Oliver, Dorothy Jean v J.E.D. Goldie

[1984] FCA 292

Re: DOROTHY JEAN OLIVER
And: J.E.D. GOLDIE; G.D. TRACY; A.P. SKYRING; J.A. O'LOUGHLIN and P.W.H.
GRIEVE
VG No. 140 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers A.C.J.

CATCHWORDS

Administrative law - Health Insurance Act 1973 - Decision that the applicant should not be recognized as a specialist - Act required regard to be had to a practitioner's qualifications, experience, standing in the profession and nature of practice - decision made by reference to policy that except in special cases recognition not be granted unless applicant had specified higher qualifications - the policy was incompatible with duty to have regard to the considerations specified in the legislation.

Health Insurance Act 1973, s.48, 49, 61 and 62

HEARING

MELBOURNE

#DATE 17:9:1984

ORDER

1. The appeal be allowed.

2. The matter be remitted to the Specialist Recognition Appeals Committee for reconsideration in accordance with the requirements of s.61(1) of the Health Insurance Act 1973.

3. The respondents pay to the applicant her costs of and incidental to this application.

JUDGE1

This is an application for review of the decision of the respondents who are sued in their capacity as constituting the Specialist Recognition Appeal Committee (the Appeal Committee), established pursuant to s.49 of the Health Insurance Act 1973 (the Act), dismissing the applicant's appeal against a decision and determination of a Special Recognition Advisory Committee (the Committee), established pursuant to s.48 of the Act, that the applicant be not recognized for the purposes of the Act as a specialist in the specialty of psychiatry.

The grounds of the application are that the making of the decision was an improper exercise of the power conferred by s.62 of the Act and that there was in the decision an error of law. Pursuant to s.61(1) of the Act the Minister may refer to the Committee the question whether a particular medical practitioner should, having regard to his qualifications, experience and standing in the medical profession and the nature of his practice, be recognized for the purposes of the Act as a specialist in a particular specialty in respect of a particular State or Territory. By sub-section (2) it is provided that the Committee shall consider a question referred to it by the Minister and submit to the Minister:

(a) a recommendation that the medical practitioner in question be recognized as a specialist in the specialty concerned; or

(b) a recommendation that that medical practitioner is not to be recognized as a specialist in the specialty concerned.

Sub-section (3) provides that on receipt of a recommendation under sub-section (2) the Minister shall make a determination for the purposes of the Act giving effect to the recommendation.

Section 62(1) provides that where the Minister notifies a medical practitioner that the Minister has determined that the medical practitioner is not to be recognized for the purpose of this Act as a specialist in a relevant specialty, the medical practitioner may within one month after the receipt of that notification lodge notice of appeal with the Appeal Committee and may accompany the notice with a statement of the case in support of the appeal. Sub-section (2) provides that the Appeal Committee shall consider an appeal so lodged and if it is of the opinion that the appeal should be allowed it shall allow the appeal but otherwise shall dismiss the appeal. Sub-section (4) provides that where the Appeal Committee allows an appeal the Minister shall make the appropriate determination in relation to the appellant.

A determination that a medical practitioner is to be recognized as a specialist in a specialty is important to that medical practitioner because it enables him to charge patients to whom he renders services as a specialist a fee in respect of those services at the specialist rate.

The applicant is a medical practitioner who on 16 September 1983 made application for recognition as a specialist psychiatrist pursuant to the provisions of s.61 of the Act. On 24 November 1983 she forwarded to the Committee a formal application for recognition as a specialist in psychiatry. On 16 December 1983 she was advised that the Committee for the State of Victoria had recommended that she not be recognized in Victoria as a specialist in the specialty of psychiatry and that in accordance with s.61 of the Act a determination to that effect had been made by the Minister. On 9 January 1984 the applicant delivered a formal notification of appeal against the decision of the Committee and on 14 March 1984 the applicant was informed by the chairman of the Appeal Committee that it had considered the appeal in accordance with the provisions of the Act and had decided that the applicant did not meet its requirements and that the appeal was dismissed. On 22 March 1984 the applicant sought from the Appeal Committee a statement in writing setting out the findings on material questions of fact relating to the evidence or other material on which its findings were based and giving reasons for its decision to dismiss the applicant's appeal.

On 11 May 1984 the applicant was advised by the chairman of the Appeal Committee as follows:-

I refer to your letters of 22 March, 16 April and 2 May 1984 concerning an appeal lodged by Dr. D.J. Oliver of 707 Mt. Dandenong Road, Kilsyth, Victoria against her non-recognition as a Specialist in Psychiatry and the provision of a statement of reasons for the decision to dismiss her appeal.

