Adams v Yung
[1998] FCA 506
•15 MAY 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW – referral under s 86(1) of the Health Insurance Act 1973 (Cth) in respect of a general medical practitioner alleged to have engaged in inappropriate practice – examination of the Health Insurance Act 1973 – procedure to be adopted when proceedings brought against medical practitioner under review – whether doctor afforded natural justice – need for a committee when considering the totality of the services referred to engage in a proper sampling procedure – need for a committee to confine itself to the reference before it – whether role of the Professional Services Review Tribunal is confined to accepting the Committee’s conclusions and merely reviewing matters of penalty specified by the determining officer – whether administrative discretion of the determining officer should be exercised without regard to events known at date of decision – whether where the decision of the Committee upon which the Tribunal acted was infected with error there was any utility in referring the matter back to a Tribunal.
WORDS AND PHRASES – “inappropriate practice”, “practitioner”, “review”
Health Insurance Commission Act 1973 (Cth)
Health Insurance Act 1973 (Cth) – ss 80, 81, 82, 83, 86, 87, 89(1)(b), 91, 93, 94(1), 95, 101, 102, 103(1), 106H, 106J, 106K, 106L, 106Q, 106R, 106S, 106T, 106U, 108, 114(1), 115, 117, 119(1), 124A
Health Insurance (1993-1994 General Medical Services Table) Regulations
Health Insurance (1994-1995 General Medical Services Table) Regulations
Artinian v Commonwealth (1996) 43 ALD 235 - cited
Kioa v West (1985) 159 CLR 550 – applied
Minister for Health v Thomson (1985) 8 FCR 213 – applied
McIntosh v Minister for Health (1986) 17 FCR 463 - cited
Freeman v McKenzie (1988) 82 ALR 461 – cited
Romeo v Asher (1991) 29 FCR 343 – cited
Tiong v Minister for Community Services & Health (1990) 93 ALR 308 – cited
Determining Officer v Lusink (unreported, Sundberg J, 12 February 1998) - cited
Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 – cited
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 – cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 – cited
Ousley v The Queen (1997) 71 ALJR 1548 – cited
Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 – cited
Boddington v British Transport Police (House of Lords, 2 April 1998, unreported) – cited
The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 91 FLR 37 – cited
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – cited
Leung v Minister for Immigration & Multicultural Affairs (unreported, Finkelstein J, 28 November 1997) – considered
Walsh v Tattersall (1996) 188 CLR 77 – distinguished
R v General Medical Council; Ex parte Gee [1986] 1 WLR 226 – distinguished
Peatfield v General Medical Council [1986] 1 WLR 243 – followed
Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537 - followed
The Queen v Thomas; Ex parte Brodsky (1963) 109 CLR 434 - cited
ANTHONY ADAMS v STEVEN YUNG AND ANOR
NG 11 of 1998
BEAUMONT, BURCHETT AND HILL JJ
SYDNEY
15 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 11 of 1998
BETWEEN:
ANTHONY ADAMS
APPELLANTAND:
STEVEN YUNG
FIRST RESPONDENTBERNARD KELLY, PHILLIP KNOWLES AND
DAVID RIVETT (Constituting the Professional Services Review Committee)
SECOND RESPONDENTJUDGES:
BEAUMONT, BURCHETT, HILL JJ
DATE OF ORDER:
15 MAY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Appeal allowed in part.
The order below that the matter be remitted to a Tribunal differently constituted for further review be set aside.
Decision of the Tribunal be set aside.
In lieu thereof, it be ordered that the decision of the determining officer be set aside.
Appellant to pay the First Respondent’s costs of the appeal.
Appeal otherwise dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 11 of 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ANTHONY ADAMS
APPELLANTAND:
STEVEN YUNG
RESPONDENTBERNARD KELLY, PHILLIP KNOWLES AND DAVID RIVETT (Constituting the Professional Services Review Committee)
JUDGES:
BEAUMONT, BURCHETT, HILL JJ
DATE:
15 MAY 1998
PLACE:
SYDNEY
INDEX TO REASONS FOR JUDGMENT OF BEAUMONT J.
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
THE HISTORY OF THE MATTER IN ITS LEGISLATIVE CONTEXT........ ........ ........ ...
(a) The Referral........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
(b) The notice of the Referral........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
(c) The Director’s decision to set up a Committee........ ........ ........ ........ ........ ........ ........ ........ .....
(d) The proceedings before the Committee........ ........ ........ ........ ........ ........ ........ ........ ........ .....
(e) The Committee’s Report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
Patient base........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
The role of the GP........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
Home visits........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Consultation time........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
After hours care........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
Medical records........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
(f) The Determination........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
(g) The reference to the Review Tribunal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
(h) The Tribunal’s decision........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
THE “APPEAL” TO THE FEDERAL COURT........ ........ ........ ........ ........ ........ ........ ........ ....
THE DECISION AT FIRST INSTANCE........ ........ ........ ........ ........ ........ ........ ........ ........ .....
Natural justice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Inappropriate practice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
The Referral........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
The Committee........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
Determining Officer........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Professional Services Review Tribunal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
Relief (Orders)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
DR ADAM’S ARGUMENTS ON THE APPEAL........ ........ ........ ........ ........ ........ ........ ........
The Referral - the Commission’s powers........ ........ ........ ........ ........ ........ ........ ........ ........ ........
The Committee’s powers and duties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
The Determining Officer’s powers and duties........ ........ ........ ........ ........ ........ ........ ........ ........ ..
The Tribunal’s powers and duties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
DR YUNG’S NOTICE OF CONTENTION........ ........ ........ ........ ........ ........ ........ ........ ........ ..
CONCLUSIONS ON THE APPEAL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
(a) The Referral and the Director’s decision to set up the Committee........ ........ ........ ........ .......
(b) The Committee’s procedures and the Report........ ........ ........ ........ ........ ........ ........ ........ .....
(i) The procedures adopted by the Committee........ ........ ........ ........ ........ ........ ........ ........ ....
(ii) The Report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
(c) The Tribunal’s Decision........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
(i) The legal scope of the review........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
(ii) Did the Tribunal have power to receive fresh evidence?........ ........ ........ ........ ........ ........ ..
(iii) Did the Tribunal err in law by failing to give adequate reasons?........ ........ ........ ........ ......
ORDERS ON THE APPEAL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 11 of 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ANTHONY ADAMS
APPELLANTAND:
STEVEN YUNG
RESPONDENT
JUDGES:
BEAUMONT, BURCHETT, HILL JJ
DATE:
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
This matter raises for consideration some important questions as to the true meaning of the scheme of that part of the health insurance legislation which deals with professional services review. Further important questions arise as to the application of these statutory provisions in the particular circumstances of this case.
By notice of “appeal” in the Court’s original jurisdiction brought under s 124A of the Health Insurance Act 1973 (“the Act”), the present respondent, Steven Yung, appealed from a decision of the Professional Services Review Tribunal (“the Tribunal”) on a review under Division 3 of Part VA of the Act. A Judge of the Court (Davies J) ordered that the Tribunal’s decision be set aside and remitted the proceedings to the Tribunal, differently constituted, to be heard and decided again. This is an appeal, brought by an officer appointed under the Act, from his Honour’s judgment.
THE HISTORY OF THE MATTER IN ITS LEGISLATIVE CONTEXT
There is no dispute about the history of the matter, which may be described, inevitably at some length, in its legislative context as follows:
(a) The Referral
By a referral dated 8 May 1995, the Health Insurance Commission (“the Commission”), acting pursuant to s 86 of the Act, referred to the Director of Professional Services Review (“the Director”) “the conduct of Dr Steven Yung in relation to whether (in the period 1 January 1994 to 31 December 1994) he has engaged in inappropriate practice in connection with the rendering of Medicare services... within... premises... [at]... Kirrawee [NSW]” (“the Referral”).
Section 86 is in Part VAA of the Act. This Part deals with the Professional Services Review Scheme. In outline, the Part creates a scheme “under which a person’s conduct can be examined to ascertain whether inappropriate practice (see s 82) is involved”. It also provides for “action that can be taken in response to inappropriate practice” (s 80(1)); Division 2 of Part VAA (ss 83-85) creates the administrative structure for reviewing conduct, consisting of the Director and the Professional Services Review Panel (“the Panel”) (s 80(2)); Division 3 (ss 86-94) is about referral of a person’s conduct for review, and provides for the Director to decide whether to set up a Professional Services Review Committee (“the Committee”) (established under Division 4) to consider the conduct (s 80(3)); and Division 5 (ss 106Q-106X) provides for the Determining Officer (appointed under s 106(Q)) to make determinations to deal with “inappropriate practice” found by the Committee (s 80(5)).
By s 86(1) it is provided that the Commission may refer to the Director the conduct of a person relating to whether the person has engaged in “inappropriate practice” in connection with rendering of services. The services must have been rendered during the two year period preceding the referral, and on or after 1 September 1993.
A practitioner engages in “inappropriate practice” if that practitioner’s conduct in connection with rendering services is such that a Committee could reasonably conclude that:
(1)if the practitioner is a specialist - the conduct “would be unacceptable” to the general body of the members of the specialty in which the practitioner was practising when the services were rendered; or
(2)if the practitioner is not a specialist - the conduct “would be unacceptable” to the general body of the members of the profession in which the practitioner was practising when the services were rendered (s 82(1)).
The referral must specify whether it relates to specified “services”, or “services” of a specified class, or provided to a specified class of persons, or within a specified location (s 87(1)). “Service” means a service for which, at the time it was rendered, a Medicare benefit was payable (s 81(1)).
