Edelsten, Geoffrey Walter v Minister of State for Health

[1998] FCA 1112

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – referral to Committee under s 82 of Health Insurance Act 1973 (Cth) of question whether a practitioner had rendered excessive services – review by Medical Services Review Tribunal of Minister’s determination in accordance with Committee’s recommendation that excessive services had been rendered – evidence before Committee confined to expert opinion of statistical occurrence of need for a particular procedure – practitioner’s clinical notes not available – definition of “excessive services” – nature of evidence required to establish that services “not reasonably necessary for the adequate medical care of the patient concerned” – when evidentiary burden shifts to practitioner

EVIDENCE – principles applicable to inquiry by Committee into whether medical practitioner had rendered excessive services to a particular “patient concerned” – clinical notes on each patient not available – sufficiency of “general” evidence – nature of evidence required to shift evidentiary burden to practitioner – application of rule in Jones v Dunkel to administrative inquiries

Health Insurance Act 1973 (Cth) ss 79(1) and (1B), 82, 87(1), 92, 94, 95, 99, 104, 105, 106, 106H, 107A, 119, 124, 124A

Minister for State for Health v Peverill (1991) 29 FCR 262
Weissensteiner v R (1993) 117 ALR 545
Tumahole Bereng v R [1949] AC 253
Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163
Bridge v The Queen (1964) 118 CLR 600
Jones v Dunkel (1959) 101 CLR 298
Freeman v McCubbery (1985) 65 ALR 361
Romeo v Asher (1991) 100 ALR 515
Minister for Health v Thomson (1985) 8 FCR 213
Probabilities and Proof, Sir Richard Eggleston, (1963) 4 MULR 180
Cross on Evidence, 4^th Australian Edition
Taylor v Minister for Health (1989) 23 FCR 53
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Adams v Yung (unreported, 15 May 1998)

GEOFFREY WALTER EDELSTEN v MINISTER OF STATE FOR HEALTH

VG 945 of 1995

RYAN J
MELBOURNE
7 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 945 of 1995

BETWEEN:	GEOFFREY WALTER EDELSTEN Applicant
AND:	MINISTER OF STATE FOR HEALTH Respondent
JUDGE:		RYAN J
DATE OF ORDER:		7 SEPTEMBER 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the decision of the Second Medical Services Tribunal dated 31 October 1995 be set aside.

1. That in lieu of the said decision, the determination of the respondent Minister made on or about 4 June 1993 be set aside.

1. That the respondent pay the applicant’s costs of the application including any reserved costs, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 945 of 1995

BETWEEN:	GEOFFREY WALTER EDELSTEN Applicant
AND:	MINISTER OF STATE FOR HEALTH Respondent

JUDGE:	RYAN J
DATE:	7 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

RYAN J: This is an application by way of s 124A of the Health Insurance Act 1973 (“the Act”) on questions of law from a decision of the second Medical Services Review Tribunal (“the Tribunal”). The decision under appeal was a decision by the Tribunal under s 119 of the Act to affirm, in the main, a determination by the Minister under s 106 of the Act to the effect that the applicant had rendered “excessive services” in three specified areas of medical practice during a referral period from 1 December 1988 to 31 May 1989 (“the referral period”). The Minister’s determination, in turn, was based on a recommendation from the Medical Services Committee of Inquiry for Victoria (“the Committee”) under s 105 of the Act.

The applicant’s principal contention was that the Tribunal had erred in its interpretation and application of s 79(1B) of the Act. Section 79(1B) at the relevant time was in the following terms:

(1B)     A reference in this Division to excessive services is a reference to professional services (other than pathology 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.

Mr Cavanough QC, who appeared with Mr Gray of Counsel for the applicant, submitted that by virtue of the definition in s 79(1B) of the Act, a medical practitioner could not be found to have rendered excessive services in respect of patients generally but could only be found to have rendered excessive services in respect of each identified patient or “patient concerned”. It followed, so it was submitted, that the Tribunal was required to have evidence before it of the specific condition and circumstances of the patient concerned before it could make a finding that any services provided had been “not reasonably necessary for the adequate medical care of the patient concerned.” Counsel submitted that as the applicant had elected not to give evidence before the Tribunal and, in the absence of the applicant’s own clinical notes, there was no evidence before the Tribunal which would have enabled it to draw such an inference.

Section 79(1B) was part of a statutory scheme which has been examined in earlier judgments of this Court. Under Division 3 of Part V of the Act provision was made for the establishment for each State of one or more Medical Services Committees of Inquiry, each to consist of five medical practitioners. The functions of such a Committee were set out in s 82 of the Act:

A Committee shall inquire into, and submit to the Minister its report and recommendations on, any matter referred to the Committee by the Minister being a matter that-

(a)is relevant to the operation or administration of this Act or the National Health Act 1953 (other than Part VII of that Act); and

(b)arises out of or relates to the rendering of a professional service (other than a pathology service), on or after 15 April 1977, in the State for which the Committee is established.

Section 92 of the Act provided that “subject to section 94, the Committee might, for the purpose of its inquiry into a matter the subject of a reference, inform itself in such manner as it thinks fit”. Section 94 was in these terms:

94.    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-

(a)in the case of a question referred to the Committee under section 16C – the Minister may be justified in refusing to accept the undertaking concerned;

(b)a person may have failed to comply with an undertaking given by the person and accepted by the Minister under section 16C;

(c)a practitioner may have rendered excessive services;

(d)a person may have caused or permitted a practitioner employed by the person to render excessive services;

(e)a person, being an officer of a body corporate, may have caused or permitted a practitioner employed by the body corporate to render excessive services;

(f)a practitioner may have initiated excessive pathology services;

(g)a person may have caused or permitted a practitioner employed by the person to initiate excessive pathology services; or

(h)a person, being an officer of a body corporate, may have caused or permitted a practitioner employed by the body corporate to initiate excessive pathology services,

the Committee shall-

(j)unless paragraph (k) applies - conduct a single hearing into the matter; or

(k)if it is satisfied that it is appropriate to do so - conduct 2 or more hearings into the matter, each hearing being a hearing into the matter in so far as the matter relates to one or more of the circumstances referred to in paragraphs (a) to (h) (inclusive).

Section 95(1) stipulated that, if a Committee proposed to hold a hearing into a matter related to a circumstance referred to in paragraph (c), (d) or (e) of s 94, it should give at least 10 days notice in writing to the person first referred to in that paragraph.  A power to compel the production by a relevant person of documents was conferred on a member of a Committee by s 96(1) as follows:

For the purposes of a hearing, a member may, by writing under his hand, summon a person who is, in relation to that hearing, a relevant person, to attend the hearing and to produce such documents (if any) as are referred to in the summons and to appear at the hearing to give evidence for the purpose only of identifying any such documents.

“Relevant person” was defined by s 79(1) of the Act to mean, in relation to a hearing:

(a)where notice of that hearing is given under sub-section 95(1) to a person other than a body corporate - that person;

(b)where notice of that hearing is given under sub-section 95(1) to a body corporate - each officer of that body corporate;

The calling before the Committee of witnesses, not being relevant persons, was governed by s 99:

(1)For the purposes of this Part, a member may, by writing under his hand, summon a person to appear at a hearing to give evidence and to produce such documents (if any) as are referred to in the summons.

(2)A summons under sub-section (1) may be served on the person concerned personally or by post.

By s 104 of the Act, the Committee was required, after completion of a hearing in relation to a matter, to report to the Minister “its opinion on the matter” and, where the report expressed the opinion that a practitioner had rendered excessive services, it was stipulated that the report should identify the excessive services. Section 105(2) of the Act specified that the Committee might, in a report expressing the opinion that a practitioner had rendered excessive services and identifying those services, being services in respect of which a medical benefit was payable or had been paid, make one or more of the following recommendations:

(c)that the practitioner, being a practitioner other than a body corporate, be reprimanded;

(ca)that the practitioner, being a practitioner other than a body corporate, be counselled;

(e)where the medicare benefit is payable, but has not been paid, to the practitioner - that the medicare benefit or a specified part of the medicare benefit cease to be payable;

(f)where the medicare benefit has been paid to the practitioner or has been paid, or is payable, to another person, (including another practitioner or another person by whom the first-mentioned practitioner is employed) - that the amount of the medicare benefit or a specified part of that amount be payable by the practitioner to the Commonwealth.