In considering Dr. Oliver's appeal the Specialist Recognition Appeal Committee had regard to the requirements for recognition as a specialist or consultant physician as set out in section 61 of the Health Insurance Act 1973, namely, Dr. Oliver's qualifications, experience and standing in the medical profession and the nature of her practice.

The Appeal Committee noted that Dr. Oliver did not possess an appropriate higher acceptable qualification and regarded her as not satisfying the requirements for recognition as a Specialist in Psychiatry.

A prerequisite to recognition as a specialist or consultant physician for the purposes of the Health Insurance Act 1973 is the possession of an appropriate acceptable higher qualification. Such a qualification is a degree or diploma of a recognised university, college or faculty, being a degree or diploma of higher qualification in a special branch of medical practice. Dr. Oliver did not produce evidence of holding such a qualification.

The Specialist Recognition Advisory Committees and the Specialist Recognition Appeal Committee consider the recommendations of the National Specialist Qualification Advisory Committee (NSQAC) for acceptance of medical specialties and appropriate qualifications. NSQAC comprises the Presidents/Chairmen of all State and Territory Medical Boards and the Chairmen of the Specialist Recognition Advisory Committee in each State and Territory and the Specialist Recognition Appeal Committee.

The NSQAC acts only in an advisory capacity and is given the task of assessing large numbers of Australian and overseas qualifications relating to specialist fields of medical practice. NSQAC issues a booklet revised annually containing lists of recommended medical specialties and approprate qualifications. A copy of the latest edition is attached for your information. The recommendation of NSQAC on a particular postgraduate medical qualification is based on documentary evidence of the training program as provided by the relevant awarding body and a professional assessment of that training program supplied to NSQAC by the appropriate advisory body eg., Royal Australian and New Zealand College of Psychiatrists.

A criterion which has been adopted by the Specialist Recognition Committees is that where a medical practitioner does not possess an acceptable higher degree but holds or has held an appointment at a level higher than Clinical Assistant in a special branch of medical practice of an approved hospital, and is and has been engaged exclusively or virtually exclusively in practice in a special branch of medical practice for a period of not less than five years he/she could be recognised as a specialist for the purposes of the Health Insurance Act 1973. This criterion is only applied in special circumstances.

In considering Dr. Oliver's appeal, the Appeal Committee could not identify any special circumstances in her case.

Recognition of specialists and consultant physicians for the purposes of the Health Insurance Act relates only to the payment of Medicare benefits at the rates prescribed as physicians. Such recognition is not intended as a reflection on the competence or status of a medical practitioner and has no bearing on his/her entitlement to practice, or to indicate an eligibility for appointments to specialist posts.

The Specialist Recognition Advisory and Appeal Committees consider the relevant facts of each case in relation to the adopted criteria, and consequently, the individual circumstances of a practitioner such as personal hardship cannot be taken into account when a decision is reached.

A copy of the guidelines adopted by the Specialist Recognition Committees is also attached."

The National Specialist Qualification Advisory Committee (NSQAC) referred to in the letter of 11 May 1984 came into existence in circumstances referred to in a statement issued by the Appeal Committee in consultation with the Commonwealth Specialist Recognition Advisory Committees. One section of that statement is in the following terms:-

"It is clearly most desirable that general principles should be applied in a fair and uniform way by all the Committees concerned in the interpretation of the provisions of the law. To this end, in June 1970, when differential benefits were introduced for a substantial number of items in the Medical benefits Schedule a special meeting was held between representatives of the Australian Medical Association, the specialist Royal Colleges and the Commonwealth Department of Health for the purpose of formulating appropriate criteria. The criteria agreed by this meeting were published in an article in the Medical Journal of Australia of July 18, 1970, and were subsequently accepted by the Chairman of the State Advisory Committees at a meeting convened before the Advisory Committees considered any cases. . . .

Since the introduction of recognition for the purpose of medical benefits it was clear to all bodies concerned that it would be desirable to achieve uniformity in the acceptance of specialities and higher medical qualifications. This led to the formation of the National Specialist Qualification Advisory Committee comprising the Presidents/Chairmen of all State and Territory Medical boards and representatives of the Commonwealth Recognition Committees. The Committee which acts only in an advisory capacity was given the task of assessing large numbers of Australian and overseas qualifications relating to specialist fields of medical practice. The Committee issues a booklet revised annually containing lists of recommended medical specialties and appropriate qualifications. The principles for recognition are set out in detail below."

"Recognition of Specialists

A medical practitioner is recognized as a specialist if

1. Registered as a specialist under the law of a state or territory; or

2. possesses an acceptable degree or diploma of a recognized university, college or faculty, being a degree or diploma of higher qualification in a special branch of medical practice and either

(a) holds or has held an appointment in a special branch of medical practice on the staff of a hospital approved as such under the Health Insurance Act;

(b) has been engaged in practice in a special branch of medical practice for an appropriate period.

