Ranallo and Australian Community Pharmacy Authority
[2008] AATA 533
•25 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 533
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5069
GENERAL ADMINISTRATIVE DIVISION ) Re AMBER JANE RANALLO Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate25 June 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – pharmaceutical benefits – application for approval to supply pharmaceutical benefits at proposed premises – application involved cancellation of existing approval and relocation of pharmacy to large medical centre – Australian Community Pharmacy Authority Rules – proposed premises in large medical centre – less than equivalent of at least 8 full-time medical practitioners practising at medical centre – proposed premises could not be used for purpose of operating pharmacy under local government legislation – requirements in Rules not met – recommendation that application not be approved must be made – decision under review affirmed
National Health Act 1953 (Cth), s 84(1), s 90, s 99J, s 99K and s 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2006, s 6(1), s 9, s 10, Sched 1, Pt 1, item 112 and Sched 2, item 201
REASONS FOR DECISION
25 June 2008 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. On 20 August 2007 Amber Jane Ranallo (“the applicant”) made an application for approval under s 90 of the National Health Act 1953 (Cth) (“the Act”) to supply pharmaceutical benefits at proposed premises described as “Tandara Pharmacy, Shop 1, 122-126 Stalker Road, Gosnells WA”. That application involved the cancellation of an existing approval in force in respect of pharmacy premises and a relocation of the pharmacy to a “large medical centre”.
2. On 22 August 2007 the application was referred to the Australian Community Pharmacy Authority (“the respondent”) in accordance with s 90(3A) of the Act.
3. On 28 September 2007 the respondent made a recommendation under s 99K(1) of the Act that the application not be approved on the grounds that the requirements in item 112 Part 1 of Schedule 1, and the requirements in item 201 in Schedule 2, to the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (“the Determination”) were not met because:
· the proposed premises were not in a “large medical centre” (item 112, requirement 1);
· it was not satisfied that on the date the application was made, and for the 6 months before that date, the equivalent of at least 8 full-time prescribing medical practitioners were practising at the centre (item 112, requirement 3(a)); and
· it was not satisfied that the proposed premises could, on the date of the application, be used for the purpose of operating a pharmacy under the applicable local government and State laws relating to land development (item 201, requirement (b)).
4. On 18 October 2007 the applicant lodged with the Tribunal an application for review of the respondent’s recommendation.
The Relevant Legislation
5. The relevant provisions of the Act are as follows:
“Part VII – Pharmaceutical benefits
…
84 Interpretation
(1) In this part, unless the contrary intention appears:
…
Authority means the Australian Community Pharmacy Authority established under section 99J.
…
90 Approved pharmacists
(1)Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.
…
(3A)Subject to subsections (3AA) and (3AE), an application under this section must be referred to the Authority.
…
99J Establishment of Authority
(1)An Authority is established.
(2)The name of the Authority is the Australian Community Pharmacy Authority.
99K Functions
(1)The functions of the Authority are:
(a)to consider applications under section 90; and
(b)to make, in respect of an application under section 90:
(i)a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii)if an approval is recommended – recommendations as to the conditions (if any) to which the approval should be subject; and (sic)
(2)In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.
(3)All recommendations of the Authority under subsection (1) are to be made to the Secretary.
99L Determination of rules by Minister
(1)The Minister must, by writing, determine the rules subject to which the Authority is to make recommendations under subsection 99K(1).
(2)A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
6. The relevant provisions of the Determination, which was made under s 99L(1) of the Act, are as follows:
“6 Interpretation
(1) In this Determination:
Act means the National Health Act 1953.
application means an application under section 90 of the Act.
Note This Determination divides applications for approvals in respect of proposed premises into 2 classes:
· applications that involve the cancellation of an existing approval (see Part 1 of Schedule 1); and
· applications that do not involve the cancellation of an existing approval (see Part 2 of Schedule 1).
approved premises means premises in respect of which an approval granted under section 90 of the Act is in force.
…
large medical centre means a medical centre:
(a) that is under single management; and
(b) that operates for at least 55 hours each week.
…
prescribing medical practitioner means a medical practitioner who provides general practice services to the community in which he or she practises, including the issuing of prescriptions for pharmaceutical benefits.
proposed premises, in relation to an application, means the premises at or from which an applicant proposes to supply pharmaceutical benefits.
…
9 When Authority must recommend approval of applicant
The Authority must recommend that an applicant be approved under section 90 of the Act in respect of particular premises if:
(a)for an application that involves the cancellation of an approval (the existing approval) that is in force in respect of approved premises (the existing premises):
(i)the application states that it is of a kind mentioned in column 2 of an item of Part 1 of Schedule 1; and
(ii)the requirements set out in column 3 of that item are met; and
(iii)the requirements set out in Schedule 2 and Part 1 of Schedule 3 are met; and
(iv)for an application described in column 2 of an item of Part 2 of Schedule 3 – the requirement set out in column 3 of that item is met; and
…
10When Authority must recommend applicant not be approved
The Authority must recommend that an applicant not be approved under section 90 of the Act in respect of particular premises if a requirement that, under paragraph 9 (a) or (b), applies in relation to the application is not met.
Schedule 1Kinds of applications, and requirements in relation to those applications
(section 9)
Part 1Applications involving cancellation of existing approval
Item Kind of Requirements
application
…
112 Relocation to 1. The proposed premises are in a large medical
large medical centre.
centre2. Either:
(a)the proposed premises are at least 500 m, in a straight line, from the nearest approved premises; or
(b)the proposed premises are within 500 m, in a straight line, from the nearest approved premises, and:
(i)the Authority is satisfied that there is a genuine barrier to access between the proposed premises and each approved premises that is within 500 m, in a straight line, of the proposed premises; and
(ii) the proposed premises are at least 500 m, by the shortest lawful access route, from each approved premises that is within 500 m, in a straight line, of the proposed premises.