Upon a recommendation having been made by the Committee, the Minister was given a discretion by s 106(1) to “make a determination in writing in accordance with the recommendation”. Section 106(3) was in these terms:

Where the Minister makes a determination under sub-section (1), then-

(a)if no request for review of the determination under Division 3 of Part VA or application for judicial review of the determination under Division 4 of that Part is lodged within the period allowed for such a request or application, the determination takes effect at the expiration of that period;

(b)if a request for review of the determination under Division 3 of Part VA or an application for judicial review of the determination under Division 4 of that Part is lodged within the period allowed for such a request or application-

(i)in a case where the determination is set aside on the review – subject to paragraph (c), the determination does not take effect; or

(ii)in a case where the determination is affirmed, or varied, on the review and no appeal against the decision on the review is brought by virtue of section 124A within the period allowed for such an appeal – the determination takes effect, or takes effect as so varied, at the expiration of that period; or

(c)if an appeal against the decision on a review under Division 3 of Part VA or a judicial review under Division 4 of that Part is brought by virtue of section 124A within the period allowed for such an appeal, the determination does not have effect until the appeal, and any further appeal or appeals, are determined and, upon the determination of the appeal and any such further appeal or appeals, the determination takes effect or takes effect as varied or does not take effect, in accordance with the judgment or order on the appeal or further appeal or appeals.

Section 107A appearing in Division 2 of Part VA of the Act gave to a person, to whom a Minister’s determination related, a right to request the Minister in accordance with Division 3 to refer the determination to a Medical Services Review Tribunal for review. The course to be taken by the Tribunal conducting the review was set out in s 119:

(1)     A Tribunal that reviews a determination in accordance with a request-

(a)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 during the proceedings on the review; and

(b)shall, subject to sub-section (2)-

(i)in the case of a determination that consists of a refusal by the Minister, under sub-section 23B(2), to accept an undertaking – affirm or set aside the determination;

(ii)in the case of a determination made under section 106 in accordance with a recommendation referred to in paragraph 105(2)(e) or (f) or 105(2A)(f) or (g) or a determination made under section 106FK in accordance with a recommendation referred to in paragraph 106FJ(2)(f) or (g), 106FJ(3)(f) or (g) or 106FJ(4)(d) or (e) – affirm, set aside or vary the determination;

(iii)in the case of any other determination under section 106 or 106FK – affirm or set aside the determination, or set aside the determination and make any other determination that the Minister is empowered to make under that section in giving effect to any recommendation of a Committee.

(2)     The decision of a Tribunal on a review shall, for all purposes (except for the purposes of this Part), be deemed to be a determination of the Minister.

The right of appeal from a determination of the Tribunal which has been exercised by the present applicant was conferred by ss 124 and 124A of the Act in these terms:

124. Subject to the Constitution, a decision of a Tribunal on a review under Division 3 or a judgment or order of a prescribed Court under Division 4 is final except so far as an appeal may be brought to the Federal Court of Australia by virtue of section 124A or any further appeal or appeals may be brought in accordance with the Federal Court of Australia Act 1976.

124A.  A party to a proceeding before a Tribunal under Division 3 or before a prescribed Court under Division 4 may appeal, on a question of law only, to the Federal Court of Australia from any decision of the Tribunal, or any judgment or order of the prescribed Court, as the case may be, in that proceeding.

On the hearing of Dr Edelsten’s application for review of the Minister’s decision, the Tribunal, on 3 October 1995, published reasons for its decision to vary the determination of the Minister in one respect and otherwise to affirm that determination.  The attack on the Minister’s determination which was mounted on behalf of the applicant in this Court was substantially the same as that relied on before the Tribunal.  It was summarised by the Tribunal in these words at pp 24-25 of its reasons:

Dr Edelsten argued that the evidence before the Committee was inadequate to show that the individual services, found by the Committee to have been excessive, could in fact and in law have been found to be so, having regard to what the Act requires for such a finding. His argument emphasised the fact that the language of the Act itself, and of s 79(1B) in particular, requires a finding that individual services were not reasonably necessary for the adequate medical care “of the patient concerned”. In other words, a particular service(s) rendered on a particular occasion(s) cannot be positively identified as excessive (as required by s 104) without a consideration of all the relevant circumstances pertaining to the provision of a service to that particular patient as they were known to the provider of the service at the time of the service. This would include the patient’s clinical condition, his or her previous medical history, the clinical signs and symptoms noted by the practitioner on presentation etc. etc. In summary, the Act does not allow a finding that individual services were excessive unless there is detailed evidence as to the specific circumstances in which individual services were rendered to the individual patient or patients concerned.

After some observations about the lack of specific information before the Committee because Dr Edelsten’s clinical notes had not been available to it and because of his election not to attempt to supply the deficiency from his own memory, the Tribunal identified at p 25 the following two “crucial” questions for resolution by it:

…first, whether the MSCI acted lawfully and properly in embarking on its task in circumstances where it had to anticipate that it would not have the benefit of the clinical notes and could not feel at all confident of being enlightened in any way by Dr Edelsten himself;  and secondly assuming that it could lawfully embark on the inquiry, whether, lacking the “best” evidence as to the circumstances in which individual services were rendered, it could nevertheless lawfully and properly make findings of excessive servicing based on other more general (generic) evidence?

After noting that the Act imposed no obligation on a practitioner to give evidence before a Committee except by producing and identifying documents specified in a summons, the Tribunal continued, at p 26:

Now if a practitioner chooses not to give evidence, even though his or her clinical notes cannot be produced, does this mean that the inquiry must thereupon cease because that evidence is not presently available? Expressed thus, and in the absence of any statutory prohibition in the Act itself against proceeding, the answer must obviously be that the inquiry can go ahead. The notes that were lost or missing may be found or turn up and the practitioner may have a change of heart. In the meantime a MSCI in such a situation must be allowed to embark on the task it has been charged to perform. However, the question whether an inquiry should later cease, once it has become clear that the notes will not be forthcoming and that the practitioner will not be undergoing a locus poenitentiae is, substantively, part of the second and more difficult question, to which we now turn.

After summarising the argument advanced on this second question by Counsel for the Minister, the Tribunal posed a further rhetorical question, asking, also at p 26:

Is it indeed the law that in the circumstances brought about by the conjoint absence of clinical notes (through no demonstrated fault on the part of the practitioner) and a refusal by the practitioner to provide any evidence or information at all, an inquiry is inevitably to be aborted?

The reasoning which led the Tribunal to answer that second rhetorical question in the negative is encapsulated in these paragraphs from pp 26-27 of its reasons:

A number of factors have led the Tribunal to conclude that the critical issue is not necessarily was there detailed evidence of the circumstances surrounding the rendering of particular services, but rather was there some evidence which would rationally permit a Committee to form an opinion on the question of over-servicing?  The Tribunal accepts that in the usual case such evidence would comprise both the practitioner’s clinical notes and the practitioner’s own free and relatively uninhibited participation in the process of inquiry – it would, in short, be constituted by what we have termed the “best evidence”.  But absent that best evidence, the Tribunal has concluded that it may still be possible for a Committee to arrive at an informed opinion on the question of whether particular services rendered were or were not reasonably necessary for the adequate care of individual patients.  This it may do by drawing on evidence which may not necessarily be the best evidence but is nonetheless capable of being rationally probative on the issue of over-servicing.  The factors which have led us to this conclusion will now be examined.

First of all, the Act itself provides some indications that what has been termed in this review “generic” evidence may have a part to play in deciding whether excessive servicing has taken place. First there is s 79(1B). That section does not depend wholly upon subjectivism in the sense that proof of what were the subjective perceptions of the individual practitioner as to the necessity of rendering a particular service(s) on a particular occasion is not the sole criterion. The test laid down in that section crucially contains an objective element – “the view of the practitioner will not be decisive because the question is an objective one and not dependent upon the personal view of the particular practitioner” (Minister of State for Health v Peverill (1991) 29 FCR 262, 276 per Black CJ, Wilcox and Foster JJ). It follows that in examining the issue of whether excessive services were rendered a Committee may quite properly have regard to evidence which is of a “generic” (objective) nature, that is to say evidence which is not inextricably tied up with the subjective perceptions of the practitioner who rendered the services in question.

