set out above are part of the relevant circumstances to which regard must be had in determining whether the College's requirement that Dr Sklavos pass its final examinations is reasonable.

200    In respect of other circumstances said for Dr Sklavos to be relevant, I accept that the Disability Discrimination Act is beneficial legislation which indicates that a requirement that operates in an indirectly discriminatory manner is reasonable warrants scrutiny. I accept that the effect of Dr Sklavos's disability is to prevent him from now attempting to fulfil a long-held ambition. I accept that this involves the public interest, not merely private interest. Dr Sklavos has been educated, at significant expense to the Australian public, to practice as a doctor. He has undertaken many more years of further study and training, again no doubt at significant public expense, in his attempts to become a dermatologist. For all the time he has tried to become a dermatologist, he has only worked intermittently at a locum level as a general practitioner. This has deprived the public of his services as a general practitioner in the hope that he would be able to practice as a specialist. The amount of his own time, effort and money Dr Sklavos has put into achieving his goal, and the sacrifices he has made, must also be recognised as substantial.

201    I accept the submission for Dr Sklavos that the College's examination requirement means that he will be prevented from practising his chosen profession, in circumstances where he has devoted many years of work and study to becoming a specialist dermatologist. I accept too that:

This has had an adverse effect on his professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction.

202    Dr Sklavos will be able to practice as a general practitioner, including in a practice focusing on skin conditions. He has a strong subjective preference to have the examination requirement waived, but unless there was developed by the College in or after 2012 an alternative program of assessment there was no rational basis upon which the College could elect him as a Fellow. Given his performance in the 2010 clinical examinations and his beliefs about the College, there is also no sound basis for inferring that there was a probability that Dr Sklavos would have been capable of successfully undertaking alternative assessments at and from 2012. His performance in the 2010 examinations and beliefs about the College, at the least, made it a real risk (and in my view, a probability) that in and from 2012, he would not be able to successfully complete any alternative assessment program given the College's inevitable involvement in such a program.

203    Against this, all of the reasons against the waiver of the examination requirement identified above must be measured. Given those matters, it cannot be concluded that the College's insistence that all Australian trainees (and some international dermatologists) pass its final examinations is a matter of mere convenience. The examination requirement has an obvious logical and understandable basis. In fact, as at 2012 (and today) the requirement was close to a necessity because it was (and is) the only method the College had to satisfy itself of a trainee's competence without the College (and the AMC) undertaking substantial work to develop alternative assessment programs. The examination requirement was and is appropriate and adapted to the College, as the only body vested with the relevant responsibility for training dermatologists in Australia, being able to satisfy itself that a person is competent to practice as a dermatologist. While it is possible that the College could develop an alternative assessment program which would not have a discriminatory effect on Dr Sklavos, that development would require the College (and the AMC) to expend substantial effort to give Dr Sklavos a chance, but no more, to prove his competence.

204    As a result, I am satisfied that the College has established that its examination requirement, as it applied and applies to Dr Sklavos, was and is reasonable having regard to the circumstances of the case.

2.5.3    Conclusions

205    The case for indirect discrimination relying on s 6 of the Disability Discrimination Act cannot be sustained because the College has established that the examination requirement, at all material times, was and is reasonable having regard to the circumstances of the case. Accordingly, ss 6(1) and (2) do not apply.

2.6    Consequences

206    Because neither s 5 not s 6 of the Disability Discrimination Act are engaged there was and is no discrimination against Dr Sklavos for the purposes of the Act. It follows that the unlawful discrimination claims founded on Pt 2 of the Act cannot be sustained. Insofar it is necessary to say more, I confine myself to the following observations.

207    I am not satisfied that the inherent requirements exception in s 21A of the Disability Discrimination Act upon which the College appeared to rely is engaged. The relevant work is that of a dermatologist. The examinations are not the relevant work. Accordingly, it cannot be said that the examinations are an inherent requirement of being a Fellow of the College because being a Fellow enables practice, or work, as a dermatologist.