3.The Authority is satisfied that:
(a) on the date the application is made and for the 6 months before that date, the equivalent of at least 8 full-time prescribing medical practitioners have been practising at the centre; and
(b)the applicant will make all reasonable attempts to ensure that the operating hours of the proposed premises will meet the need of the patients of the medical centre.
…
Schedule 2General requirements
(section 9)
ItemRequirement
201The Authority is satisfied that:
(a)the applicant had, on the date of the application, and has, on the date on which the Authority makes a recommendation in respect of the application, a legal right to occupy the proposed premises; and
(b)the proposed premises could, on the date of the application, and can, on the date on which the Authority makes a recommendation in respect of the application, be used for the purpose of operating a pharmacy under the applicable local government and State or Territory laws relating to land development; and
(c)within 6 months after the date on which the Authority makes a recommendation in respect of the application, the applicant will be able to begin operating a pharmacy at the proposed premises; and
(d)the proposed premises are not directly accessible by the public from within a supermarket.”
The Evidence
7. The evidence before the Tribunal comprised:
· the documents (T1-T23, pp 1-272) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1-A6 tendered by the applicant;
· Exhibits R1-R9 tendered by the respondent;
· the oral evidence of the John Mooney (who was called by the applicant), and Karen Prstec and Timothy Price (who were called by the respondent).
The evidence of John Mooney
8. Three signed statements of Mr Mooney are in evidence.
9. Mr Mooney’s statement dated 20 August 2001, which was attached to the applicant’s application for approval under s 90 of the Act, is as follows:
“ 1. I am a Director of NM&IG Medical Pty Ltd (NMIG).
2.NMIG operate the Tandara Medical Centre located in Stalker Road in Gosnells.
3.NMIG is engaged by medical practitioners to provide support via administration, staff, accounting, facilities etc.
4.NMIG has reached agreement with Amber Jane Ranallo to sublet an area of the medical centre for operation of a pharmacy.
5. NMIG is authorised by the landlord to sub-lease to a pharmacy tenant.
6.The tenancy set aside for pharmacy use is an existing structure available for immediate fit-out and operation.
7. The pharmacy tenancy does not have direct access to a supermarket.
8. Tandara Medical Centre operates for in excess of 55 hours per week.
9. Tandara Medical Centre operates under the sole management of NMIG.
10. There is no pharmacy located within 500 metres of the medical centre.
11.Amber Jane Ranallo has agreed to open hours which closely match those of the medical centre to ensure maximum convenience to patients.
12.Tandara Medical Centre is one of our busiest medical centres notwithstanding the fact that it may accommodate fewer medical practitioners than some of our other locations.
13.The centre accommodates 6 medical practitioners as well as locum and relief doctors.
14.The doctors usually working the centre are Dr B Baird, Dr M Bender, Dr B Braganza, Dr N Burkett, Dr L Stanley, and Dr F Akinyemi. These doctors are all qualified to practise medicine within Australia.
15.There has been no interruption or variation in patient flow to centre for at least the past 12 months.
16.The practice has been trading in its current location since approximately June 2004.
17.I am not authorised to release the personal hours or billing data of any individual medical practitioner.
18.We do not engage medical practitioners and they are paid based upon a percentage of the doctors billings, we do not therefore track hours. Rostered hours are not a useful substitute as doctors always start early, work through breaks including lunch and frequently finish late and the demand in the area exceeds the supply of available doctors.
19.I have supplied copy practice incentive payment statements (PIP statements) and authorised the release of data relating to the overall patient numbers and billings in the centre to support the centre on the basis that this information is to remain ‘commercial in confidence’. As this information does not identify any individuals I believe I have met my privacy and confidentiality obligations.
20.Annexures to this statement 1 & 2 bearing my initials at the bottom right hand corner are true copies of PIP statements received from Medicare Australia.
21.All medical practitioners working from the practice are:-
‘licensed/registered under the relevant State or Territory law, that is supplying general practice services to the community and is authorised to issue prescriptions for pharmaceutical benefits.’
22.In my opinion the centre is operating at the level of 9-11 Full Workload Equivalents (FWE) as defined by the Department of Health and Aging (sic).” (attachments omitted) (pt of T7)
10. Mr Mooney’s witness statement dated 15 January 2008 is as follows:
“1. I am presently a director and the Chief Executive Officer of National Medical and Imaging Group Pty Ltd and NM&IG Radiology Pty Ltd.
2. I was until 19 November 2007 a director of NM&IG Medical Pty Ltd. I am acting CEO of NM&IG Medical Pty Ltd.
3.I have been in the business of managing medical centres for 7 of the last 9 years. I have spent the last 4 years with National Medical and Imaging Group Pty Ltd, a company which I founded, and its subsidiary companies.
4. NM&IG Medical Pty Ltd manages 12 medical centres in WA, including the Tandara Medical Centre on Stalker Road in Gosnells and 12 medical centres in Victoria.
5.NM&IG Medical Pty Ltd is engaged by the medical practitioners at the various centres to provide support in the way of administration, staff, accounting and other services. NM&IG Medical Pty Ltd handles all of the accounts for patients who visit the Centre and processes those accounts on its computer systems.
6.As part of my work as CEO of NM&IG Medical Pty Ltd I am familiar with the operations of the Tandara Medical Centre.
7.I was personally involved in signing the doctors at the Tandara Medical Centre to long term contracts.