Then there is s 96 which, it has been observed, clearly permits a practitioner to limit his or her evidence to the identification of the documents “if any” he or she has been asked to produce. The Tribunal infers from the fact that if the Act both grants the practitioner the right to silence and contemplates the absence of “any” documents, it must also logically contemplate the fact that a Committee may on occasion need to act upon evidence other than a practitioner’s clinical notes and/or his or her own recollection of things.  This also supports the approach taken by the Committee in this inquiry.

Finally, the Committee has addressed the matter from the point of view of the policy of the Act. Can it really have been the intention of Parliament that a Committee, faced with a want of the sort of evidence it might usually be expected to have, must at that point, so to speak, “throw in the towel”? The Tribunal has concluded that such a conclusion would be clearly repugnant to the spirit of the legislation. A Committee ought to be permitted to continue to carry out its remit, basing its opinion at the end of the day upon evidence which is rationally capable of supporting an opinion on the questions it has been charged to investigate. Any other view would provide too great an incentive to an unscrupulous practitioner who was intent upon subverting the goals of the MSCI system. The conclusion of the Tribunal, therefore, is that the Committee was, in principle, entitled to make findings of overservicing, despite the lack of Dr Edelsten’s clinical notes and any other input from him, provided there was evidence which allowed the Committee to arrive at an opinion which was, medically speaking, defensible. The next question therefore is whether the evidentiary sources it in fact relied upon were rationally capable of supporting such an opinion.

The Tribunal then examined the Committee’s reliance on statistical evidence which it said “must always constitute a legitimate and useful source of information for a MSCI, even where (as is the typical case) the clinical picture is augmented by the clinical notes and the practitioner’s evidence”. The Tribunal referred in support of its conclusion that “generic evidence” might support a finding of overservicing, to s 79(1B). It was that subsection, it will be recalled, which contained the definition of “excessive services” as those “which were not reasonably necessary for the adequate medical or dental care of the patient concerned.” It is also true, as the Tribunal pointed out, that a Full Court of this Court in Minister of State for Health v Peverill (1991) 29 FCR 262 at 276 held in respect of that definition that “the view of the practitioner will not be decisive because the question is an objective one and not dependent upon the personal view of the medical practitioner.”

However, that observation has to be read in the light of the two sentences which immediately preceded it in the reasoning of the Full Court, which were:

First, the question whether particular services are excessive, within the meaning of s 79(1B), is a matter which must be determined having regard to the information available to the practitioner whose conduct – whether initiation or rendering of services – is under examination.  Secondly, in determining that question, the view of that practitioner as to necessity will be relevant but not decisive.

It is to be noted that their Honours there stressed that the question was “whether particular services are excessive” and, as I read their conclusion that the question so identified was an objective one, they were not saying that it could be answered solely by general statistical evidence which took no account of the circumstances of the individual “patient concerned” to whom the services were rendered.  To say that the personal view of the treating practitioner may be disregarded does not entail that a finding of overservicing can be made without any evidence of the objective circumstances of the particular patient.  Of course, the Committee was entitled to “have regard” to statistical evidence in reaching a conclusion on whether or not excessive services had been rendered to a particular patient.  However, that is not to say that statistical evidence alone or in conjunction only with general evidence from a suitably qualified medical practitioner can determine the objective answer to the question in respect of a particular patient.  The problem may be illustrated by postulating an example of a practitioner who is shown to have carried out a particular procedure on the whole population of 100 of his patients exhibiting a symptom X.  Objective evidence, for example from another suitably experienced practitioner, may establish that the procedure ought reasonably to be carried out only on those patients who exhibit symptoms X + Y and who statistically represent only 10% of the whole population of patients exhibiting symptom X.  However, that evidence, without more, will not permit a finding as to whether a particular patient A exhibited symptoms X + Y or only symptom X.  If, after receiving evidence as to the clinical signs manifested by patient A, the Committee were to conclude objectively that patient A probably had only symptom X, the Committee could properly allow the statistical evidence considerable influence in the application of the fourth proposition enunciated by the Full Court in Peverill (supra) that findings of excessive services will be confined to “those involved in some internal ‘personal fault’, to use the term of Davies J and Spender J, or lack of innocence, to adopt the concept of Burchett J.”

The Tribunal’s discussion then reverted to the Tribunal’s somewhat idiosyncratic understanding of the best evidence rule, and it was observed at p 28 of its reasons:

And in a case where the “best” evidence, so to speak, is not available, a commensurately greater weight may be attached to the statistical material in deciding whether there is a basis for saying that individual services were excessive.  Despite Dr Edelsten’s assertion that it was “impossible” to perform this task on the basis of statistical data, the Committee clearly did not share that sense of impossibility.  On the contrary, they made findings in respect of a large number of individual services, combining what the statistical picture rationally conveyed with the expert evidence called and using its own informed understanding to arrive at the inferences it was legitimate to draw out of that overall picture.

As I have attempted to indicate by the illustration postulated above, what the Committee seems to have done in the present case was not to make “findings in respect of a large number of individual services” but rather to make findings of a general sort about the principles according to which Dr Edelsten conducted his practice in the three relevant areas.  It then drew inferences about the services rendered to particular patients in each of those areas.  The ultimate question for the Tribunal was whether those inferences were legitimately open.  The Tribunal concluded that they were, observing in the next paragraph of its reasons:

This issue of the legitimacy of basing inferences on generic rather than individualised evidence because of a practitioner’s decision not to give evidence, despite the absence of his or her clinical notes, has in turn led the Tribunal to consider the relevance of the privilege against self-incrimination situation in this context.  In particular, if it is accepted that prima facie it is possible to make rational inferences regarding individual services from a statistical profile, the question arises as to whether, and if so how, Dr Edelsten’s refusal, given the absence of the clinical notes, to provide any evidence regarding his knowledge of the particular circumstances in which these services were rendered acquires any further significance in the light of the evidentiary principles which have been developed in connection with that privilege.

After referring to discussion in various authorities of the inferences which can be drawn from a party’s election to remain silent, the Tribunal continued, at p 29:

The Tribunal considers that these general principles, both singly and in combination, not only have an obvious but also a proper analogy with Dr Edelsten’s situation vis-à-vis the MSCI’s inquiry, and in particular as regards the fact that the Committee felt able to attach significant weight to the uncontradicted implications contained in the statistical data.  Those data were elucidated by the expert witnesses and informed by the Committee’s own expertise in and knowledge of the practice of medicine.  They (the data) were in any case a proper basis for the Committee’s findings and gained additional probative force from the fact that Dr Edelsten, the one person who could have refuted or contradicted the implications of excessive servicing suggested by the statistical data, chose not to do so.  This was, as it were, a risk he took (see again Mason CJ in Weissensteiner’s case, 117 ALR 554)…

In my view, the Tribunal, in that passage, has begged the question of whether the statistical data gave rise to an “implication of excessive servicing” in respect of a particular “patient concerned”.  As I have endeavoured to illustrate, the statistical evidence elucidated by the expert witnesses and the Committee’s own understanding of medical practice supported only a finding that a relatively small proportion of Dr Edelsten’s patients in the relevant category was likely to have required services as extensive as they received.  However, Dr Edelsten’s election not to give evidence himself was not capable of giving rise to an inference that a particular patient was in the larger general statistical population which exhibited only symptom X or was in the smaller population of those exhibiting symptoms X + Y.  In Weissensteiner v R (1993) 117 ALR 545, Mason CJ, Deane and Dawson JJ in their joint judgment made this reference, at 551 to Tumahole Bereng v R [1949] AC 253 at 270:

In Tumahole Bereng v R the Privy Council pointed out that there are limits upon the kind of comment which might properly be made.  Their Lordships observed that an accused admits nothing by exercising his right to remain silent at his trial.  Nevertheless the failure of the accused to give evidence “may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him.  But if the other material is insufficient either in its quality or extent [the accused’s silence] cannot be used as a make-weight.”