208    As to s 22, I do not accept that the College has imposed any requirement on Dr Sklavos on the grounds of his disability. Section 22(2) is thus inapplicable. However, if I am wrong about ss 5 and 6 above (but not otherwise) then it is arguable that the College's training program would infringe s 22(2A).

209    As to s 27, I have difficulty accepting that the College is a "club" as defined. I doubt that "social, literary, cultural, political, sporting, athletic or other lawful purposes", properly construed, extends to an organisation such as the College, but consider that, in circumstances where it is not necessary to decide this issue and the submissions dealing with it were scant, it is best to refrain from saying more.

210    As to s 29, I would be minded to accept the submission that the College is performing a function under a law of the Commonwealth because it is responsible for giving notices which have effect for the purposes of s 3D of the HI Act (enabling practice as a specialist). However, I am unable to see how the College's refusal to elect Dr Sklavos as a Fellow would engage s 29. As discussed, I also do not accept the College's refusal was causally related to his disability.

211    As to s 32 and the Disability Standards for Education 2005, the obligation in para 5.2(1) on which Dr Sklavos relied is to "take reasonable steps to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination" (emphasis added). I would not find any breach of this standard. Further, para 6.2(1) requires that an education provider "must take reasonable steps to ensure that the course or program is designed in such a way that the student is, or any student with a disability is, able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination" (emphasis added). Again, I would not find any breach of this standard. Consistent with my reasons above, I do not accept that the College otherwise failed to consult Dr Sklavos or failed to make such adjustments as it reasonably could in the circumstances. As such, I do not accept that the College breached paras 5.2 or 6.2 of the Disability Standards for Education 2005. I do not need to resolve whether the College was an educational authority as well as an educational institution.

2.7    Remedies

212    If I am incorrect about any of the above matters, I do not accept the submissions put for Dr Sklavos in respect of remedies for unlawful discrimination.

213    As I have found there has been no unlawful discrimination, no declarations can be made.

214    For the same reason, there can be no order that Dr Sklavos be elected as Fellow of the College. However, even if there had been unlawful discrimination I would not make this order, assuming I have the power to do so. I would not make this order for all of the reasons set out above. In short, Dr Sklavos has not been proved competent to practice as a dermatologist and I am not satisfied that there is any method currently available, but for the examinations, for him to be proved competent. To require the College to try to develop an individualised program of assessment for Dr Sklavos, given the matters set out above, would be an unreasonable exercise of discretion. There is no possible basis upon which I could conclude that this is an appropriate remedy. It cannot be an object of the relevant legislation that a person who has not been proved to be competent to practice as a specialist be permitted to practice as a specialist because that person's disability prevents them from demonstrating competence by the only method available and in circumstances where devising another method would involve such large issues of policy, reliability and the potential for substantial time, effort and cost to be expended.

215    In respect of the specific points made for Dr Sklavos:

(1)    His PhD does not demonstrate competence to practice. It was a research project.

(2)    Dr Sklavos has not completed all components of the College's training. The examinations are a critical component he has never passed.

(3)    Dr Sklavos's satisfactory SITAs are not an adequate substitute for examinations. If they were, then no Australian trainee with adequate SITAs would have to pass the examinations; yet every Australian trainee is required to do so.

(4)    Dr Sklavos's performance in the examinations in 2010 and 2011 gives no confidence that he is competent to practice. Apart from the time that has gone by, Dr Sklavos failed the clinical examinations in 2010 and was one of the four poorest performing candidates who took the examinations in 2010 and 2011. He seems to have been the second worst performer in the 2010 histopathology viva (71.5% compared to a notional pass mark of 77%), the second worst performer in the 2010 short cases viva (68.8% compared to a notional pass mark of 75%), and the worst performer in the long cases viva (71.7% compared to a notional pass mark of 77%). He scored the lowest overall mark in the clinical examinations by a material margin. He scored 70.9% compared to a notional pass mark of 78%. The next lowest mark in the 2010 clinical examinations, also a fail, was 76.3%.