8.The Tandara Medical Centre practice manager, Hazel Murray, reports directly to me in respect of the day to day management of the Tandara Medical Centre.
9. I am based in Melbourne and visit Perth approximately 20 times a year. Each time I visit Perth I usually visit the Tandara Medical Centre.
10.The Tandara Medical Centre is open from 7:30am to 6pm Monday to Friday and from 8am to 10:30am on Saturdays.
11.The Tandara Medical Centre is not closed at lunch time and the doctors are available to see patients at all times during the day. I have visited the Centre at least a dozen times in the last 12 months at all hours of the day. I have also been there quite a few times at around 1pm and the Centre was open on all of these occasions.
12.Each week I review the billings and financial figures for each of the medical centres operated by NM&IG Medical Pty Ltd including the Tandara Medical Centre.
13.Having regard to my knowledge of medical centres managed by NM&IG Medical Pty Ltd and my knowledge [of] medical centres generally, I would characterise the Tandara Medical Centre as an extremely busy medical centre in terms of patient numbers.
14.In terms of patient numbers in any one week the Tandara Medical Centre is in the top 3 busiest medical centres within the NM&IG Medical Pty Ltd group in Western Australia. The other two busiest centres in Western Australia engage more than 8 doctors. One of these other centres, the St Andrews Medical Centre, has between 12 and 13 doctors. On many weeks, more patients visit the Tandara Medical Centre than either of the other medical centres.
15.There are presently 6 doctors working at the Tandara Medical Centre.
16.All but one of these doctors work between 40 and 55 contact hours a week. By contact hours I mean hours of actual patient time. This does not include time when the doctors [are] not seeing patients, such as time spent doing home visits, reviewing and writing reports, attending to correspondence and engaging in continuing education.
17.We do not keep a record of a doctor’s non-contact time. In my experience, from my visits to the Tandara Medical Centre, most doctors are there by 7:30am in the morning and do not leave before 6pm when the Centre closes its doors. They often stay later than 6pm, well after the last patient has left the premises.
18.Each doctor at the Tandara Medical Centre sees an average of about 5 patients an hour. There is a double booking system [which] ensures that if a doctor sees a patient for only a short time (4 minutes) he or she can get a further patient without losing contact time.
19.There are always at least 2 nurses working at the Tandara Medical Centre at any one time.
20.In my experience, increasingly doctors can use nurses to be more cost effective with their time. For instance, nurses can now do patient care plans which require taking a lot of historical information as well as provide basic immunisations and other treatment under the instructions of a doctor.
21.What is, in my experience, unusual about Tandara is that every doctor in that practice (except one) has been in the practice for a minimum of 8 years and in some cases up to 20 years.
22.In my experience it is unusual to find so many doctors at a medical centre who have been there for a long period of time.
23.To my knowledge and belief the doctors have a large established client base in the area and many regular patients. In my opinion, the experience of the doctors and their familiarity with the patients has led to a greater efficiency in terms of patient volumes.
24.In the last 3 years I have noticed an increase in the number of patients coming through the Centre every week from about 1,000 to the situation now where there is between 1,400 and 1,500 a week. During this time we have added only one more doctor but the existing doctors are working harder and we have increased the nursing staff.
25.Another factor which I believe contributes to the high patient volumes at the Centre is the large number of elderly persons and Indigenous people in the area.
26.The computer software used by NM&IG Medical Pty Ltd is called ‘Medical Spectrum’. We input into the data base all patient details including their Medicare card and the charges made against that card in respect of each consultation. The system then produces a summary including the billing codes which summary is sent to HIC for payment.
27.Attached to this statement and marked JM1 is a printout report from the Medical Spectrum system in respect of the Tandara Medical Centre for the last 6 months. We provided a similar printout for the previous financial year to the ACPA.
28.The printout shows the number of patients who have been seen at the Tandara Medical Centre by doctors in the last 6 months of 2007.
29.A ‘non-referred attendance’ means an attendance on a GP that is not by way of referral from another GP. Typically attendances at a general practice and the Centre are non-referred attendances. Patients are usually only referred to specialists. All of the attendances at the Tandara Medical Centre recorded in the printout attached as JM1 are non-referred attendances.
30.Practice Incentive Payments (‘PIP’) are a mechanism used by governed to influence GP behaviours. The government has produced a range of incentives for doctors to provide increased payments to medical centres while keeping the schedule fee flat. The payments or incentives are offered to encourage doctors to use computers and to send computerised information to the government, amongst other things.
31.I refer to paragraph 34 of the ACPA’s reasons for decision. On some occasions a PIP statement can be issued for more than 1 medical centre where those centres are linked on the government payment system however this is not the case with the Tandara Medical Centre which is not linked to any other medical centre.
32.Attached to this statement and marked JM2 are true copies of the PIP statements for the Tandara Medical Centre.
33.Attached to this statement and marked JM3 is an example of a PIP statement from the St Andrews Medical Centre which is linked to another Centre.
34.Attached to this statement and marked JM4 are examples of PIP statements from other medical centres.” (attachments omitted) (pt of Exhibit A1)
11. Mr Mooney’s supplementary witness statement dated 4 April 2008 is as follows:
“…
3. I refer to paragraphs 10 and 11 of my witness statement.
4.In those paragraphs I have detailed the official opening hours however the actual practice at the Centre is as follows:
4.1The Centre opens its doors at 7.15am Monday to Friday and the first appointments are made for 7.20am.
4.2The Centre is open all day and the last patients usually leave the Centre between 6.15 and 6.30pm from Monday to Friday.