The High Court then referred to Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 where Isaacs J observed, at 178:

In Moreau v Federal Commissioner of Taxation (1926) 39 CLR 65 at p 71 I quoted the observation of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63, at p 65; 98 ER that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” Here the prosecution could not possible have produced stronger evidence, but it was in the power of the defence to have repelled the inference that arises from the evidence as it stands. … Consequently, since the affirmative evidence in the case raises, to say the least, a strong probability that it was the Company that paid, or caused to be paid, the bribe demanded by Maling, the silence of the Company, and its failure to explain, materially weakens any attempt to suggest in its favour possible hypothesis of innocence.

In the present case, it cannot be said that the Committee could not possibly have produced stronger evidence in relation to a particular “patient concerned”.  It could have called evidence from the patient recollecting the symptoms presented and the medical history recounted to Dr Edelsten at the time of the service in question.  If available, evidence could also have been adduced of subsequent treatment of that patient by Dr Edelsten or another practitioner to whom the patient was referred or went for further management of the same condition.  In the case of a patient presenting for tattoo removal, evidence could have been obtained of the number and area of the tattoos, the techniques employed in attempting to remove them and the patient’s reaction to each treatment.

I accept that evidence of the kind which I have just indicated would not have been conclusive of whether a particular service rendered by Dr Edelsten was excessive but it would have provided a logically probative foundation on which a suitably qualified expert, or perhaps the Committee itself, could have drawn an inference.  Dr Edelsten’s silence, on the principle distilled by the High Court in R v Weissensteiner and Morgan v Babcock & Wilcox Ltd, could be used to reinforce an adverse inference that there were no other signs or symptoms not detected or recalled by the patient which warranted the allegedly excessive service.  However, by corollary, in the absence of specific evidence of the kind which I have just indicated, Dr Edelsten’s silence could not be used to supply deficiencies in the case against him.  As Windeyer J observed in Bridge v The Queen (1964) 118 CLR 600 at 615 (a passage also quoted in the joint judgment in R v Weissensteiner):

An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt.  A failure to offer an explanation does not of itself prove anything.  Nor does it, in any strict sense, corroborate other evidence.  But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true.  That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.

The Tribunal does not appear to have shared my view that the Committee could possibly have produced stronger evidence because it went on to adopt this submission by Counsel for the Minister:

Having failed to get the documents or answer[s] to its various questions, it decided the only way, the only fair way, to get some sensible evidence on which to form a view as to whether there ha[d] been over-servicing or not [was] to call for experts in the various disciplines.

Then followed these comments on the Committee’s failure to adduce evidence from any of the individual patients concerned:

Though the evidence of the experts was of a general (generic) nature, the Tribunal repeats that in the circumstances this was inevitable.  And although their evidence may not have immediately connected with the particular circumstances in which individual services were rendered, it was still directed to the issue of excessive servicing.  The reason for this is that the expert testimony did provide the Committee with an insight into the circumstances in which the procedures in question might be invoked by a general practitioner (see eg, Mr Huttner’s apt observation concerning the use of echocardiography by GPs: MSRT Transcript, Part 1, p 182) in respect of his or her other work as a GP and a fuller understanding of what the role of these procedures would be in the treatment of patients.

Finally, Dr Edelsten suggested that the Committee, if it were going to make findings of excessive servicing, should have summonsed the patients themselves to give evidence about the specific circumstances in which those services were rendered.  He also argued that the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 was against the Minister because it permitted an inference to be drawn that the patients had not been called because their evidence would not have assisted the making of findings of excessive servicing.

Taking this latter point first, the Tribunal considers it to be a far-fetched argument.  The rule in Jones v Dunkel (supra) was devised not for inquisitorial but for adversarial proceedings.  The Committee was not in any relevant sense the proponent of a particular case or an accuser and so the failure to summons Dr Edelsten’s patients can have no significance of itself for this Tribunal in assessing the correctness of the Committee’s findings.

As to the first point, that the evidence of the patients was critical to the Committee’s ability to make findings of excessive servicing, the Tribunal also rejects any criticism of the Committee on this score.  The failure to call the patients cannot be regarded as involving breach of any duty to make inquiries because the decision not to do so was both wise and proper.  It was proper because it would have been based on the view that it was unreasonable to expect the Committee to perform such a task.  It was wise because it would have been based on the view that realistically, had it been performed, it would in all probability have proved to have been a pointless waste of time and other resources - the patients simply would not have been able to provide any accurate or useful picture of their clinical condition at the time of the services, especially where an appreciable lapse of time between the date of a service and the Committee’s inquiry had taken place.

It will be apparent from what I have already said that I do not agree that the only way, or the only fair way, in which evidence could be procured on which the Committee could form a view as to whether or not there had been over-servicing in respect of a particular “patient concerned” was to call on experts in cardiology, obstetrics and tattoo removal.  Indeed, unless such an expert could be acquainted with, or make assumptions about, the circumstances of a particular patient, it would be impossible for that expert to provide any probative evidence from which the Committee could draw an inference as to whether that patient had received excessive services. 

The Tribunal acknowledged that what it called “the generic evidence” of the experts was not immediately connected with the particular circumstances in which individual services were rendered but it sought to palliate that acknowledgement by repeating that the evidence was inevitably of that kind.  As already indicated, I do not agree.  Whilst it may have been inevitable that the experts could not discern for themselves the circumstances of the individual patients, that does not entail that they should have been totally unacquainted with those circumstances and unable to make any assumptions about them.  It is true that the expert evidence was capable of indicating, and did indicate, the circumstances in which a patient might reasonably be subjected to a particular procedure.  However, that evidence was insufficient, of itself, to support a conclusion as to whether those circumstances pertained to a particular patient.  The observation of Mr Huttner (Counsel for the Minister) to which the Tribunal referred, as recorded at p 182 of the transcript of the hearing before the Tribunal was in these terms:

This is a situation in which if you have the competence you would be expected to demonstrate it when it is put in question, and that’s what’s not happened here.  The evidence is that echocardiography is not generally done by GP’s or rarely – or certainly nothing remotely like the number of times that Doctor Edelsten does. It is a specialty. It is usually done by cardiologists or technicians in a cardiological unit in a hospital and so on and so forth.  Alright, if he has the competence to do it, and we don’t know, he is the only person in a position to demonstrate that and tell us where he got it from and so on and so forth.  That is the point that I am making.  I am not saying that he doesn’t have it, we don’t know, but what is significant to the Committee, what was significant, is the areas in which he is doing GP work which is not normally done by GP’s in anything like the number and extent that he does it.  In fact there are even comments of how many GP’s have that sort of equipment.

The evidence to which Counsel for the Minister there referred did not go so far as to indicate that echocardiography could never be carried out by a general practitioner.  Indeed, as appears from the passages from its reasons which are quoted below, the Tribunal accepted that there could be cases in which resort to echocardiogram by a general practitioner would not amount to excessive servicing.  Moreover, that acceptance was implied by the acceptance that for Patient 464, the double investigation by Dr Edelsten was warranted.  Mr Huttner’s submission, in my view, did not direct attention to the evidence referable to any of the other 42 “individual patients concerned” with cardiological treatment or assessment by Dr Edelsten which supported a conclusion that an echocardiogram was not reasonably necessary for the adequate medical care of that particular patient. 

I also consider that the Tribunal misdirected itself when it regarded the characterisation of the proceedings before the Committee as inquisitorial and not adversarial as excluding application of the rule in Jones v Dunkel. By s 82 of the Act, the Committee was required to “inquire into” a matter referred to it by the Minister and, for that purpose, was entitled to inform itself in such manner as it thought fit. However, s 94(a) erected an intermediate stage of its appearing to the Committee that a practitioner might have rendered excessive services. The Committee’s functions in reaching that stage were examined by Northrop J in Freeman v McCubbery (1985) 65 ALR 361 where his Honour observed at 369:

In a matter referred to a committee under s 82 of the Act, each matter had to be with respect to an identifiable patient, although that would not prevent a number of matters with respect to a number of different patients being included in the one reference, as was done in this case. In those circumstances, however, in determining whether under s 94 it appeared to the committee that the practitioner may have rendered excessive services, the committee was required to consider the services provided separately to each patient, the symptoms complained of by that patient, or the disease or injury from which that patient was suffering and whether the professional services rendered to that patient appeared to be excessive.