The Minister may make guidelines (s 87(3)). The content and form of the referral must comply with any guidelines (s 87(2)). The Minister made guidelines dated 9 May 1994 (“the Guidelines”) relevantly as follows:
By cl 2(1) of the Guidelines, it is provided that information of a kind listed in Schedule 1 may be included in a referral. The information specified in Schedule 1 includes the following:
· The number of patients for whom services were rendered.
· the number of pharmaceutical prescriptions of a particular class written.
· The total Medicare benefits paid or payable for services rendered.
By cl 3 of the Guidelines, it is provided that material of a kind listed in Schedule 2 may be included in a referral. That list includes the following:
· Reports of counselling given to the practitioner under review.
· Correspondence between the practitioner under review and the Commission.
· Records of interview with the practitioner under review, or with patients of that practitioner or with any other person concerned in the provision of the referred services.
· Statements by patients of the practitioner under review.
· Reports by consultants or professional organisations.
· Relevant medical literature.
As has been noted, the subject of the Referral was the conduct of Dr Yung in relation to whether he had engaged in “inappropriate practice” in connection with the rendering of Medicare services at the Kirrawee premises.
In giving its reasons for the decision to refer, the Commission stated in the Referral that it “is concerned that Dr Yung would not be able to provide an appropriate level of clinical input when consistently rendering high numbers of services or when regularly working excessively long hours at his Kirrawee practice”.
In its Referral, the Commission stated that in the referral period (1 January 1994 to 31 December 1994) Dr Yung provided 19,622 services under Medicare, of which 17,331 (88.3 per cent) were provided at his Kirrawee practice mostly on Mondays, Tuesdays and Thursdays (details were provided), corresponding to an average of over 100 services on each of those days; and that on Wednesdays, Fridays, Saturdays and Sundays, services (averaging only 8 to 13 per day) were mostly provided at locations other than Kirrawee.
The Commission stated in its Referral that it took account of the following:
· The servicing patterns of all general practitioners (“GPs”) in Australia. In terms of services rendered annually, Dr Yung provided more services than 99 per cent of all GPs in Australia (details were provided).
· The findings of the Interpractice Comparison survey of about 1,000 GPs conducted by the Royal Australian College of General Practitioners (“RACGP”) in 1994, according to which the GPs surveyed spent an average of 37.5 hours per week in contact with patients; and the top 25 per cent of GPs saw 164 patients per week, corresponding to an average of 8,469 services annually, equating to approximately 13.7 minutes per consultation (details and literature (an article) were provided).
· The draft criteria in the Entry Standards for General Practice Accreditation developed and adopted by the RACGP which state (Criterion 1.2.2) that “consultation times are long enough to allow quality care. This means that average times are not less than 10 minutes. Actual times for individual appointments will vary according to clinical need”.
The Referral stated that, using this Guideline, to provide 100 services on a day, Dr Yung should have worked continuously for at least 16.7 hours.
· A written opinion (attached to the Referral) by Dr Jill Gordon, Medical Educator, Fellow of the RACGP and consultant to the Commission, that -
“...Dr Yung’s conduct is unacceptable to the general body of General Practitioners in a number of respects:
(a)the excessively high number of services provided annually by Dr Yung
(b)the excessively high number of services provided on 128 days by Dr Yung in the year under review
(c) the excessively long hours worked by Dr Yung on those days.”
In her attached opinion, Dr Gordon stated that “in [her] opinion it is not possible for a general practitioner with [Dr Yung’s] service profile to provide an adequate level of quality of care”. She went on to say:
“With respect to Dr S Yung in the referral period 1/1/94-31/12/94:
· Dr Yung maintained an excessively high level of servicing for the year;
· Dr Yung was recorded as seeing in excess of 100 patients on [128] separate days. There is no justification for such a level of servicing, except perhaps in a rural or other area where no other provider is available, and then only under very unusual and occasional circumstances;
· Dr Yung would on some occasions, have needed to have worked for excessively long hours in order to consult with such large numbers of patients. Since Dr Yung charged predominantly for level B consultations (average of 10 minutes per service) he would need to have worked for over 20 hours per day on some occasions. It is not reasonable to assume that any doctor can provide an adequate standard of care under these circumstances.”
The Referral added that Dr Gordon “also based her view on research by Professor John Howie which has confirmed time as a proxy measure for quality care in general practice”. (In her opinion, Dr Gordon referred to a paper by J G R Howie and others, published in the British Journal of General Practice, entitled “Long to short consultation ratio: a proxy measure of quality of care for general practice”. The paper was attached to the Referral.)
In dealing with Dr Yung’s “background”, the Referral noted that Dr Yung had been “counselled” in May 1994 as to the Commission’s concerns.
In an attached record of an interview held on 24 May 1994, discussion of Dr Yung’s practice profile statistics was recorded as follows:
· In the year from 1 April 1993, Dr Yung had rendered 21,132 services, which were predominantly “Level B” consultations (18,735). (The meaning of Level B is described below.) He worked mostly on Mondays, Tuesdays and Thursdays. On those days, with only two exceptions, he rendered more than 100 services and frequently more than 120. The record of interview recorded that Dr Yung was informed that “he might not be able to maintain appropriate level[s] of clinical input for those numbers of patients in a day”.
The Referral noted Dr Yung’s overall volume of servicing at all locations (19,622 services) placed him in the top one per cent (99th percentile, 15,000 services) for GPs in New South Wales; and that Dr Yung had stated in the record of interview that he worked from 7.00 am to 11.00 pm at the Kirrawee practice “without a break”.
The Referral included a table demonstrating the pattern of servicing at Kirrawee making a calculation of the time required to provide these services based on the RACGP Draft Entry Standards (i.e. average of 10 mins/service). The table indicated that the majority of the services rendered at Kirrawee fell within the range of 101-120 daily, requiring 16.8 to 20 hours work.
The Referral also included a graph demonstrating that Dr Yung rendered in excess of 100 services per day on 128 occasions and that the majority of Medicare services rendered by him at Kirrawee were between 101 and 120 per day.
Another table demonstrated that the 17,331 services rendered by Dr Yung at Kirrawee generated Medicare benefits in the total amount of $373,512 with an average benefit of $43.56 for each of the 8,575 patients.
The appellant’s written submission included a table incorporating the following information in respect of Dr Yung’s practice at Kirrawee in the period in question:
“
ITEM DESCRIPTION SERVICES BENEFIT 3 LEVEL A 93 $907.25 23 LEVEL B 15388 $316,603.65 24 HOME VISIT 8 $281.20 36 LEVEL C 20 $741.50 44 LEVEL D 1 $54.60 ”
The relevant services and fees referred to in the table (Items 3 (Level A), 23 (B), 36 (C) and 44 (D)) in Part 2 of the Schedule to the Regulations under the Act (being the 1993-94 General Medical Services Table) as follows:
“Item Service Fee
3 [A] Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner for an obvious problem characterised by the straightforward nature of the task that requires a short patient history and, if required, limited examination and management - each attendance $11.45 23
[B]Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, or a professional attendance of less than 20 minutes’ duration involving components of a service to which item 36 or 44 applies - each attendance $24.15 36
[C]Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a detailed history, an examination of multiple systems, arranging any necessary investigations and implementing a management plan in relation to 1 or more problems, and lasting at least 20 minutes, or a professional attendance of less than 40 minutes’ duration involving components of a service to which item 44 applies - each attendance $43.55 44
[D]Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking an exhaustive history, a comprehensive examination of multiple systems, arranging any necessary investigations and implementing a management plan in relation to 1 or more complex problems, and lasting at least 40 minutes, or a professional attendance of at least 40 minutes’ duration for implementation of a management plan - each attendance”
$64.20
(b) The notice of the Referral
By s 88(1) of the Act, it is provided that the Commission must send a copy of the referral to the person under review within forty eight hours of sending the referral to the Director. The copy must be accompanied by a notice inviting the person under review to make written submissions to the Director, within fourteen days, stating why the Director should dismiss the referral without setting up a Committee (s 88(2)).
A notice was given to Dr Yung pursuant to s 88(2).
(c) The Director’s decision to set up a Committee
By s89(1) it is provided that within twenty eight days after receiving the referral, the Director must either dismiss it, or set up a Committee to consider whether the practitioner has engaged in inappropriate practice.
On 5 June 1995, the Director decided to set up a Committee, consisting of Dr Bernard Kelly (Chair), Dr Phillip Knowles and Dr David Rivett (Panel members). Each member of the Committee was a “vocationally registered GP”.
Section 3F of the Act provides for the registration of certain medical practitioners as “vocationally registered” GPs. The Commission will grant registration if (a) the RACGP certifies that any applicant’s medical practice is predominantly general practice and that he or she has had appropriate training and experience in general practice; or (b) the applicant is eligible under the Regulations (s 3F(6)).
For the purposes of the Schedule, the General Medical Services Table, “general practitioner” is defined to mean:
“(a)a practitioner who is vocationally registered under section 3F of the Act; or
(b) a practitioner who:
(i) is a Fellow of the RACGP; and
(ii)participates in the quality assurance and continuing medical education of the RACGP; and
(iii)meets the RACGP requirements for quality assurance and continuing education; or
(c)a practitioner who is undertaking an approved placement in general practice:
(i)as part of a training program for general practice leading to the award of the Fellowship of the RACGP; or
(ii)as part of another training program recognised by the RACGP as being of an equivalent standard;”
Dr Yung was vocationally registered as a GP under s 3F.
(d) The proceedings before the Committee
Subdivision A (ss 95-6) of Division 4 of Part VAA deals with the constitution of Professional Services Review Committees. A Committee’s Chairperson and two other Panel members must be practitioners who belong to the profession in which the practitioner was practising (s 95(2)). If the practitioner was (as here) a vocationally registered GP, the Panel members must also be so registered (s 95(5)).
