Dr Sauw Jing Tiong, S.J. v Minister for Community Services & Health

[1989] FCA 372

Re: DR SAUW JING TIONG AND DR THUNG SING TIONG
And: MINISTER FOR COMMUNITY SERVICES AND HEALTH
No. G336 of 1988
FED No. 372
Medicine - Administrative Law
87 ALR 723

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Medicine - Social Security - "Excessive Services" - referral by one specialist to another - second specialist made no inquiries of patient - whether reasonably necessary for adequate medical care of patient - general practice of profession or objective test - effect of circumstances suggesting request unreasonably made.

Administrative Law - Medical Services Review Tribunal - request for review "shall set out the grounds on which the request is made" - procedure in discretion of President of Tribunal - whether President can amend grounds for review.

Administrative Law - Natural Justice - Medical Services Committee of Inquiry - expert Committee told doctor they would specifically question doctor about doubtful medical service - large number of patients and services examined - Committee's practice not rigorously followed - effect of earlier evidence and later procedures.

Administrative Law - Natural Justice - whether Tribunal has power to review Committee on grounds of denial of natural justice - Tribunal's main task to determine if Committee's conclusions are factually correct.

Health Insurance Act 1973, ss.79(1B), 92, 94, 108, 114, 118(2),

HEARING

BRISBANE

#DATE 21:7:1989

Counsel for the applicants: Mr P.A. Keane Q.C. and Ms. E.M. O'Reilly

Solicitors for the applicants:Chambers McNab Tully and Wilson

Counsel for the respondent: Mr R. S. O'Regan Q.C. and Ms D.A. Mullins

Solicitors for the respondent:Australian Government Solicitor

ORDER

The application be dismissed;

The applicants pay the respondent's costs of and incidental to the application, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal under s.124A of the Health Insurance Act 1973, from a decision of a Medical Services Review Tribunal established under s.108 of that Act. The Tribunal's decision was given in the exercise of its function of reviewing a determination by the relevant Minister under s.106 of the Act. That determination, in turn, was made on the recommendation of a Medical Services Committee of Inquiry which had inquired into an allegation of excessive "servicing" of patients by doctors, said to have occurred between October 1985 and June 1986.

1. The appeal raises certain questions of law, dealt with below. The points touched on by counsel for the appellants were not all covered by the notice of appeal to this Court in its original form, but by consent amendments were made to the notice of appeal so as to cover the grounds argued.

2. It is necessary to explain in more detail the content of the statutory provisions which are relevant to the appeal. Some of these have been amended, since the events in question occurred, in relevant ways. I shall refer to the statutes and quote them in the form they had at the time of the events in question.

3. Under s.80 of the Act, the Minister is obliged to establish a Medical Services Committee of Inquiry for each State consisting of five medical practitioners. Their functions include inquiring into and submitting to the Minister a report and recommendations on matters of various kinds, of which one is a matter referred to the Committee by the Minister that -
   

"arises out of or relates to ... the rendering of a professional service on or after 15 April 1977 ... in the State for which the Committee is established" (s.82(b)(ii)).

I have used the present tense in setting out the content of this provision, although it has been amended; this course is adopted for the sake of ease of writing - i.e. to avoid the necessity of discriminating between provisions which have and those which have not been amended.

1. Under s.92, the Committee may inform itself "in such manner as it thinks fit". That is subject to s.94, which says that -
   

"Where, after consideration of a matter referred to a Committee by the Minister and of any documents that accompany the reference supplied by the Minister, it appears to the Committee that - ...

(c) a practitioner may have rendered excessive services ..."

then the Committee conducts one or more hearings into the matter.

1. It is seen that the conducting of such a hearing is a third consideration of the point: the first occurs, presumably, before the matter is referred to the Committee. The second is the Committee's consideration of the documents, under the opening part of s.94. It should be added that the fourth, fifth, sixth and seventh stages of dealing with such a matter, for which the law provides, are the Minister's consideration of the Committee's report, the review (if requested) of the Minister's determination by the Tribunal, an appeal to a single judge of this Court, and then an appeal to the Full Court. Any allegation of over-servicing is able to be amply filtered.

2. The Committee's hearing is held in private (s.97), but evidence is taken on oath (s.98) and there is provision for summoning witnesses (s.99-101).