The major contention on behalf of the applicant is rejected. The Act contains detailed provisions with respect to the determination of whether practitioners have rendered excessive services. The Minister initiates action by referring a matter or matters to a committee consisting of medical practitioners. That committee considers the matter so referred, including the documents, if any, accompanying the references. No further action is to be taken by the committee unless “it appears to the committee that [the] practitioner may have rendered excessive services”. The members of the committee are entitled to rely upon their own knowledge and experience. On a proper reading of the provisions of the Act, including the meaning to be given to the phrase “excessive services”, the committee is not limited to a consideration of the services rendered to a particular patient with respect to defined symptoms, disease or injury. There is nothing in the Act to prevent the members of the committee having regard to a large number of patients without reference to the symptoms, disease or injury of any of them. It is possible that the committee could come to a conclusion that a pattern of services rendered to a large number of patients may be evidence of the rendering of excessive services and calls for explanation. Under s 94, the committee is not considering whether a practitioner has in fact rendered excessive services. The minutes of the committee of its meeting on 1 May 1984, and the reasons supplied by it for the s 94 decision, make clear the basis for that decision. On the proper construction of the Act, that was a decision open to the committee. The s 94 decision was in the nature of a decision that the committee had jurisdiction to proceed to the next step, namely the investigation of the matter, and that next step was a duty imposed upon the committee by s 94, namely to conduct a hearing.

The relevant practitioner was entitled to be accorded procedural fairness: Freeman v McCubbery (supra) at 371 and Romeo v Asher (1991) 100 ALR 515 at 520. There could be no compulsion for the practitioner to give evidence other than for the purpose of identifying documents which he or she had been summoned by a member of the Committee to produce. It is clear that only a member of the Committee had power to require the production of documents by the practitioner or anybody else or the giving of evidence of any person not being the practitioner concerned. The Committee was required by s 104, after conducting such a hearing, to report to the Minister expressing its opinion on the matter of the hearing which, relevantly, was whether the practitioner had rendered excessive services.

In those circumstances, whilst it is true that the Committee’s functions were inquisitorial, the legislation erected the attainment of a positive degree of satisfaction or formation of an affirmative opinion that excessive services had been rendered to a particular patient as a condition of making one of the recommendations set out in paragraphs (c), (ca), (e) and (f) of s 105(2). It may be inapt to say that the Committee sustained an onus of proof in an evidentiary sense but unless it reached the requisite degree of satisfaction it could not make one of those recommendations; see Minister for Health v Thomson (1985) 8 FCR 213 where Beaumont J noted, at 223:

Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in “Principles of Evidence and Administrative Tribunals” published in Campbell and Waller (ed), Well and Truly Tried, (1982), p 53:

There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings.  Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings.  If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant.  Similarly where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser.  This would be so notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate.

In the same case Wilcox J observed, at 226:

The Committee was required to conduct an inquiry in relation to particular, specified, services.  It was required to report its finding in relation to each service.  In any case in which it was not able to reach a conclusion it was required to say so.  Only if and to the extent that, the Committee positively found any particular service or services to be “not reasonably necessary” was it entitled to recommend disciplinary or recovery action under s 104.

In my view, this was not a case where, as Dr Edelsten apparently argued, because the individual patients had not been called to give evidence, an inference could be drawn that their evidence would not have assisted in tending to establish excessive servicing.  The real utility of Jones v Dunkel in the present case lies in the principle enunciated by Dixon CJ who, quoting from an earlier judgment of the High Court, observed, (1959) 101 CLR 298 at 304:

In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.  It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”.  But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”.  These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (Unreported, delivered 27^th April 1951) which is referred to in Holloway v McFeeters ((1956) 94 CLR 470) by Williams, Webb and Taylor JJ.  The passage continues: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.  By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.” ((1956) 94 CLR at pp 480, 481) But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.  The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

In the present case, as I have endeavoured to explain, the facts found by the Committee on inquiry had to form a reasonable basis for a definite conclusion affirmatively drawn that services rendered by Dr Edelsten to a particular patient had not been reasonably necessary for the adequate medical care of that patient.  Evidence of a purely statistical kind e.g. that a specific service would be reasonably necessary for only 10% of a typical cross-section of patients and that patient A was one of a population all of whom had received that service would not form a reasonable basis for affirmatively concluding that the service had not been reasonably necessary for patient A.  The problem is illuminated by Sir Richard Eggleston’s illustration in his seminal article Probabilities and Proof (1963) 4 MULR 180 at 183:

Let us suppose that B is known to have tossed a coin.  The fact in issue is whether it was heads or tails.  It is proposed to prove that prior to the toss in question, B had tossed eleven heads in succession and it is said that the odds against tossing twelve heads in succession are 4,095 to 1, and that accordingly proof of the result of the previous tosses will show the improbability of a head turning up on the twelfth toss.  The evidence would, however, be inadmissible.  The probability of a head on the twelfth throw is still only .5.  To prove that B had already tossed eleven heads in succession would merely show that he had already achieved a performance against which the odds were 2,047 to 1, or of which the probability was .5¹¹, and would not throw any light on the probability or improbability of his having thrown a head on the twelfth toss.

On the other hand, if the question was whether B had tossed a head in any throw on that day, evidence of the number of tosses would be relevant, since the more tosses he had, the greater would be the probability of his having tossed a head on at least one occasion.

For these reasons, I consider that the Tribunal erred in concluding that the failure to call evidence from individual patients was both wise and proper.  It is unhelpful to ask whether that failure involved a breach of the Committee’s duty to inquire into a matter but, without evidence of that kind and, given that no clinical notes were available, the Committee could not have formed a definite conclusion, that, in the absence of some exculpatory explanation, Dr Edelsten had rendered excessive services for a particular patient.  I have already indicated the ways in which evidence from the patient, despite imperfections of recollection and lack of medical expertise, could provide the basis for the formation of the requisite definite conclusion.

After noting that the Committee had been composed of medical experts, the Tribunal, at p 31 concluded this part of its reasons as follows:

In the particular circumstances of this inquiry, where the “best evidence” was lacking, the importance of the Committee’s using its own expertise to inform itself and enable it to carry out its statutory remit of assessing the state of the evidence in order to arrive at its findings on the question of excessive servicing is even more prominent than would normally have been the case.  The Tribunal considers, therefore, that the application of its expertise by the Committee was a crucial and wholly legitimate evidentiary and evaluative source by which to inform itself in the circumstances of this particular inquiry.

In summary, therefore, the Tribunal’s conclusion is that the “no evidence” ground has not been made out.  In particular, it does not regard the present situation as being on all fours with that described by Pincus J in Taylor v Minister for Health (1989) 23 FCR 53 because, unlike the scenario described by his Honour in that case, this is not a situation in which “no evidence whatever” (Ibid, 59) was available on the issue of over-servicing. On the contrary, there was a good deal of evidence, the sources of which have already been discussed in detail, that enabled the Committee to draw inferences as to whether particular services were or were not reasonably necessary and, in accordance with s 104 of the Act, to express the opinion that Dr Edelsten had rendered excessive services.

It is true that those evidentiary sources were not the “best evidence”. The Tribunal, however, has concluded that there is nothing in the Act that requires a MSCI to cease its inquiry where a practitioner’s clinical notes are not available to it and where, moreover, that practitioner refuses or is not able to assist it in its inquiry (this case being clearly one of refusal as opposed to inability to assist). Indeed, such indicia as the words of the Act provide are against that position and the policy arguments even more strongly so.