Subdivision B (ss 97-106F) of Division 4 deals with the proceedings of Committees relevantly as follows:
The Committee may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced, to the Committee (s 101(1)). The Committee must hold a hearing if, after considering the matters that are the subject of the referral, it appears to the Committee that the person under review may have engaged in inappropriate practice (s 101(2)). If the Committee proposes to hold a hearing, it must give to the person under review at least fourteen days’ written notice, giving “particulars of the matter to which the hearing relates” (s 102). The person under review is entitled: (a) to attend the hearing and to be accompanied by a lawyer or another adviser, but is not entitled to be represented by a lawyer (s 103(1)); and (b) to question any person giving evidence and to address the Committee (s 103(2)).
Subject to the Subdivision and the Regulations, the procedure for conducting the hearing is within the discretion of the presiding Committee member (s 106(1)). The Committee is not bound by the rules of evidence, but may inform itself on any matter in any way it thinks appropriate (s 106(2)).
Subdivision C (ss 106G-106K) of Division 4 deals with findings by the Committee based on certain kinds of statistical sampling. Subject to s 106J, in making findings on the conduct of the person under review, the Committee may base its findings wholly or partly on its findings on his or her conduct in connection with a sample of those services (s 106H(1)). Section 106J confers certain rights upon persons under review concerning samples.
In the present case, the Committee met on 15 June 1995, considered the Referral, and decided that a hearing must be held.
With a letter to Dr Yung dated 15 June 1995, Dr Kelly attached a notice of a hearing by the Committee on 14 and 28 July 1995 “into the matter [whether Dr Yung ‘may have engaged in inappropriate practice in connection with rendering particular services’ at the Kirrawee premises during the referral period]”.
By letter dated 26 June 1995, the Committee informed Dr Yung of the procedure to be followed at the hearing in these terms:
“After formal introductions, Dr Kelly will deliver an opening statement, explaining the hearing process in relation to the referral from the... Commission.... Documents before the committee will be rendered into evidence after which the Chairperson will ask you to provide details of your professional training and experience etc.
You are invited to address the committee regarding the referral - indeed, throughout proceedings, please feel free to address the committee on any matter which you consider relevant.
As a guide, the committee will be interested in:
your practice arrangements, ie type of practice, staffing, financial & clerical arrangements, patient profiles etc.
pathology and radiology referrals;
ancillary services and arrangements;
referrals to consultants;
absences from the practice, ie holidays; and
your understanding of your responsibilities under the Vocational Registration programme.
The committee will also seek your consideration of:
the referral;
the opinion expressed in the referral by the HIC’s consultant, Dr J Gordon; and the visits and reports from HIC Medical Advisers.
The committee would wish to examine the practice records, in particular, those referred to in Schedule 1 of the Notice of Hearing...”
The Committee held a hearing on 14 July 1995 along the lines indicated in its letter. In particular, at the commencement of the hearing Dr Kelly said to Dr Yung:
“As stated in the Secretary’s letter of 26 June ‘95 we would also wish to discuss your practice arrangements, that is, the type of practice, staffing, financial and clerical arrangements, patient demography, etcetera, pathology and radiology referrals ancillary services and arrangements, referrals to consultants, absence from the practice, that is, holidays, and your understanding of your responsibilities under the vocational registration program. We will seek your consideration of the referral, the opinion expressed in the referral by the HIC consultant, Professor Gordon and the visits and reports from the... Commission medical advisers.”
Dr Yung, who was accompanied by his solicitor, gave evidence and was questioned by the Committee. The Committee also heard evidence from Dr Brett Gooley, another practitioner at the Kirrawee Medical Centre.
The Committee held a second sitting on 27 July 1995 when the Committee examined clinical records and heard further evidence from Dr Yung and Dr Gooley.
(e) The Committee’s Report
Subdivision D of Division 4 deals with reporting by Committees.
The Committee must give to the “Determining Officer” (who is appointed by the Minister under Division 5 - see below) “a written report setting out its findings on whether”:
(1)if the person under review was a specialist, the conduct was, in the Committee’s opinion, unacceptable to the general body of the members of the specialty; or
(2)if not a specialist, the conduct was, in its opinion, unacceptable to the general body of the members of the profession (s 106L(1)).
Subject to the power of the Director to grant an extension of time (up to thirty days), the Committee must report within ninety days after it was set up (s 106M(1)).
In the present case, the Committee reported on 30 August 1995 (“the Report”). In the Report, the Committee noted the Referral, the evidence from Dr Yung and Dr Gooley, the clinical records it examined, and a written submission received from Dr Yung’s solicitor after the hearing. The Committee found that Dr Yung’s conduct in relation to the referred services “would not be acceptable to the general body of vocationally registered general practitioners”.
In its reasons, the Committee summarised its findings to the following effect:
· The Kirrawee practice environment was “of poor quality... where financial motivation took a higher profile than... professionalism... [there was] little evidence of in-house quality assurance”. Dr Yung “practised episodic rather than continuing care... [there was] little... evidence of preventative care”. His medical records were “of very poor quality”. He had only ninety three Level A consultations “despite an extraordinarily high” total of 15,502 consultations at Kirrawee during the referral period. Dr Yung’s “level of competence is questioned”. He provided a “minuscule” level of home visiting compared with his peers and therefore did “not show a commitment to the immobile”. Other “concerns” were expressed in the documentation accompanying the Report.
· Although counselled, Dr Yung had made no effort to change his patient numbers per day. His lack of responsiveness to counselling “demonstrate[d] either arrogance or stupidity and is incomprehensible...”
· Dr Yung was “grossly at variance with... adjacent area practitioners (as shown by [Commission] statistics), the general body of practitioners, with world opinion, with what the Committee itself considers to be reasonable and what it believes to be the opinion of Dr Yung’s peers in good standing”.
· Having expressed its finding that Dr Yung’s conduct would not be acceptable to the general body of vocationally registered GPs, the Committee added that had Dr Yung not been a vocationally registered GP, the Committee was still of the opinion that his professional conduct was unacceptable to the general body of medical practitioners.
· The Committee said that it was unable to accept that a practitioner is able to give proper professional attention to patients when rendering such a high number of services and when regularly working such excessively long hours.
As will be seen below, the Report provided details of its consideration of the issues before it, including aspects of Dr Yung’s conduct, his solicitor’s “final” written submission and a review of the literature. The Committee prefaced this part of its consideration of the matter with these remarks:
“It should be said from the outset that, if any practitioner’s behaviour was subdivided into segments and each segment critically examined, it would be likely that deficiencies could be found. The Committee took the view that the overall pattern of behaviour was of importance and it would be unwise to rely on the findings of any individual segment. It would, however, be important to examine different aspects individually and from that examination construct a global view of the practitioner’s professional conduct.”
The Committee proceeded to deal with some specific issues as follows:
· Patient base
Information about the profile of patients may be significant for “home visit profile, return visits to the practice, length of consultations etc.,” as, the Committee said, this could “skew” Dr Yung’s “profile” if, for instance, there was a large number of older patients. The Committee noted that Dr Yung’s estimate of Asian patient attendances (only 4 per cent) was not numerically significant.
· The role of the GP
Dr Yung was unable to “vocalise” any of the “key concepts”, e.g. continuity of care, whole patient care, preventive care, and the role as the patient’s advocate. When asked about continuity Dr Yung said that “patients are happy to see any doctor within the practice”. This indicated to the Committee that there was “little sense of bonding or ‘ownership’ of the patients”. Dr Yung was providing “episodic rather than continuing care... a different style of practice from the vast majority of Vocationally Registered practitioners”.
· Home visits
Although Dr Yung “repeatedly asserted” that he visited patients “when requested”, his ratio was one such visit per 1,938 consultations, whereas the consultation/home visit ratio in adjacent areas was 1:24. Dr Yung’s explanation was that “a lot of the patients [he had seen] have their own family doctors to call to do their home visits”.
· Consultation time
Dr Yung -
“would have needed 41.6 hours in a two day period based on a 10 minute consultation duration to have provided the services which he had billed to Medicare. This time frame excluded - the time required for the additional 33 procedures performed on these two days, travel time to and from the surgery (20 minutes each way), meal breaks, sleeping time etc”.
Dr Yung was “adamant that outcome was important, that it could not be related to the length of a consultation... [item 23] did not make reference to time”. Dr Yung “asserted that Professor Gordon’s practice would be so sufficiently different from his that she could not provide a suitably objective report... [and that] Professor Howie[’s] paper, originating in Scotland, could not have applicability to Australia”.
But the Committee did not accept Dr Yung’s opinion:
“The Medicare statistics showed that Dr Yung claimed additional consultations at home on a regular basis on the days that he attended Kirrawee. Allowing for the fact that he left home at 6.30 am and never returned before 11.30 pm, this seems to be an extraordinary claim for him to make. On this point and at other times during the hearing it was difficult for the Committee to believe that he was speaking truthfully. On numerous occasions during the hearing, and on an array of matters, he was not willing to answer questions in a meaningful way”.
· After hours care
In his application for vocational registration, Dr Yung stated that he provided after hours services. But he informed the Committee that the Kirrawee practice “provided neither after hours care nor a deputizing service... [Only] approximately 30% of his patients were given his home telephone number”. That number was not in the Yellow Pages. It was listed in the White Pages under his name, but without the title “Dr”; accordingly, a patient would have “but a small chance” of finding Dr Yung after hours.
