Background
The appellant was enrolled in the Dental Medicine degree at the University of Western Australia (University). In 2019, he failed two units which involved participating in a clinical placement at the Dental Health Service (DHS) operated by the North Metropolitan Health Service (Health Service).
Consequently, the University assigned the appellant a status of ‘excluded’ which prevented him from re-enrolling in the units. However, in 2020 the University Academic Board upheld an appeal and allowed him to re-enrol in the units.
When he attempted to re-enrol in 2021, the dean of the University’s Dental School asked the DHS whether the Health Service would allow the appellant to participate in future clinical rotations. On 7 July 2021, DHS advised they would not consider permitting the appellant to participate in future rotations due to concerns with his previous clinical ability and patient safety.
On 31 August 2021, the University advised the appellant that he was not permitted to enrol in the units on the advice from DHS. The appellant sought judicial review of both the University’s decision of 31 August 2021 and the Health Service’s decision of 7 July 2021, but was unsuccessful. He then appealed the decision to the Supreme Court of Appeal.
Outcome
University’s Decision
The Court of Appeal allowed the appeal in respect of the University’s decision of 31 August 2021. It held that the decision was taken contrary to s 78(1) of the University of Western Australia Act 1911 (WA), which provides that enrolments of students must be in accordance with University Legislation, and there was nothing in the Legislation which permitted the University to exclude the appellant from enrolling in the units on the basis of advice received from the Health Service.
The Court of Appeal declared that the University’s decision to exclude the student was void and of no effect. The appellant did not press for a mandamus order compelling the University to re-make the decision. The Court was of the view that a coercive order permitting the appellant to enrol in the units was not appropriate as two years had passed since the decision, and four years since he took part in the degree.
Health Service’s Decision
The Court dismissed the student’s appeal of the Health Service’s decision of 7 July 2021. The Court found that what the appellant described as the Health Service’s ‘decision’, being to not allow him to participate in clinical placements, was in fact merely an answer to a hypothetical question posed to it by the Dean of the University, and therefore was not a decision that was susceptible to judicial review.
The appellant was not enrolled in any clinical placement units when the question was asked, and the University and Health Service had not entered into a Student Clinical Placement Agreement Policy (SCPA) when the answer was provided. The Court determined the Health Service could only make such a decision once those events had occurred.
Implications
Universities have a responsibility to follow any legislative or other binding requirements regarding their decision-making processes when deciding whether to exclude students from units. Relying merely on an attitude or opinion of a third party, such as a Health Service, without providing the student with procedural fairness is likely to render the decision to exclude, invalid.
The Court of Appeal noted that if a student enrols in a unit with a clinic placement component and there are patient safety concerns, the Health Service could:
- Inform the student of any continuing concern about his clinic ability and patient safety; and
- Provide the student with a reasonable opportunity to address that concern.
By taking such an approach an education provider would satisfy an obligation to accord procedural fairness before making a decision which will adversely affects a student’s interests and prevent them from completing the course of study in which they are enrolled.
To read the decision in Hove v University of Western Australia [2024] WASCA 37 click here.
Written by Jenny Edinger, Special Counsel and Tom Gillard Law Graduate. Please contact us on (08) 9321 0522 if you have any questions.
