13 November 2020

That’s not a legal letter … THIS is a legal letter

Comment RACGP

As a CEO of the local division of a big global information corporate that tended to use the most expensive legal firms in town, I saw a lot of well argued opening legal letters shot over our bow, and briefed a few of our own with some very creative smug legal minds.

The following letter outstrips all of the best ones I ever read in that time.

It’s unemotional, detailed, comprehensive, with hardly any ambit or exaggeration for effect, which you will often see as a base tactic in letters like these. It’s mostly just laying out the facts in a clear and chilling line.

The chill is in how well this lawyer is telling the story of what happened, and how a very big mistake made by the RACGP personally has affected many students who sat the failed AKT and PFK exams.

The registrars gave us permission to publish the letter in full. Read it and see if you can fault any of the arguments or logic.

We asked the RACGP what it thought of the letter and what its response has been, noting that the letter was sent on October 27, the lawyer had given it just one day to reply and it was now almost two weeks on. The reply:

“The RACGP has received a letter from Gardner Legal & Regulatory, which acts for a group of GP registrars concerning the failure to deliver the recent KFP and AKT. We have acknowledged receipt of the letter and intend to provide a more detailed response. The letter has also been provided to our insurer, Zurich.

“I acknowledge how frustrating the experience has been for candidates, their families and those who have supported their exam preparation.”

In response to further questions the college said the assertion about the KFP exam being outdated was wrong.

One day to reply is perhaps all that is a little over the top about this letter. But that is par for the course with these sorts of disputes.

But two weeks and counting?

That isn’t sending a signal of acceptance or acknowledgement of “how frustrating the experience has been for candidates”. It’s sending a signal that the college is making sure its backside is well and truly protected in every way possible before anyone engages any further. It’s a signal that it is calculating damage and gaming out strategy, not that it is deeply concerned with the frustration, stress and severe trauma the exam failure appears to have caused.

Someone should have got on the phone immediately. That at least would have sent some signal of concern over such a compelling account from the perspective of the people you have already admitted you have screwed around royally.

It’s hard to imagine what the executive of the college is thinking here.

Read the full letter and see what you think.

27 October 2020
Mr Matthew Miles
Chief Executive Officer
Royal Australian College of General Practitioners

Dear Mr Miles

Royal Australian College of General Practitioners (“RACGP”)
Exams of 9 October 2020 and 10 October 2020

1. We act for a group of candidates for Fellowship of the RACGP (Candidates) who were scheduled to sit the College’s Key Feature Problem exam (KFP) and Applied Knowledge Test (AKT) on Friday 9 October 2020 and Saturday 10 October 2020.
2. As the RACGP is well aware, the KFP and AKT did not go ahead as a result of the failure of RACGP’s online system.
3. That failure followed the previous postponement of the KFP and AKT that were meant to take place on 17 to 18 July 2020.
4. Our clients have been caused significant harm as a result of that failing, as set out below.
5. Our clients wish to engage in a productive conversation with the RACGP as to how it will take steps to assist them, including making special arrangements for further exams, and compensation for loss suffered as a result of the cancellation of the KFP and AKT.

RACGP’s obligations

6. The RACGP has positioned itself as the primary gatekeeper to any practitioner that wishes to become a specialist general practitioner.
7. It has assumed control over that specialty and it holds great power with respect to practitioners who hold, or wish to hold, that specialist registration.
8. It has also made admission to Fellowship a difficult achievement to attain, as the various exams that must be successfully completed to obtain Fellowship are extremely difficult.
9. As the RACGP is aware with respect to those exams: 9.1. A significant proportion of students fail those exams; and
9.2. Almost all students take significant time off work to study for and attend the exams, as well as managing the significant intrusion into their personal lives posed by the exams.
10. With respect to the second of those two points, the RACGP has itself stated on its website that “The KFP and AKT are the culmination of months of hard work, determination and sacrifice and we know what unfolded was devastating for you, your loved ones and colleagues who supported you during your exam preparations”.
11. Having deliberately placed itself in the position of gatekeeper of the specialty, the RACGP owes a duty to those who are training to become general practitioners under its programs to ensure that it delivers the pathways to Fellowship that it promises.
12. Unfortunately, the events of 9 October 2020 (following on from the postponement of the earlier KFP and AKT) has meant that the RACGP has failed to do so.