3. After the hearing, the Committee reports its opinion to the Minister (s.104), which may include an opinion that a practitioner has rendered excessive services. The Committee may in its report, recommend that the practitioner be reprimanded or that he be counselled, and that medicare benefits paid to the practitioner be repaid to the Commonwealth (s.105). Under s.106, the Minister may make a determination in accordance with the Committee's recommendation. If the determination is that an amount be payable, then it is recoverable as a debt, under s.129AD.

4. The expression "excessive services" used in the sections just discussed is defined in s.79(1B)(a) as follows:
   

"a reference to excessive services is a reference to professional services, being services in respect of which medicare benefit has become or may become payable, and which were not reasonably necessary for the adequate medical or dental care of the patient concerned".

1. There was much debate before me as to the meaning of the definition, in particular as to whether services became "reasonably necessary" (even if objectively quite unnecessary) if the practitioner performing the services was asked by another practitioner to perform them, and did so in accordance with the practices of the profession.

2. The expression "professional service" in this definition is defined in s.3 but not, I think, in a way which throws any light upon the issues in this case.

3. Under s.108, there may be established Medical Services Review Tribunals consisting of three members, the President being a lawyer and the other two members medical practitioners. Section 114 is as follows:
   

"A request by a person to whom a determination relates for the reference of the determination to a Tribunal for review -

(a) shall be in writing signed by or on behalf of the person making the request;

(b) shall set out the grounds on which the request is made; and

(c) shall be served on the Minister within 30 days after the date upon which the notification of the determination is served on him."

1. Upon receipt "of a request under section 114 for the review of a determination" the President of the Tribunal arranges for the determination to be reviewed (s.116) in proceedings the nature of which is further discussed below under the heading "Natural Justice". An alternative possibility open to one desiring a review of a determination of the Minister is to apply to a "prescribed Court" under s.122 for judicial review of the determination. The expression "prescribed Court" is defined in such a way as to mean, in respect of this State, the District Court of Queensland. There is a substantial difference between the two sorts of review: the Tribunal considers "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 during the proceedings on the review". In contrast, the "prescribed Court" conducts a re-hearing (s.123). The permissible scope of the Tribunal's review is discussed below under the heading "Amendment before Tribunal".

2. The Tribunal may affirm, set aside or vary a determination of the kind here in question (s.119(1)(b)(ii)) and there is an appeal to this Court "on a question of law only" from the Tribunal's decision: s.124A.
   The Course of Proceedings

3. The Medical Services Committee of Inquiry for the State of Queensland became seized of the matter under a reference of 18 December 1986, given by the Minister's delegate under s.82(b) referred to above. The reference related to the question whether, in rendering professional services in respect of certain patients, the appellants rendered an excessive service within the meaning of s.79(1B) of the Act. An inquiry was held over a number of days and the committee made its report on 31 July 1987. The report was followed precisely by Ministerial determinations of 16 November 1987, being as follows: as to the second appellant, the determination was that:
   

"(i) under paragraph 105(2)(c) of the Act, the said Dr Thung Sing Tiong be reprimanded, and I do so reprimand him;

(ii)under paragraph 105(2)(f) of the Act, the amount of medical benefits referred to in paragraph (c) herein be payable by the said Dr Thung Sing Tiong in the case of an amount of medical benefits paid or payable by the Commonwealth of Australia, to the Commonwealth of Australia, the total amount of medical benefits so payable by the said Dr Thung Sing Tiong being as specified hereunder: Doctor Amount Payable to Dr T S Tiong $760.65 Commonwealth of Australia"

1. As to the first appellant, the determination was in similar terms, except that she was "counselled" under para.105(2)(ca) of the Act, instead of being reprimanded, and that the amount payable by her was fixed at $22,797.00.

2. The appellants took advantage of their right to have the Ministerial determinations reviewed and a Tribunal considered the matters, varying the determinations somewhat in favour of the appellants.

3. The questions raised by the appeal may be expressed as follows:
   

1. As a matter of construction of the Act, were the findings as to Dr S.J. such as to warrant either a recommendation by the Committee or a determination by the Minister that the amount of certain Medicare benefits be payable by Dr S.J. to the Commonwealth?

2. Was the exercise of the Minister's discretion to require the repayments just mentioned vitiated by taking into account the possibility that Dr S.J. might be able to recover the moneys repaid from Dr T.S.?