· Medical records
A sample of records from three days in June 1994 was examined, after Dr Yung had been given the opportunity to decide how the sample should be obtained, either by a random sampling technique or by any other method acceptable to him. It was found that because of the very high numbers of winter viral infections in the sample it may have been unfair to Dr Yung to rely solely on this grouping. A second sample, at a time of year when seasonal factors might not be as likely to skew the patient profile, was sought. The Committee and Dr Yung “mutually agreed” upon 29 November 1994.
(1)Patient summaries. Of 111 records examined, 92 did not have an adequate summary. Nineteen summaries seemed to be written by another person. The RACGP Draft Entry Standard requires that 50 per cent of “recurrent” patients have a summary sheet. A “high percentage” of Dr Yung’s patients on the day were “recurrent”. The “overall standard of the clinical records examined was inadequate”.
(2)Medicare billing. Of the 91 records on the day, 75 consultations warranted Level B (item 23) “billing”, and the remaining 16 consultations should have been billed as Level A (item 3) consultations. Yet, Dr Yung had claimed only 93 Level A consultations in a total of 15,502 consultations. The Committee was “concerned about Dr Yung’s understanding and use of the Medicare Benefit Schedule for billing purposes”.
(3)Prescribing. The documentation supported the prescription of antibiotics in 7 out of the 17 cases where patients actually received antibiotics on that date. In 10 cases, the Committee could not, on the documentation, find that they were “indicated”. The Committee had “professional concerns” about Dr Yung’s prescribing habits.
As has been mentioned, the Committee also considered Dr Yung’s solicitor’s “final” written submission, dated 8 August 1995, made after the hearing had concluded.
The solicitor there said, (inter alia):
“The real issue confronting the Committee is whether or not the general body of vocationally registered general practitioners would consider ‘unacceptable’ Dr Yung’s style of practice whose features might be summarised as follows:
(i)He worked at the Kirrawee practice medical centre on Mondays, Tuesdays and Thursdays from 7.00am until 11.00pm or later if required, usually without a break;
(ii)On these days in the referral year he rendered up to 100 services on 21 occasions; up to 120 services on 104 occasions and up to 140 services on 24 occasions.”
The Report stated:
“The Committee would take an alternate view i.e. the real issue is whether by his pattern of very long hours and very high patient numbers, Dr Yung was either unable or unwilling to fulfil his contractual and professional obligations as a vocationally registered general practitioner.
The Committee considered the question of whether a practitioner who:
· makes no provision for ‘full-time’ after hours care for many patients;
· has little idea of the concept of continuity of care;
· has, by his pattern of home visiting, little responsibility to the immobile;
· has no[t] demonstrated evidence of a commitment to preventive care;
· produces records which are episodic without any concern for whole patient care.
could be considered to be acting as a Vocationally Registered General Practitioner as understood by the profession.
The Committee believed this was clearly not possible.”
Dr Yung’s solicitor went on in his submission to speak of the RACGP Draft Entry Standards:
“This document is written from the perspective of what might be regarded as traditional general practice. It does not appear to have taken into account the differing nature of medical practice at Medical Centres.
In our submission this distinction is very relevant.”
But the Committee took the view that the site of practice is not relevant to the discussion: it is the quality of practice which must be considered.
The solicitor submitted:
“...the relevance of the Interpractice Comparison survey is questionable. We do not know whether the practices surveyed were of similar nature nor if medical centres were included. We do not know for what purpose the patients consulted the general practitioners who responded to the survey nor whether the patients were chronically ill or say being treated for mere cuts and abrasions.”
Yet, according to the Committee:
“It may be that there is a place in the system for practitioners who wish to practise as does Dr Yung. The question is whether or not such practitioners can be considered as Vocationally Registered General Practitioners. The Committee believes that they should not be so classified.”
The solicitor also disputed the statement in the Referral in which the Commission cited the criteria of the RACGP Draft Entry Standards that (for a consultation to allow quality care) an average time of not less than ten minutes was required.
But the Committee said:
“If a large sample of Vocationally Registered General Practitioners is of the belief that the average consultation time to allow for quality care is considerably greater than 10 minutes, it would seem to be correct to accept that figure in the absence of contrary evidence.”
(f) The Determination
Division 5 (ss 106Q-106X) deals with determinations. The Minister may appoint as the Determining Officer a person holding an office or appointment under the Public Service Act 1922 (s 106Q(1)). Within seven 7 days after being given a Committee’s report, the Determining Officer must give a copy to the person under review (s 106R(1)). If the report contains a finding that the person has engaged in inappropriate practice in connection with rendering some or all of the referred services, the Determining Officer must (a) make a draft determination in accordance with s 106U; and (b) within fourteen days after receiving the report, give copies of that draft determination to the person and to the Director (s 106S(1)). Within fourteen days of receiving the draft, the person under review may make written submissions to the Determining Officer suggesting changes to the draft (s 106S(3)). After the expiration of that fourteen days, and within thirty five days after receiving the report, the Determining Officer must make a final determination in accordance with s 106U (s 106T(1)). Failure to make the determination within the thirty five day period does not affect the validity of the final determination (s 106T(2)).
By s 106U(1) it is provided that a determination must contain one or more of the following directions:
· That the Director (or nominee) reprimand the person under review.
· That the Director (or nominee) counsel the person.
· That the person repay to the Commonwealth an amount equivalent to any Medicare benefit paid for “inappropriate services”, whether or not the benefit was paid to the person. (“Inappropriate service” means a service in connection with which the person is stated in the report to have engaged in inappropriate practice (s 106U(5)).
· That the person be disqualified in respect of the provision of specified services.
· That the person be fully disqualified.
In the present case, by letter dated 4 September 1995, the appellant, Anthony Adams, who was the Determining Officer appointed, provided a copy of the Report to Dr Yung. By letter dated 22 September 1995, Dr Adams provided Dr Yung with a copy of his draft determination and an associated explanatory statement, and invited Dr Yung to submit suggested changes to the draft.
Dr Yung responded to the Report and the draft determination by letter dated 4 October 1995. In his letter, Dr Yung disputed a number of the Report’s findings and reasons. Dr Yung also stated that he had “reduced [his] working hours by 50% since March 1995... [and that he was] now continuing as a GP working 5 1/2 days a week (office hours) and intend[ed] to practice according to the RACGP”. With respect to the draft determination itself, Dr Yung said:
“The determining officer has elected to impose all the options other than a reprimand. I maintain that the appropriate penalty should consist of a reprimand and counselling. As a condition of the reprimand, I am prepared to submit to a program designed by the [RACGP].”
By letter to Dr Yung dated 18 October 1995, Dr Adams acknowledged Dr Yung’s letter dated 4 October. Dr Adams went on to say that, having considered Dr Yung’s comments, he then enclosed a final determination and associated statement of reasons (“the Determination”) dated 18 October 1995.
In the Determination, Dr Adams recited the Committee’s finding of inappropriate practice and directed that:
“i)in accordance with... [s] 106U(1)(b) of the Act, Dr Yung be counselled by the Director of Professional Services Review or the Director’s nominee;
ii)in accordance with... [s] 106U(1)(c) of the Act, Dr Yung pay to the Commonwealth the amount $42,130.50 being the amount equivalent to the medicare benefit paid for inappropriate services;
iii)in accordance with.. [s] 106U(g)(i) of the Act, Dr Yung be disqualified in respect of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table for a period of 9 months; and
iv)in accordance with... [s] 106U(h) of the Act, Dr Yung be fully disqualified for a period of 6 months.”
In his Statement of Reasons, Dr Adams gave, inter alia, the following as reasons for his Determination:
“1.I noted that Dr Yung has been found to have failed in the rendering of his services to meet the standards expected from a general medical practitioner and a vocationally registered practitioner.
2.I noted that Dr Yung had been counselled regarding his rendering of services by the Health Insurance Commission prior to the referral of his conduct and that his ‘lack of response to counselling, knowing what the consequences of such lack of response might be’ (i.e. the referral of his conduct) was incomprehensible to the Committee. I also noted that Dr Yung disputes this and states that he has reduced his working hours ‘by 50% since March 1995’ and that he ‘quit the Kirrawee practice altogether in May 1995. I am now continuing as a GP working 5 1/2 days a week (office hours) and intend to practice according to the RACGP’. In addition, I noted that Dr Yung’s conduct was referred by the Health Insurance Commission to the Director of Professional Services of Review on 8 May 1995 and that the referral covered services he rendered from 1 January 1994 to 31 December 1994. I formed the opinion that I could not take into account any change in conduct outside the period covered by the referral as that period was not relevant to the Committee’s consideration of Dr Yung’s conduct.
3.I noted the Committee’s view that Dr Yung has practised for some ten years in an environment where financial considerations have taken precedence over quality patient care. The high number of patients seen by Dr Yung in a day and the level of consultations claimed in respect of those patients led the Committee to express misgivings about the accuracy of his service billing.
4.I noted that the Committee had cause to question Dr Yung’s truthfulness during its hearings into his conduct and that it had concerns about the standard of Dr Yung’s clinical records and his prescribing habits.”
(g) The reference to the Review Tribunal
Part VA of the Act deals with Professional Services Review Tribunals. Division 2 (ss 108-113) of this Part deals with the establishment of these tribunals. The Governor-General may establish one or more tribunals (s 108(1)). A tribunal shall consist of a President and two other members (s 108(2)). The President of the tribunal must be a person who holds, or has held, judicial office (s 108(3)).