Such judicial authority as there is deals mainly with the issue of using “generic” evidence, especially statistical data showing a practitioner’s pattern of servicing, in the context of a MSCI’s initial decision to conduct an inquiry pursuant to s 94 of the Act. It does not, with a single exception, specifically address the problem this MSCI faced when actually conducting its hearing into the matter of possible over-servicing by Dr Edelsten. That single exception is an observation by Pincus J in Taylor’s case that “[w]here there is general or particular evidence relevant to the question [whether a practitioner has rendered excessive services] … the question of legal onus becomes irrelevant”. (23 FCR 59: emphasis supplied)

The Tribunal has concluded that his Honour’s observation countenances the legal propriety, for the purposes of an inquiry conducted pursuant to s 94, of a MSCI arriving at an opinion that a practitioner has been guilty of over-servicing which is based on general evidence alone because it lacks the kind of particularised evidence that the practitioner’s clinical notes and other testimony would otherwise have provided.  That is what the Committee did here.  It was entirely legitimate in the circumstances for it to have adopted such an approach.  The sole question remaining for this Tribunal, therefore, is whether, on the basis of that evidence, it would have arrived at the same findings as the Committee.  Accordingly it now turns to this the final question in the review.

I infer that the Tribunal’s reference to the “best evidence” was to evidence from clinical notes or the individual patients to whom those notes related.  That is to misstate the “best evidence rule” which has been defined as follows in Cross on Evidence 4^th Australian Edition p 78:

“Primary evidence” is that which does not, by its very nature, suggest that better evidence may be available; “secondary evidence” is that which, by its very nature, does suggest that better evidence may be available.  The original of a document is primary evidence, a copy secondary evidence, of its contents.  The distinction is now mainly of importance in connection with documents, because their contents must, as a general rule, be proved by production of the original, but it used to be of much greater significance on account of the “best evidence” rule which occupied a prominent place in books on the law of evidence in the eighteenth and early nineteenth centuries.

The deficiency in the evidence related to services rendered to each “patient concerned” which has been identified above is not supplied by “secondary” or other evidence derived by the Committee’s drawing on its own expertise to inform itself.  That expertise could legitimately provide a basis only for concluding, for example, what proportion of a typical cross-section of patients with possible cardiac disorders might require echocardiograms.  It could throw no light on the need of a particular “patient concerned” for such a procedure.  I therefore disagree with the Tribunal’s conclusion that there was “a good deal of evidence … that enabled the Committee to draw inferences as to whether particular services were or were not reasonably necessary” (emphasis added).  It is true that Pincus J’s observations in Taylor v Minister for Health (1989) 23 FCR 53 at 59 contemplated that “general or particular evidence” might make irrelevant the question of legal onus of proof. His Honour there said:

It is my view that if no evidence whatever were available from which an inference might be able to be drawn as to whether particular services were necessary, it might not be legally possible for the committee to express “the opinion that a practitioner has rendered excessive services” within the meaning of s 104. In such a case it would be reasonable to say that the practitioner had succeeded because of the onus of proof. Where there is general or particular evidence relevant to the question, however, it appears to me to follow from Thomson’s case that the question of legal onus becomes irrelevant.

However, the difficulty with the present case is that what the Tribunal regarded as general or “generic” evidence did not of itself permit an inference to be drawn about the reasonableness or otherwise of a service rendered to a particular patient.  The concentration required by the statutory scheme on the services rendered to “the patient concerned” did not permit a conclusion adverse to the practitioner to be based solely on general evidence of the kind which was before the Committee in the present case.  I am reinforced in this conclusion by the enactment, after the Committee’s hearing related to Dr Edelsten, of Act No 22 of 1994 which permitted the referral to a Committee under a new s 87(1) of the question whether a person had engaged in “inappropriate practice” in relation to one or both of the following:

(a)specified services;

(b)services rendered or initiated by a practitioner that are one or more of the following:

(i)services of a specified class;

(ii)services provided to a specified class of persons;

(iii)services provided within a specified location.

In respect of such a referral, the Committee was empowered by s 106H to base its findings wholly or partly on its findings on [the practitioner’s] conduct in connection with a sample of those services”. That new legislative scheme, I consider, permitted a finding solely based on general evidence and statistical samples which was not available under the Act as in force when the Committee inquired into Dr Edelsten’s conduct which ordained a concentration on whether services were or were not reasonably necessary for the adequate medical care of the patient concerned. This is borne out by the Second Reading Speech on the Bill for the Act which inserted the 1994 amendments. In the course of that speech as recorded in Hansard for 30 September 1993 at p 1556 it was said:

A major factor in the inability to impose penalties commensurate with the extent of a 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.

…

A significant change in the bill is the replacement of the concept of excessive servicing with one of inappropriate practice.  Whereas excessive servicing is currently defined as the rendering or initiation of services not reasonably necessary for the adequate care of the patient, the concept of inappropriate practice goes further.  It covers a practitioner engaging in conduct in connection with the rendering or initiating of services that is unacceptable to his or her professional colleagues generally. (Emphasis added.)

I have already indicated why, in my view, the fact that clinical records were not available did not require the Committee to cease its inquiry directed to whether excessive services had been rendered to each patient concerned.  The Committee’s confining itself to general evidence of a statistical or “epidemiological” kind and to inferences drawn by expert medical witnesses from that evidence, precluded it from effectively completing its inquiry into any identified “patient concerned”.  This conclusion is enough to uphold the general contentions which have been advanced on behalf of the applicant.  However, out of deference to the careful reasoning of the Tribunal, I shall endeavour to illustrate the application of the rationale for my conclusion in the context of the Tribunal’s examination of each of the three categories of treatment in respect of which Dr Edelsten had been alleged to have been guilty of overservicing.  I shall do so in the order and under the sub-headings adopted by the Tribunal.

Ultrasound and pregnancy tests

The Tribunal’s summary at pp 32-33 of its reasons of the evidence before the Committee on this aspect is somewhat confusing but the effect of it seems to be that, during the reference period (1 December 1988 to 31 May 1989) 116 patients underwent both a pregnancy test and an ultrasound examination on the same day.  Of those ultrasound examinations, the Committee concluded that 102 amounted to excessive servicing which must mean that they were regarded as unnecessary.  Of the remaining 14 patients, the Tribunal was able to identify that five had been over the age of 35 and six others had undergone two or more pregnancy tests and at least one ultrasound examination during the reference period.  The Tribunal then noted that:

In any case, the evidence clearly shows that it was Dr Edelsten’s normal practice to perform both pregnancy and ultrasound tests on the same day in all patients suspected of being pregnant.

The Tribunal then summarised as follows the evidence given to the Committee by Dr de Crespigny, a specialist obstetrician and gynaecologist:

The indications for ultrasound examination in pregnancy are given by Dr de Crespigny in the Committee proceedings (MSCI Transcript, pp 83, 84): “[T]hey include most of the complications of pregnancy.” (emphasis added)  He states that routine ultrasound in pregnancy is best performed at about 18 weeks gestation.  He also gives the indications for performing both pregnancy test and ultrasound together: “The commonest one would be looking for an ectopic – a clinical suspicion of an ectopic pregnancy” that is, a complication of normal pregnancy. (Id, p 84, line 6)

After analysing some hypotheses advanced in argument by Dr Edelsten to justify a finding that the ultrasound examinations had not been excessive or unnecessary, the Tribunal concluded, at p 35:

As the Tribunal has already observed, there were some 120 Item 2346 (pregnancy test) services performed by Dr Edelsten in the reference period;  in the case of 116 patients included in the reference period both ultrasound and pregnancy tests were carried out;  in 112 of these cases the pregnancy and ultrasound tests were performed on the same day.

Having carefully reviewed the evidence before the Committee, and having examined the submissions made by Dr Edelsten, the Tribunal finds that there is overwhelming evidence that Dr Edelsten made a routine practice of performing pregnancy and ultrasound tests on any patient with a likelihood of being pregnant and that this is not necessary in a normal pregnancy.  The Tribunal agrees with Dr Edelsten that there are times when it is necessary for both of these investigations to be so performed, but has concluded that the Committee made adequate provision for this by allowing the double investigations in all five patients of 36 years or over, in whom complications might be expected, and also in two patients under 36 years, a proportion of about 2%.  This, based on its appreciation of these matters, the Tribunal finds to be a proportion in which the rendering of the service might be treated as being reasonably necessary for the adequate medical care of patients.  The Tribunal agrees with the Committee’s findings in this area of the reference and accordingly affirms the Minister’s determination as regards this area of review.