3. Was the case of McIntosh v. Minister for Health (1987) 17 FCR 463 correctly decided?

4. Was there a failure to accord the doctors natural justice at the hearing before the Committee, in that there were findings against the doctors on matters not raised by the Committee with them, although the chairman had given them to understand that would not occur?

Meaning of "Excessive Services"

1. It was contended for the appellants that a question of construction of the Act arises, of the kind mentioned in (1) above. The Committee's views sufficiently appear, I think, from the following paragraphs:
   

"3.3 This Reference has presented the Committee with a unique concern.

3.3.1 The Committee has no doubt that Dr. T.S. Tiong ordered excessive radiological services and notes that Dr. S.J. Tiong rendered only the radiological services she had been asked to render. 3.3.2 Under oath, Dr. S.J. Tiong not only confirmed this approach but also admitted that if she thought it necessary she would question the appropriatness (sic) of and the need for the requested radiological services. Indeed she had done so. Dr. Earwaker, the Committee's Consultant confirmed that only if a procedure presented a real danger to a patient would he not perform a radiological test if the requesting practitioner remained insistent after discussion. 3.3.3 No provision exists in the Health Insurance Act 1973 to make a finding that the ordering or initiating of a radiological test constitutes excessive servicing and in fact your Instrument of Referral refers only to whether Dr. T.S. or Dr. S.J. Tiong rendered excessive services. 3.3.4 Having considered all the evidence and the circumstances, the Committee has taken the view that 'to render' means 'to perform' or 'to do'. There is no doubt that Dr. S.J. Tiong performed the radiological services identified in your Reference, and the Committee has therefore recommended accordingly.

3.4 It is noted that:

(i) during the Reference period, Dr. S.J. Tiong was the only Radiologist in Mackay with the facilities/equipment able to perform a C.A.T. scan

and

(ii) in evidence, the practitioners stated that many patients resided some distance from Mackay and that this influenced the rendering of many of the services on the same day. The Committee believes that neither of these factors justifies the aggressive investigatory and management style adopted by the practitioners in many of the cases."

1. The Committee also said that its major concerns in relation to Dr S.J. were excessive rendering of CAT scans and plain x-rays. The Tribunal on this point remarked, inter alia:
   

"All the services rendered by Dr. S. J. a radiologist which were considered by the Committee were requested by Dr. T. S. an ear nose and throat specialist. Dr. S. J. through her counsel argued that in the absence of some special circumstance she was entitled to perform the radiological service requested without enquiring whether the service was necessary a question which on many occasions she was not qualified to answer."

1. Returning to the subject towards the end of its reasons, the Tribunal remarked -
   

"In the present case the services under consideration were radiological services and were not rendered by an employee. In those circumstances the liability to repay benefits in respect of the excessive services attaches to the provider that is the practitioner rendering the service and as the history of the legislation shows this is no oversight but must be presumed to be the intention of the legislature. The relationship between the two practitioners concerned was not clearly defined. There was evidence that they had their respective rooms in the same building and that each had his or her own staff and shared the services of one employee and a common reception area. They kept separate accounts and there was nothing to show they shared professional or living expenses or had any joint bank account. There is an indication at the beginning of the hearing that the practitioners were husband and wife.

We accept there would be many cases where the radiologist would have no reason to query the necessity of the radiological examination which had been ordered and a requirement that the radiologist should repay the benefit in such cases may appear harsh. However that may not be the end of the matter. Whilst the Tribunal expresses no opinion on this aspect it may be that if the parties are as appears on the present evidence financially independent of one another the radiologist would be able to obtain reimbursement from the practitioner who ordered the excess services. The Committee was well aware that Dr. S.J. had not initiated the services found to be excessive but nevertheless chose to recommend recovery from the practitioner and the Minister in his discretion accepted that recommendation. The position is that a substantial amount of excessive servicing has occurred and it is reasonable that the benefit paid for it should be recovered. The Minister has decided that the statutory right of recovery which undoubtedly exists should be exercised leaving it to the two practitioners concerned to work out between themselves the ultimate source of the refund. We think this solution is a reasonable one and that the discretion of the Minister was properly exercised."