Division 3 (ss 114-121) of this Part deals with references to these tribunals relevantly as follows:
· The person to whom a determination relates may request the Minister to refer the determination to a tribunal for review (s 114(1)). The request shall state its grounds (s 114(2)). Upon receipt of a request, the Minister shall forward the request to the President of a tribunal, together with a copy of the reference that gave rise to the determination, a transcript of the Committee’s proceedings, the Committee’s report and any documents sent to the Minister with that report, and the determination (s 115(1)). The President shall arrange for the determination to be reviewed in proceedings before the tribunal, and shall notify the Determining Officer and the person to whom the determination relates accordingly (s 116).
· That person may appear in person, or may be represented, at those proceedings, and that person or the representative shall be given the opportunity to address the tribunal (s 117). Proceedings before a tribunal must be conducted with as little formality and technicality as a proper consideration permits (s 118(1)). The procedure of a tribunal is subject to the Act and the Regulations, within the discretion of the President (s 118(2)).
· A tribunal that reviews a determination in accordance with a request shall consider “the matter to which the determination relates” having regard to the grounds set out in the request, the documents forwarded by the Minister with the request, and any addresses made to the Tribunal (s 119(1)(a)). The Tribunal “shall... affirm or set aside the determination, or set aside the determination and make any other determination that the Determining Officer is empowered to make under [s 160T] (s 119(1)(b)(ii))”. The decision of the Tribunal is taken to be a determination of the Determining Officer (s 119(3)).
In the present case, by letter to the Minister dated 7 November 1995, Dr Yung’s solicitor requested a review of the Determination, stating the following grounds:
“(i)that breaches of the rules of natural justice occurred in connection with the making of the final Determination;
(ii)that procedures that were required by law to be observed in connection with the making of the Final Determination were not observed;
(iii)that the making of the Final Determination was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(iv)that the Final Determination involved errors of law;
(v)that there was no evidence or other material to justify the making of the Final Determination;
(vi) that the Final Determination was otherwise contrary to law; and
(vii)that the directions made by the determining officer pursuant to Section 106U of the Health Insurance Act 1973 were excessively harsh and punitive.”
A Tribunal (“the Tribunal”) constituted by the Hon. Mrs Margaret Lusink, President, Professor Priscilla Kincaid-Smith and Dr Peter Joseph, Members, heard the matter on 9 and 25 July 1996.
(h) The Tribunal’s decision
On 7 August 1996, the Tribunal decided that the Determination be varied by setting aside directions (i), (ii) and (iii), but affirming direction (iv), for reasons which may be summarised as follows:
· President Lusink noted that the powers of the Tribunal were restricted to affirming or setting aside the Determination, or making any other determination which the Determining Officer is empowered to make; and that the Tribunal’s decision is deemed to be a decision of the Determining Officer. The President also noted that the review was limited (by s 119(1)(a)) to deciding the matter on the papers before it. She went on to refer to the observations of Davies J in McIntosh v Minister for Health (1987) 17 FCR 463 (at 467), that a medical services review (under the legislative precursor of the present Act) had -
“a much wider function than that [of a judicial review]... [and] [s]ave that the Review Tribunal was limited to reviewing the documentary material, taking into account the addresses made to it, it was entitled itself to reconsider any matter contained in the report and recommendation of the Committee of Inquiry.”
· The President cited observations by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 (followed by Hill J in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 (at 521)) that the role of a tribunal should be seen as “part of... [an] administrative continuum”.
· President Lusink went on to note that the Tribunal had rejected a preliminary argument advanced by counsel for Dr Yung, with the Tribunal holding, in accordance with Minister for Health v Thomson (1985) 8 FCR 213, and the other cases, that the Tribunal had no power to admit fresh evidence.
· In the course of dealing with the issues, the President said:
“35.One view on the authorities is that this Tribunal is bound by the finding of the Committee that Dr Yung has practised inappropriately within the meaning of the legislation. In any case, having taken into consideration all matters which we are directed to do in order to exercise our function under section [119], we have independently concluded that the decision of the Committee is the correct one. That is not to say that we agree with all aspects of the Committee proceedings or its report on its findings.”
The President then addressed the Determination:
“36.As to the determination, we believe that the Determining Officer in the circumstances had an unenviable task, being confined as he was to the report of the Committee. It is the view of this Tribunal that both the Committee and the Determining Officer have been disadvantaged and their jobs made much more difficult due to the lack of directions (save as to sampling, which are extremely complex), regulations, guidelines or terms of reference. They were also working within new legislation which may still need refinement. In all the circumstances, it is our decision that the determination should be set aside, save for the directions as to total disqualification.
37.The decision now substituted is a substantial detriment to the practitioner, disqualification having as it does a large financial component and involving re-arrangement of his professional life for a period of time. The commencement date of the disqualification period has taken this into account. It may have been that in other circumstances, a determination involving repayment of moneys would also have been considered, however account has been taken of the long but unavoidable delay, legal expenses incurred, and the less tangible personal consequences the determination will have on a doctor coming from another cultural background. Whilst noting the submission that Dr Yung would be prepared to be reprimanded and to attend counselling, this is not considered to be required. In any case, given that there was an agreement between two companies regarding the medical ;practice of Dr Yung at Kirrawee, it may be that the Act does not permit orders to reprimand or counsel the applicant anyway.”
Professor Kincaid-Smith agreed with the President, and added some comments as follows:
“39. I believe there is sufficient evidence in the material provided for me to agree with the Committee’s finding that ‘Dr Steven Yung engaged in inappropriate practice unacceptable to the general body of general practitioners’. I base this largely on the fact that during the period under review the number of patients seen by Dr Yung was above the 99 percentile of that recorded for other general practitioners over that period. This means that for all the services provided his overall time spent with a patient was less than 10 minutes. While it is quite acceptable to see some patients for less than 10 minutes, this average cannot be maintained in my view without it amounting to inappropriate practice. Further evidence of inappropriate practice is seen in the large numbers of radiographs which he carried out and the small number of positive x-rays which this yielded. This means that he was doing too many x-rays either because of the profit incentive, as these are highly rewarded, or because the time he took to see patients was too short to enable him to determine who did or did not need an x‑ray.”
· However, Professor Kincaid-Smith went on to criticise the Committee’s Report in a number of respects, as “reflect[ing] a focus on matters of no relevance...”. She said, inter alia, that it was “inappropriate” for the Committee to quote draft standards “which certainly had no status at the time in question, and [which] Dr Yung could not be expected to know about”.
On the subject of “[w]orking hours”, the Professor said:
“I cannot agree with the Committee’s implication that 16 hours of work a day for a man of Dr Yung’s age is ‘inappropriate practice’.”
· Dr Joseph also agreed with the decision. He noted that some newly established clinics had utilised the system whereby a higher rebate was paid for services between 8.00 pm and 8.00 am; and that the profitability of the new clinics was maintained by providing services that were brief and often repetitive. Dr Joseph said:
“48.Medically safe and medico-legally safe medicine requires the allocation of sufficient time for patients to provide a relevant history, to be examined, for a diagnosis to be established if possible, investigations to be ordered or performed if required, and a management plan to be established and administered with the patient’s informed consent. This is a professional constant which does not depend on location or style of practice.
49.The profession has co-operated with the... Commission and with Government to establish the Professional Services Review Scheme with a view to identifying ‘inappropriate practice’. The identification of what is appropriate is made by practitioners in the same discipline. It is against this background that the... Committee... held its investigation and delivered its report. While its methods have been subject to critical comment, its finding that Dr Yung had provided inappropriate services is supported by this Tribunal.
50.An interesting question that has been raised in Dr Yung’s defence is that the Committee did not represent his peer group - this should have been practitioners working in a similar clinic. In my view this can never be an acceptable proposition as the legislation dictates that the conduct must be examined by the ‘general body’ of the members of the specialty or profession in which the practitioner was practising.
51.Nor do I believe that a lesser standard of appropriate professional behaviour can be accepted from doctors who are not vocationally registered but who practise as general medical practitioners. Vocational registration requires that a doctor with appropriate experience or qualifications undertakes continuing education, and accepts responsibility for the after hours care of all patients seen either personally or by proxy.”
THE “APPEAL” TO THE FEDERAL COURT
Division 5 (ss 124-124A) of Part VA deals with appeals from Tribunals. A party to a proceeding before a Tribunal under Division 3 may appeal, on a question of law only, to this Court from any decision of the Tribunal in that proceeding (s 124A).
By his notice of appeal filed in this Court on 30 August 1996, Dr Yung appealed from that part of the decision of the Tribunal affirming direction (iv). Dr Yung sought declarations that the Report, and the Determination, were void; an order setting aside the Tribunal’s decision; an order that the Tribunal decide that the Determination be set aside; or alternatively, an order remitting the matter to a differently constituted Tribunal for further consideration according to law.
THE DECISION AT FIRST INSTANCE
Davies J ordered that the decision of the Tribunal be set aside, and that the proceedings be remitted to the Tribunal, differently constituted, to be heard and decided again. His Honour’s reasons were as follows:
Natural justice
The appeal was limited, his Honour noted, to questions of law. A question of law was whether procedural fairness, or natural justice, was required to be provided to Dr Yung in the Tribunal; and if so, whether this was done by the procedures adopted by the Tribunal.
Davies J said that, being “in effect disciplinary proceedings”, substantial procedural fairness should have been afforded, that is, Dr Yung should have been given (a) adequate notice of the findings which might have been made against him; and (b) an adequate opportunity to respond.
His Honour applied observations made by Burchett J in Romeo v Asher (1991) 29 FCR 343, in connection with a reference to a Medical Services Committee of Inquiry under earlier legislation in relation to a question of excessive servicing (at 362) that the affected practitioner “is entitled to particulars”. Davies J noted that s 102(3) now requires that particulars be given before the Committee hearing, as we have seen.