3. Does not possess an acceptable higher degree but holds, or has held an appointment at a level higher than clinical assistant in a special branch medical practice of a hospital approved as such under the Act and is and has been engaged exclusively or virtually exclusively in practice in a special branch of medical practice for a period of not less than 5 years (an important consideration is whether there is a preponderance of referred cases).

The statement continues:-

"Except in special circumstances applications from practitioners will not be considered on this basis unless application was . . . to a committee before September 30 1981 . . . The Committee wish to emphasise that in relation to those cases it will continue to apply the principle that a practitioner who has not been virtually exclusively engaged in practice in a specialty for the past five years could not be granted recognition as a specialist unless in possession of appropriate higher qualifications."

It is pointed out in the statement that the degrees or diplomas which have been selected are set out in the booklet issued by the NSQAC entitled "Lists of Recommended Medical Specialties and Appropriate Qualifications".

It is apparent from the above statement that the conditions which are specified therein as principles are likely to be applied as rules. The statement recites that the Act provides that the question of whether recognition should be granted shall be determined having regard to a practitioner's "qualifications, experience and standing in the medical profession and the nature of his practice". But, read as a whole, there is discernable a clear assumption in the minds of the authors of the statement that if, in any particular case, the issue were decided according to the "principles" referred to in the statement that would constitute compliance with the provisions of the statute.

When one refers to the reasons of 11 May 1984 for the decision of the Appeal Committee in this case one finds that it proceeds in accordance with that assumption. Thus in the fourth paragraph is a categorical statement to the effect that possession of an appropriate acceptable higher qualification is a prerequisite to recognition as a specialist. An appropriate acceptable qualification is identified as a degree or diploma of a recognized university, college or faculty. And it is pointed out that Dr. Oliver did not produce evidence of holding such a qualification.

Similarly in the seventh paragraph it is stated:

"A criterion which has been adopted by the specialist recognition committees is that where a medical practitioner does not possess an acceptable higher degree but holds or has held an appointment at a level higher than clinical assistant in a special branch of medical practice at an approved hospital or is or has been engaged in exclusively or virtually exclusively in practice in a special branch of medical practice for a period of less than five years she could be recognized as a specialist for the purposes of the Health Insurance Act 1973 in special circumstances."

It was pointed out that in considering Dr. Oliver's appeal special circumstances could not be identified.

In the second last paragraph of the reasons it is pointed out that the Committees consider the relevant facts of each case in relation to the adopted criteria. It is further pointed out that as a result the individual circumstances of a practitioner such as personal hardship cannot be taken into account when a decision is reached.

It is the case for the applicant that, in making its decision, the relevant individual circumstances to which regard is required by s.61 of the Act to be had were not taken into account by either the Committee or the Appeal Committee. It is pointed out that the question referred to the Committee in the case of each particular practitioner is whether that practitioner should be recognized as a consultant for the purposes of the Act. It is urged that what must be considered in each case are the qualifications, experience and standing in the medical profession and the nature of the practice of the particular practitioner concerned. It is contended that the application by the Appeal Committee in the case of the applicant of what are called the adopted criteria has precluded it from having regard in her case to the matters specified in s.61. It is not that the Appeal Committee gave too little weight to the considerations referred to in s.61. Rather, the submission is that although the matter of whether the applicant had particular qualifications, which in fact she did not have, was considered by the Committee and the Appeal Committee, neither body had regard to the qualifications, experience, standing and practice that she did have. I think this submission is sustained.

In this case the applicant had submitted evidence in a letter and in a form used by the relevant Department that she had 29 years experience in various aspects of medical practice with emphasis in recent years in psychiatry including training in psychiatry and a significant practice amongst psychiatric patients in her practice. She gave the names of referees who would have spoken as to her standing in the profession. It also appeared that while she had passed the substantial examinations in written form so far as that examination was conducted to qualify as a member of a college for a qualification which would have constituted an acceptable degree or diploma according to the Committee's criteria, she had not received that degree or diploma because she had failed the oral examination. It is apparent from the statement of reasons by the Appeal Committee that the absence of that particular qualification was regarded as fatal to the success of the applicant's appeal. It was pointed out that if the Appeal Committee had found any special circumstances it might have overlooked the absence of the acceptable higher degree if the applicant had held an appointment at a level higher than clinical assistant in a special branch of medical practice of an approved hospital and was or had been engaged exclusively or virtually exclusively in practice in a special branch of medical practice for a period of not less than five years. Thus the Appeal Committee had set for itself strict guidelines. In so doing it excluded from a favourable recommendation every medical practitioner who did not hold an acceptable higher degree, who had not held an appointment at a level higher than clinical assistant and who had not been engaged exclusively or virtually exclusively in practice in the special branch of medical practice for not less than five years but who nevertheless would have been considered as a suitable person for recognition as a specialist if regard were had to his actual qualifications, his actual experience, and his standing in the medical profession and the nature of the practice in which he had been previously engaged. It is clear, in this case, that the Appeal Committee had no regard to the applicant's actual qualifications, no regard to her actual experience, no regard to her standing in the medical profession and no regard to the nature of the practice in which she had actually been engaged. They did not refer to her referees.