1. It will have been seen that there are two points, the first being whether it was open to the Tribunal to hold that Dr S.J. had rendered "excessive services" within the meaning of s.79(1B) set out above, and the second whether the Minister's discretion was properly exercised. It was argued that the second point is not open to the appellants, since it was not taken in the request for review of the Minister's determination; I agree with that contention and the reasons why I do so are set out below under the heading "Amendment before Tribunal".

2. The question whether it was open to the Committee as a matter of law to find against Dr S.J. on the facts was, however, plainly within the grounds in the notice of request for review and requires some consideration.

3. One view of the definition of "excessive services" in s.79(1B) is that if a specialist renders services at the request of another doctor in accordance with the general practice of the profession, then the presence of the request makes it impossible to hold that the services rendered by the specialist were not reasonably necessary for the adequate medical care of the patient, within the meaning of the sub-section. Another view, at the other extreme, is that one must consider whether each service rendered was in fact reasonably necessary, whether or not the rendering doctor thought it was. An X-ray which is honestly and reasonably performed at the request of another doctor may be, objectively speaking, absolutely unnecessary; a trivial example is the case where the referring doctor asks for an X-ray of a child's right foot, when it is the left which is troublesome.

4. The question whether a diagnostic service, which is in fact quite unnecessary, becomes "reasonably necessary" within the meaning of s.79(1B) if the doctor performing it reasonably thinks it is necessary is not easily answered. In a sense, the removal of an appendix which the surgeon reasonably believes to require removal is "necessary" even if the appendix turns out to exhibit no pathology.

1. While the provision is capable of being read as simply imposing an objective test, in my opinion, the outcome of so doing may, in some instances, lead to such absurdities as to make one doubt whether pure objectivity accords with the legislative intention. It is my view that the legislature contemplated that reasonable necessity would be determined in such a way as not to require that all services which, however reasonably undertaken from the provider's point of view, were in fact unnecessary, fell within s.79(1B). Although a literal construction of the language used tends to favour the respondent's submission, I am of the view that diagnostic services may be "reasonably necessary" because the doctor providing them reasonably acts upon a request to do so, there being nothing in the circumstances to suggest that the request is unreasonably made. The situation just described is, however, plainly far from the view which the Committee took of the work of Dr S.J. in this case. I cannot read its reasons as embodying a view that Dr S.J. performed the excessive CAT scans and X-rays innocently (so to speak) and reasonably. Many of the CAT scans, for example, were performed on people suffering illnesses likely to be of short duration, within 24 hours of the initial consultation by Dr T.S.

2. It was argued by Mr Keane Q.C., senior counsel for the appellant, that there was no suggestion in the Committee's report that the services rendered by the radiologist (Dr S.J.) were "otherwise than in accordance with the appropriate professional standards". That is true in one sense, but it seems plain that the Committee took a dim view of the extent to which CAT scans were used, as did the Tribunal. The Committee said, as to the CAT scans, that:
   

"In most instances, the illnesses were likely to be of short duration. Therefore, a reasonable approach would have been to treat and thereafter reassessing the patients, and undertaking aggressive investigation if subsequently required" (p 10).

1. The Committee also pointed out that, and clearly disapproved of, the extent to which X-rays were ordered and performed for symptoms of sinusitis, otitis externa and rhinitis. Apparently some of the X-rays and CAT scans were supposed to be necessary because of, for example, possible tumours. As I read the Tribunal's reasons (p 10), it was of the view that X-rays or CAT scans were much too freely used in such cases in preference to, for example, direct visual examination. There is, in my opinion, nothing in the statute to suggest that a radiologist is always entitled to treat services requested by the doctor next door (whether or not related to the radiologist) as reasonably necessary for the patient's care. In determining whether a service is excessive, the Committee is entitled, as is the Tribunal, to look at all the circumstances, including the fact that the service is being performed at the request of another doctor; but is not obliged to treat that fact as conclusive. It does not appear to me that the considerations which led to a contrary conclusion in the special case of pathologists have any bearing on this case (Peverill v. Australian Minister for Health (1989) 85 ALR 257).