It is true that the evidence before the Committee permitted a finding that Dr Edelsten routinely performed a pregnancy test and an ultrasound examination at the same time and that, if his patients conformed to the normal pattern of women presenting for pregnancy tests, the great preponderance of the ultrasound examinations was unnecessary.  However, that evidence was like that in Sir Richard Eggleston’s example directed to the probability that a person had tossed “heads” once on a particular day.  It did not permit an inference as to the reasonableness of the ultrasound test for a particular patient which was to be equated with whether a particular toss had been “heads” or “tails”.

Tattoo removal

The evidence before the Committee on this part of the reference was summarized by the Tribunal at pp 36-37 in these terms:

The majority of treatments were by the use of dermabrasion with laser – 192 treatments, as opposed to 181 treatments by all other methods (H.I.C. Printout of 3004 (211) and 3004 (37) item numbers).  The full list of those treatments is as follows:

Laser removal of tattoo  88
                  Dermabrasion tattoo  72
                  Dermabrasion with laser  192
                  Tattoo removal    21

373

It should further be noted that this number falls short of the total number of treatments claimed (447): one explanation for this disparity is that it may represent the number for which vouchers could be identified.

In looking initially at the material available as it relates to specific cases, a number of observations can be made:

there is a total number of 35 cases;
                  there is a total number of 447 treatments;
                  there is an average number of 16 treatments per patient;
                  the least number of treatments per patient is 2;
                  and finally, the highest number of treatments per patient is 35.

There is an extreme temporal closeness in the scheduling of consecutive treatments in the individual case.  Notwithstanding the number of treatments, of the order of 16-17 per patient, all have been concluded within an average period of 62 days and the series concluded within a total period of 117 days, with no record of later follow-up treatments of any cases for any reason, for example, incomplete removal of tattoos.

The Tribunal then proceeded to analyse the records available in respect of six patients “to illustrate trends in the use of each of the four treatment modalities.”  That analysis identified the age and sex of each patient, the number of treatments, the average interval between treatments and the number of treatments of each of the four types which that patient had received.  It was then concluded in the light of that analysis:

This sampling demonstrates the spread and multiplicity of procedural treatments in individuals, repeated throughout the material.  It indicates an established pattern of approach to the removal of tattoos very strongly suggesting piecemeal ablation.  The far less plausible alternative inference is that there is a large cohort of heavily tattooed individuals who require all or very significant areas ablated with laser, each session of treatment genuinely attracting a fee for “removal of tattoos by laser dermabrasion 3004 (37)” or “removal of tattoos by dermabrasion with or without laser”.  The item numbers make allowance for removal of more than one tattoo at any one session.

An examination was also undertaken of what the Tribunal called the “logistics of caseload” and the physiological aspects of tattoo removal.  The latter consideration was apparently directed to the minimum time which would have to elapse between successive treatments to remove the same tattoo.  The Tribunal’s conclusions after adverting to these matters were expressed as follows at pp 40-42 of the reasons:

As an office procedure it is clear that treatments were administered under local or topical anaesthesia, somewhat of a limiting factor in the area treated per session.  But in practical terms, apart from the absolutely gross tattoos such as those displayed in The Age on Friday 10 December, 1993 (this photograph, which was brought to our attention by Dr Edelsten, was, by consent, looked at on the basis of its instructive as opposed to any strictly evidentiary character) there are no physiological limitations to the area to be treated.  An area of 80 sq cms represents something of the order of 0.1% of skin area in an adult and so has no relevance in terms of circulating blood volume, serum loss, etc.  The limits which would apply are those of duration of procedure, inconvenience to the individual, and the cumulative level of dis-comfort from repeated treatment of short intervals.

The notion of an area 8 cms by 10 cms being the upper limit of treatment on a single occasion was promulgated by Professor Morrison, (MSCI Transcript, p 136) later adopted in argument before this Tribunal (see MSRT Transcript, Part 2, p 159) by Dr Edelsten.  However, significantly, he did not mention time taken in treatment – the basis of Professor Morrison’s point – which in the case of an area of 80 sq cm would take 3 to 4 hours.

The multiplicity of treatments suggests either that virtually all cases had multiple tattoos for removal or that multiple limited (incomplete) treatment excisions were performed on individual tattoos.  With narrow spacings between visits there would be attendant risk of edges being doubly treated in the case of laser and of edges being missed (headlands) in the case of dermabrasion – plus the increased risk of sepsis.  There is no guide from the evidence placed before the MSCI or the Tribunal as to how and where these factors influenced management – clearly of very considerable relevance if treatment is to be effective and provide a guide as to the adequacy of services delivered.

Despite Dr Edelsten’s focus on the upper end of the range in areas treated per session, having regard to the foregoing factors, as the evidence stands the Tribunal considers that the only reasonable inference is that the areas treated per session were quite small, even as little as 1/20^th of the notional 80 sq cms.  This would much more readily explain both the multiple treatments and patient acceptance.  It also seems to call for a more liberal interpretation of the item number Removal of tattoos.

As to the cost of lasers and their availability in 1988-89, about which some discussion occurred, the Tribunal, on the basis of what are incontrovertible and notorious facts relevant to this area of the practice of medicine, makes the following findings.

In the first place, all three lasers (and YAG) were available in 1988 and their respective costs maintained relativity over the years (CO2 laser always about 1/3 cheaper than the Q switched).

Secondly, on the information available to it, and in the absence of any information from Dr Edelsten, (see above) in practical terms only the CO2, Q switched and visible lasers can be seen as having any potential of application in Dr Edelsten’s situation.  The combination of dermabrasion with laser in treatments of tattoos relies on the destruction and removal of the superficial skin layers.  It is most likely, in the absence of any contradiction from Dr Edelsten, that CO2 laser was the modality employed in these cases.  Argon is slow and requires a massive power source, while Q switched ruby laser, by design, does not and should not involve partial skin removal for its therapeutic effect, otherwise it loses its therapeutic advantage.  On the other hand, it is, however, difficult to understand how laser was used in isolation (without dermabrasion) if it was of the CO2 variety.  One explanation might be that both CO2 and visible or Q switched laser equipment were in use.  Be that as it may, the Tribunal will, in the light of the above discussion, now summarise its conclusions with respect to this area of the review.

Conclusion

The pattern of treatment as set out is certainly well outside the indications given in the approach to treatment both by Professor Morrison and from the articles supplied.  Furthermore, there is nothing available to the Tribunal either in this literature or that from the press cuttings which suggests that there would routinely be a multiplicity of treatments.  As well, the apparent treatment practices do not seem to be in accord with basic physiological responses in human skin.

Being so much at variance with what would appear to be conventional practice, unless the extremely unusual and unique nature of the practice is explained – something which was and remained (see above) peculiarly within the knowledge of Dr Edelsten himself - the Tribunal is inevitably led to the conclusion that the treatments have not been established as being reasonably necessary for the adequate care of the patients.  The Tribunal accordingly affirms in all particulars the Minister’s determination in this area of the review.

If anything, the inferences drawn by the Tribunal were even more clearly unavailable in respect of tattoo removal than in respect of ultrasound examinations.  That was because they were based on assumptions from less clearly articulated statistical data and depended on more variables including which of a number of combinations of removal techniques were used, the type of laser and the area and location of tattoos to be removed.  A fortiori those inferences could not legitimately permit a finding that the tattoo removal services as a whole rendered to a particular “patient concerned” were not reasonably necessary for the adequate care of that patient as distinct from the total cohort of “the patients” referred to in the concluding paragraph just quoted.  Accordingly, the Tribunal misdirected itself when it regarded the evidentiary onus as having shifted to Dr Edelsten as it clearly did when it said that it was “inevitably led to the conclusion that the treatments have not been established as being reasonably necessary for the adequate care of the patients”.