4.3The Centre is open from 8am to 11am on Saturdays.” (Exhibit A3)
12. Mr Mooney confirmed that the contents of his witness statements are true and correct.
13. In cross-examination Mr Mooney said that, under the contracts between NM&IG Medical Pty Ltd and the 6 doctors who work at Tandara Medical Centre, each doctor is required to work a minimum number of hours per week – 36 hours per week in the case of the 5 “full-time doctors”, and 24 hours per week in the case of the other doctor. He added that the doctors organise their rosters with the practice manager and in conjunction with each other. He acknowledged, however, that he did not know how many hours each of the doctors worked at the Centre on any particular day or during any particular week.
14. In re-examination Mr Mooney said that each of the doctors at the Centre is presently working under a 5-year contract which he negotiated with each doctor in July 2005.
15. Mr Mooney said that the total number of hours presently worked by the doctors at the Centre is “between 240 and 250 hours a week on average” (transcript, p25).
Statistical analysis of Anna Munday
16. A report of Anna Munday, Senior Consultant Statistician, Data Analysis Australia Pty Ltd, dated 7 January 2008, addressed to the applicant’s solicitors, was tendered in evidence by the applicant (pt of Exhibit A1). The contents of that report are as follows:
“I refer to your letter of instruction dated and emailed to me on 12th December 2007. In this request I was asked to provide an opinion on three matters, each of which are addressed below.
1.Calculation of the average annual, monthly and weekly non-referred attendances for a full-time work equivalent general practitioner (FWE) in Australia and in Western Australia.
My calculations were based on the data included in the ‘Divisions of General Practice Workforce Statistics’ comma separated variable (csv) file that I downloaded from the Department of Health and Ageing’s website on 14/12/2007 … This data was assumed to be correct.
The total number of non-referred attendances and GP FWE counts for Western Australia and Australia were obtained by summing the ‘Non-referred Attendances – BTOS A B & M (All Providers)’ and the ‘GP FWE’ columns in the data.
The average non-referred attendances per FWE were then calculated by dividing the total non-referred attendances by the GP FWE totals. The corresponding averages per month were calculated by dividing the annual averages by 12, and the averages per week were calculated by dividing the annual averages by 52. The results for the 2005/2006 financial year are given in the table below:
Non-referred attendances per FWE per year
Non-referred attendances per FWE per month
Non-referred attendances per FWE per week
WA Average
Australian Average
5,838.59
5,728.08
486.55
477.34
112.28
110.16
2.Opinion as to whether the 2007/2008 results and averages for an FWE are likely to be materially different from the previous averages.
To provide this opinion, I calculated the annual averages separately for each of the financial years from 1995/1996 to 2005/2006. A graph showing the averages over time visually suggested that the averages were decreasing until around the 2002/03 or 2003/04 financial year and since then have remained more constant or perhaps even begun increasing.
To ascertain whether there is statistically any significant variation in the averages by year, a linear regression model was fitted to the yearly averages of non-referred attendances per FWE with ‘year’ being an explanatory variable. Essentially what this approach does is determine whether there is a statistically significant trend to the averages (ie whether the averages are consistently increasing or decreasing over time). Due to the clear visual change, this analysis was restricted to the financial years from 2002/03 to 2005/06.
The results of the linear regression were that there has been no statistically significant trend in the number of non-referred attendances per FWE over this time period. This result was consistent for both Western Australia and Australia. Therefore, I am of the opinion that it is unlikely that the averages for the 2007/2008 financial year are unlikely (sic) to be materially different from the averages of the previous few financial years assuming that there are no exogenous factors (such as policy or legal changes) that will impact GP workloads.
3.Estimated number of FWEs for a medical centre in Gosnells, Western Australia, that is assumed to have a total of 60,000 or more non-referred attendances in 2007.
To estimate the number of FWEs for a medical centre in Gosnells that is assumed to have a total of 60,000 or more non-referred attendances in 2007, I divided 60,000 by the average annual number of non-referred attendances per FWE. This calculation is based on my aforementioned opinion that the averages for an FWE are unlikely to be materially different from the previous averages. This calculation also assumes that this medical centre will have a similar number of non-referred attendances per FWE per year as the average.
I performed this calculation based on the averages for each of the three past financial years and each of Australia, Western Australia and the Canning District, of which Gosnells forms a part. The results of these calculations are provided in the following table:
Australian
WA
Canning
2003/04
2004/05
2005/06
10.51
10.56
10.47
10.44
10.44
10.28
10.11
10.05
9.94
Based on these calculations, my estimate of the number of FWEs at the centre is between 10 and 11.
…”
17. The Tribunal notes that Ms Munday was not required for cross-examination by the respondent and did not give oral evidence.
The affidavit of Angela Mikalauskas
18. An affidavit of Angela Mikalauskas, dated 3 April 2008, was tendered in evidence by the respondent (Exhibit R5). That affidavit states as follows:
“1. This affidavit is based on my knowledge and experience and documents and computer data to which I have access in the course of my employment. My means of knowledge and experience appear on the face of this my affidavit.
2.I am currently employed by the Department of Health and Ageing (the Department) as Director of the Information and Analysis Section (the Section) in the Primary and Ambulatory Care Division. I have been in this Section since 2000.
3.The Section provides analysis, information and technical expertise to policy and program areas within the Division and the Department, and to external stakeholders.
4.The Section is responsible for a range of statistical and technical activities, including the calculation of general practice statistics based on Medicare claims data for the Department of Health and Ageing. Aggregate general practice statistics are published on the Departments’ website, … Annexed hereto and marked AMM-1 is the General Practice Statistics Explanatory Notes, which includes explanations of the expressions ‘GP headcount’, ‘FTE (Full-Time Equivalent)’ and ‘FWE (Full-Time Workload Equivalent)’ used in the general practice statistics tables.