(5)    Reliance on some of the marks having been changed through the process of deliberation is immaterial. It is the final result that counts. Dr Sklavos was in the bottom four in his cohort in both the 2010 and 2011 written examinations.

(6)    It cannot be accepted that because Dr Sklavos was working hard at Liverpool Hospital when he sat the 2010 examinations and could not get time off (an issue controlled by the Hospital not the College) that he should be seen as having demonstrated competence. The other candidates were also presumably working hard as well. Even if they were not, the point of an examination is to demonstrate competence. Dr Sklavos's results, particularly in the clinical examinations, are consistent with the concerns Dr Fischer raised, based on examiners' comments that he was "unsafe" and "dangerous" to practice as a dermatologist at that time. There is no reason to suppose that things have changed for the better, and every reason to suppose that his skills will have deteriorated over time, since he ceased formal dermatological training. Dr Sklavos was not suffering from out of the ordinary anxiety in 2010, despite having received a performance improvement form before sitting the 2010 examinations. Dr Fischer accepted that she knew of no candidate who had experienced all the problems Dr Sklavos had in training, but this does not mean that he was competent but just failed to perform competently. There is no sound basis for the inference of competence.

(7)    It is not possible to compare Dr Sklavos's performance with that of another trainee who failed the clinical examinations in 2010, yet passed in 2011. The work that other trainee did after failing the 2010 examinations is unknown. Nor can Dr Sklavos's performance in the 2011 examinations be compared meaningfully to yet another trainee who managed to pass the 2011 written examinations (but not by much) and then went on to pass the clinical examinations and become a Fellow. When given the same opportunity in 2010, Dr Sklavos failed the clinical examinations.

(8)    The work Dr Sklavos did in Dr Younger's practice does not demonstrate competence to practice as required by the College. Dr Younger himself said as much, emphasising that dermatology involves different levels of complexity and a lot of theory which cannot be tested for in the kind of general practice he runs. While Dr Younger thought Dr Sklavos had been given extensive practical experience he also thought that the examinations tested for things his practice did not.

(9)    It is true that most (but not all) trainees ultimately pass the examinations as required and become Fellows, even if not on the first attempt. Given that the trainees are already doctors and entry to the College is itself competitive, this is hardly surprising. That, as at 2007 only one trainee had failed to complete their training successfully (with evidence that another two subsequently having also failed to do so), indicates that, by and large, the College selects the right trainees. That some trainees fail the final examinations then pass subsequently might be a result of hard work in the interim. In any event, none of this indicates that Dr Sklavos himself is competent. The weight of the evidence is to the contrary.

(10)    Dr Fischer's belief in 2010 that if Dr Sklavos could pass in 2011 if he worked hard, does not mean he was competent in 2011 or is now. The belief was genuine but Dr Sklavos, unlike the other trainees who failed then passed, has not demonstrated competence and has now been out of effective training for more than four years.

216    Insofar as compensation is concerned, even if I had found unlawful discrimination had occurred, I would not be satisfied that it was appropriate to order any compensation under s 46PO(4)(d) of the AHRC Act. This is because, consistent with my reasoning below in relation to damages generally, I do not consider that it has been proved that Dr Sklavos has or will suffer any loss or damage caused by the conduct of the College in contravention of any legal obligation to Dr Sklavos.

3.    THE EXAMINATIONS

3.1    Introduction

217    I will deal with the issue of Dr Sklavos's performance in the examinations in this section because it formed such a large part of the case and informs resolution of part of the contractual issues dealt with below.

218    First, although the written submissions for Dr Sklavos refer to the written examinations in 2010 and 2011, there is no pleading which specifically relates to his performance in the 2011 written examinations. Nor is there any pleading relating to the 2010 clinical examination which Dr Sklavos took and failed. Given that the hearing dates initially fixed were vacated to enable Dr Sklavos to amend his statement of claim, including in relation to his performance in the examinations, he should have been held to his pleading. The College, however, dealt with the case on the basis that the 2010 and 2011 written examinations were in issue, but not the 2010 clinical examinations, so I will also proceed on that basis.