Events of 9 October 2020

13. The RACGP is, obviously, aware in general terms of what happened on 9 October 2020.
14. However, some of our clients suffered extremely stressful and traumatic individual experiences on that day.
15. Those experiences included: 15.1. The systems failing within a few minutes (in some cases), meaning that candidates were plunged into a situation in which they had no idea what was going on;
15.2. The online proctors informing the trainee (among many others) that the issues with the system were the fault of the trainee, which led to the trainee (understandably) becoming highly distressed that they would fail the exam as a result of IT issues;
15.3. Having been told that use of their mobile phone during the exams could result in failure, candidates were nonetheless informed of the difficulties by text message. Candidates who were fearful of the catastrophic penalty of use of their phone during the exam therefore did not receive notice that it was not a problem on their end until much later;
15.4. Virtually no other communication resulting in candidates attempting to fix the problem and continue their exam for hours because they did not know what had happened;
15.5. Some online proctors appeared to be reading from a script, because: 15.5.1. The responses from the online proctors to questions from candidates made no sense, indicating that the proctor did not understand what was being asked or how to respond to it; and
15.5.2. They did not pronounce words as they would usually be pronounced in English – they appeared to be attempting to say the words phonetically.
15.6. Some online proctors simply did not communicate at all with the candidates, again leading to significant stress.
16. The online proctors did not appear to have any understanding of the significance of the exams or the incredibly stressful experience that the candidates were being put through. Some of them were cold, rude, or simply did not respond.

Situations of candidates

17. As the RACGP is aware, many candidates are in situations where: 17.1. They have tenuous, short-term employment arrangements; and
17.2. Their registration with the Medical Board of Australia, and their visas to live and work in Australia, are tied to their employment and to their success in progressing through their general practitioner training.
18. Those candidates, and many other candidates, have already taken significant time off of work, and from family life, to study for the aborted exams.
19. Candidates are exhausted and devastated. While our clients acknowledge that COVID-19 comes with its own specific challenges and the postponement of the July exams may not have been able to be avoided, it is clear that the RACGP had months to prepare for the online exams.
20. The RACGP was aware of the failings of its systems several weeks before the exams, after the trial exams were unsuccessful. Despite that, it pushed ahead.

Trial exam

21. The above would be highly concerning in any event. It constituted a significant failure by the RACGP to deliver exams which it had promised it would deliver.
22. However, the RACGP was already on notice of the problems with its online exam system.
23. That is because the same events took place several weeks prior to 9 October 2020, when the RACGP held trial exams for the candidates.
24. In those trial exams: 24.1. The systems failed and did not work as they should have; and
24.2. The online proctors communicated poorly and did not appear to understand English.
25. Candidates raised these problems with the RACGP and asked for confirmation that the RACGP would have a “plan B” for 9 October 2020 and 10 October 2020.
26. The RACGP indicated that following those trial exams, it had engaged with the service providing the online proctors, and that improvements had been made.
27. Despite being well aware of the significant failings of the systems and the online proctoring, the RACGP pushed forward on 9 October 2020. Predictably, the same issues arose, and the system failed again.

Data protection

28. Given the entirely unsatisfactory way in which the foreign service provider operated, our clients also have grave concerns with respect to their personal information.
29. The online system took a photograph of our clients.
30. They then had to hold up a form of photo identification for the proctor to observe.
31. The proctors were in countries other than Australia (our clients believe that they were in the Philippines and India, but cannot be certain of exactly where).
32. Our clients are very concerned that the online proctors now have their: 32.1. Names;
32.2. Photographs; and
32.3. Photographic ID, including the candidate’s name, date of birth, and address.

Steps already taken

33. Our clients are aware that the RACGP has indicated that it will: 33.1. Refund them for the KFP and AKT;
33.2. Provide a further, free, “re-run” of the KFP and AKT, which will not count towards the exam cap if it is failed;
33.3. Provide an additional exam cycle within which to complete the exam; and
33.4. Commission an external, independent investigation of what took place.
34. Our clients agree that each of these steps are appropriate. However, those steps can only be a first step. They do not come close to remedying the harm caused by the failure to deliver the KFP and AKT.
35. Below we set out, on behalf of our clients, what our clients seek from the RACGP.
36. The individual situations of each of our clients will mean that the exact outcome that each of them seeks will be different. For example, some of our clients who are international medical graduates (IMGs) have concerns that the failure of the KFP and AKT will mean that they are forced to enter into the Practice Experience Program (PEP) when they otherwise would not have been, which will cause them further expense and delay their potential acquisition of Fellowship.
37. However, the below is provided to allow our clients and the RACGP to explore potential ways in which this matter might be settled.