Having referred to observations to the same effect in a similar context by Smithers J (Lockhart J agreeing) in Freeman v McCubbery (Full Court, 10 October 1985, unreported), Davies J said:
“In Freeman v McKenzie (1988) 82 ALR 461 at 471-2, Woodward J indicated means by which a committee could provide procedural fairness to a medical practitioner where the investigation concerned 6000 services to more than 1600 patients over a period of two and one half years. His Honour referred, inter alia, to the selection of manageable topics for inquiry, to the giving of particulars and to the selection of particular consultations for detailed inquiry. Later, in Romeo v Asher, Morling & Neaves JJ, Burchett J dissenting [on the facts] held that it was not necessary in the circumstances of the case that particulars be provided and that the investigative inquiry which had been undertaken had provided procedural fairness. However, in that case only 20 patients had been referred to in the reference, the services were clearly identified and the patients were well known to the medical practitioners. Their Honours accepted the general principles of procedural fairness I have set out.”
Davies J went on to hold that although the present Part VAA had replaced the legislation considered in the earlier cases, the repeal of the earlier s 96B of the Act did not constitute the expression of a statutory intention contrary to the implication of the principles of procedural fairness. It followed, in his Honour’s view, that -
“...although the process undertaken by a Professional Services Review Committee is essentially investigative and the Committee does not in itself make an order of a disciplinary nature, the principles of natural justice apply so that, except in a simple case where the ambit of the investigation and the subject matter of possible findings are defined by the reference which has initiated the inquiry, the Committee should at some stage make it clear to the... practitioner whose affairs are under investigation what are the possible findings which are the subject of the investigation and what are the grounds on which those findings might be made. The... practitioner should be given a fair opportunity to explain why those findings should not be made.”
His Honour said that compliance with the requirement of s 102 that the notice of hearing “must give particulars of the matter to which the hearing relates” did not end the Committee’s responsibility to provide information in the nature of particulars. At the beginning of the inquiry, the Committee may well not have formulated likely or possible findings or the grounds upon which they might be made. As the inquiry proceeded, the Committee should, his Honour said, give such further particulars or information of a like nature as is necessary to make it clear to the practitioner what are the matters to which a response should be made.
Inappropriate practice
Davies J said:
“Because the proceedings are of a disciplinary nature, it clearly would not be appropriate for a decision maker merely to conclude that the medical practitioner engaged in inappropriate practice some time during the period which is specified in relation to some of the referred services. The services in respect of which the finding of inappropriate practice is made must be identified. I do not suggest that, where 17,331 services were the subject of the reference, it was necessary for the decision makers to examine each and every service and to make a finding of ‘inappropriate practice’ about each. When dealing with issues of excessive servicing, the Court has rejected that approach and has taken the view that if, for example, 3 attendances would have been sufficient during a period to deal with a particular complaint, whereas the medical practitioner attended the patient 6 times, then a finding of excessive servicing could be made without identifying which of the 6 attendances were excessive. See eg. Taylor v Minister for Health (1989) 23 FCR 53 at 58-9. But what must be done is to examine at least an appropriate sample of services in detail, to identify the elements of ‘inappropriate practice’ arising from the services in that sample and to apply the findings statistically to the whole of the referred services, provided of course, that it be statistically valid to do so.”
The Referral
His Honour said:
“...the referral turned its attention to a relevant matter, namely, whether Dr Yung had given the appropriate level of clinical input in the services which he had rendered. However, the referral contained an inherent defect. The concern of the Commission that the appropriate level of clinical input could not be maintained on a regular and continuing basis for the long hours worked by Dr Yung could not readily be translated into an allegation of ‘inappropriate practice’ in relation to specified services. The fact that Dr Yung saw what was considered to be an excessive number of patients a day was not a basis for concluding that Dr Yung gave inadequate care and attention to all his patients, to any particular proportion of patients or to any particular patient. Where, as in the present case, a referral relates to all the services rendered by the medical practitioner within defined premises, it may be difficult to investigate the matter referred unless the content of the reasons for referral shows that the cause of the concern is a matter relating to all patients, such as inadequate or dirty premises or records which were wholly inadequate or some like matter. That was not the present case.”
Davies J observed that it was not said by the Commission that there was any rule of practice that a medical practitioner should not see more than a stipulated number of patients a day or that the practitioner must spend at least a stipulated number of minutes with each patient. However, (as we have seen) Davies J noted that in its reasons for referral, the Commission cited the draft standard developed by the RACGP in December 1993, which read, inter alia:
“The Consultation and Communication
The Consultation is the focus of the delivery of general practice care. Patient satisfaction with the consultation is a significant contributor to quality care. A key determinant of patient satisfaction is the quality of communication occurring during the consultation and the amount of information provided to patients.
STANDARD
1.2The practice provides the opportunity for patients to communicate their health problems and concerns and receive an appropriate response.
CRITERIA
1.2.2Consultation times are long enough to allow quality care. This means that average times are not less than 10 minutes. Actual times for individual appointments will vary according to clinical need.
INDICATORS
The average number of patients seen by each doctor in a four hour session does not exceed 24 (appointments schedule).
After each consultation the doctor routinely checks that the patient believes that their needs have been met and that the patient has understood the doctor’s advice (doctor interview, patient survey).
Patient feel that they have not been rushed when having a consultation (patient survey).
Patients report that their condition is discussed enough with them and that words and explanations used by the doctor are easy to understand (patient survey).”
His Honour commented that at the time of the alleged inappropriate practice, that standard was a draft, and had not been adopted as a formal standard. Yet, the primary Judge said, even had the standard been adopted and had Dr Yung been aware of it, which was not the case, the Commission suggested no means by which reference to the standard could show that Dr Yung had failed in his professional duties in the treatment of any particular patient or patients.
His Honour noted that in the Referral reference was made to 15,388 Level B consultations under item 23 of the General Medical Services Table, and that these consultations formed, by far, the majority of the 17,331 services rendered by Dr Yung. Item 23 is as follows:
“Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, or a professional attendance of less than 20 minute duration involving components of a service to which item 36 or 44 applies - each attendance - $24.30.”
Davies J observed that the Commission did not purport to identify any particular service in respect of which the item may have been inappropriate and it did not in its Referral suggest that there had been overservicing; and although the Commission attached statistical material to its Referral, it did not engage in or recommend a process of sampling. His Honour noted that the Act at the time provided stringent safeguards with respect to the use of a sampling technique (see ss 106H-K).
His Honour went on to say:
“Because the Commission’s concern was that an appropriate level of clinical input could not have been maintained by Dr Yung during the long hours in which he attended patients, the Commission’s referral did no more than point to a fact which suggested that inappropriate practice in the nature of insufficient clinical care in relation to at least some of the services would have occurred. The Commission’s referral suggested, in effect, that Dr Yung was a ‘suspicious person’.
Dr Yung would have been unable to glean from the referral what were the details of inappropriate care which he ought to answer. It is common for a referral by the Commission to set out what are, in effect, the allegations in respect of which the disciplinary proceedings are brought. That did not occur in this case. Unless examples of cases in respect of which it is alleged that the medical practitioner has failed to provide a sufficient level of clinical input are pointed to, so that the medical practitioner can analyse and explain what occurred and thereby respond to the allegation of inappropriate practice, it is almost impossible for a medical practitioner to deal with the matter.”
The Committee
His Honour said:
“The Committee did not formulate charges or allegations for Dr Yung to answer but simply called a hearing and, at the hearing, called Dr Yung and Dr Gooley, the senior partner in the practice in Kirrawee, which Dr Yung had by then left, to give evidence.”
Referring to the Committee’s letter to Dr Yung dated 26 June 1995 outlining the general sequence of events for the hearing on 14 July 1995 (cited above), Davies J said that neither the Referral nor this letter made it clear to Dr Yung what were the matters to which he should turn his attention, and the letter did not indicate any specific issue to be addressed.
His Honour referred first to evidence given by Dr Yung to the Committee that Dr Yung was, in essence, “quite satisfied with the quality of care he had provided”; and secondly, to evidence by Dr Gooley to the Committee that “Dr Yung is an exceptionally competent caring medical practitioner whose patients would come and insist on seeing him and no-one else”.
Turning to the general criticism of Dr Yung made in the Report, Davies J said:
“...the Committee did not relate these comments to specific services but rather to the nature of Dr Yung’s practice as a whole. ...[A] Committee established under the Act is not concerned to discipline medical practitioners with respect to the general nature of their practice. The Act is concerned with medical benefits. [It] provides for disciplinary action and for proceedings to be taken in relation to services in respect of which medical benefits were paid or payable. Having regard to the provisions of the Act... at the time, I would have expected in the present case that any finding of inappropriate practice in the nature of insufficient care and attention would be related to identified services, save where it was appropriate to adopt a proportion, as where a sampling process was undertaken in accordance with s 106G to s 106K of the Act, in which case the sampling procedure adopted would identify the class or proportion of cases to which the findings drawn from an examination of a sample could be applied.”
His Honour next considered eleven specific findings made by the Committee as follows:
“It is plain from [these findings] that the Committee’s attention was directed to issues many of which were distinctly different from the Commission’s concern whether, in the services performed, Dr Yung provided ‘an appropriate level of clinical input’. The discussion of the lack of home visits and the discussion of the lack of an after hours service between 11pm and 7am are clear examples of the point. It was, in my opinion, a wholly or largely irrelevant consideration that Dr Yung did not provide such services. If Dr Yung’s practice in connection with the rendering of services in respect of which benefits were paid was appropriate, it mattered not that other medical practitioners would, in the course of their practices, have attended many more home visits and would have provided an after hours service between 11pm and 7am. These matters were not within the ambit of the reference. Of course, the Committee may have taken these matters merely as indicating Dr Yung’s lack of interest in and care of his patients. However, the Committee’s report suggests that these matters were regarded as aspects of ‘inappropriate practice’.”