219    Second, given that it was no part of Dr Sklavos's case that, but for any error in the marking of the 2010 or 2011 written examinations he would have been assessed by the College as having passed either or both, nor that it is any part of his case that the College was wrong in deciding that he failed the 2010 clinical examinations, it is difficult to understand the focus on this issue. Whatever the discrepancies in marking that Dr Sklavos was able to identify, nothing suggests the outcome would have been different in any case.

220    Irrespective of these concerns, the case put for Dr Sklavos consisted of eight propositions. I deal with each in turn.

3.2    Dr Sklavos's propositions

221    Proposition one is that, "[f]or every practical purpose, in 2010 and 2011 an invitation to sit the clinical examinations constituted success in the written examinations. It did not matter whether success in that context was described by words such as 'pass', or 'not fail', or 'invited' or 'admitted' to the clinical examination. The College used and uses all of those words at different times. In this context they are all synonymous, in that they all describe a definitive success in the written examination".

222    I disagree. The evidence in the present case is incontrovertible. As Dr Fischer explained:

9. In relation to the College's decision to invite Dr Sklavos to sit the 2010 Viva Voce examinations, I recall participating in a phone conference meeting of the Board of Censors held in late June 2010 during which the main topic of discussion related to which candidates who had sat the 2010 Written Fellowship Examinations, were to be invited to sit the 2010 Viva Voce Examinations. The decision as to that was at that time made collectively by the Board of Censors (now called the Board of Examiners). Though I do not have specific recollection of the words used in that phone conference, I remember that as at the time of that meeting, it was then understood by me and the Board of Censors that Dr Sklavos had passed the 2010 Written Fellowship Examinations. In that context, I recall that during that phone conference the Board of Censors decided that as a pass candidate in the 2010 Written Examinations (as it was then understood), Dr Sklavos should be invited to sit the 2010 Viva Voce Examinations.

10. I recall that a short time after Dr Sklavos was invited to sit the 2010 Viva Voce Examinations (which to my recollection occurred at or around the end of June 2010), it was brought to my attention as Chief Censor in relation to the 2010 Fellowship Examinations (I do not now recall exactly when or by who, but I believe one of the other examiners at the time) that an anomaly had occurred in relation to the aggregating of Dr Sklavos' marks in the 2010 Written Fellowship Examinations. This was an issue that the Board of Censors was not aware of at the time that the decision was made to invite Dr Sklavos to sit the 2010 Viva Voce Examinations. My collection as I understood it, was that the effect of that anomaly in how Dr Sklavos' marks had been aggregated was that his actual marks were in fact lower than those the Board of Censors had considered in the meeting referred to in [9] above.

11. My recollection is that once the marking anomaly referred to in [10] above (with respect to the 2010 Written Examinations in relation to Dr Sklavos' overall final mark in the 2010 Written Examinations) was corrected, it was revealed that Dr Sklavos' actual marks in fact amounted to a clear fail in the 2010 Written Examinations, as opposed to a pass. He had in fact narrowly passed the Essay component (DM I) but failed all other components (DM II and PD). The effect of this discovery was that as at around early July 2010, though Dr Sklavos had already been invited to sit the 2010 Viva Voce Examinations (on the grounds that he had achieved a pass), the College had become aware that Dr Sklavos was a clear fail in the 2010 Written Examinations. From my perspective, this meant that he would not have been invited to sit the vivas had that been known.