2. It was strongly argued on behalf of the appellant that the remarks which I have quoted above show that the Tribunal took into account irrelevant matters in determining whether the Minister had properly exercised his discretion. For the reasons which are explained below, I am of opinion that that point was not open before the Tribunal and its opinion on it is therefore irrelevant. The Tribunal was confined to the grounds taken in the notice of request for review, which did not include any ground which could reasonably be read as bearing upon the propriety of what the Minister (as opposed to the Committee itself) had done. But I can see nothing unlawful in the Tribunal's having taken into account, in looking at the propriety of the exercise of the Minister's discretion, such matters as those referred in the passage quoted. The Minister could have rejected the Committee's recommendation that Dr S.J. repay certain sums on the ground that she had simply done what she was asked to do by Dr T.S.; in deciding not to reject the recommendation on that ground, the Minister would not, in my opinion, have been obliged to overlook the possibility that the two doctors would "work out between themselves the ultimate source of the refund".
   Amendment before Tribunal

3. Following the decision of this Court in McIntosh v. Minister for Health (1987) 17 FCR 463, the Tribunal regarded itself as not obliged to consider any ground not raised in the request for review.

4. Section 114, which is set out above, requires that the request for review by the Tribunal "shall set out the grounds on which the request is made". It was contended on behalf of the appellants that s.118(2) goes against the suggestion that the grounds cannot be amended; it says:
   

"The procedure of a Tribunal is, subject to this Act and the regulations, within the discretion of the President."

1. The argument was simply that since amendment is a matter of procedure and there is nothing in the Act or regulations to the contrary, the President could amend the grounds.

2. Mr Keane contended that McIntosh's case was wrongly decided and argued that there Davies J. misapplied the decision of the Full Court in Minister for Health v. Thomson (1985) 60 ALR 701.

3. In Thomson's case, Fox J. said that the Tribunal had no power to admit new evidence (p 707), Beaumont J. thought that power to be "at least, a doubtful matter" (p 713) and Wilcox J. agreed with Fox J. on the matter (p 715). The Court was therefore bound, in McIntosh's case, to act on the view that new evidence could not be received, but in my respectful opinion nothing in the reasons given by the majority of the Full Court directly governs the question of amendment of grounds. In McIntosh's case, after referring to Thomson, Davies J. said, at p 465:
   

"Paragraph (a) of s.119(1) specifies the matters which should be taken into account by the Review Tribunal and requires that the case be considered having regard to the grounds set out in the request for review. There being a time limit for the service of the request for review and there being no provision enabling amendment of the request after the expiration of the time limit, the Review Tribunal must have regard to the grounds set out in the request lodged within the time limit and to no other grounds."

1. I am of opinion that the decision in McIntosh's case is correct. It is true that the President has a discretion as to the procedure and that under s.118(1) the proceedings are to be conducted "with as little formality and technicality as a proper consideration of the matter before the Tribunal permits". But although the reasoning in Thomson's case does not decide the present question, that of Fox J. tends to support the notion that s.119(1)(a) exhaustively states the basis of the Tribunal's power to consider the review. It is required by that provision to have regard to, inter alia, "the grounds set out in the request" and although they should no doubt be read generously, I do not think the Tribunal can give itself by amendment the power to consider grounds not set out in the request. I have reached that conclusion despite the fact that the decision of the English Court of Appeal in Howard v. Secretary of State for the Environment (1975) 1 QB 235 may suggest a contrary conclusion. There, an appeal to the relevant Minister was required by a statute to "indicate the grounds of the appeal and state the facts on which it is based"; as here, there was a time limit. The Court held that the provision requiring the grounds and facts on which the appeal was based to be stated was directory only and that there was power to amend both the grounds and the facts stated. There, the Court was influenced by the requirement that facts as well as grounds be stated. As Lord Denning M.R. points out, the facts "may depend on evidence yet to be obtained, and may not be fully or sufficiently known at the time when the notice of appeal is given" (p 242). Further, the statute considered in Howard's case did not contain any provision corresponding to s.119(1)(a), which (in view of Thomson's case) should be read as having a limiting effect and as not merely indicating some of the material to which the Tribunal should have regard, but all of it.

2. To accept the appellant's submission, one would have to read s.119(1)(a) as if it said: "having regard to the grounds set out in the request and other grounds which the Tribunal allows to be added". I am not prepared to depart from the view expressed by Davies J. that only the grounds set out in the request may be considered.
   Natural Justice

3. Mr Keane Q.C. contended that the Tribunal had erred in law in failing to hold that the appellants had not been accorded natural justice before the Committee. The argument was that the Committee had told the appellants, in effect, that they would raise specifically and question them about any services which they regarded as doubtful. It was contended that, in a number of instances, the Committee had failed to follow this practice and that, therefore, the appellants had been misled and had not had the opportunity of explaining fully matters relevant to services which the Committee, in the end, found to be excessive.