Electro and Echocardiography

The treatments considered under this part of the reference had similarities with those involving ultrasound discussed above in that 101 patients were found to have had excessive echocardiography services associated with electrocardiograms performed on the same day.  Evidence was given to the Committee by Dr Federman, a specialist cardiologist, as to the circumstances in which performance of an echocardiograph could be regarded as indicated.  That evidence was summarized by the Tribunal in these words at p 45 of its reasons:

The indications for echocardiography, therefore, are stated by Dr Federman to be the investigation of heart murmurs, pericardial effusions, congenital cardiac abnormalities, to assist with cardiac catheterisation studies, and assessment of some forms of heart failure in the elderly. They may also be used in coronary care units to assess heart wall movement after a heart attack.  Of these, only investigation of heart murmurs and heart failure in the elderly could be considered to lie within the province of the general practitioner, whatever his/her training in the subject.  The others are more in the aegis of a cardiac surgeon.

After adverting to the Committee’s finding that “it was extraordinary and quite outside their experience that a general practice clinic of the type conducted by Dr Edelsten should perform such a specialised investigation as Echocardiography” the Tribunal continued:

This finding, reinforced by a comparison of numbers of examinations as between Dr Edelsten and the tertiary referral centre at the Alfred Hospital, led it to determine that the services given by Dr Edelsten were excessive.  The Tribunal finds this evidence highly relevant but not absolutely conclusive and would add some further observations of its own on the matter.

Some submissions of Dr Edelsten to the Tribunal were then rehearsed after which the Tribunal concluded:

Dr Edelsten’s further arguments about evidence being before the Committee concerning referrals to specialists, training in echocardiography, the inability of Dr Federman to assess the necessity for individual treatments without more information on the individual patient, the nature of the machine being used and his indications for repeating tests etc, do not, for the reasons set out earlier in this decision, appear to the Tribunal to be essential to the resolving of the crucial question of the reasonable necessity for an echocardiogram to be performed together with nearly every second electrocardiogram performed during the reference period.

In considering this matter, the Tribunal finds that, in order to assess whether any investigation of a patient is reasonably necessary, the investigating doctor must take into account the clinical condition of the patient as presenting, the treatment modality that will be used if no investigations are available, the possible effects on the treatment modality as a result of the investigation, the probable outcomes of treatment with and without the investigation, the risks of the investigation to the patient, the credence that may be given to the investigation if specialist referral is later required, and the value added to patient management by the test, related to the cost of the test.

For example, the time taken to perform an echocardiogram in general practice on a patient with acute myocardial infarction would add nothing to the management of the patient and would, in fact, delay the transfer of the patient to a coronary care unit.  Far from being helpful, it becomes a life-endangering act.  The clinical condition of the patient is the prime diagnostic factor, with an electrocardiogram to support the diagnosis if possible.  On the other hand, it is possible that a patient with cardiac neurosis given a full clinical examination, electrocardiogram and echocardiogram could be thoroughly reassured by the general practitioner without recourse to a cardiologist.

The Tribunal accepts that the early management of all forms of cardiac problems may be dealt with by general practitioners, and that the clinical condition of the patient will determine whether the patient requires immediate transfer to hospital, referral to a cardiologist for fuller assessment, or may be safely managed by the general practitioner, either at home, in hospital, or at the surgery.  The Tribunal notes that some general practitioners with a specific interest in cardiology may maintain management of patients that others would refer to a cardiologist.  However, it considers that a general practitioner with a special interest in cardiology must be prepared to visit non-ambulant patients in their home and in hospital, otherwise (s)he would not encompass a large proportion of cardiac patients, particularly heart failure in the elderly.  All patients in this reference were ambulant, and were treated by Dr Edelsten in the surgery.

Further, the Tribunal recognises that a patient who has had an echocardiogram performed by a general practitioner will almost certainly have that investigation repeated, if appropriate, by the cardiologist on referral, or hospital doctor on admission.  Performance prior to such a referral or admission is not reasonably necessary for the medical care of the patient, and was an occurrence outside the experience of Dr Federman (see MSCI Transcript, p 112).  Also, based on the evidence before the Committee referred to above, and the Tribunal’s own experience and knowledge of these matters, there are few cardiac conditions which call for both electrocardiography and echocardiography.

The Tribunal notes that the number of echocardiograms performed by Dr Edelsten in the month of January 1989 was 43, compared with the 120 performed in the same period by the Alfred Hospital Echocardiography Department, the tertiary referral centre for a large part of central Melbourne, with hundreds of general practitioners’ patients to examine (see Dr Federman’s evidence, Id, p113).  All Dr Edelsten’s echocardiographs were accompanied by an electrocardiogram.  It, therefore, appears to the Tribunal that the combined use of both investigations, even by a doctor in a 24 hour clinic, who had a special interest in cardiology – as well as an apparent special interest in obstetrics, hearing problems and tattoo removal – could not be justified on an epidemiological basis.

Dr Edelsten argued before the Tribunal that a trend had emerged towards the more frequent use of echocardiography by general practitioners with an interest in cardiology. The Tribunal acknowledged the existence of such a trend but went on to observe, at p 47 of its reasons:

The Tribunal does accept that, while it was almost unheard of in 1989, a general practitioner could become adept in the use of echocardiography and in doing so would become aware of the relevant places of echo-and-electro cardiography.  However, it is also incumbent on such a practitioner to use the modality in accordance with established practice in the speciality and not as an adjunct to the examination of every second cardiac complaint that attended his other rooms.  This, it finds, is the statistical picture produced by Exhibits 3 and 4 in the case of Dr Edelsten.

Finally, the Tribunal rejected a submission by Dr Edelsten that it had never been established through Dr Federman that there could be no case of a patient presenting to a general practitioner who would require an echocardiogram.  Of this submission, the Tribunal said:

However, nothing turns on this since the Tribunal, as already stated, does not accept that there are “no cases where a patient presents to a GP that would require an echocardiogram”.  On the other hand, it is of the clear opinion that any GP who treated such a patient would be wise to ensure that performance of the echocardiogram was reasonably necessary for the medical care of the patient according to established and accepted standards set by cardiologists.

On its review of the evidence before the Committee, the Tribunal is fully persuaded that, as in the case of his use of ultrasound at the same time as a pregnancy test in patients with putative pregnancy, Dr Edelsten performed echocardiography together with electrocardiography on a routine basis for many of his patients.  The Tribunal does however, consider that, on epidemiological grounds, there may have been one patient in the reference period on whom the double investigation was warranted and who was not ill enough to require referral to a cardiologist for fuller assessment and management of his/her heart, or admission to hospital.  That patient is Patient 464, who had a double investigation twice as well as two other electrocardiograms.  It, therefore, varies the determination of the Minister in the case of Patient 464, where it gives the benefit of the doubt to Dr Edelsten.  Otherwise it affirms the Minister’s determination that in respect of all the other patients listed by the Committee at p8A of its findings: “Summary of excessive services: Echocardiography”, Dr Edelsten engaged in excessive servicing.

In respect of this form of treatment, the Committee had available to it a “statistical picture” of Dr Edelsten’s practice and a view about the “epidemiological” distribution of patients with cardiac conditions which might reasonably require echocardiography.  Given the Tribunal’s acceptance that some patients in a population like that to be encountered in Dr Edelsten’s practice might reasonably have been given echocardiograms, for the reasons explained in relation to ultrasound, it was not open on the general evidence rehearsed by the Committee to infer that only Patient 464 was in that category. 

Conclusion

The error which I have imputed to the Tribunal in respect of each of the categories of medical services under consideration involved a finding of unsubstantiated facts in respect of each of the patients concerned other than those excepted by the Committee in relation to ultrasound and Patient 464 in relation to echocardiography.  Those findings of fact were critical to the Tribunal’s ultimate decision to affirm, with one exception, the Minister’s determination in accordance with the Committee’s recommendations in respect of each patient concerned.  It follows that the Tribunal’s decision was vitiated by an error of law of the kind identified by Black CJ in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. Accordingly, the decision of the Tribunal must be set aside. Consistently with the course adopted by a Full Court of this Court in Adams v Yung (unreported 15 May 1998) it should be ordered that in lieu of the Tribunal’s decision, the determination of the Minister made on or about 4 June 1993 be set aside.  The respondent must pay the applicant’s costs of the application.

I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             7 September 1998

Counsel for the Applicant:	Mr A Cavanough QC with Mr P Gray
Solicitors for the Applicant:	Webb Korfiatis & Hassett
Counsel for the Respondent:	Mr R Downing
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 and 11 June 1997
Date of Judgment:	7 September 1998