The actual state of those factors in the application were not regarded as relevant because of the absence of the acceptable higher degree and the criterion which had been adopted in the absence of such a degree. It was put by Mr. Moshinsky for the Appeal Committee that it was perfectly proper for it to develop a policy to be applied in the consideration of applications for a recommendation for recognition. But whatever may be said about the validity of adopting a policy, any policy which is adopted must be one which does not exclude from the purview of the Appeal Committee the considerations which the Act requires it to take into account with respect to each particular medical practitioner who applies for a recommendation. As stated the Act requires that in respect of each applicant the Appeal Committee must have regard to each specified element, the applicant's actual qualifications, his experience, his standing and the nature of his practice. The Act proceeds on the basis that there may be cases in which a person whose qualifications are not high has had experience so comprehensive that despite the absence of higher qualifications his skill and practical capacity justify recognition as a specialist. Similarly, a person's standing in the medical profession may testify to a degree of competence perhaps exceeding that necessarily expected in a person with higher qualifications. And all these matters have to be taken into account alongside the nature of the practice that the person concerned may have. That practice may be a very narrow one and he, in that particular narrow field, may be a very great expert although his qualifications were not of the highest, and his experience was not of the longest. These considerations indicate that the duty of the Appeal Committee in respect of each applicant is to consider whether having regard to the facts disclosed in respect of each element referred to in s.61 that applicant should be accorded recognition as a specialist. That duty cannot be performed where reference to all those elements is excluded by prescription of specified standards of qualifications or experience, not referrable to those elements, as applicable to every case. The purpose of the exercise to be performed by the Appeal Committee is to determine whether, from a practical point of view, the applicant has the professional excellence required of a specialist, not whether he has some particular qualification or some specified experience.

Having regard to the terms of the letter, the statement referred to above and the NSQAC booklet there is ground for an inference that both the Committee and the Appeal Committee surrendered their function to the NSQAC. This of course would be a distinct breach of the provisions of s.61. Whilst of course the Appeal Committee may take advice from such person from whom it chooses and may seek it with reference to the considerations which ought to apply in relation to the making of its recommendations, it is fundamental that the ultimate decision must be its own.

In contending that the Appeal Committee was entitled to act by reference to a policy which it had laid down Mr. Moshinsky relied upon the statement of Lord Justice Bankes in Rex v. Port of London Authority ex parte Kynoch Ltd. (1919) 1 KB 176 at 184 quoted by Viscount Dilhorne in British Oxygen Co. v. The Board of Trade (1971) AC 610 at 630 to the following effect:

"There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the authority may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination not to hear any application of a practicular character by whomsoever made. There is a wide distinction to be drawn between these two classes."

It is apparent however, that the policy which has been adopted by the Appeal Committee in this case has not been adopted for reasons which the authority might legitimately entertain.

In Sean Investments v. Mackellar 38 ALR 363 Deane J. speaking at first instance said:-

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s.5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v. Southwark London Borough Council (1976) 2 All ER 781; (1976) 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should consider . . . vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

The distinction between that case and this one is that in that case Parliament had conferred a discretion without specifying the matters to be taken into account in exercising that discretion. In the relevant statute in this case, Parliament has specified precisely the matters to be taken into account in making the decision in question. In such a case the adoption of a policy no matter how attractive or apparently reasonable can relieve the decision making body of the duty to give consideration to the matters specified by the statute. Looking at s.61 from the point of view of statutory purpose, it can be seen that Parliament intended the Appeal Committee to determine, in the case of each applicant whether having regard to his actual qualifications, his actual experience, his standing in the profession and the nature of his practice it is proper to draw the inference that he has that degree of professional excellence which would justify recognition as a specialist. The Appeal Committee did not so proceed in this case.

In failing to have regard to the considerations specified in s.61 the Appeal Committee committed an error of law, it failed to have regard to considerations to which it was required by law to have regard. Its decision should therefore be set aside and the matter remitted to it for reconsideration according to law.