4. A full explanation of the evidence relating to this matter is unnecessary, because counsel for the respondent admitted that as to certain identified services which the Committee found to be excessive, no specific questions were asked. It is, nevertheless, desirable to go into detail as to one of the services, by way of example. During the course of the hearing before the Committee (which took four days), the Chairman expressed the view that:
   

"... (W)e cannot pass or give an opinion whether a service was necessary or unnecessary unless we ask you about it so I am afraid there is going to be a lot of repetition about it, but we have got to go through it to get your answer about that ... If we don't ask about it well obviously we can't give an opinion and being the same type of service all the time there will be a lot of repetition with it, that's the way things are."

1. As I read this passage, the Chairman then intended to raise specifically with the doctors any service which was regarded as doubtful. In my opinion, that practice was not rigorously followed, but the Committee formed, in the end, adverse views on some services without asking specific questions relating to them; it formed such views in reliance upon other evidence and, no doubt, upon the Committee's own medical knowledge.

2. Determination of the validity of the appellant's complaint involved some difficulties, because it is not always easy to determine from the record precisely what is the subject under discussion in the Committee; some of the language used is cryptic, as one would expect in a dialogue between professional people.

3. The example I take is that of patient no.82, on whom an audiogram (thought by the Committee to be unnecessary) was performed on 26 February 1986, the amount in question being $17.45. It is admitted by the respondent, and appears to me correct, that the Committee did not ask any specific question about that particular service. However, Dr T.S. was asked about the patient (a nine year old boy) and gave a detailed explanation of what he claimed to be his signs and symptoms. The discussion of the patient extended over about two-and-a-half pages of transcript.

4. As I read the transcript, the explanation given by Dr T.S., which was fairly detailed, as to his assessment of the patient's condition included information about that condition on the day the audiogram was done. Further, as Mr O'Regan Q.C. (senior counsel for the respondent) pointed out, the Committee must have been assisted by detailed evidence given earlier concerning similar work done in similar circumstances.

5. Further, it is my opinion that if, after the announcement by the Chairman as to how matters should proceed (quoted above), the appellants had the impression that each specific service about which the Committee harboured doubts would be explicitly identified, that impression was probably dispelled by the course of subsequent events. The questioning and discussion of the various patients proceeded in what seems to have been a thorough way, but without (in general) a specific statement or question identifying just what service or services performed in relation to each patient the doctors had to justify. It appears that that degree of formality proved to be unnecessary. I am by no means satisfied that the course taken by the Committee, while it did not accord precisely with what the Chairman said should happen, was unfair to the appellants or caused them to refrain from giving evidence likely to have affected the Committee's conclusions. To revert to the case of patient no.82 just mentioned, it was not, in the circumstances, essential that each one of a number of audiograms, done within a period of a few weeks, be the subject of specific questioning.

6. The conclusion at which I have arrived, namely that the complaint of unfairness is not made out, renders it, strictly speaking, unnecessary to go further, but I propose to say something of the legal question argued under this heading.

7. The respondent contended that the Tribunal had no power to consider a complaint of breach of the requirements of natural justice; the lack of power was said to stem from the fact that such complaint may be considered only by a Court having jurisdiction to issue prerogative writs or statutory jurisdiction equivalent to that. No doubt some defects in a Committee's procedures, falling within the category of breaches of the requirements of natural justice, may be beyond the jurisdiction of a Review Tribunal - for example, an assertion that the findings of the Committee were vitiated by apparent bias. The central task of the Tribunal, as I read the Act, is to determine whether, on the evidence before the Committee, its conclusions are factually correct. But in performing that task, it may take into account the opportunity or lack of opportunity for explanation of his or her actions accorded to the doctor concerned. If the Tribunal was satisfied, as to a particular service, that the doctor whose conduct was in question had had no reasonable opportunity to explain his or her case, then in my opinion it would have power to vary the Minister's determination accordingly.

8. It should be added that the respondent contended, in addition, that the natural justice point was not covered by the notices of request for review; I do not propose to deal with that.

9. In the result, the application will be dismissed with costs.