5.Ms Anna Munday, Senior Consultant Statistician for the applicant used publicly available full-time workload equivalent (FWE) data by Division of General Practice to estimate the number of FWE medical practitioners working at the medical centre located at 122 Stalker Road, Gosnells, Western Australia, 6110.
6.A simple headcount of GPs based upon as little as one Medicare service processed during the year does not provide the most accurate indication of GP workforce activity or supply. A simple headcount on this basis treats all GPs equally, though there is significant variation in the hours worked and the number and type of services provided by GPs.
7.Measures used in other industries to calculate workforce activity or supply are usually based on the number of hours worked. The Medicare system does not record the actual hours worked by general practitioners. However, a wealth of information about the services provided to patients by GPs is captured. The vast majority of work undertaken by most GPs involves consultations. More than 85% of GP activity is represented by standard and long consultations, being Medicare Items 23 and 36 respectively.
8.The main difference between the standard and long consultations relates mostly to the time taken to perform the service rather than any other factors. A standard consultation is one that lasts less than 20 minutes, and a long consultation is one that lasts between 20 and less than 40 minutes.
9.The Department of Health and Ageing calculates standardised GP workforce measures from each doctor’s Medicare billing. Medical practitioners may also receive income from outside Medicare ‘fee-for-service’, from the provision of services to public patients in hospital, to Veterans’ Affairs patients and through other arrangements, which is not included in the calculation of standardised workforce measures.
10.The methodology for calculating standardised workforce measures from Medicare claims data is based on the analysis undertaken by Professor John Deeble for the first interdepartmental committee meeting (IDC) on Medicare in 1987.
11.These measures have been used for the past 20 years by the Department of Health and Ageing for trend analysis, as well as comparing workforce activity between providers, practices and geographical areas. It provides a basis for consistent comparison over time and at a point in time.
12.FWE is a measure of medical workforce activity or supply that takes into account the differing working patterns of doctors. FWE is calculated by dividing each doctor’s Medicare billing for the previous 12 months by the average billing of full-time doctors for the year. Medicare billing is defined as the total schedule fee value of all Medicare items claimed by the general practitioner (GP), excluding Bulk Billing Incentive items 10990-10992.
13.The threshold income which defines full-time doctors is indexed on an annual basis in accordance with CPI figures published by the Australian Bureau of Statistics. When a GP provides services in more than one practice location, their FWE is calculated based on the share of the total schedule fee billing provided at each location.
…”
19. The contents of the annexure referred to in para 4 of Ms Mikalauskas’ affidavit are as follows:
“ General Practice Statistics
General Practice Statistics Explanatory Notes
This page contains information, including explanations of headcount, full-time equivalent (FTE), full-time workload equivalent (FWE) and RRMA categories, to assist in interpreting the general practice statistics tables.
GP headcount
The GP headcount is the number of general practitioners for whom at least one Medicare service was processed during the year. Headcount figures should be used with caution as they overstate the number of active general practitioners. They include doctors who worked for only part of the year, and many doctors who provide only a small number of services.
FTE (Full-Time Equivalent)
FTE is a modified count of doctors that takes into account the partial contribution of doctors who work less than full-time. FTE is calculated by dividing each doctor’s Medicare billing by the average billing of full-time doctors for the year, with the FTE figure for each doctor capped at one. That is, a doctor with 50% of the average billing for full-time doctors is counted as 0.5, while doctors billing at or above the average are counted as one.
FWE (Full-Time Workload Equivalent)
FWE is a measure of medical workforce supply that takes into account the differing working patterns of doctors. FWE is calculated by dividing each doctor’s Medicare billing by the average billing of full-time doctors for the year. There is no cap on a doctor’s FWE. That is, a doctor with 50% of the average billing for full-time doctors is counted as 0.5, a doctor billing at the average is counted as one, and a doctor billing at 150% of the average is counted as 1.5.
…”
20. The Tribunal notes that Ms Mikalauskas was not required for cross-examination by the applicant and did not give oral evidence.
The evidence of Karen Prstec
21. A signed witness statement of Karen Prstec, dated 1 April 2008, was tendered in evidence by the respondent (Exhibit R4). That statement is as follows:
“1. … I am an Assistant Director in the Pharmacy Access Section, Community Pharmacy Branch in the Department of Health and Ageing.
2.I usually attend the meetings of the Australian Community Pharmacy Authority (the Authority) and take notes at those meetings.
3.I recall attending a meeting of the Authority that was conducted approximately 12 to 18 months ago.
4.I recall at that meeting the Authority had cause to consider how many hours constituted ‘full-time’ for the purposes of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (the Rules).
5.I recall at this meeting that one of the members of the Authority referred to the Australian Medical Association’s ‘Definition of Part-Time Work within the Medical Work Force – 1997’ document which was released by the Australian Medical Association on 16 October 2002. This document is annexed hereto and marked KP-1.
6.I recall that the Authority considered the definition of ‘full-time’ contained in that document, ie that ‘the 38-hour week is currently accepted as the “full-time” norm’. I recall that the Authority determined at that meeting that it would use 38 hours as a guide in determining the number of full-time prescribing medical practitioners under Schedule 1, Part 1, Items 107 and 112 of the Rules.
7.To my knowledge, the Authority has consistently used 38 hours as a guide to determining the number of full-time prescribing medical practitioners under Schedule 1, Part 1, Items 107 and 112 of the Rules. (annexure omitted)
22. Ms Prstec confirmed that the contents of her witness statement are true and correct to the best of her knowledge and belief.