Davies J extracted the following findings from the Report:
“that [Dr Yung] practised episodic rather than continuing care
that he failed to provide preventive care
that his medical records were of poor quality
that he overclaimed Level B consultations
that he was incompetent
that he provided only a minuscule level of home visiting
that he failed to give proper professional attention to patients
that he failed to provide an after hours service between 11pm and 7am
that he overprescribed antibiotics
that he did not practice as a vocationally registered general practitioner should do and that he should not be so classified
that his conduct would not be acceptable to the general body of vocationally registered general practitioners.”
His Honour observed that the following specific allegations were not mentioned in the Referral and were not formulated in writing by the Committee for Dr Yung to answer:
“that [Dr Yung] was incompetent
that he failed to provide preventive care
that his medical records were of poor quality
that he overclaimed Level B consultations
that he provided only a minuscule level of home visiting
that he did not provide an after hours service
that he overprescribed antibiotics
that he should not be classified as a vocationally registered general practitioner.”
Davies J said:
“In the course of the evidence of Dr Yung, questions were asked about a number of patients who had been treated in May and June. However, these patients ultimately did not feature in the Committee’s report, presumably because the Committee chose a date, 29 November 1994, to look at and did not examine those records in detail until after the hearing had concluded. Dr Yung did not have an opportunity to deal with any queries which the Committee had arising from those records. A feature of the Committee’s report is that there was no finding made of inappropriate practice in relation to any identified patient and there was no suggestion that any patient had ever complained of Dr Yung’s treatment. Nor for that matter was it explained why Dr Yung was such a popular doctor.
In the result, I am satisfied that Dr Yung did not in general receive procedural fairness at that stage. There may be some small individual findings of the Committee which could be supported because they were raised orally with Dr Yung and he had an opportunity to answer them. However, I have not considered the whole of the proceedings in sufficient detail to determine whether that is so.”
In his Honour’s opinion, there were three major flaws in the Committee’s proceedings and the Report: (1) Dr Yung was not accorded procedural fairness; (2) The Committee “made global findings either of or relevant to ‘inappropriate practice’ without relating those findings in any meaningful way to the referred services”; (3) The Committee did not state clearly what were the findings of ‘inappropriate practice’ which it made.
The primary Judge added:
“In a finding of ‘inappropriate practice’, the number of patients seen by Dr Yung per day would only be a relevant factor, an indication that such a practice may have occurred. Other factors would be whether patients were satisfied or dissatisfied with their treatment, whether Dr Yung’s treatment had been shown to be faulty and so on. The Committee did not approach the matter in this way.”
Determining Officer
Davies J said that the Determining Officer, in para 2 of his reasons (cited above), appeared to have misapprehended his powers. His Honour said:
“...the Determining Officer was not limited to events which had occurred during the referral period. The function of the Determining Officer was to make a determination and to impose the disciplinary direction or directions. In determining which direction was appropriate, the Determining Officer was entitled to take into account whatever the... practitioner had to say on the point. I presume that the Determining Officer would not receive further evidence as such. But the Determining Officer is entitled to take relevant information into account. In fact, the Determining Officer did not receive such information. The Determining Officer took into account a letter from the... Commission dated 7 September 1995, which provided data on Medicare benefits relevant to the services rendered by Dr Yung from 1 January 1994 to 31 December 1994. In my opinion, the Determining Officer was entitled to take into account matters such as whether Dr Yung had changed his ways and reformed the nature of his practice.”
THE COMMITTEE’S TASK AND ITS RELATION TO THE REFERRAL AND NATURAL JUSTICE – ISSUE ONE
It was not disputed by counsel for the determining officer that there was a requirement on the part of a committee to afford a doctor natural justice. The submission was rather that, in all the circumstances, natural justice had indeed been afforded. The determining officer also submitted that the Committee could range outside matters in the referral, for its role was investigatory.
It was said that the doctor had been questioned repeatedly about the various matters on which the Tribunal ultimately made either comments or findings. Particularly it was pointed out that there had been raised with the doctor during the hearing matters involving poor quality records, paucity of home visiting, lack of after hours service and prescribing of antibiotics. Other conclusions or comments of the Committee were said to involve merely musings on the part of the Committee rather than findings.
It is not necessary in the present case to expound upon the requirements of investigative committees or tribunals to afford natural justice. Whether natural justice should be afforded and the contents of the rules of procedural fairness to be adopted are matters that depend upon the legislative scheme and the subject matter of the inquiry: Kioav West (1985) 159 CLR 550 at 584 per Mason J and at 612 and 615 per Brennan J. We agree with the learned primary judge without reservation that in a case such as the present the Committee was bound to give notice of the findings that might be made against the medical practitioner and an opportunity for him or her to respond. Assuming that the Committee was able to embark upon an inquiry unlimited by the terms of a referral then we would have no difficulty in accepting the view which His Honour took. The rules of natural justice would require the Committee to make clear to the doctor the allegations made against him. Where the matters to be considered by the Tribunal involve a multitude of services, in the present case some 17,000, it is obvious that the Committee’s proceedings must necessarily be made manageable: Freeman v McKenzie (1988) 82 ALR 461 at 471-2; Romeo v Asher (1991) 29 FCR 343 at 352: per Morling and Neaves JJ, Burchett J dissenting. We shall return to the question of sampling later.
In the latter case, the majority said at 349, speaking of an earlier legislative scheme, although in comments which would still have application:
“The requirements of procedural fairness will, however, often extend beyond the specific requirements of the statute. What it is necessary for a Committee to do in order to satisfy those requirements in any individual case will, of course, depend upon the particular circumstances of that case.”
Burchett J who dissented, but only on the facts of the case rather than on a matter of principle, said at 357:
“In the absence of some identification of the Committee’s concerns (which may conveniently be called particulars, provided it is understood that they would not be particulars of a charge but of a finding the Committee considers may be open on the material before it), the appellants must be groping in the dark in any attempt they make to provide an answer. Except in a sense so broad as to be meaningless, they do not know the question.”
However a referral is not merely the instrument which initiates the series of administrative inquiries which in the present case were undertaken. It also provides the framework in which those inquiries are to be held. While it is true that the legislation confers upon the Health Insurance Commission no enforceable investigatory powers, the legislation does not contemplate that the Health Insurance Commission will make a reference under s 86 without making some inquiry. It did so in the present case, both in the process of counselling it adopted and in the information technology application which identified what was thought by the Commission to involve too high a level of consultation.
The referral while expressed to be of conduct is not conduct in isolation. It is conduct relating to the issue whether the person has engaged in inappropriate practice in connection with rendering of services. Section 80(1) makes clear the legislative scheme is to examine whether inappropriate practice as defined in s 82 is involved. That inappropriate practice is conduct in connection with specified services. They are called “the referred services” – see ss 91, 93 and the definition in s 81(1). While those services may include all or some services within the referral period, the reference is not intended to open for consideration by a committee ultimately convened any aspect at all of the referred person’s conduct in the referral period. What is contemplated is that it be an inquiry into specified conduct as dealt with in the reference rather than conduct at large.
This conclusion is reinforced by the legislative requirement that the practitioner conduct the hearing without real assistance from a legal adviser. Whilst it is true that a legal practitioner may advise the practitioner, given the fact that the legislature has seen fit to exclude a legal practitioner from either examining witnesses or making submissions, it must follow that the intended subject matter of the procedure before a committee be manifest to the practitioner prior to the time the Committee meets to consider it.
The conclusion follows also from the fact that the director receiving the referral must make various decisions on the referral from its contents. A director could hardly dismiss a referral if the possibility was that a committee could roam outside its terms. In making a decision to dismiss the referral the director has to form a view that there are insufficient grounds on which a committee could reasonably find that the person under review had engaged in inappropriate practice in connection with the referred services (see s 91). On the basis of the referral indeed the director may himself disqualify the practitioner although not for reasons presently relevant.
The function of the Committee therefore and the hearing it is required to undertake on the evidence given and documents produced, is limited to considering the matters that are the subject of the referral: s 101(2). The Committee’s report is confined to the referred services and the practitioner’s conduct in connection with them: s 106L(1)(a). Although the Committee may (it did not in the present case), on evidence before it, refer matters to the licensing authorities in a State or Territory, that does not mean that it can go outside the reference which it is required to consider.
In a case where the allegation of conduct is failing to give appropriate care to patients, having regard to the number of services the doctor has performed, a committee if it is to consider the totality of the services referred must, on the legislation presently under consideration, of necessity engage in a proper sampling procedure. It is difficult to see how the proceedings could otherwise be conducted. While the sampling procedure in s 106H (which has now been repealed by the Health Insurance Amendment Act (No. 1) 1997) is not made mandatory by the section that precedent provides a sure guide, and the only sure guide, to the resolution of the problems such as arose in the present case.
As Hill J said in Artinian v Commonwealth (1996) 43 ALD 235 at 242, dealing with another practitioner of whom it was alleged he had not spent sufficient time with patients to give them proper care based upon a statistical analysis:
“These and other figures might well lead to the conclusion either that Dr Artinian would be so exhausted from seeing a large number of patients as not to give his patients appropriate medical attention or alternatively was misstating the number of patients he had personally seen or the time ...which he spent with them.” (emphasis added)
The fact that the doctor in the present case is in the 99th percentile of doctors in comparable positions clearly enough raised a question for consideration, for that statistical outcome involves comparing the time that he spent (under 10 minutes per patient) with the time spent on average by other practitioners. But it does not follow from the fact that an adverse conclusion might well be drawn that it necessarily must be. It will be the task of the Committee to examine the practitioner’s conduct in respect of those services and to determine the issue. Sampling will be the obvious mode of proceeding. No question of burden of proof arises in the context.