Further steps required

Apology

38. Firstly, our clients require a genuine apology and explanation by the RACGP as to exactly what happened, including why it chose the online proctoring service that it did, and why it proceeded to use that service after it initially failed during the trial exams.

Financial loss

39. Our clients have suffered financial loss as a result of the RACGP’s failure.
40. That loss includes (but is not limited to): 40.1. Loss from time taken off work to study and attend exams;
40.2. Loss occasioned from incurring expenses to ensure that they could attend an online exam, including various computer expenses; and
40.3. Loss from study courses and similar education in respect of the AKT and KFP.
41. While some of our clients may be able to take the AKT and KFP “re-runs” when they are offered – which would limit the extent of the loss identified above – many of our clients have exhausted their leave entitlements with their employers. They simply will not be able to take further time off to study (again), or to attempt to sit the AKT or KFP (again).
42. As such, many of the expenses identified above will be simply be wasted. Our clients will also need to: 42.1. Take further time off to study and attend exams; and
42.2. Undertake further study courses and education for the next round of exams.
43. Our clients have suffered future economic loss because they have lost the opportunity to become Fellows of the RACGP for a further (unspecified) period, in circumstances where Fellowship leads to significantly greater financial compensation.
44. It is difficult to say, at this stage, exactly what that loss may be, but it is expected to be significant.
45. Our clients require that the RACGP acknowledge that it must immediately take steps to compensate them for the losses they have suffered, and provide a clear pathway for claims for such loss to be made to the RACGP (without the need for proceedings against the RACGP to be issued in each case).

Personal data issues

46. The RACGP must identify how the personal data of the candidates has been protected, particularly in circumstances where it chose to off-shore the online proctoring. In particular, the RACGP did not warn candidates as to how their data might be used, nor how it would be stored.
47. Our clients require immediate information and reassurances that their data is protected, including an explanation of how it is protected, and what protections the RACGP had put in place in respect of that data.

Exam flexibility

48. The RACGP’s failure has thrown the plans of its candidates into chaos.
49. The RACGP must give candidates options, rather than simply rescheduling (once again) the KFP and AKT.
50. In saying that, our clients very much appreciate that Fellowship (and the specialist registration that can be expected to follow it) cannot simply be handed out because of the RACGP’s failings. Candidates will still need to prove that they are worthy of obtaining Fellowship. Our clients entirely appreciate and acknowledge that.
51. Our clients consider that there are multiple potential pathways that would, on the one hand, ensure that only practitioners with appropriate skills and knowledge progress to Fellowship, but on the other, would ensure that the harm caused by the RACGP’s failures is limited.
52. Those pathways include giving candidates the following options: 52.1. Sitting the Remote Clinical Exam (RCE) rather than the AKT and KFP, or sitting the RCE together with a modified form of the AKT; or
52.2. Having detailed, in-person, formal assessments completed by their supervisors, and/or by their Registered Training Organisations (RTO) (where they are completing their training under a RTO), where such assessments would focus more on practical clinical application of skills (i.e. candidates would be assessed according to their competency in assessing and treating patients they encounter in a clinical setting); or
52.3. For candidates on the independent pathway who do not have a supervisor or RTO, a separate practice-based assessment; or
52.4. A combination of a written exam (e.g. an MCQ) together with in-person assessment by their supervisor and/or RTO.
53. Candidates who did wish to proceed with the AKT/KFP should, of course, be permitted to do so.
54. Our clients would, of course, be more than willing to listen to other possible suggestions.
55. However, our clients note that: 55.1. The current exam format favoured by the RACGP (and in particular, the KFP) is outdated, and is not in use overseas or by other similar bodies (e.g. ACRRM conducts its training in quite a different way – a way that may be more amenable to resolving our client’s concerns that the current exam format favoured by the RACGP); and
55.2. It is simply not practical for many students to take more time off work and attempt to re-sit the AKT and KFP again. They cannot afford it, and they are placing their employment at risk by taking more time off – which then places their entire training and registration into jeopardy.
56. As such, our clients seek that any potential options would not include the mandatory sitting of the AKT and KFP.
57. Candidates who did wish to sit the AKT and KFP should be given significant flexibility with respect to further attempts and cycles, given the psychological and financial harm that recent events have visited upon them. Those attempts also ought be without charge.
58. Candidates should also be able to enrol for any relevant exams as a matter of urgency, as many exams require registration, and a prescribed pathway, as a prerequisite to enrolling in the exam – but candidates may be about to have their registrations or their pathways expire.
59. Additionally, it should be noted that many of the candidates that were due to sit the aborted exams have been on the frontline of dealing with the COVID-19 crisis while attempting to study for the exam. The sacrifices of those candidates has been great and ought to be acknowledged in any potential resolutions that are put forward by the RACGP.