12. I recall that because as soon as I became aware of that situation, I conferred with Associate Professor Christopher Baker (then the Dean of Education at the College) about whether Dr Sklavos' invitation to sit the 2010 Viva Voce Examinations should stand. My view, which I expressed to Professor Baker, was that I was personally aware of some difficulties that he had experienced the previous year as a trainee, including in connection with arranging his placement as a fourth year trainee for 2010. As to that, I was aware that he had gone through a form of interview process at the Royal North Shore Hospital but ultimately was placed at Liverpool Hospital in 2010 after there was some resistance by the Royal North Shore Hospital to employing him as a trainee in 2010. My understanding was that reasons for the resistance included the Royal North Shore Hospital's awareness of a complaint about Dr Sklavos' professional conduct that had been made in around 2009. I was also personally aware that Dr Sklavos had not been able to complete his publication requirements prior to the 2010 Written Examinations taking place. I felt that the difficulties Dr Sklavos had experienced during 2009 may have negatively affected his performance in the 2010 Written Fellowship Examinations. Further, I recommended that Dr Sklavos not be advised that he had failed the Written Examination until after the Viva Voce examinations as I was concerned that this would be prejudicial to his performance at the Viva Voce.

13. Thus I felt that it would be too tough a position on the candidate for the College to, at that point, tell Dr Sklavos that he was no longer invited to sit the Viva Voce Examinations, in the context of the College having on around 30 June 2010, invited him to do so. On that basis the invitation for Dr Sklavos to sit the 2010 Viva Voce Examinations stood and if he passed the Viva Voce he would be deemed to pass the Fellowship Examination.

223    Dr Corderoy, who is responsible for statistical analysis of the examination results, explained that the error occurred because marks for the DM (dermatological medicine) II and PD (procedural dermatology) component of the examination were incorrectly attributed to candidates. One of the examiners, Dr Elliott, picked up the error. As a result of the error, the calculations showed that Dr Sklavos achieved an overall result of 76% compared to the calculated pass mark (of one standard deviation below the mean) of 72%. When the marks were correctly attributed, it became apparent that Dr Sklavos's overall result was 69.3%, as he had failed both the PD and DM II components.

224    Whatever he might now think of it, the reality is that Dr Sklavos obtained a huge benefit by reason of the College's mistake in 2010. The mistake was in his favour. He was allowed to take the clinical examinations when, if the College had known his actual performance in the 2010 written examinations, it would not have allowed him to do so. Moreover, had he been able to pass the 2010 clinical examinations, the College would have been satisfied that he had demonstrated competence with the result that he would then have been elected a Fellow. This is not as odd as it sounds because the College had a policy for many years (which changed by 2011) that a trainee who achieved a "borderline" result in the written examination could be invited to take the clinical examinations with the consequence that, if they passed the clinical examinations, they would be elected as a Fellow. In circumstances where Dr Sklavos's invitation to sit the clinical examinations in 2010 was based on a mistake, it cannot be said that his invitation to take those clinical examinations means that he passed the 2010 written examination. As far as the College was concerned, his results meant that he should not have been invited to take the clinical examinations.

225    Given the mistake, the evidence of Dr Sklavos having been told that he had passed the 2010 written examinations is immaterial. So too are documents which show him as having passed (on the incorrect basis that he achieved 76% overall when he did not). The College believed he had passed until the mistake was discovered. Once the mistake was discovered, the College took a fair approach by allowing Dr Sklavos to sit the clinical examinations without being told about the mistake. Had he passed the clinical examinations, he might never have needed to be told of the mistake, but he failed the clinical examinations so then had to be advised that he had also failed the written examination.

226    As such, I reject proposition one.

227    Proposition Two is that "[t]he words 'pass' and 'fail' were also used by the College in connection with the mark for each component in the written and clinical examinations. In that context they meant, respectively, achieving or exceeding, or falling short of, the 'notional pass mark'".

228    This is an oversimplification of the position. The evidence demonstrates that up to and including 2010 the College, and Fellows involved in the examination process, used the words "pass", "fail", "borderline pass" and even "borderline fail" in different ways with different meanings in different contexts. The evidence is confusing, but what is clear is this. The College did not use an absolute pass mark at any material time. As Dr Corderoy explained, because the number of people taking the examinations is low (usually 20 or a few more each year), the setting of an absolute pass mark (such as 75%, which the AMC has recommended in other contexts) was not considered a reliable indicator of competence. Instead, it was determined by the College that a more reliable indicator of competence was to set a notional pass mark calculated as one standard deviation below the mean. Dr Fischer said this:

A fail is below one standard deviation down. That's a long way down when you have experience of these exams. And experience has shown us that people below one standard deviation below the mean have not garnered the competencies that we would expect.