23. In cross-examination Ms Prstec was referred to the annexure to her witness statement and, in particular, para 1.5 of that annexure in which it is stated:
“…Available data show that female clinicians work an average of 39 hours per week, compared with 51.4 hours for male clinicians …”
She acknowledged that she did not know whether the work hours referred to in para 1.5 included work that the doctors took home after hours, writing reports and the like.
The evidence of Timothy Price
24. Timothy Price said that he has worked as a town planner since 1991 and has been employed by the City of Gosnells in that capacity for the last 4 years.
25. Mr Price confirmed that he had written a letter dated 19 October 2006 (in his then capacity as Coordinator Planning Implementation, City of Gosnells) to the applicant’s agent regarding the proposal to operate a pharmacy at the relevant medical centre premises. That letter stated (inter alia):
“…
· The City of Gosnells Town Planning Scheme No. 6 (TPS6) is the prime statutory document which specifies the permissibilities of various land uses on zoned land;
· The subject land … is zoned under TPS6 as Local Centre;
· A pharmacy is classified as a shop under TPS6. The zoning table contained in TPS6 (see attached) details the permissiblities of various land uses within the zones. The land use of shop is a ‘P’ or a permitted use within the Local Centre zone. …
· Schedule 3 of TPS6 relates to restricted uses and provides further statutory framework for controlling specific aspects of land use within the City. In relation to the subject land the City’s records show that since 1997, when the medical centre was initially proposed, that the future development of a pharmacy within the medical centre was recognised. I attach a copy of Schedule 3 for your information. It can be seen at item No 6 of Schedule 3 that retail development in the form of a pharmacy is permissible on the subject land however the point of Schedule 3 is to restrict retail uses on the subject site to a pharmacy only. …
· Whilst a pharmacy is indeed a permitted use on the subject site the City still requires the actual development of a pharmacy to be subject to lodgement of a development application. This is purely so that any necessary development controls can be imposed by the Council, for instance, imposition of conditions relating to signage, the need for a fit out of the tenancy to be subject to the submission of a building licence and the requirement for the applicant to acquire all relevant approvals from other agencies.
Conclusion
The City of Gosnells has no objection to the development of a pharmacy within the existing medical centre on the subject land. Indeed the operation of a pharmacy is seen as desirable community infrastructure. The City’s TPS6 specifies that a shop on land zoned Local Centre is a permitted use and Schedule 3 of TPS6 specifies any shop developed on the subject land may only be utilised as a pharmacy. Submission of a development application is required in order that standard and appropriate development conditions can be imposed on the development of a pharmacy.
…” (attachments omitted) (pt of T7)
26. Mr Price also confirmed that he had sent a facsimile, dated 25 January 2008, regarding this matter to the respondent’s solicitors as follows:
“I refer to our phone discussion of 24 January and your fax dated 14 January 2008 regarding the abovementioned matter. I also refer to the City’s correspondence of 19 October 2006 to Fordham Management Pty Ltd which, amongst other matters, stated that a development application and issue of planning approval was required prior to the commencement of operation of a pharmacy.
I provide the following response in relation to the queries raised at point 4 of the fax of 14 January 2008 and the further query you raised regarding the operation of subclause 9.2(a) of the City’s Town Planning Scheme No 6 (TPS6):
1.Operation of a pharmacy on the subject site requires lodgement of a development application.
2.No development application has been lodged in respect of a pharmacy.
3.Any development application lodged must be approved by the City prior to operation of a pharmacy on the site.
4.The subject site is zoned ‘Local Centre’ under TPS6. A ‘Shop’ is a permissible land use in this zone. Schedule 3 of TPS6 however restricts any shop use on the subject site to a pharmacy only. A pharmacy does not and never has existed on the subject site. The building on the subject site received planning approval as a ‘Medical Centre’. This is a specific land use in Table 1: Zoning Table of TPS6 which is defined in Schedule 1 of the scheme. A ‘Shop’ is also a specific and defined land use in TPS6. A ‘Shop’ is a different land use to that of ‘Medical Centre’. The introduction of a ‘Shop’ onto the subject site represents a change of land use. (The use of land falls within the definition of Development as contained in the WA Planning and Development Act 2005). Subclause 9.2(2) of TPS6 exempts certain types of ‘… building or work …’ from the need for a planning approval. It does not exempt a change in land use.
On a less legalistic note there may well be external changes involved in the establishment of a pharmacy – signage/security bollards for instance. Also a shop has different carparking requirements than a medical centre and, depending on the scale of any pharmacy, additional parking provision could potentially be required. Also there are requirements for each individual tenancy/business to provide disabled persons’ parking bays in accordance with Australian Standards.
As previously advised though, in the City’s letter of 19 October 2006, there is no in-principle objection to the operation of a pharmacy and issue of planning approval is not anticipated to be problematic.
…” (original emphasis) (Exhibit R3)
27. Mr Price confirmed the advice and opinions expressed by him in the abovementioned letter and facsimile
28. Mr Price also confirmed that an application for planning approval in respect of the proposed pharmacy at the relevant medical centre premises, lodged with the City of Gosnells by the applicant on 5 February 2008, was approved on 8 February 2008. A letter dated 8 February 2008 from Mr Price to the applicant informing her of the approval and enclosing a copy of the relevant “Notice of Determination on Application for Planning Approval” was tendered in evidence (Exhibit R2).