IMG pathways

60. Given the potentially catastrophic impact that delay may have with respect to IMGs in particular, our clients seek that the RACGP put forward a proposal for fast-tracking affected IMGs to Fellowship.
61. That may include some form of the assessments as set out above; however, our clients consider that the RACGP must be proactive in this area, as it has placed them in a situation where their registration and their visa may now be at risk.

Conclusion

62. As would be apparent from the foregoing, our clients are: 62.1. Highly distressed at what has taken place; but
62.2. Willing to negotiate with the RACGP in a constructive manner to reach a satisfactory resolution.
63. Our clients do not want to be forced to bring legal proceedings to resolve their issues. Like any sensible litigant, they would greatly prefer to work with the RACGP than oppose it in a Court.
64. However, our clients consider they have a strong case against the RACGP with respect to the loss it has caused them. If the RACGP is not willing to attempt to negotiate and resolve the matter, we expect to receive instructions to bring proceedings against the RACGP in respect of the above without further delay.
65. We would be grateful to receive a detailed response to this correspondence by 5pm Wednesday 28 October 2020.

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9 Comments on "That’s not a legal letter … THIS is a legal letter"

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Lew Morris
Guest
Lew Morris
2 months 8 days ago

Love your work Jeremy, any chance of being our CEO?

A provocative question; just what was/is the involvement by the ex-CEO and her assistant in this exam fiasco?

Perhaps the RACGP board has many balls to juggle than we are aware of?

Raymond Yeow
Member
Raymond Yeow
2 months 8 days ago

1. may I ask how as an affected GP in the same boat can I join this class action , and of course contribute to the costs of running the class action ?
Is there a contact email address that I can write to ?
2. The irony is that as a GP registrar of RACGP, I will be in a way funding the payout from RACGP to the affected registrars …..

Dr Schivago
Guest
Dr Schivago
2 months 7 days ago

Oh, join AHPAS only if what they have to offer suits you. Their offering subsidized initial legal assistance is great but one perk of many. You can always contact Gardner Legal & Regulatory directly to be part of this class action if you don’t want to join AHPAS. https://www.gardnerlr.com.au/

Dr Schivago
Guest
Dr Schivago
2 months 7 days ago

Raymond, please email AHPAS at info@ahpas.com.au and let them know you wish to be part of this class action, seeing that you are in the same boat. They will give you instruction from there. You will need to get the $180 annual membership as AHPAS is contributing $100 from this towards your initial legal costs. Thanks.

Monica
Guest
Monica
2 months 8 days ago

Unfortunately with this delay on the exam time,the IMG’s affected more than any one as they have to pass all three exams just in two attempts .
I believe it’s not fair at all as it just happened for this group of doctors .
At least IMG’s that sit for AKT and KFP exams before 2022 ,should have this right to have 6 exam sessions same as before and if they won’t pass,fairly they should go through the PEP programme .

Tourag
Guest
Tourag
2 months 9 days ago

It is time for the culture of covering up College failure to be broken. But that kind of change cannot be borne only by those brave registrars who have come together in this legal action. The so-called “leaders” of the profession must step up.

Those who have enjoyed their time at the very top – and who continue to enjoy the spoils of our profession – need to rethink the habits of a lifetime and ask whose interests are being served by continuing to adhere to a culture which is so plainly in need of fixing.

Charles Piper
Guest
Charles Piper
2 months 9 days ago
With all due respect, your article is, like the legal letter you’ve chosen to publish, pure bunkum. While the reproduced letter superficially appears to be unemotional and detailed, it is neither comprehensive or emotionless. It is a narrative which is full of hyperbole, bias and unsound arguments. If that letter ‘outstrips all of the best ones [you’ve] ever read’, then you clearly haven’t read many good legal letters. It’s hardly ‘just laying out the facts in a clear and chilling line’. In your opening paragraph, you represented yourself as someone familiar with the legal process. Personally, I doubt that. If… Read more »
Dr Theo Tokos
Guest
Dr Theo Tokos
2 months 7 days ago

It is clear whose side you are on. It certainly isn’t common sense if your first retort is ad hominem towards the author who did an excellent job. I shudder to think how your registrars flourish under your leadership. In this day and age even the village idiot gets to vote.

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