BKY v The University of Newcastle [2014] NSWCATAD 39 saw an order made directing the Dean of Medicine Joint Medical Program to exercise his discretion to extend the time for the applicant to complete her medical degree by 18 months.

BKY had previously sought an extension, which was declined. She argued that the refusal constituted discrimination against her on the grounds of disability (section 49B, Anti-Discrimination Act 1977).

(Professor Malcolm Parker has written about this decision in The Conversation here. )

The decision contains some commentary on the relevance of whether the BKY would ultimately be fit to practice medicine, at [112] – [113]:

[112]     Professor Symonds’ evidence was that he considered that the applicant would not be safe to practise even if she was ultimately capable of completing her degree. He said that he considered this to be the case particularly in light of her sudden withdrawal during a clinical case study and her failure to attend surgical practice rotation. He noted that she had a significant absenteeism during the course MEDI 4016. He stated that Dr O’Brien was not aware of this. Dr O’Brien’s evidence was that the avoidance formed part of the applicant’s condition. She was aware of the absenteeism, but not that the absenteeism was part of the failure.

 

[113] It is not the task of this Tribunal to determine if the applicant would be fit to practice as a medical practitioner if she were to complete her medical degree. Our task is to determine if she was treated less favourably on the ground of her disability when the decision was taken not to grant an extension of time to complete her medical degree. Professor Symonds was very concerned about the applicant’s ability to practise due to her psychiatric conditions. The completion of the medical degree does not mean that she can automatically practise as a medical practitioner. Her psychiatric conditions are already registered with the NSW Medical Council. The Tribunal notes that it was common evidence from Dr O’Brien and Professor Symonds that fitness to practise as a medical practitioner is governed by the NSW Medical Council and if the Medical Council deems that the applicant is not fit to practise, then she will not be able to do so.