The Issues
29. There are 3 issues about which the parties are in dispute and which must be determined by the Tribunal, namely:
· whether Tandara Medical Centre is a “large medical centre”, within the meaning of requirement 1 in item 112 in Part 1 of Schedule 1 to the Determination;
· whether the Tribunal is satisfied that, on 20 August 2007 (being the date of the applicant’s application for approval under s 90 of the Act) and for the 6 months before that date, “the equivalent of at least 8 full-time prescribing medical practitioners” were practising at Tandara Medical Centre, as required by para 3(a) of item 112;
· whether the Tribunal is satisfied that the relevant proposed premises “could”, on the abovementioned application date (namely, 20 August 2007), “… be used for the purpose of operating a pharmacy under the applicable local government and State … laws relating to land development”, as required by para (b) of item 201 in Schedule 2 to the Determination.
The Submissions
The applicant
30. The applicant’s submissions, in respect of the abovementioned issues, may be summarised as follows:
· Tandara Medical Centre is a “large medical centre”, as defined in s 6(1) of the Determination;
· although only 6 “prescribing medical practitioners” were practising at Tandara Medical Centre at all material times, the Tribunal should be satisfied, having regard to the evidence before it regarding the number of patient attendances at the Centre and the number of services provided by the 6 medical practitioners practising at the Centre during the relevant period, and the statistical analysis of Anna Munday which produced an estimate of between 10 and 11 “full-time work equivalent general practitioners” (FWEs) at the Centre for the relevant period, that “the equivalent of at least 8 full-time prescribing medical practitioners”, within the meaning of para 3(a) of item 112, were practising at the Centre at all material times;
· the use of the relevant proposed premises as a pharmacy was at all material times, a “permitted use” under the relevant Town Planning Scheme and, accordingly, the Tribunal should be satisfied that those premises “could … be used for the purpose of operating a pharmacy” under that Scheme, within the meaning of para (b) of item 201, at all material times notwithstanding that a development application for the use of those premises as a pharmacy had not yet been approved by the relevant local government, namely, the City of Gosnells.
The respondent
31. The respondent, while not formally conceding the 1st abovementioned issue, made no submissions in respect of that issue. As regards the 2nd and 3rd of the abovementioned issues, the respondent’s submissions may be summarised as follows:
· the phrase “full-time prescribing medical practitioners” in para 3(a) of item 112 should be interpreted, by reference to the working hours of the relevant medical practitioners, as meaning “prescribing medical practitioners” working full-time hours, namely, at least 38 hours per week typically spread over 5 days per week;
· para (b) of item 201 will be met only if the proposed premises were, on each of the dates referred to therein, in fact able lawfully to be used for the purpose of operating a pharmacy under the relevant local government legislation, and that condition will be fulfilled only if a development application relating to the use of the premises as a pharmacy has been approved by the relevant local government and that approval is in force on each of the relevant dates.
Analysis
Is Tandara Medical Centre a “large medical centre” within the meaning of item 112?
32. It is common ground that Tandara Medical Centre is “under single management”, and the Tribunal is satisfied, on the basis of the evidence of Mr Mooney, that Tandara Medical Centre “operates for at least 55 hours each week”. The Tribunal is satisfied, therefore, that Tandara Medical Centre is a “large medical centre”, as defined in s 6(1) of the Determination.
33. Accordingly, the Tribunal finds that Tandara Medical Centre is a “large medical centre” within the meaning of item 112 in Part 1 of Schedule 1 to the Determination.
Is the Tribunal satisfied that, on 20 August 2007 and for the 6 months before that date, “the equivalent of at least 8 full-time prescribing medical practitioners were practising at” Tandara Medical Centre?
34. It is common ground that, for the whole of the relevant period:
· 6 medical practitioners were practising at Tandara Medical Centre;
· each of those 6 medical practitioners was a “prescribing medical practitioner’, as defined in s 6(1) of the Determination.
35. As regards the proper interpretation of the phrase “the equivalent of at least 8 full-time … medical practitioners … practising at the centre” in para 3(a) of item 112, the Tribunal accepts the respondent’s submission and does not accept the applicant’s submission.
36. In the Tribunal’s opinion, para 3(a) of item 112 – in particular, the adjective “full-time” – is addressed to the working, or practising, hours of the relevant medical practitioners, and not to the volume of work, as reflected in (inter alia) the number of patient attendances and medical services, performed by those practitioners. In the Tribunal’s opinion, the adjective full-time” in para 3(a) is used in the context of employment and refers to a medical practitioner who is working on a full-time (as opposed to a part-time) basis – that is, a medical practitioner who is working at least the number of hours comprising a normal working week. The Tribunal accepts the respondent’s submission that a “full-time” medical practitioners, for the purposes of para 3(a) of item 112, is one who works for at least 38 hours per week spread over a normal working week of at least 5 days.
37. The Tribunal notes that para 3(a) of item 112 in terms refers to “the equivalent of at least 8 full-time … practitioners … practising at the centre”. The noun “equivalent” in para 3(a) bears its normal meaning, namely, that which is “equal in value, measure, force, effect, significance, etc” (Macquarie Dictionary). In the Tribunal’s opinion, however, the phrase “the equivalent of” in para 3(a) relates to full-time working hours, and does not relate to, or include consideration of, work output, including the number of patient attendances and medical services.