229    The consequence is that for each question, and for the examinations overall, all marks are added, the mean is determined, and then marks more than one standard deviation below the mean are deemed to have failed. However, before and in 2010, marks just below or just above the notional pass mark might have been viewed as "borderline" passes or fails. The College reserved the right to invite such a "borderline" candidate in its written examinations to sit for the clinical examinations. In advance of the 2010 examinations, the College went through an internal debate and decision-making process, trying to work out the best way to deal with "borderline" candidates, the result of which was a memorandum to trainees on 18 December 2009 (discussed below). That memorandum retained the discretion of the College in relation to candidates it considered to be "borderline". Unsurprisingly, given the memorandum seems to raise more questions than it answers, by 2011 (and as reflected in the 2011 Training Program Handbook) the College had decided that only candidates who had "successfully completed" (explained to mean had achieved a pass, as "borderline" marks appear to have been phased out following 2010) in the written examinations would be invited to sit for the clinical examinations; whereas those who had clearly failed the written examination would not be invited to the clinical examinations and would have to re-sit the written examination.

230    As noted, after the mistake was discovered, Dr Sklavos's actual result in 2010 was not seen by the College at the time to be "borderline" so as to enliven the discretion the College then considered it had. Apart from Dr Sklavos's unfounded conspiracy beliefs, that is the reason why, when the College wrote to Dr Sklavos on 13 August 2010 after he had failed the clinical examinations in 2010, it said that he would have to re-sit the written examination in 2011. There is no evidence to found the contention that his results should have been treated by the College as a "borderline" result. The evidence is to the contrary – as soon as the true position was known, Dr Sklavos was seen by the College to have narrowly passed DM I but to have otherwise failed both other components and the written examination overall. But for the mistake in his favour, it is apparent from Dr Fischer's evidence that he would have been seen as a candidate whose overall results and quality of responses did not warrant consideration for an invitation to the clinical examinations, let alone an invitation. As she put it "[h]e achieved a borderline pass in the DM I element, but not the entire written examination", the result for the DM I component "was considered a borderline pass because of where it sat in the ranking", and being 3% below the nominal pass mark for the overall result (that is, 3% below the one standard deviation below the mean) was a "convincing" fail, meaning a fail about which there was no doubt (in contrast, I infer, to a "borderline" fail overall). Dr Fischer's evidence is consistent with the letters sent to Dr Sklavos by the College on 13 and 24 August 2010.

231    It is also clear that the clinical examinations necessarily involved a different process. The examiners of each candidate would mark the candidate's performance for each question in the clinical examinations, both as a raw score and as a pass, fail or borderline pass. The examiners would then all meet and discuss the results of the clinical examinations. The ultimate marks would then be assigned, added up, a mean derived and candidates would again be assessed by reference to the one standard deviation below the mean criterion. As a consequence, focusing on raw marks or assignations of a pass, fail or otherwise on marking sheets is apt to be misleading.

232    Proposition Three is that the "words 'pass' or 'fail' were also used by the College in connection with the overall mark for every component of the written examinations. In that context they meant, respectively, achieving or exceeding, or falling short of, the overall 'notional pass mark' for the written examinations. In these proceedings the College has sought to portray the overall mark as being definitive of whether a candidate succeeded in the written examinations. Propositions Four and Five demonstrate that this was not so in 2010 and 2011".

233    Insofar as this repeats proposition two, see above. Insofar as it relies on propositions four and five, see below.

234    Proposition Four is that in "2010 and 2011, if a candidate passed DMI, in the sense given in Proposition Two, that candidate was invited to sit the clinical examinations and was therefore, for the reason given in Proposition One, successful in the written examinations. In practice, this was so regardless of whether that candidate passed or failed the other components of the written examinations".