In the present case, the Committee did not attempt to make any useful sample analysis. Indeed it appears to have considered only the patients seen on one day in the whole 12 month period although it asked the doctor questions about patients treated in two months. It does not appear to have considered the medical records that were made available to it in other periods. Indeed the Committee did not even examine every service performed on that one day let alone whether there was an over prescription of antibiotics in some stated proportion of cases having regard to the facts of these cases, assuming that was a matter open to it.
In our view the proceedings before the Committee miscarried not so much because it failed to particularise various matters against the doctor in respect of conclusions which it reached or that it failed to indicate adverse conclusions which might be reached, although both these matters occurred. Rather it failed to confine itself to the very reference which was before it. It also failed to consider the issue in that reference which related to conduct in respect of the referred services by only considering the one day which it did.
WHETHER THE COMMITTEE MUST CONSIDER SPECIFIC SERVICES –
ISSUE TWO
It was submitted on behalf of the determining officer that the legislative scheme as it was amended in 1994 and applicable on the present facts had replaced an earlier scheme to ensure a committee could make its decision involving cases of over servicing on the basis of generalised evidence.
We were referred to the Second Reading Speech of the then Parliamentary Secretary to the Minister for Housing, Local Government and Community Services and Parliamentary Secretary to the Minister for Health in which the Honourable Parliamentary Secretary said:
“A major factor in the inability to impose penalties commensurate with the extent of practitioner’s overservicing is the current lack of power to make decisions on the extent of overservicing on the basis of generalised evidence. At present judgments about overservicing can only be made on the basis of individual services, that is, recovery of benefits and the imposition of penalties can only be made in respect of each service separately determined to have been excessive.”
It is true that the sampling procedure introduced in the 1993 Bill to which the Second Reading Speech was addressed, permits necessary extrapolation from a sample to the referred services. It does not follow from that that a committee is not required to reach an ultimate conclusion about specified services. Its task is to consider the matter in the referral which is the conduct in respect of specified services. Although no doubt inferences can be made from a sample to a totality of services, that does not take away from the requirement of the ultimate conclusion to relate the issue of conduct either to some or all of those services. That is not a matter to which the Committee addressed itself. Nothing in the explanatory memorandum which accompanied the Health Legislation (Professional Services Review) Amendment Bill 1993 suggests the contrary.
THE RELEVANCE OF CERTIFICATION BY THE ROYAL AUSTRALIAN COLLEGE OF GENERAL PRACTITIONERS – ISSUE THREE
The relevance of the doctor’s certification by the Royal Australian College of General Practitioners was a matter commented on by His Honour and raised in submissions to us.
The ability to charge the scheduled fees in items 3 and 23 is given to a person who is, within the meaning of the regulations, a general practitioner. One qualification for a general practitioner, as defined, is fellowship of the College, participation in continuing medical education at the College and meeting the College’s requirements for quality assurance. It is not the only qualification. The holding of that qualification, which was not in dispute at any stage, is a matter of fact.
It does not follow from that, that one can extrapolate from a definition by the College of general practice which includes, although it is not limited to, “comprehensive whole care to individuals families and their community”, that the furnishing of care not being as comprehensive will involve conduct unacceptable to the general body of general practitioners. The test to be applied in the legislation is a test related to the body of general practitioners generally. It is a not a test to be formulated by reference to particular standards of the College although those standards may no doubt be accepted by the general body of general practitioners.
In our view His Honour did not err in treating the certification as an irrelevant matter to the questions of law before him.
THE TASK OF THE TRIBUNAL – ISSUE FOUR
It was submitted before us that the Tribunal was not empowered when the matter came before it to consider any matter which was determined by the Committee. Rather it was said, because the Tribunal was confined to specified material, that it was bound to accept the Committee’s findings and therefore review only matters of a disciplinary penal nature. This is not what the Tribunal did. Nor is it what the Tribunal is obliged to do.
A Full Court of this Court in Minister for Health v Thomson (1985) 8 FCR 213 (Fox, Beaumont and Wilcox JJ) considered the provisions of s 119(1)(a) which at that time were in identical terms to the present paragraph although the legislative scheme did not then involve a Committee or determining officer. The Court concluded and, with respect correctly this was accepted by the Tribunal, that the Tribunal had no power to accept fresh evidence - it is confined to a consideration of the papers referred to it by the Minister. As Wilcox J said in that case at 227:
“The role of the Tribunal is to consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister ‘and any addresses made to the Tribunal during the proceedings on the review’ (s 119(1)(a)). Significantly, there is no reference to further evidence. The Tribunal’s task is to review the case by reference only to the existing material, and in the light of any addresses made to it on that material.”
It does not follow from the fact that fresh evidence is not admissible in the Tribunal that the role of the Tribunal is confined to accepting the Committee’s conclusions and merely reviewing on the papers before it the matters of penalty which the determining officer has specified. That is inconsistent with the comments of Wilcox J to which we have already referred. It is inconsistent also with the decision of Davies J in McIntosh v Minister for Health (1986) 17 FCR 463. His Honour expressed the view (at 467) that the Tribunal had an obligation to determine whether or not to accept the recommendation made by the Committee; and see Tiong v Minister for Community Services & Health (1990) 93 ALR 308 at 311 per Davies J and at 320 per Spender J; and see too Determining Officer v Lusink (unreported, Sundberg J, 12 February 1998).
A tribunal is appointed to review the determination. The word “review” is a word of wide meaning but dependent upon context: Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 at 508ff; followed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brennan and Toohey JJ. Where a determination on its face would not be justified by a committee’s finding, having regard to the papers before the Tribunal, the evidence and report of the Committee (including a dissenting report) is part of the “matter to which the determination relates” (s 119(1)) on which the Tribunal has made an appropriate finding of inappropriate practice. It is open, and indeed the Tribunal itself accepted this, for the Tribunal to take a different view from the Committee and set aside a determination, notwithstanding both that it is restricted to the papers before it and is reviewing the determining officer’s determination.
THE APPROPRIATE FORM OF ORDER
The present proceedings are judicial review by way of an appeal on a question of law from the Tribunal’s decision. Dr Yung had not sought in other proceedings to set aside the Committee’s decision or the determination of the determining officer. He refrained from doing so (no doubt deliberately) notwithstanding submissions that go to the validity of both the Committee’s decision and the determining officer’s determination. Having regard to our views on the Committee’s procedure, it is unnecessary to consider whether the determining officer’s determination was flawed for failing to take into account matters outside the period with which the referred services were concerned or whether the Tribunal’s reasons were inadequate. However, nothing in the statutory scheme suggests that the administrative discretion of the determining officer should be exercised without regard to events known at the date of the decision. It has long been accepted as a general principle that administrative decisions should be made on the best and latest information available, and the Act should be construed accordingly, pursuant to the general rule stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45, that:
“ … there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”
On this basis, the approach of Davies J should be upheld. We would agree also with the learned primary judge that, if this Court is to fulfil its obligations to resolve an appeal on a question of law, the Tribunal must give adequate reasons so that the question of law is made manifest. A failure so to do implies that an error of law must have occurred.
On behalf of Dr Yung it is submitted that, if we are of the view that the decision of the Tribunal was infected with error, particularly in considering the report of the Committee whose decision and procedure miscarried, we should set aside the Tribunal’s decision and not refer the matter back to a Tribunal, whether or not differently constituted. On behalf of the determining officer it is submitted that, in such event, the matter should be returned to the Tribunal on an undertaking that a Committee would be reconstituted to consider the reference and its conclusions would accordingly be given to the determining officer for remittal to that Committee to review the matter afresh.
The course submitted by the doctor leaves the real question of inappropriate practice forever undecided, notwithstanding that such an investigation properly conducted on relevant evidence might well establish the conclusion that the doctor was indeed guilty of inappropriate practice. While the Tribunal could, as we have indicated, consider the evidence and report of the Committee, the conduct of these proceedings was infected with legal error and the Tribunal could do nothing except set aside the determination for the evidence would neither establish nor deny inappropriate practice. In so saying, we do not intend to infer that an administrative decision, unchallenged, is necessarily void for that is not a matter which the Tribunal, an administrative body, could determine. It is a matter for the Court in a challenge to the Committee’s decision to determine. It has not.
The course submitted by the determining officer presents, however, great difficulties. The Committee must report within 90 days. Extensions must be requested before the expiration of the time or extended time in which the report was to be delivered. There is also a time limit on a fresh referral which ensures that the course of a new referral is no longer open (two years). It seems to follow that, as the Tribunal could in the circumstances reach no conclusion other than that the determination should be set aside, the submissions of the doctor are to be preferred.
In these circumstances, we would propose the following orders:
Appeal allowed in part.
The order below that the matter be remitted to a Tribunal differently constituted for further review be set aside.
Decision of the Tribunal be set aside.
In lieu thereof, it be ordered that the decision of the determining officer be set aside.
Appellant to pay the First Respondent’s costs of the appeal.
Appeal otherwise dismissed.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Burchett and Hill
Associate:
Dated: 15 May 1998
Counsel for the Appellant: Miss R.M. Henderson Solicitor for the Appellant: Australian Government Solicitor
Counsel for the First Respondent: Mr M.B. Smith Solicitor for the First Respondent: Tress Cocks & Maddox
Solicitor for the Second Respondent:
Australian Government Solicitor
Date of Hearing: 13 and 16 March 1998 Date of Judgment: 15 May 1998
13
18
0