38. The Tribunal notes a submission by the applicant to the effect that the phrase “the equivalent of” in para 3(a) of item 112 allows the exercise of some discretion and flexibility in the application of item 112 and that it is appropriate to interpret and apply item 112 in such a way as to promote the purpose of the 2005 amendments to the “pharmacy location rules” (including item 112), namely, “to provide greater flexibility to respond to community need for pharmacy services and to improve access to pharmacy services”: Fourth Community Pharmacy Agreement between The Commonwealth of Australia and The Pharmacy Guild of Australia, cl 24.1 (part of Exhibit A1). Accordingly, it was submitted, the phrase “the equivalent of at least 8 full-time prescribing medical practitioners” in item 112 should be applied, having regard to “industry practice for measuring medical workforce supply”, on the basis of the volume of work performed by the medical practitioners working at the relevant medical centre, including patient attendances, prescriptions issued and medical services provided, as indicated in Practice Incentives Program (PIP) Payment Statements issued by Medicare Australia and Full-time Workload Equivalent (FWE) statistics compiled by the Department of Health and Ageing. In the Tribunal’s opinion, however, the abovementioned submission provides no basis or warrant for departing from the literal wording of para 3(a) of item 112 – in particular, the adjective “full-time” – which, as previously mentioned, is clearly and unequivocally addressed to the working hours of the medical practitioners, not to their work output. As was submitted by the respondent, had the Minister intended that an application for approval of the relocation of a pharmacy to a large medical centre be determined on the basis of the work output (including the number of patient attendances, prescriptions and medical services) of the medical practitioners practising at the relevant medical centre, rather than on the number of hours worked by the medical practitioners practising at the centre, it would have been a simple matter to draft para 3(a) of item 112 in those terms.
39. It follows from the Tribunal’s acceptance of the respondent’s submission that a “full-time” medical practitioner, for the purposes of para 3(a) of item 112, is one who works for at least 38 hours per week spread over a normal working week of at least 5 days, that para 3(a) will be met in the present case only if the total number of hours worked by the 6 medical practitioners practising at Tandara Medical Centre throughout the relevant period was at least 304 (38 x 8) hours per week. The applicant has conceded, however, that the total number of hours worked by the 6 medical practitioners practising at Tandara Medical Centre throughout the relevant period was substantially less than 304 hours per week. On the basis of the evidence before it – including, in particular, the evidence of Mr Mooney – the Tribunal regards that concession as rightly made.
40. Accordingly, the Tribunal is not satisfied that, on 20 August 2007 (being the date of the applicant’s application for approval under s 90 of the Act) and for the 6 months before that date, “the equivalent of at least 8 full-time prescribing medical practitioners”, within the meaning of para 3(a) of item 112 in Part 1 of Schedule 1 to the Determination, were practising at Tandara Medical Centre.
Is the Tribunal satisfied that the relevant proposed premises “could”, on 20 August 2007, be used for the purpose of operating a pharmacy under the applicable local government and State laws relating to land development?
41. In the light of the Tribunal’s conclusion (in paragraph 40 above) that para 3(a) of item 112 in Part 1 of Schedule 1 to the Determination is not met in the applicant’s case, it is unnecessary for the Tribunal to answer this question in order to determine the present application for review. The Tribunal will, however, in deference to the parties’ submissions in relation to this issue, briefly state its view and the reasons therefor.
42. The Tribunal accepts the respondent’s submission. In the Tribunal’s opinion para (b) of item 201 in Schedule 2 to the Determination will be met only if the respondent (or, on review, the Tribunal) is satisfied that the proposed premises were able lawfully to be used for the purpose of operating a pharmacy on each of the dates referred to in that paragraph. In the present case the Tribunal is satisfied, on the basis of the evidence of Timothy Price, that approval of a development application (or planning approval) by the City of Gosnells for the use of the relevant premises for the purpose of operating a pharmacy was required before those premises were able lawfully to be used for that purpose. It is common ground that no relevant development application (or application for planning approval) had been made to the City of Gosnells by, or on behalf of, the applicant before either of the dates referred to in para (b) of item 201.
43. The Tribunal notes that, in December 1997, an “Application for Approval to Commence Development” in respect of the land on which Tandara Medical Centre is presently situated, in which the proposed development was described as “medical centre comprising tenancies for general practitioners, radiology, pathology, dentist, physiotherapy and pharmacy”, was lodged with the City of Gosnells (Exhibit R6). It is common ground that that application was approved by the City of Gosnells in 1998 and that a building was subsequently constructed on that land and used for the operation of a medical centre, but that no part of that building has ever been used for the operation of a pharmacy. Having regard to that document and to related documents that were also tendered in evidence (Exhibit R7), and to the evidence of Mr Price, the Tribunal is not satisfied that the abovementioned approval granted by the City of Gosnells in 1998 obviated the requirement for the applicant to obtain planning approval from the City of Gosnells, in accordance with Town Planning Scheme No 6, for the use of the particular proposed premises as a pharmacy before she could lawfully use those premises for the operation of a pharmacy from 2007.
44. Accordingly, the Tribunal is not satisfied that the relevant proposed premises “could, on the date of the application”, namely, 20 August 2007, “… be used for the purpose of operating a pharmacy under the applicable local government and State … laws relating to land development”, within the meaning of para (b) of item 201 in Schedule 2 to the Determination.
Conclusion
45. It follows from the Tribunal’s findings that:
· the requirement set out in para 3(a) of item 112 in Part 1 of Schedule 1 to the Determination, and
· the requirement set out in para (b) of item 201 in Schedule 2 to the Determination,
are not met in this case that, pursuant to s 99K(2) of the Act and s 10 of the Determination, a recommendation must be made that the applicant not be approved under s 90 of the Act in respect of the relevant proposed premises described as “Tandara Pharmacy, Shop 1, 122-126 Stalker Road, Gosnells WA”.
Decision
46. For the above reasons the Tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ................[sgd E Jordan]........................
AssociateDate of Hearing 4 April 2008
Date of Decision 25 June 2008
Counsel for the Applicant Mr P Sheiner
Solicitor for the Applicant Christensen Vaughan
Counsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
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